O'Connell and Comcare
[2005] AATA 821
•25 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 821
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/498
GENERAL ADMINISTRATIVE DIVISION ) Re PETER JAMES O'CONNELL Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President Don Muller Date25 August 2005
PlaceBrisbane
Decision The Tribunal affirms the decision that Peter James O’Connell has refused or failed, without reasonable excuse, to undertake a rehabilitation program provided for him, the effect of which is to suspend his right to compensation, pursuant to the provisions of the Safety Rehabilitation and Compensation Act 1988. ................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
COMPENSATION – applicant failed, without reasonable excuse to undertake a rehabilitation program provided for him – consequently rights to compensation suspended – decision affirmed
Safety Rehabilitation and Compensation Act 1988: s37
REASONS FOR DECISION
Deputy President Don Muller 1.This is an application by Peter James O’Connell for review of a determination dated 8 March 2004, affirmed by a reviewable decision dated 10 May 2004, to suspend his rights to compensation, for failing, without reasonable excuse, to undertake a rehabilitation program provided for him, pursuant to the provisions of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
2.It is the Respondent’s contention that Mr. O’Connell failed to engage in a rehabilitation program provided for him in Melbourne whilst he was receiving compensation for a knee injury and that without permission from Comcare he relocated to Cairns, where there was no position for him.
3.At the hearing Mr. O’Connell represented himself and Mr. Clark of Counsel appeared for the Respondent.
4.The Tribunal accepted into evidence the following documentary evidence:
Exhibit 1 The section 37 statement
Exhibit 2 A statement by Mr. O’Connell, dated 15 November 2004
Exhibit 3 A statement by Mr. O’Connell, dated 2 March 2004
Exhibit 4A letter written by Mr. O’Connell to the “Manager, People Advisory” dated 3 March 2004.
Exhibit 5A report by Dr. Joseph Ling, Consultant Cardiologist and Physician, Cairns, dated 20 July 2004
Exhibit 6A report by Dr. Mustafa Ahmet, General Practitioner, dated 13 May 2004.
Exhibit 7Report of Stuart Canavan, Physiotherapist, dated 10 June 2004.
Exhibit 8Memorandum concerning Mr. O’Connell from Carolyn Stone (Case Manager, Centrelink) to Centrelink, dated 4 December 2003.
Exhibit 9Letter sent by Carolyn Stone to Mr. O’Connell, dated 5 December 2003, to remind him to attend a medical assessment with Dr. Trifiletti on Tuesday 13 January 2004 at 11.30am and to advise him that if he moved to North Queensland without first being transferred to a job, he would be considered as “non-compliant” by Comcare.
Exhibit 10An internal memorandum, dated 23 December 2003, prepared by Janet Smith, Rehabilitation Case Manager, in which Ms. Smith records that she spoke to Mr. O’Connell about the Carolyn Stone letter (Exhibit 9) to make sure he understood its contents.
Exhibit 11Fax, dated 16 June 2004, from Mr. O’Connell to Sean Spode requesting a copy of his case notes, and requesting assistance to return to work in the Cairns area.
Exhibit 12Report on Mr. O’Connell, dated 17 June 2004, prepared by Sean Spode, Rehabilitation and Case Manager, Centrelink.
Exhibit 13A video of Mr. O’Connell, driving, walking, entering and leaving a pizza shop in Cairns and entering and leaving his home in Cairns.
Exhibit 14A letter, dated 6 April 2004, from Mr. O’Connell to Jane Steinkamp of Centrelink.
5.The Tribunal also heard oral evidence from Mr. O’Connell, his wife Donna O’Connell, Dr. Trifiletti, Mr. Spode, Dr. Ahmeet, Mr. Cameron and Ms. Kaylene Evers, psychologist.
6.The following background matters are not controversial and the Tribunal finds that:
(a)Peter James O’Connell was born on 14 February 1966. He is now 39 years of age.
(b)He left school at the age of 17 and then completed an apprenticeship as a carpenter and joiner.
