NRJT and Australian Offshore Solutions Pty Ltd (Compensation)
[2015] AATA 588
•13 August 2015
NRJT and Australian Offshore Solutions Pty Ltd (Compensation) [2015] AATA 588 (13 August 2015)
Division GENERAL DIVISION File Number
2015/1016
Re
NRJT
APPLICANT
And
Australian Offshore Solutions Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President, Dr Christopher Kendall
Date 13 August 2015 Place Perth The Tribunal finds that the Applicant did not provide any reasonable excuse for his failure to attend three medical examinations requested by the Respondent on 15 July 2014, 5 August 2014 and 15 December 2014. That portion of the Reconsideration Determination which found that the Applicant’s failure to attend these three medical appointments constitutes an obstruction in accordance with section 66(2) of the Seafarers Rehabilitation and Compensation Act 1991 (Cth) is affirmed.
..........................[sgd].............................................
Deputy President, Dr Christopher Kendall
CATCHWORDS
Seafarers - compensation - request for medical examination - refusal to attend – claim compensation suspended – whether refusal to attend reasonable – reconsideration determination affirmed in relation to failure to attend medical appointments
LEGISLATION
Seafarers Rehabilitation and Compensation Act 1991 (Cth) – s 66(2)
Administrative Appeals Tribunal Act 1975 (Cth) – s 35(3)
CASES
Australian Securities and Investments Commission v Administrative Appeals Tribunal and Anor (2009) 181 FCR 130 at [149]
Australian Postal Corporation v Forgie (2003) 130 FCR 279
Fazlic v Milinginbi Community Inc (1980) 38 ALR 424
McKinnon v Commonwealth [1999] FCA 717
Pascoe v Australian Postal Corporation (2004) 77 ALD 464
Re Twaddell and Comcare (2001) 65 ALD 794Taikato v The Queen [1996] HCA 28; (1996) 186
SECONDARY MATERIALS
Peter Sutherland and John Oman Ballard, Annotated Safety and Compensation Act 1988 (Leichhardt: The Federation Press, 2014) at 455-457.
REASONS FOR DECISION
Deputy President, Dr C Kendall
14 August 2015
BACKGROUND
Pursuant to section 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal can restrict the publication of the names of parties to proceedings and allocate a pseudonym to parties to proceedings: Australian Securities and Investments Commission v Administrative Appeals Tribunal and Anor (2009) 181 FCR 130 at [149].
The Applicant in these proceedings asked that his personal history not be publically disclosed. The Tribunal agreed and made orders restricting the publication of the name of, and any information that might identify, the Applicant in this written decision.
In these reasons the Applicant will simply be referred to as “the Applicant”.
Failure to attend a medical examination when required to do so pursuant to section 66 the Seafarers Rehabilitation and Compensation Act 1991 (Cth) (the “Act”) results in a claim for compensation being suspended until the medical examination takes place. Compensation is not payable in respect of the period of suspension. If an employee subsequently proves that a “reasonable excuse” existed for not attending the medical examination, the suspension is not justified and compensation is payable for the period of suspension: Peter Sutherland and John Oman Ballard, Annotated Safety and Compensation Act 1988 (Leichhardt: The Federation Press, 2014) at 455.
The Applicant in these proceedings was employed by the respondent, Australian Offshore Solutions Pty Ltd (“Offshore Solutions”).
The Applicant applied to the Tribunal on 26 September, 2014 appealing a decision by the respondent, Offshore Solutions, to deny liability under the Act for a work-related injury (psychological). The substantive application is currently before the Tribunal.
In the context of the substantive application, Offshore Solutions sought to obtain an independent psychiatric assessment of the Applicant. Appointments were arranged on three separate occasions: 15 July, 2014, 5 August, 2014, and 15 December, 2014.
The Applicant did not attend any of these medical examinations.
As a result of these multiple occasions of non-attendance, Offshore Solutions made a determination (the “Determination”) on 18 December 2014 to suspend the Applicant’s workers compensation claim on the basis that he did not have a reasonable excuse for failing to attend the medical appointments. The Determination was affirmed at reconsideration on 23 February 2015 (the “Reconsideration Determination”) and is the subject of this application (the “Suspension Application”). The Suspension Application is the subject of this application for review.
The Applicant did ultimately undergo an independent psychiatric assessment in May 2015. The suspension is no longer in place.
The issue of the Suspension Application is essentially prospective. As liability has been denied for the Applicant’s compensation claim, the Applicant is not actually receiving any incapacity entitlements or coverage for medical expenses in relation to his claim. However, if he is successful in relation to his substantive application before the Tribunal, then arguably his entitlement to incapacity payments/treatment expenses during the suspension period will be at issue.
