Murphy and Australian Postal Corporation
[2004] AATA 656
•24 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 656
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1367
GENERAL ADMINISTRATIVE DIVISION
Re: VIRGINIA MARY MURPHY
Applicant
And: AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal: Mr B.H. Pascoe, Senior Member
Date: 24 June 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review and it instead finds that the applicant had a reasonable excuse for failing to undergo an examination pursuant to s 36 of the Safety, Rehabilitation and Compensation Act 1988.
The respondent shall pay the applicant’s reasonable costs and disbursements incurred in respect of the day of the hearing of the application on 31 May 2004 only.
(sgd) B. H. Pascoe
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1367
GENERAL ADMINISTRATIVE DIVISION
Re: VIRGINIA MARY MURPHY
Applicant
And: AUSTRALIAN POSTAL CORPORATION
Respondent
DIRECTION [2004] AATA 656
Tribunal: Mr B.H. Pascoe, Senior Member
Date: 6 July 2004
Place: Melbourne
The Tribunal being satisfied that there is an obvious error in the text of the decision in this matter dated 24 June 2004, directs, the Registrar pursuant to s43AA of the Administrative Appeals Tribunal Act 1975 to alter the decision by deleting the word “affirms” in the first line of the decision and replacing it with the words “sets aside.”
(sgd) B.H. Pascoe
Senior Member
CATCHWORDS – compensation – rehabilitation assessment – failure to attend examination – whether reasonable excuse – initial excuse given not reasonable – further and reasonable excuse provided by general practitioner in week prior to hearing – whether excuse reasonable – whether order as to costs
Safety, Rehabilitation and Compensation Act 1988 – ss 36(4), 67(4)
REASONS FOR DECISION
24 June 2004 Mr B.H. Pascoe, Senior Member
This is an application to review a decision of the respondent dated 11 December 2003 which affirmed a determination of 18 November 2003 to suspend the applicant’s rights to compensation on and from 24 October 2003 pursuant to ss 36(4) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). The suspension was on the grounds that the applicant had failed to attend an appointment on 7 November 2003 for a rehabilitation assessment, without reasonable excuse.
At the hearing, the applicant was represented by Mr M. Nightingale of counsel and the respondent by Mr A. Moulds of counsel. Evidence was given by the applicant, Ms V. Murphy, her general practitioner, Dr C. O’Toole, and by a rehabilitation delegate of the respondent, Mr M. Vella. In addition to the documents provided by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T92), the following documents were tendered at the hearing:
Report of Dr O’Toole dated 20 May 2004 Exhibit A1
Letter from Opie & Co to Dr O’Toole, dated 4 May 2004 Exhibit R1
Clinical notes of Dr O’Toole Exhibit R2
Ms Murphy was born on 20 January 1962 and commenced employment with Australia Post in October 1997 as a mail officer. On 24 April 1998, she injured her left knee, left wrist and right hip in a fall from her motor bike while at work. Liability was accepted for “soft tissue injury to left knee, left wrist” on 11 May 1998. She underwent a knee reconstruction in 1999. On 16 October 2003, Ms Murphy completed an incident report that she had suffered an injury to her left and right wrists, elbows and right shoulder on 8 October 2003. She attended Dr M. Snider, a doctor nominated by Australia Post, on 20 October 2003 and 28 October 2003. Dr Snider certified her fit for full hours on restricted duties on the first occasion. On the second occasion he certified her unfit on that day and fit for hour hours per day on restricted duties from 29 October 2003 to 11 November 2003. On 27 October 2003, Ms Murphy provided a certificate from her own general practitioner, Dr O’Toole, stating that she was unfit for any work duties from 27 October 2003 until 10 November 2003 in relation to left knee chondromalacia, patella tendonitis exacerbation.
On 31 October 2003 Australia Post, through Mr Valla, made an appointment for a rehabilitation assessment by Dr A. McDonald on 6 November 2003 at 12.30 pm and advised Ms Murphy. On 5 November 2003, Ms Murphy telephoned Mr Valla to advise that 6 November 2003 was not suitable to her owing to a prior appointment. Mr Valla made a further appointment for the assessment by Dr McDonald on Friday, 7 November 2003, at 5.00 pm. At 4.30 pm on that day, Ms Murphy’s partner rang Mr Valla to advise that she would not be attending the appointment. By letter of 10 November 2003, Ms Murphy was requested to advise in writing of her reasons for not attending the appointment. Her response by letter of 13 November 2003 (T-69) stated:
You were advised of my intention not to attend on late Friday afternoon and the reasons why, by my fiancé, at approximately 2.30p on Friday 7 November 2003. The reason that he contacted you, on my behalf, was on the advice of my doctor.