(c)After completing his apprenticeship he worked as a sub-contractor for seven years, building frames for new homes, home renovations and restoration work.
(d)He then worked for a company called Doors Plus for three years. His work entailed fitting doors.
(e)In 1994, he began work with Centrelink as a maintenance carpenter. His duties involved attending to repairs and carrying out temporary office fit-outs in nine regional offices.
(f)On 22 October 1997, in the course of his work duties, he stepped on the funnel of a fire-extinguisher, lost his balance and fell towards the right side, twisting his right knee.
(g)On 18 November 1997, he attended Douglas Gardiner, Orthopaedic Surgeon, who later performed an arthroscopy on Mr. O’Connell on 9 February 1998.
(h)By a determination dated 5 December 1997, liability was accepted under the SRC Act in respect of “torn lateral meniscus right knee”, with the date of the injury being accepted as 22 October 1997.
(i)On 22 December 1997, Mr. O’Connell was referred to Atkin Ergonomics by Centrelink, for assistance with rehabilitation following his knee injury. This was to be the beginning of his first Return to Work Plan (RTWP) managed by Atkin Ergonomics. It was anticipated by Kevin Walsh of Atkin Ergonomics that Mr. O’Connell would return to work prior to his knee surgery, but he did not do so.
(j)On 9 February 1998, Mr. O’Connell underwent arthroscopic surgery to his right knee performed by Douglas Gardiner, orthopaedic surgeon.
(k)Following the surgery, Mr. O’Connell had physiotherapy. He claimed that his knee was still giving him some problems.
(l)In May 1998, it was thought by an occupational therapist that Mr. O’Connell may need a second arthroscopy. His return to work was further delayed.
(m)In July 1998, Douglas Gardiner reported that he believed a second arthroscopy was necessary.
(n)On 31 August 1998, Mr. O’Connell had a repeat arthroscopy procedure. Further smoothing of the articular surfaces was carried out.
(o)In October 1998 it was decided by Kevin Walsh to delay the implementation of the first RTWP until 31 December 1998.
(p)It was hoped that Mr. O’Connell would undergo a graduated return to work beginning on 7 January 1999, consisting of three half days per week with restrictions in regard to lifting. It did not happen.
(q)On 28 January 1999, Mr. O’Connell was examined by Denis M. King, Consultant Orthopaedic Surgeon, who reported that in his opinion Mr. O’Connell was fit to undertake work of a sedentary nature, on a level surface with certain restrictions on bending, crouching, negotiating stairs or ladders and lifting weights of no more than 5 kgm. Mr. King was also of the opinion that Mr. O’Connell was fit to undertake light carpentry type work.
(r)The first RTWP was eventually closed on 29 September 1999 because it was thought that “additional time required to finalise intervention”.
(s)On 24 March 2000, Douglas Gardiner reported that there was no further treatment that he could perform which would improve Mr. O’Connell’s right knee.
(t)A second RTWP was commenced on 26 October 2000 managed by Work Solutions Group.
(u)Mr. O’Connell’s rehabilitation seems to have been hindered by psychological problems and by drinking alcohol to excess. However, a report by Timothy Walsh, Occupational Therapist, dated 31 January 2001, noted that “Peter demonstrates marked improvement psychologically. This can be objectively demonstrated by his new sobriety….”.
(v)Unfortunately no rehabilitation progress was made during the first half of 2001. Mr. Walsh found great difficulty in keeping in contact with Mr. O’Connell. Mr. Walsh reported on 22 June 2001, “It would seem that a great deal of his time has been taken up with the purchase of a new house and his ongoing search to find a cure for his knee pain”.
(w)By January 2002, Mr. O’Connell had made it clear to those attempting to supervise his rehabilitation that he was not prepared to do a RTWP and instead he wanted to do a two year course to become an Occupational Health and Safety Officer.
(x)In February 2002, Mr. O’Connell told Tim Walsh that he would not return to work for Centrelink because he had “too many past issues” with them.