ISSUE
The Tribunal is asked to determine whether the Determination Reconsideration that the Applicant’s rights under the Act were validly suspended is correct. In effect, the Tribunal must determine whether the Applicant’s reasons for not attending three medical examinations on 15 July, 2014, 5 August, 2014, and 15 December, 2014 as requested by his former employer were “reasonable” as per section 66(2) of the Act. Offshore Solutions contends that the Applicant failed to attend these medical examinations without reasonable excuse and that, in the circumstances, they were entitled to suspend his rights under the Act.
LEGISLATION
Section 66 of the Act provides:
Power to require medical examination
(1) If:
(a)a notice has been given under section 62 in relation to an injury to an employee; or
(b)an employee has made a claim for compensation under section 63;
the employer to whom the notice of claim is given may require the employee to undergo an examination by a legally qualified medical practitioner nominated by the employer.
(1A)An employee must not be required to be examined by more than one legally qualified medical practitioner in any examination that the employee is required to undergo under subsection (1).
(2)If an employee, without reasonable excuse, does not undergo an examination, or in any way obstructs 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.
(3)If an employee's right to compensation is suspended under subsection (2), compensation is not payable in respect of the period of the suspension.
(4)Subject to subsection (4D), an employer who requires an employee to undergo an examination under this section must pay the cost of the examination and is liable to pay to the employee:
(a)an amount equal to the expenditure reasonably incurred by the employee in making a journey, necessary in connection with the examination, from the place in Australia where the employee is residing to the place where the examination is to be made; and
(b)an amount equal to the expenditure reasonably incurred by the employee in remaining (if necessary), for the purpose of the examination, at a place to which the employee has made a journey for that purpose.
(4A)If the journey referred to in paragraph (4)(a) is made by means of public transport or ambulance services, the expenditure referred to in that paragraph is taken to be an amount equal to the expenditure reasonably incurred in undertaking the journey.
EVIDENCE
At the Tribunal hearing on 8 July 2015, the evidence included:
·Oral evidence from the Applicant.
·A Statement of Findings on Material Questions of Fact dated 16 April 2015 tendered as Exhibit R1.
·T-Documents filed by Offshore Solutions (T1 to T56 comprising with 191 pages), dated 16 April 2015 tendered as Exhibit R2. The T documents included the Reconsideration Determination of 23 February 2015 (T2) and extensive email correspondence between the Applicant and Offshore Solutions.
·A timeline of events and relevant documents received by the Tribunal on 7 July 2015 and tendered as R5. These documents, comprising 149 pages, were not numbered or placed in chronological order. They were filed on the day of the hearing. All were reviewed and, where relevant, referred to below.
FACTS AND EVIDENCE
There are three medical appointments relevant to the determination of the issue before the Tribunal. These occurred on 15 July, 2014, 5 August, 2014, and 15 December, 2014.
Medical Examination scheduled for 15 July 2014
On 8 July 2014, a letter was sent to the Applicant from Liberty International Underwriters requesting that he attend a medical review with psychiatrist Lawrence Terace on 15 July 2014 in accordance with section 66 of the Act (R5). That letter stated:
In accordance with the Act, should you, without reasonable excuse fail to attend the examination or in any way obstruct the examination, any rights to compensation under the Act you may have, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
On 8 July 2014 at 1:13 pm, the Applicant replied via email to this letter (R5):
Probably can’t make that date not feeling well.whats the piont youve allready denied the claim.you take it up the aat.or the company sponsored seacare talk to chris kerwin .and then give me transcipts of any conversationbunder the sec 68.seafarers rehabilition and compensation act refer to claim.is this part of your injury mangement.scheam.plus ibeen giving sepration certificate .still trying to get it ring labour gary grays office. They told them they were going to send itunder section 68 I request all your paticulars your address. Your ph number dste of birth .all that you know X my personal details I want all the poeple working on my claims details under section 68 srca. 1992 Ill back it up .with post. (sic)
On 8 July 2014 at 5:53pm, the Applicant wrote again in response to this letter and stated, via email (R5):
Like siad before its making sick im not well at the moment all this stress. Fighting for my ditnity and integrity how would you feel somebody forging your nane and what would you do. Ask yourself that .. … I dont sleep at night. Havent sleapt since the signature. Incerdent causeing me P.T.S..D…Ad. (sic)
On 9 July 2014 at 11:29am, the Applicant wrote again, stating, via email (R5):
Dont go making appointments without my knowlege.as ive said im not well wembely is too far away from where I live take your concerns to aat. Dont bother me no more you make me sick . And make appointments if I ever go to company paid doctor I will make sure my dr is there as well. And a witness.because last time I went to company dr he called police .I cant trust them and company dr s make me sick just like you did yesterday way out of time in the limit .let s charge you a penalty under the act. Ok don't send me any emails go through seacare or aat .im allready sick . (sic)
On 14 July 2014, (the day before the proposed 15 July 2014 medical examination with Dr Terace), the Applicant provided a medical certificate to Liberty International from Dr Eoin McDonnell stating that the Applicant was “unable to attend the medical review with Dr Terace due to suffering severe stress and anxiety” (R5).