As you are aware, I am currently on a gradual return to work program, due to the fact that the state manager, Mr Peter Bass, has directed me back to postal delivery officer duties at Deepdene.
This has caused me a great deal of stress and physical pain. I do not understand the reasoning behind attending various doctors to discuss this approved compensation claim but am aware that I have to comply with the Act.
This has caused me a great deal of stress and physical pain. I do not understand the reasoning behind attending various doctors to dicuss this approved compensation claim but am aware that I have to comply with the Act.
I did not attend the Friday appointment on the advice of my doctor. I was too distressed and ill to be expected to sit in a cab for one or two hours, in peak hour traffic, to go to an FND in Mitcham. My doctor, Dr Carmel O’Toole, advised me not to put myself through this unnecessary stress and see if another FND appointment could be made at a more realistic hour and at a venue closer to home.
I recently visited an FND (Dr Snider), at the direction of my manager, Mr John Baker, at Riversdale Medical Clinic in Camberwell and request that the next appointment is made at this venue within my rostered hours.
I am obviously at a disadvantage understanding my rights, as far as this approved claim goes and your threat to cease the claim based on your acceptance of my reason to not attend the 5p FND appointment at Mitcham on a Friday evening.
I will therefore seek assistance from Ms Gail Cholosznecki, president of the CWU, and have attached a copy of this response for her reference.
As previously advised, on the advise of Dr O’Toole, all contact with Australia Post will be by correspondence only, so please advise all relevant parties to refrain from contacting me by phone, from this date forward.
I would like an acknowledgement to this request and also an explanation of why I can’t go to an FND closer to home/work and at a reasonable hour.
Ms Murphy, in her oral evidence, could not recall saying to Mr Valla on 31 October 2003 when he advised her of the appointment on 6 November 2003 that it might be difficult to get from her home in Balwyn to the doctor in North Mitcham. She acknowledged that cab vouchers were provided so that she was not required to drive. She said that, on 5 November 2003 when she rang Mr Valla to cancel the 6 November 2003 appointment, she indicated that she was unhappy with the need to go to North Mitcham and would prefer a doctor closer to work or home. Ms Murphy said that she cancelled the 6 November 2003 appointment because her partner had told her that friends from Sydney, whom they had met during a holiday in the West Indies, were visiting Melbourne on that day and he had arranged to meet them in the city for lunch. She could not recall the lunch venue in Melbourne. She said that she enjoyed meeting the friends and, although she was not eating well at the time, had no difficulty in having a pleasant discussion.
Ms Murphy said that, in July 2003, she developed abdominal pain and was referred by Dr O’Toole to a gastroenterologist, Dr Breen. It was suggested that stress may have been causing the physical symptoms and Dr Breen prescribed Deptran. On 29 October 2003, Dr O’Toole advised her to cease taking Deptran and commenced her on Cipramil. Ms Murphy said that she felt very ill, anxious and light headed on the morning of 7 November 2003 and drove to Dr O’Toole’s surgery. She said that Dr O’Toole told her to go home, not to go anywhere else and to stay off work for the next week. She said that she had told Dr O’Toole of the appointment for 5.00 pm that day. Ms Murphy said that she rang her partner after returning from the doctor’s surgery and understood that he had called Mr Valla on arriving home from work. She maintained that she could have travelled to North Mitcham if she had not been so unwell.
Mr Vella said that the decision to have Mr Murphy attend a rehabilitation assessment arose from the certificate of Dr O’Toole certifying her unfit from 29 October 2003 to 11 November 2003 and issued the day before Dr Snider certified her as fit for hour hours per day on restricted duties. He had noted that the certificate from Dr Snider of 20 October 2003 implied that he had also treated Ms Murphy. The policy was to refer an employee to an independent assessment by a provider who had not treated the employee. At a consequence, Mr Vella said that he was instructed to arrange an assessment by Dr McDonald. He said that in advising Ms Murphy of the appointment on 6 November 2003, her only concern was difficulty driving that distance because of her knee problem. He said that he did not enquire from Ms Murphy the nature of the prior appointment when she rang on 5 November 2003. He said that he advised Ms Murphy of the new appointment at 4.00 pm on 5 November 2003. He noted that she was not happy with the location of the chosen doctor and claimed that it was too far and that she would prefer to go to a more conveniently located doctor. Mr Vella said that he received a call from Mr Terry Walters, the partner of Ms Murphy, on the afternoon of 7 November 2003 advising that Ms Murphy would not be attending the appointment. Mr Walters had stated that she was not well enough to sit in peak hour traffic as the selected doctor’s surgery was too far away. Mr Vella said that Mr Walters told him that, while he was aware that an employee could be sent to any facilty, if arrangements were made for a simular appointment they would not be attended. Mr Walters further indicated that a further appointment would not be appropriate as Ms Murphy would be on sick leave from 10 November 2003. Mr Vella said that Mr Walters was employed by Australia Post as a manager.