(y)In April 2002, Dr. David Barton, Consultant Occupational Physician, reported that he could see no reason why Mr. O’Connell could not work on a full time basis undertaking his pre-injury duties, with some initial minor limitations.
(z)On 24 April 2002, the second RTWP was closed. Mr. O’Connell had not returned to work during that period.
(aa)A third RTWP was begun on 27 May 2002, with RTW Management. This RTWP was closed on 1 August 2002, following a meeting at Box Hill Centrelink location between Mr. O’Connell, Janet Smith (a Centrelink Case Manager), and Fran Casey of RTW Management. Mr. O’Connell told the other two people that he felt anxious when visiting a Centrelink building and he reported symptoms of nausea and trembling. He said that he felt physically sick every time he enters a Centrelink office. He also queried the possibility of taking leave as he had not had leave while he was on workers’ compensation payments. He said he was looking at travelling to Brisbane and Cairns.
(bb)On 7 August 2002, Mr. O’Connell obtained a medical certificate from Dr. Ahmet which recommended he take two weeks holiday.
(cc)On 13 September 2002, Harry Tsigaris, Orthopaedic Surgeon, reported that he had seen Mr. O’Connell in June of 2002. His report included the following observation:
“I was also concerned with the severe restriction in his range of motion, quite out of keeping with the degree of suspected articular damage. I was concerned that he had not received any further intensive pain management input for some time, so I took the liberty of referring him on to Dr. Peter Courtney, an Anaesthetist who has a special interest in pain management.
Mr. O’Connell was willing to discuss his past non-orthopaedic management, which did include the use of anti-depressant and anti-epileptic medications, narcotic therapy, as well as psychological intervention. Mr. O’Connell’s knee pain is quite disproportionate with the findings from recent examinations. This has impacted on his lifestyle and activities of daily living to a significant degree, is disturbing his sleep, and also making him distressed and emotionally labile.”
(dd)During September 2002, Mr. O’Connell travelled to Cairns with his fiancé. They married in Cairns. They had gone to Cairns with the specific intention of getting married. They spent five days in Cairns and eight days in Brisbane.
(ee)A fourth RTWP commenced on 13 March 2003 managed by JRJ Rehabilitation Services. That RTWP was closed on 23 April 2003 as Mr. O’Connell withdrew on medical grounds. A service completion report noted that “alternative duties were identified for Mr O’Connell…. In discussion with Dr Ahmet (General Practitioner) and Dr Botnevick (Psychiatrist), it appears that returning to work is inappropriate at this stage. Mr O’Connell will continue with his Physiotherapy treatment with Stuart Canavan to address pain management, desensitization, improve range of movement and reinforce regular exercise”.
(ff)In 2003, Mr. O’Connell and his wife bought two investment properties in Cairns. One in early 2003 and one in late 2003.
(gg)In late 2003 Mr. O’Connell sold his Melbourne home, with settlement occurring on 22 December 2003. He moved to Cairns in January 2004. His wife obtained a job in Cairns upon their arrival there.
(hh)In a report dated 29 January 2004 Dr Bernadette Trifiletti (HSA Occupational Physician) provided an assessment for the purposes of section 36 of the SRCA. Dr Trifiletti had previously provided reports in respect of Mr. O’Connell dated 11 April 2000 and 14 December 2002. In her report dated 29 January 2004 Dr Trifiletti confirmed that Mr. O’Connell’s right knee injury would not be expected to give rise to total work incapacity. She said “in respect of the right knee condition my previous recommendation is unchanged in that this condition alone should not prevent suitable duties which allow him to have postural respite from prolonged standing, avoidance of heavy lifting, ladder climbing and walking for more than 15 minutes without breaks”. She indicated there were a number of barriers to a successful return to work but stated “however, it is my opinion that these barriers are not a medical contra indication to undertaking a suitable rehabilitation program”. She said “I have reviewed the proposed duties at Centrelink Band one level and consider they are suitable provided he can sit and stand as required”. She confirmed that Mr. O’Connell “does report he would not like to return to work to Centrelink but would like to start a business”. Dr Trifiletti concluded that “provided he undertakes suitable tasks within limitations above, there is no medical contraindication to his being able to work towards a fulltime return to work program”.