The Applicant did not attend the scheduled medical examination.
Medical Examination Scheduled for 5 August 2014
On 23 July 2014, a letter was sent to the Applicant requesting that he attend a medical examination with psychiatrist Lawrence Terace on 5 August 2014 in accordance with section 66 of the Act. That letter read:
… please confirm by return that you will attend the appointment. Please also ensure that you confirm your attendance with the doctor’s rooms seven days prior to the appointment (phone number provided) and please also ensure that you take all medical investigations with you to the appointment.
The Tribunal was advised that on 31 July 2014, the Applicant requested, by email, a taxi for himself and a witness to attend his scheduled examination with Dr Terace. The Applicant did not dispute this before the Tribunal.
On 31 July 2014, by email (and on 1 August 2014, by express post), the Applicant was informed that a taxi was not considered a reasonable expense but that Offshore Solutions would fund his reasonable petrol expenses. The Applicant was also asked to confirm that he would attend the examination.
There is no evidence before the Tribunal that the Applicant responded to this email.
On 4 August 2014, (the day before the scheduled medical examination), the Applicant provided a medical certificate to Offshore Solutions from Dr Eoin McDonnell which stated that the Applicant was unable to attend the medical review with Dr Terace because he was “suffering from severe anxiety” (R5).
The evidence shows that the Applicant did not attend the medical examination scheduled for 5 August 2014.
On 5 August 2014, a non-attendance fee was again incurred by the Offshore Solutions for $1,180.08 (T6 at 26; T26 at 66).
Offshore Solutions, through their lawyers, advised the Tribunal in written submissions that on 19 November 2014, at an AAT conference, the Applicant stated that he would not attend a medical review with Dr Terace or any other psychiatrist chosen by them. The Applicant was advised by the Tribunal that Offshore Solutions was entitled to obtain its own medical evidence. The Applicant was encouraged to attend a medical review with a doctor of their choosing. The Applicant did not dispute this summary of this discussion (R5 events – timeline).
Medical Examination Scheduled for 15 December 2014
On 20 November 2014, Offshore Solutions requested (R5) that the Applicant attend a medical review. Offshore Solutions provided the Applicant with a choice of doctor - either Dr Eileen Tay, Psychiatrist (scheduled for 15 December 2014 at 9.30 am) or Dr Lawrence Terace, Psychiatrist (scheduled for 16 December 2014 at 11.30 am). The Applicant was asked to provide confirmation by close of business on 5 December 2014 that he would attend one of these appointments.
On 30 November 2014 at 3:27 pm, the Applicant sent an email to Offshore Solutions outlining concerns in relation to transportation to the appointment scheduled for 15 December 2014 with Dr Eileen Tay. He indicated that he required $80 in compensation for petrol (T11 at 35):
To whom it may concern as im in finacial hardship all my centrelink benefits. Are being used to support myself .as for the dr appointment... dr eieleen tay I should he able to make the appointment But have noway of getting there as and no spare money for public transport and the petrol in my car is used for going to the grocery store and to my drs macdonnel practice. That is all the petrol I have .joe hockey was right when he said people on benefits dont go far driving as they cannot afford it.. my car uses 15 lts every 100 kms.the distance from house to your company paid doctor.is about 86 kms. You do the maths. I need about 80dollars in fuel to get there and my normal driving to shops and drs and also to aat.all my bennfitts axe accouted for .not the appointment in nedlands .that would throw my budget out the the window.and would take at least 4 to.6.weeks to recover..im not saying I cant go to your company paid doctor. lam telling you I cannot afford to get there either by public transporter my own transport .and financially can not afford the the trip there and back .you work it out and get hack to me.it is in the seafarers rehabilitation and compensation act.1992.for the company to get me to the appointment with the company paid .dr...re... (sic)
On 1 December 2014, Offshore Solutions notified the Applicant that pursuant to section 64(4) of the Act, they would pay reasonably incurred petrol expenses assessed at $77.40 return within 7 days of the Applicant’s appointment with Dr Tay (T12 at 36).