Dr O’Toole had provided a report dated 20 May 2004 in response to a request from Ms Murphy’s legal representatives by letter of 4 May 2004. After referring to the appointment with Dr McDonald on 7 November 2003 and the failure to attend the letter of request stated:
… Our instructions are that Ms Murphy consulted you on Friday, 7 November 2003 at approximately 12.30 pm and that you advised her not to attend that appointment as to do so would put herself through unnecessary stress and to request that another appointment be made at a more realistic hour and at a venue closer to her home. In that regard we enclose a copy of our client’s letter dated 13 November 2003 to Mr Manny Vella, a Rehabilitation Delegate of Australia Post.
The report dated 20 May 2004 from Dr O’Toole in response stated:
I refer to a letter I wrote on 3rd December 2003 concerning the existence of stress, anxiety and depression in his patient. This provides a background to the presenting complain, for which she attended on 7 November 2003.
When Ms Murphy was seen on Friday, 7 November 2003, her medical condition was such that she was unfit to drive, and unfit to present for any work related matters, or any matters. This was due to her anxiety and stress condition. She was incapacitated to a significant degree, and was unfit to drive or to leave her house. She was having side effects from medication that had been introduced. On this date, this medication was ceased and new medication was then to be introduced. This in itself was a complex manoeuvre due to the problems of both managing any potential relapse of symptoms on medication withdrawal and the careful introduction of new medication, following a suitable “washout” period between medications. A Consultant psychiatrist appointment had been organised, for Dr Michael Dowd, and was pending, but in the meantime her psychological situation was that she was very severely affected. As a result of her treatment with Dr Dowd, she is now almost fully recovered. She has subsequently done very well from this point of view, such that these matters are now almost fully resolved and she is, as I understand, now back to full time work in a very productive capacity. However, around the time of the end of October and early November 2003, was the most severe time she had for these psychological matters.
I therefore have no difficulty in clarifying for you that she was indeed unfit for any work related matters on 7th November 2003, and was in addition, unfit for most normal activities, including she was unfit to drive, to shop, or to leave her home. In fact, I was sufficiently concerned about her that I issued a certificate for work from 7 November to 17 November 2003, inclusive, because I did not consider her well enough to leave her house.
In her oral evidence, Dr O’Toole said that she saw Ms Murphy at 12.32 pm on 7 November 2003 and recalled her as being very withdrawn, hunched over, agitated and having difficulty in speaking. Dr O’Toole thought that the main problem was the effect of the new drug Cipramil but believed that there was a problem in Ms Murphy’s dealing with authority at work. She considered that Ms Murphy would be “in for a couple of bad days” through the wash-out period for Cipramil and delay before restarting on Deptran. While Dr O’Toole had made no note of the 5.00 pm appointment that day, she thought that she would have been told of it. However, she did not believe that Ms Murphy’s could have coped with a rehabilitation assessment in the condition in which she was that day. Dr O’Toole accepted that the certificate given on 27 October 2003 referred only to problems with Ms Murphy’s knee but her clinical notes of that day and of 29 October 2003 and 30 October 2003 make no reference to the knee problem but relate primarily to psychological matters. However, she was firm in denying the issue of a false certificate and did not believe that the absence of any reference to the knee problem in her notes meant that it was not considered. She acknowledged that she had advised Ms Murphy against the making of a work related stress claim on the basis that such a claim may itself exacerbate her stress condition. Dr O’Toole said that she would be surprised if Ms Murphy was socialising on 6 November 2003 based on her condition on 7 November 2003.
Section 36 of the Act provides:
36 - Assessment of capability of undertaking rehabilitation program
(1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program.
(2) An assessment shall be made by:
(a) a legally qualified medical practitioner nominated by the rehabilitation authority;
(b) a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or
(c) a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.
(3) The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.
(4) Where an employee refuses or fails, without reasonable excuse, to undergo an examination in accordance with a requirement, or in any way obstructs such an examination, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
(5) The relevant authority shall pay the cost of conducting any examination of an employee and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.