(ii)By letter from Centrelink dated 16 February 2004 Mr. O’Connell was made aware that arrangements had been made to refer him to Atkin Ergonomics to implement a graduated RTWP in accordance with Dr Trifiletti’s recommendations.
(jj)On 25 February 2004, Centrelink received a medical certificate, dated 20 February 2004, certifying that Mr. O’Connell would be totally incapacitated for work until 20 March 2004 as a result of osteoarthritis in the right knee. The certificate was signed by Dr. Turner, General Practitioner of Trinity Beach Medical Centre. Trinity Beach is a small village north of Cairns in North Queensland.
(kk)On 25 February 2004, Ann Goodall of Centrelink’s workplace, health team, wrote to Mr. O’Connell to tell him that it appeared that he had refused or failed to undertake a rehabilitation program provided for him under the SRC Act. He was also advised to either commence his rehabilitation program, or provide reasons for his failure to do so. He was given fourteen (14) days in which to respond.
(ll)On 26 February 2004, Sean Spode, Rehabilitation Case Manager, wrote to Mr. O’Connell, at an address at Kewarra Beach, Cairns, to tell Mr. O’Connell that the medical certificate by Dr. Turner was unacceptable, for a number of reasons, and that other medical evidence was to the effect that he was fit to participate in a rehabilitation program. Mr. Spode ended his communication with these words:
“Arrangements were made to facilitate an appropriate return to work program in accordance with Dr Trifiletti’s recommendations. You were advised of the arrangements in my letter to you dated 16/02/04 and sent by registered post to your last known address. You were expected to attend work on 24/02/04. I note you did not attend work on 24/02/04. I was able to contact you on 24/02/04. You state you moved to Far North Queensland for a lifestyle change on 20/01/04 and you have no intention of returning to Melbourne.
You have not attended work or participated in an appropriate rehabilitation program as endorsed by an Occupational Physician. I do not consider your absence from duty to be reasonable. No personal leave, or any other form of leave has been or will be approved.
Accordingly, your medical certificate dated 20/02/04 or 23/02/04 (date illegibile) for ‘O A R Knee’ will not be accepted.
In accordance with the Centrelink Development Agreement (CDA) Section 64.21, Personal leave will not be granted in any case of absence from duty without sufficient cause. Personal leave has not been approved. You are absent from duty without sufficient cause. As a consequence your absence from 20/02/04 is not authorised and in accordance with CDA Section 72 Unauthorised absences, the absence is without pay and will not count as service for any purpose.”
(mm)By determination dated 8 March 2004, Mr. O’Connell’s rights to compensation under the SRC Act, and to institute or continue any proceedings under the SRC Act in relation to compensation, were suspended as at 8 March 2004 pursuant to sub-section 37(7) of the SRC Act until he begins to undertake the rehabilitation program provided for him.
(nn)By letter dated 15 March 2004, Mr. O’Connell requested a reconsideration of the determination dated 8 March 2004.
(oo)On 22 March 2004, Mr. O’Connell sent a fax from Cairns to Centrelink in Melbourne. The fax contained the following passages:
“Return to work program. This graduated return to work does not address the psychological restrictions I have with dealing with the anxiety of walking into a Centrelink office. It has been noted on many occasions that due to the lengthy time I have had off work and the lack of ongoing support that this would be extremely difficult for any one in my situation. I am mentally unable to deal with this without assistance from a professional to help me overcome my psychological barriers that have built up over time.
My wife informed Carolyn Stone back in November 2003 that we had intended to move up North and the house in Rowville was on the market following a Heart Attack, I believe is strongly linked to my weight gain, lack of mobility and anxiety stemming from my initial injury. At this time there were several requests made by both my wife and myself to get assistance and a return to work program in Cairns, with no assistance given. I therefore am unsure to why a position was made available to me in Melbourne when our intentions were made clear.”