On 2 December 2014 at 4:46pm, the Applicant sent an email in response stating (T13 at 38):
Hello you do not understand!!!! I dont have money to put in the car for petrol, so how can I get there if I don't have the money to put in the the car to drive there.... at the moment I have 60 cents to my name.. . So if you want me to go there you will have to put money in my bank in order for me to put petrol in my car..and I do not have money for public transport as of now 2nd December 2014.. correspondence from your organisation. Must be by australia post .only!!!!.. because its eating all my credit loading your attachments on mv prepaid phone.i cannot open your attachments due to low credit on phone.... It must be australia post for you organisations to correspondence with me from now on !!! ...your lucky I can send this....I confirmed allready!!! that I will be attending your company paid doctor on the 15th... In previous email...I have no way of getting there as im in financial hardship having not be able to work.due to The forgery of my name causing me a mental illness./injury... I have not worked since being last onboard the superkencarna constructor. The balls in your court dont tell me to claim from the company when I made it quite clear I dont have the money to put in the car to claim in the first place..re…. (sic)
On 2 December 2014 at 5:14pm, the Applicant provided both the Tribunal and Offshore Solutions an email stating (T14 at 39):
I request a directions hearing about the matter of transport to company doctor. That I am in real fincial hardship and are unable to afford the transport cost to the company paid doctor .1 have made it quite clear to the respondant of my fincial status ..I am not saying !!! ...I will not go to the company doctor... J am confirming that I will go to company Paid doctor on the 15th december 2014. but i have no financial means of of getting there.... as all my newstart money is being sent to utilities companys ..and centre link as I have a loan with them leaving myself with just enough to buy food .with… ..Re … (sic)
On 3 December 2014, Offshore Solutions sent an email to the Applicant confirming that in order to assist him financially, they had sent a cheque to him for $77.40 for travel expenses so that could attend the medical appointment with Dr Tay on 15 December 2014. Offshore Solutions requested that the Applicant confirm that he would be attending the review with Dr Tay on 15 December 2014 (T15 at 40).
On 3 December 2014, the Applicant responded via email, with “Ok I confirm” (R5).
On 4 December 2014 at 1:01pm, the Applicant sent an email Offshore Solutions stating that the cheque he received from the respondent was “no good”. He wrote (T17 at 42):
To whom it may concern. The cheque I..received is no good. Fisrt you know im in finacial hard ship and you know .my petrol is accounted for in previous emails.i had to drive to nearest bank agent.using my petrol.unaccouted for .and had to wait at bank.and was unable to cash cheque. In account due to some hank rule I then had to talk in teleohone for half hr to bank to try to he able deposit cheque. I was able to do in the end but because I have diret debit for utilities companys I was in debitdue to fincial hardship.so the cheque money wil go to them in order for my accout to go back to credit im still short 120.dollars in my account. Now I dont know if I see the money now.all your cheque has done to me is agrivated my injury.! got on the ship.this is the third time my injury has been aggrivated .from the respondant lawyers..1.. 28 day issue....2... Telling me ive been suspended... When supplyed dr certificate. On the day .of previous dr appointment. 3 ...now the cheque. You knew what I had to do to cash cheque. Fist get to the branch. Then wait in line .then drive home using all my petrol when every km is accouted for. You knew all of this .before you sent me cheque.now im in more in depression then before .not knowing if I be able to accses the money. And hoping ive got enough petrol for the dr appointment .another aggravation. It would have been better to send via bank .on the day of dr appointment. And not have me running around. Or booked a taxi. Re … (sic)
On 4 December 2014 at 2:35pm, lawyers for Offshore Solutions responded via email as follows (T17 at 43):
Dear …
We refer to our letter dated 3 December 2014 and your email dated 4 December 2014.
We would be grateful to receive confirmation from you, before 5pm tomorrow, that you will definitely be attending the medical review with Dr Eileen Tay on 15 December 2014 at 9.30am.
Failing which we will have no alternative but to cancel the review to avoid incurring a third cancellation fee, each of which are in excess of $1,000.
We look forward to hearing from you.