(6) In deciding questions arising under subsection (5), a relevant authority shall have regard to:
(a) the means of transport available to the employee for the journey;
(b) the route or routes by which the employee could have travelled; and
(c) the accommodation available to the employee.
(7) Where an employee's right to compensation is suspended under subsection (4), compensation is not payable in respect of the period of the suspension.
(8) Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee's capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require.
It was submitted by Mr Nightingale that the evidence of Ms Murphy and Dr O’Toole had demonstrated a reasonable excuse for the failure to undergo the examination for a rehabilitation assessment. Mr Moulds submitted that the excuse for not attending the first appointment on 6 November 2003 was inadequate. It was suggested that the social meeting with friends could well have been delayed to allow the attendance at 12.30 pm. It was argued that the visit to Dr O’Toole on 7 November 2003 and the alleged results of that visit was not put as the excuse for failure to attend the appointment at 5.00 pm that day until the respondent was provided with the report from Dr O’Toole of 20 May 2004. Mr Moulds questioned why, if the medical condition was the reason, it was not provided in November 2003. He noted that there had been no prior evidence of any stress related condition with the certificate of 27 October 2003 relating solely to the knee condition.
In considering all of the evidence in this case, it would appear that there could well be come undisclosed agenda between Ms Murphy and Australia Post. On the evidence of Dr O’Toole, Ms Murphy had a clear reasonable excuse for not attending the rehabilitation assessment appointment on 7 November 2003. However, it took some six months for this evidence to be provided. It may well be that Ms Murphy has been reluctant to expose the detail of any psychological condition or it may be that she intends to pursue a claim for such a condition against Australia Post. While there were some unsatisfactory areas of the evidence of Dr O’Toole particularly relating to the issue of the certificate on 27 October 2003, I am prepared to accept her evidence as to the events and state of Ms Murphy’s health on 7 November. That evidence provides a reasonable excuse for her failure to undergo the examination on that day. Consequently, I so find and set aside the decision under s 36(4) of the Act.
It was submitted for the respondent that there should be no order that the costs of those proceedings incurred by the applicant should be paid by the respondent if the Tribunal sets aside the decision under review. It was argued that the knowledge of the applicant’s stress condition and the effect of that condition on 7 November 2003 was known to the applicant and her advisor but not provided to the respondent until 28 May 2004. Under ss 67(4) of the Act, the Tribunal has discretion to order the payment of costs where the decision is set aside and substituted by a decision more favourable to the applicant. In this case, I am of the opinion that, on the basis of the information provided to the respondent prior to receipt of the report from Dr O’Toole, Ms Murphy had not provided the reasonable excuse pursuant to ss 36(4) of the Act. It was that report which provided and evidenced the reasonable excuse. I am not able to ascertain an acceptable reason why this excuse was not provided earlier. If it had been provided on 10 November 2003, or within a reasonable time thereafter, it is likely that the excuse would have been accepted as reasonable and both parties would not have incurred the subsequent legal costs.
It was said by Mr Moulds that the report of Dr O’Toole was not provided until 28 May 2004. It seems clear that it was provided on 26 May 2004. This was the date that a copy was filed with the Tribunal and a letter from the applicant’s solicitors to the respondent’s solicitors of 28 May 2004 refers to a letter of 26 May 2004 and requested the copy of the letter to Dr O’Toole of 4 May 2004. Nevertheless, it was provided at a very late stage and very shortly prior to the hearing. Consequently, I do not see it as appropriate that the respondent should be liable for costs incurred by the applicant prior to the date of the hearing. Costs incurred by the applicant in relation to the day of the hearing on 31 May 2004 only are to be paid by the respondent. Given that, by Friday 28 May 2004, the respondent was then in possession of the information and evidence to be put to the Tribunal, it may have saved the costs of the hearing on Monday 31 May 2004.
It follows that the decision under review should be set aside and in its stead a finding made that the applicant had a reasonable excuse for failing to undergo an examination pursuant to s 36 of the Act. Costs of the applicant in relation to the day of the hearing on 31 May 2004 should be paid by the respondent.
I certify that the fourteen (14) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
(sgd) Catherine Lake
Clerk
Date of Hearing: 31 May 2004
Date of Decision: 24 June 2004
Counsel for the Applicant: Mr M. Nightingale
Solicitor for the Applicant: Opie & Co.
Counsel for the Respondent: Mr A. MouldsSolicitor for the Respondent: Sparke Helmore
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