(pp)By letter dated 25 March 2004, Mr. O’Connell formally advised that his residential address as of 20 January 2004 was Kewarra Beach QLD 4879.
(qq)By letter dated 27 April 2004, Centrelink provided a response to Comcare in respect of Mr. O’Connell’s request for reconsideration. Centrelink confirmed that it did not support his request for reconsideration and provided a chronology of events and documents relevant to his rehabilitation process.
(rr)The reviewable decision dated 10 May 2004 affirmed the determination dated 8 March 2004.
7.The legislation relevant to this review is contained in section 37 of the SRC Act and provides as follows:
“Section 37 Provision of rehabilitation programs
37.(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determined may make arrangements with an approved program provider for the provision of rehabilitation program for the employee.
(2) A rehabilitation authority must not make arrangements for the provision of rehabilitation program to its employees other than by an approved program provider.
….
(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, 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 employee begins to undertake the program.
(8) Where an employee’s right to compensation is suspended under subsection (7) compensation is not payable in respect of the period of the suspension.”
8.It is the Respondent’s case that Mr. O’Connell has not been co-operative nor has he been genuine in any attempts at his rehabilitation. The Respondent contends that in recent years Mr. O’Connell formed an intention to live in the Cairns district and that he was not interested in returning to work in Melbourne. In summary, the Respondent points to the following matters to justify its stand:
(a)The reports of expert orthopaedic and occupational medical practitioners such as Douglas Gardiner, Denis King, David Barton, Harry Tsigaris and Bernadette Trifiletti, all say that in their opinions Mr. O’Connell’s current right knee condition would not prevent him from returning to his pre-injury duties, albeit with some initial minor restrictions.
(b)Orthopaedic surgeon, Harry Tsigaris, believes that Mr. O’Connell is exaggerating the degree of restriction in his right knee and that his knee pain is “quite disproportionate with the findings from recent examinations”.
(c)Mr. O’Connell had gone to Cairns to get married in September 2002. He later brought two investment properties in Cairns in 2003. He told Dr. Trifiletti that he bought the investment properties with a view to moving to Cairns in 2004. He also told Dr. Trifiletti that he was considering running a small business in Cairns. He mentioned by way of example, a pizza shop.
(d)Mr. O’Connell sold his Melbourne house in December 2003, at a time when he was being warned by Carolyn Stone and by Janet Smith that if he moved to North Queensland from Melbourne, without first being transferred, he would be considered as “non-compliant” by Comcare. (See exhibits 9 and 10).
(e)Comcare went to extraordinary lengths to attempt to accommodate Mr. O’Connell and to try to get him back into the work force, but Mr. O’Connell showed a reluctance to work. He has not worked since 27 October 1997.
(f)There is no clinical basis for Mr. O’Connell to claim that he has a psychological or psychiatric barrier to his engaging in work.
9.Mr. O’Connell provided statements and gave oral evidence. He made the following points, among others:
· He is genuinely prevented from working because of the state of his right knee and the pain associated with it.
· His phobia associated with entering Centrelink buildings is genuine.
· He did attempt to return to work for one week in 2000. He was placed in front of a computer which he could not use and he was asked to do photocopying which he found demeaning.
· It was essential for the state of his health in general, and his right knee in particular, that he move from the cold climate of Melbourne to the warm climate of Cairns. He believes that the change was not only reasonable but also essential.
· He denies that he left Melbourne specifically for the purpose of buying a business in Cairns.
10.In this case a significant question of Mr. O’Connell’s credibility has arisen in two ways, namely:
(a)The matter of the medical examiners who believe that there is not a lot wrong with Mr. O’Connell’s right knee. Certainly not sufficient to prevent him from working. That is, the question arises as to whether his claim about the effect of his knee upon him, is false.