On 4 December 2014 at 3:51pm, the Applicant responded as follows (T17 at 44):
Let me know of your decision .1…..taxi……2 .confirmation… .if you ring me tomorrow to confirming dr s appointment. ..and let me know asap.... by todays end of buissness day... What you are going to do to get me to your doctor.???? And the confirmation for drs appointment, ring me tomorrow on …. For your confirmation even though iv e all ready confirmed that I will attend 3 times . And let me know you're cancelled the cheque. And confirmation of transport. To the company paid doctor .I ll say it again so its very clear to you!!!! .YES.I WILL ATTEND YOUR DOCTOR S APPIONTMENT. You must supply Transport.as I Don't have The money.. Book a taxi all problems solved easy!!!!!!. Cancle your cheque. So I dont have to try and chase it up to pay you back. Giving me more stress… …..asap today….. And ring me tomorrow to confirm your appointment with your doctor. For your 4th time the next confirmation. That will be the 5th time ive confirmed….. Also I now have to send by email to attoneys genral deptment 9 pages of application for fincial help from government. To pay for expert reports .now I have to budget for that…..using the rest of my credit .make sure you ring me tomorrow to confirm the dr appiontment At 11.oo am.. Re. … (sic)
On 4 December 2014 at 4:04pm, the Applicant received the following response via email (T17 at 45):
Dear …
I refer to our emails below.
I confirm that my client is not prepared to fund taxi fares for you to attend the medical review.
You have been provided with funds for your travelling expenses and you have accepted those funds.
Please therefore confirm that you will be attending the review with Dr Tay on 15 December 2014 at 9.30am.
Kind regards.
On 4 December 2014 at 5:32pm, the Applicant responded via email as follows (T17 at 46):
Yes will attend dr apointment but cannot see the funds for that on the day to attend drs appiontment. Or funds for transport as I ve explained all ready why !!! Ive let you know why and thats all i can do .will we have wait t see if i have the funds i told you to cancle your check so you can receive the money back I wilk ask the... aat ...for a directions hearing again ive been honest and told you of my sutuation.. im confirming again That yes i will go to the appointment maybe they can tell you of my situation and maybe they wilk ask you to get me a taxi the day of appiontment. Re … (sic)
On 4 December 2014 at 5:43pm, the Applicant sent the following message to the Tribunal via email (T17 at 47):
Hello aat I … request a directions hearing about the transport to company paid doctor .the reason s are clear.maybe it can be held on the day.return of sumnionds hearing. Its quiet simple all im asking for is a taxi to there company paid doctor.and they cancle there cheque.as I put it in today at the bank and my account is in debit not credit unfore seen direcrt debit and now more bills arriving today overdue.all they have to do is get a taxi simple!!!! .so I think they didn't understand maybe you could do something at a directios hearing im Not obstructing the process mearly telling the thruth....Re... (sic)
A file note from lawyers for Offshore Solutions dated 5 December 2014 (R5) reads as follows:
Mr … telephoned regarding the medical appointment and asked if I had received his emails. I confirmed I had. He said he would be attending the medical appointment on 15 December if he had the money. I explained that he had said that he would attend but then said if he had the funds to attend, so clearly that was not a definite confirmation. He then said that he would attend but didn’t know if he would have the funds on the day as he has no money and the cheque we sent him went in and paid his bills.
He also said that his car was not working very well and the battery was flat and he didn’t have any money to have it repaired. He also mentioned that his car was not insured.
I asked him once again if he would definitely be attending and he said “Yes” he would attend but he didn’t know how he would get there on the day as his car is not working well. I explained therefore he is not definitely confirming he is attending. He said that he is. He said he will definitely attend. I then asked him again if he was attending and he said yes, but he doesn’t know if he will be financially able. I reiterated again that he is not saying he can definitely attend. He then said yes he will attend but he doesn’t know how he will get there. He said if he gets the money he would come on the train. I asked him how he would pay for that if he said he has no money. He said he will get the money. I asked him how he would do that if he has no money and he said that he would sell his DVD player. I explained that I needed confirmation that he would definitely be in attendance by close of business today to avoid the cancellation fee. That fee could be in the region of $1,000 and I asked if he would be wanting to pay that and he said “No, why should I? You’ve arranged this medical. I am not paying it”.
I explained that my client has arranged this appointment and they do not want to pay a third cancellation fee. He said he had a reasonable excuse for the other two. I said that was his opinion. My client did not agree.
He asked if we could book the appointment for a Friday as then he would have his Centrelink payment going in on the Thursday so he would have the money. I said that the next appointment would be in January 2015 but I could not guarantee the day of the week.
I also explained to him that he had already been provided with the money for transport to get there and he said that that has gone. I explained that was his issue. The money had been given to him and the fact it has gone into his overdraft is not my client’s fault. He said he was not aware that it was overdrawn. I said that when he went to pay the cheque in he would have been aware of that. He said he wasn’t until he had paid the cheque in and didn’t realise there were some payments to go out.
He asked why we didn’t just arrange a taxi for him.
I explained to him that he had written to us and said he wanted petrol expenses and asked for $80. I explained that we wrote to him and told him that it was $77.40 and asked if he would attend if we sent him a cheque by express post that day and he said he would attend. He said he didn’t say that. I told him that I have an email from him confirming that.
He said “Why didn’t you just arrange a taxi?”. I explained to him that arrangements had been made for his transport and he had agreed to it. He had accepted the money and it was now for him to attend and not for my client to provide him with further funds. He said this would not be happening if his signature had not been forged on the ship. He said “You weren’t actually there in the cabin so you don’t know”.
I then asked him again if he would be attending and he said he would “If I have the money”.
I explained again that this was not a definite confirmation. He said he would go to Centrelink and get an advance on his benefits. I asked if he was able to do that before 5pm today and he said no, he would do it next Wednesday. I therefore said that we do not have confirmation that he will definitely attend today.
He then once again said he would definitely attend but said he doesn’t know how he will get there.
He then said he would walk there. I said to him that is not realistic, he’s not going to walk 129 kms and he said “Why not? Lots of people walk around Australia”.
I explained to him that we would be cancelling the appointment today as I had those instructions. He said “No, you cannot cancel it I will be attending”. He said he would get the bus. I asked if he had the finances to pay for a bus and he said he would wait and see on the day. I once again confirmed that that is not definite confirmation.
He then said he would get a friend to drive him. I asked him if he can confirm that for definite before the end of today and he said he would have to speak to him. I once again confirmed that we do not have definite confirmation and I explained to him that l had instructions to cancel the appointment and would be writing to him to confirm that.
On 5 December 2014 at 12:27pm, the Applicant sent an email confirming as follows: “will make the company paid doctor’s appointment, I confirm for the 10th time I will get there on the 15 December 2014 on time as per the Act, SRC Act” (T19 at 50).
On the same day, Offshore Solutions wrote to the Applicant thanking him for confirming that he would be attending the medical appointment with Dr Eileen Tay (R5).
On 11 December 2014, a further email was sent to the Applicant asking him to confirm that he would attend on 15 December 2014 (R5).
On 12 December 2014, at 9:41pm, the Applicant sent an email stating "please confirm a taxi to the doctor’s appointment in Nedlands on Monday early morning 15th and what time ETD and ETA and return journey ETA and ETD due to medication" (T23 at 54).
There is no evidence before the Tribunal that Offshore Solutions responded to this email request.
On 15 December 2014, a copy of an email was received by Jarman McKenna from Dr Tay's rooms. It included an email from the Applicant to Dr Tay (sent at 5.32pm on 14 December 2014) in which the Applicant advised “I’m unable to drive due to medication ... with warning on medication do not operate machinery. I have sent email to Jarman McKenna letting them know asked for transport awaiting reply” (T25 at 57).
The Applicant did not attend the appointment with Dr Tay on 15 December 2014.
Offshore Solutions incurred a third cancellation fee for $682.00 (T24 at 55).
On 12 February 2015, the Applicant emailed a copy of a report from Dr Jane Fitch, Consultant Psychiatrist, dated 16 January 2015 (T27 at 97) to Jarman McKenna. That letter stated that the Applicant was unable to attend the medical examination with Dr Tay due to a psychiatric illness and sedation from medication. The letter provides:
[The Applicant] was advised he must attend an appointment with Dr Tay to have a report provided to the Insurer. The appointment was in Nedlands at 9 am.
[The Applicant] told me that he was very worried about seeing Dr Tay because when he googled her name, he found some reviews that increased his mistrust. He had told me that it said "he should run for the hills". He had started to panic.
(When I first met [the Applicant], he had told me he had googled my name to check I was "all right" He had also told me how he had googled "fraud" and quoted me the emotional effects of such an event. His literality and social blindness has therefore been evident to me since his initial assessment. As such this is consistent with his presentation).
He was worried how he could get to the appointment safely by 9 am. It was a very long drive from his home and he was sleeping poorly. He worried he may have a panic attack on the way. He requested the Insurer assist him with transport so that he could attend. He asked for an ETA for a taxi, just as he always had one for his flights to and from work. They declined to do so.
When he rang to confirm about the appointment, he was told that Dr Tay was expecting him. This statement alarmed him. He did not know what she would be expecting.