(b)Mr. O’Connell told Dr. Trifiletti on 13 January 2004 that he does not drive a car due to a combination of his medication and concerns about having an accident due to his right knee condition. He also told Dr. Trifiletti that his wife drove their car and that when he travelled alone he did so by taxi or public transport.
11.During cross-examination of Mr. O’Connell by Mr. Clark the following matters emerged:
(a)Mr. O’Connell denied that he told Dr. Trifiletti that he never drove.
(b)He had been disqualified from driving in Victoria for two years from 19 June 2002 for drink driving.
(c)He was issued with a Queensland driver’s license in June 2004.
(d)He initially claimed that he did not drive in Queensland until June 2004.
(e)He denied telling Dr. Trifiletti before he left Melbourne that he was interested in running a pizza shop in Cairns. He said that the idea of a pizza shop, or fish and chips shop or whatever type of shop, only occurred to him when he arrived in Cairns.
12.Mr. Clark produced, on behalf of the Respondent, a video tape which was taken in March 2004. The video was taken in the Cairns area and shows the following:
5 March 2004, 10:17am: Mr. O’Connell alights from his car and enters a shop which appears to sell fruit, vegetables, groceries and newspapers. After about two minutes he emerges with a newspaper. He then strolls along the footpath at a moderate pace and enters “Deboro’s pizza and pasta shop”. At 10:56am he emerges from Deboro’s and strolls back to his car, enters his car on the driver’s side, reverses from the parking spot and he drives off. There is no passenger in the car. His walking gait is normal, absolutely no sign of a limp. He negotiates the kerbside gutters and the getting in and out of his car with no problems.
6 March 2004, 10:50am: Mr. O’Connell walks along the footpath alongside a row of shops. He posts a letter in a post box, has no trouble negotiating the gutter, looks in the window of a fish and chip shop, walks a bit further and enters a pizza shop. He stays inside the pizza shop for a few minutes then he returns to his car, reverses from the parking space and drives off. He has no passenger.
8 March 2004, 19:31: Mr. O’Connell and his wife step outside their home to have a smoke.
19:34: Mr. O’Connell reverses his car from the garage and drives off, leaving his wife at home.
19:39 – 19:42: Mr. O’Connell parks outside a pizza shop, leaves his car and enters the shop. He stands and leans forward onto the counter of the shop and appears to talk and joke with the people behind the counter. He talks animatedly and laughs from time to time. He shifts his weight from leg to leg by flexing his left knee for a minute or so and then his right knee for a minute or so.
20:12 – 20:30: Mr. O’Connell continues to stand with his elbow on the counter – talking, laughing as before.
20:30: Mr. O’Connell leaves the shop, returns to his car and drives off.
13.The video clearly shows Mr. O’Connell driving his car in March 2004. It also clearly shows him walking perfectly normally with absolutely no sign of a limp, nor any discomfort associated with negotiating the footpath, gutters and getting in and out of his car.
14.I find that Mr. O’Connell completely lacks credibility. Where his evidence varies from that of the medical witnesses and in particular Dr. Trifiletti, I accept the evidence of the medical witnesses.
15.I take the view that Mr. O’Connell probably made plans to go from Melbourne to Cairns to live, to invest and to run a small business as early as mid 2002 when he made his marriage arrangements. He had no intention of remaining in Melbourne and much less intent to return to work at Centrelink.
16.I also take the view that the medical witnesses are correct in their assessment of Mr. O’Connell’s claimed right knee disability. The video clearly shows that he has exaggerated his claimed disability. There is not much wrong with his knee.
17.I affirm the decision of the Respondent that Mr. O’Connell has no reasonable excuse for refusing or failing to undertake the rehabilitation program provided for him.
18.Consequently, the provisions of s.37(7) of the SRC Act automatically have the effect of suspending Mr. O’Connells’ right of compensation.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
B. Hitchcock, Personal AsstDate/s of Hearing 15 December 2004
Date of Decision 25 August 2005
Applicant Mr. O'Connell, himself
Counsel for the Respondent Mr. C. Clark
Solicitor for the Respondent Dibbs Barker Gosling
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