He went to his GP about his increasing anxiety and was prescribed medication. He was given a hypnotic in temazepam 10 mg i-ii prn as well as the Zyprexa.
On the night before the appointment he could not fall asleep because he was so worried. He therefore took the temazepam prescribed in the early hours of the morning. He fell asleep and advises me he did not wake until 9.30am. He was then too drowsy to safely drive.
As such, [the Applicant] was unable to attend the appointment because of:
(i)his symptoms burden (mistrust, anxiety, negative thinking as a result of his as yet untreated psychiatric illness)
(ii)sedation from his hypnotic medication taken as prescribed causing him to oversleep
(iii)sedation from his medication affecting his capacity to drive
He had anticipated the lattermost reason and thus requested transport assistance but this was not forthcoming.
The timing and location of the examination certainly did not take the nature of his illness into account
I would only schedule [the Applicant] and other patients on sedating antipsychotic medication in the late morning or preferably afternoons so as to ensure their driving capacity is not affected by the medication. Sedating medications are prescribed with a warning advising against operating machinery or driving after taking the medication. This caution would be listed for both olanzapine and temazepam.
The Tribunal notes that the Applicant did not appear to have any difficulty attending appointments with Dr Fitch on 12 November 2014, 26 November 2014 and 12 January 2014.
On 23 February 2015, the Applicant, via email, requested details of the company paid doctor’s appointment and confirmation of the date and time of the appointment. He also asked that his suspension be lifted because he had provided a reasonable excuse.
On 24 February 2015, the Applicant wrote that he had provided a reasonable excuse three times. He also stated that Offshore Solutions had failed to arrange transportation for him. He again requested that his suspension be lifted and asked that a doctor’s appointment be arranged for late in the afternoon.
THE MEANING OF “REASONABLE EXCUSE”
“Reasonable excuse” is not defined in the Act. There is, however, considerable authority on this issue. As always, the meaning and effect of the phrase is fact specific.
In FazlicvMilinginbi Community Inc 38 ALR 424 the High Court considered whether an applicant’s refusal to have a recommended operation to his injured back should have resulted in his losing his entitlement to further compensation payments as had been held by the Supreme Court of the Northern Territory and the Federal Court. The High Court allowed the applicant’s appeal on the basis that the reasonableness of the applicant’s refusal, judged in the light of his knowledge at the time, is the criterion to determine whether that refusal was reasonable. The court held that the applicant had been given minimum information and in the light of that minimum information about the operation his refusal to undergo the operation was a reasonable refusal.
In Taikato v The Queen [1996] HCA 28; (1996) 186, the High Court held the question of whether there is a “reasonable excuse” depends upon the circumstances of the individual case and also upon the purpose of the provision which has a defence of reasonable excuse:
[18] A reasonable excuse is no more or less than an excuse which would be accepted by a reasonable person. It is different from a lawful excuse but, as has already been noted, it is difficult to conceive of an unlawful purpose which would constitute a reasonable excuse. Reasonableness provides a test which is well-known in both criminal and civil law and, though it may involve a judgment of degree, has a ready application in widely differing circumstances. The fact that the test of reasonableness frequently involves a question of degree so that minds may differ upon the answer does not relieve a tribunal of the duty to apply the test where that is the test laid down and does not justify confining its scope for the sake of greater precision or certainty.
Whether the refusal or failure to attend a medical examination may be excused because the refusal or failure was reasonable is to be assessed on an objective basis. In McKinnon v Commonwealth [1999] FCA 717 the Federal Court stated:
There is nothing in the judgment, nor would I expect there to be, which would support a proposition that a plaintiff could succeed in resisting an examination merely because he believed in good faith that the examination might be detrimental to him. A different view would necessarily follow if the examination was one which involved a real risk of injury to health and was seen as such by the plaintiff. The more severe the risk, no doubt, the greater it would overweigh the interests of the defendant. The less severe, the more difficult the balancing process. If the risk is such that it is so very slight as not to constitute a real risk, an applicant's fears about the suggested risk would not outweigh the interests of justice that a defendant be entitled to defend his case as he thinks fit. However, I would accept the proposition that once the risk is a real one, then the Court would be slow indeed to impose it upon a plaintiff, if ever.
In Pascoe v Australian Postal Corporation (2004) 77 ALD 464, the Full Court reaffirmed what the Full Court had said in an earlier decision (Australian Postal Corporation v Forgie (2003) 130 FCR 279); ie, that the Act “requires that the person at least consider the circumstances surrounding the employee’s failure or refusal to undertake a rehabilitation program and to evaluate what is reasonable in the circumstances”.
ANALYSIS
The Tribunal notes that the Applicant did eventually attend a medical assessment with a psychiatrist in early 2015. The question this Tribunal must address is whether his refusal to attend an appointment on three previous dates was, in the circumstances, reasonable.
From the evidence before the Tribunal it is evident that the Applicant’s primary reasons for not attending the scheduled psychiatric appointments on three separate occasions relate to cost and the stress associated with attending.
Given the medical issue central to the Applicant’s claim against his former employer, it was not unreasonable for Offshore Solutions to seek to have the Applicant examined by a psychiatric specialist.
The Tribunal notes that in his email of 8 July 2014 at 5:53pm, the Applicant advised that he was “not well at the moment”, and that these appointments caused him stress.
Further, in his email of 9 July 2014 at 11:29am, the Applicant writes that if he “is to attend at the offices of a company paid doctor’s offices, he would make sure his doctor is there as well, and a witness, as he felt that he cannot trust them.”
As noted in Re Twaddell and Comcare (2001) 65 ALD 794 “the context of a medico-legal examination organised by the opposing party is almost always going to be an uncomfortable and potentially unpleasant experience for an applicant.”
This does not mean, however, that non-attendance is reasonable. There is no evidence to suggest that, had the Applicant requested that a friend or doctor attend with him at the offices of Dr Terace on 15 July 2014, Offshore Solutions would have refused such a request.
The evidence reveals a remarkable degree of flexibility on the part of Offshore Solutions and a considerable degree of obstruction and anger on the part of the Applicant. There is no evidence before the Tribunal to suggest that the Applicant’s fear of or distrust of Dr Terace was well founded. In the circumstances, his refusal to attend at his offices were unreasonable.
In relation to the medical examinations scheduled for 5 August 2014 and 15 December 2014, the Applicant again raises anxiety and stress as factors preventing him from attending.
For the same reasons outlined above in relation to the medical examination scheduled for 15 July 2014, the Tribunal does not accept, on the evidence and circumstances of this case, that this is a reasonable excuse for non-attendance.
In relation to transportation and the costs of transportation, the Tribunal notes that Offshore Solutions did endeavour to accommodate the Applicant’s concerns by forwarding him a cheque in the amount of $77.40 on 1 December 2014. This was to cover petrol expenses (T12 at 36). The Applicant agreed with this arrangement.
The evidence reveals that that cheque was essentially used to cover a pre-existing debt.
It cannot be said in these circumstances that the Applicant acted reasonably. There are limits on just how far a respondent can be expected to go to accommodate issues of economic inequality and distress. The Tribunal finds that Offshore Solutions acted with considerable integrity in attempting to assist the Applicant. The Applicant’s failure to attend in these circumstances was unreasonable.
Further, the Tribunal notes that on 12 December 2014, the Applicant sent an email to Offshore Solutions again requesting taxi transportation. Given the events of the preceding months, such a request cannot be seen to be reasonable. It is not the duty of a respondent to pay for transportation in a taxi, particularly after funds already sent for transportation expenses were used to cover expenses not related to the medical examination in question.
Further, it is unclear to the Tribunal why the Applicant waited until the last minute to advise Offshore Solutions that his medication had made it impossible for him to attend at Dr Tay’s offices. It is clear on the evidence that he had envisaged being tired if medication were required. Had Offshore Solutions been advised that there was a possibility of non-attendance due to medication concerns, other options could have been examined, the appointment could have been delayed if necessary and Offshore would not have been financially penalised for a third time for non-attendance. For the Applicant to advise at a very late stage that he could not attend a third appointment cannot, taking into account all of the evidence before the Tribunal, be seen to be reasonable in the circumstances.
DECISION
For the reasons outlined above, the Tribunal finds that the Applicant did not, pursuant to section 66(2) of the Seafarers Rehabilitation and Compensation Act 1992, provide any reasonable excuse for his failure to attend three medical examinations requested by Australian Offshore Solutions on 15 July 2014, 5 August 2014 and 15 December 2014.
That portion of the Reconsideration Determination which found that the Applicant’s failure to attend these three medical appointments constitutes an obstruction in accordance with section 66(2) of the Act is affirmed.
I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President, Dr Christopher Kendall. .......[sgd D Brodie…………..
Administrative Assistant
Dated 13 August 2015
Dates of hearings 8, 9 July and 10 August 2015 Representative of the Applicant In person (unrepresented) Representative of the Respondent
Ms R Aria Retnam Solicitors for the Respondent Jarman McKenna
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