O'Connor and Australian Postal Corporation
[2011] AATA 373
•31 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 373
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos. 2008/3740, 2010/4889 &
GENERAL ADMINISTRATIVE DIVISION ) 2011/0157
Re Arron O'Connor Applicant
And
Australian Postal Corporation
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr J Campbell, MemberDate31 May 2011
PlaceSydney
Decision The Tribunal sets aside the decisions under review and instead decides:
i) In relation to the reviewable decision dated 17 July 2008 (2008/3740):
Mr O’Connor’s rights under the Safety, Rehabilitation and Compensation Act 1988 should be reinstated on and from 19 November 2007.
ii) In relation to the reviewable decision dated 3 November 2010 (2010/4889):
Mr O’Connor had a reasonable excuse for not undertaking the rehabilitation plan determined on 13 January 2010
iii) In relation to the reviewable decision dated 23 December 2010 (2011/0157):
the rehabilitation program determined on 13 January 2010 was not appropriate for Mr O’Connor and failed to take into account the matters in section 37(3) of the Act.
……...............[sgd]............................
Ms N Bell, Presiding Member
CATCHWORDS - Workers' Compensation - rehabilitation program – suitability of rehabilitation program - suspension and reinstatement of compensation – failure to undertake rehabilitation program – reasonable excuse – paracentral disc herniation - lumbar spondyltic condition – credibility
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr J Campbell, Member1. In 2006, Arron O’Connor, once an active sportsman, injured his left leg and back when he slipped on a muddy strip on the way to the bike shed at the Australia Post Kirrawee Delivery Centre. He had started work there that year. Australia Post accepted liability for Mr O’Connor’s injury and, after a few months, commenced to determine a string of rehabilitation plans with the aim of returning Mr O’Connor to full duties.
2. Since then Mr O’Connor’s progress towards recovery has been punctuated by two back surgeries, many absences from work and many failed attempts to follow the rehabilitation plans devised for him.
3.
On 5 September 2007, Australia Post made a determination under section 37(7) of the Safety, Rehabilitation and Compensation Act 1988 to suspend
Mr O’Connor’s rights to compensation until he begins to undertake the rehabilitation program determined at that time. Mr O’Connor does not dispute that suspension but does contend that when the suspension was determined to be lifted and his rights to compensation were reinstated, that decision should have been effected from
19 November 2007 rather than from 8 February 2008.
4.
In 2010, rehabilitation programs were still being determined in relation to
Mr O’Connor and on 13 January a program was determined which, on a five stage basis, had Mr O’Connor returning to full duties and full normal hours in six weeks. Then, on 19 January, a further determination was made by Australia Post to again suspend Mr O’Connor’s rights to compensation until he begins to undertake the rehabilitation program of 13 January. Mr O’Connor disputes the suitability of the
13 January program and maintains that he has a reasonable excuse for failing to undertake it.
5.The questions for us to consider are:
(a)Did Mr O’Connor begin to undertake the rehabilitation program in place in September 2007 by 19 November 2007?
(b)Was the rehabilitation program determined on 13 January 2010 suitable?
(c)Did Mr O’Connor have a reasonable excuse for not undertaking the 13 January 2010 rehabilitation program?
6. Mr O’Connor’s credibility was a live issue in this application. He depicted, in his stance, his posture, the noises he made and in his propensity to lie on the floor of the hearing room, great physical pain and discomfort. He struck us as having one of the more extreme presentations of discomfort by an applicant that we have witnessed as members of the Tribunal. Mr O’Connor’s presentation appeared to be in contrast with his custom of attending the gym to do abdominal strengthening exercises and his swimming for similar purposes, although we noted his history as a sportsman and the likelihood that he was more inclined to perform this activity for therapeutic purposes than would a person without his athletic background.
7.
However, Mr O’Connor made a very foolish mistake that cast even more serious doubt on his evidence and on the histories he had given to his doctors and those who examined him on behalf of Australia Post. He lied to the Tribunal and, it appears, to his legal representatives. He said that a trip overseas in 2010 was to the United Kingdom where he attended a family wedding and spent time in quiet contemplation in Nottingham, thinking about his condition and his future. After being faced with contrary evidence from his Facebook page and after cross examination by Counsel and questioning by the Tribunal, he admitted that in fact his trip had been to the United States, for some three months, where he had enjoyed time in
Los Angeles, then in New York, and then spent a month in Indiana before finishing his trip with a five day road trip via Colorado to Los Angeles. He had never been to the UK.
8. In determining the issues in Mr O’Connor’s application we are mindful of his very damaged credibility.
did mr o’connor begin to undertake the rehabilitation program in place in september 2007 by 19 november 2007?
9. It is not in dispute that Mr O’Connor returned to work on 19 November 2007 after suspension in September and a number of what appear to have been false starts. Mr O’Connor gave evidence of a telephone discussion with the rehabilitation officer, Joseline Youssef, to the effect that if Mr O’Connor were to return to work on 19 November he would receive full “makeup pay” – the amount of compensation to be paid to bring his earnings to full time level, or a percentage of that in accordance with the Act, notwithstanding that he was not working full time hours. There is no dispute that he worked, from 19 November 2007, four hours per day for five days per week – the hours specified in the relevant program.
10.
Apart from some e-mails between his manager David Waring and Ms Youssef between 29 November 2007 and 7 February 2008 noting some absences by
Mr O’Connor (the majority of which were supported by medical certificates) and some disagreement and confusion as to whether he should be lifting 5 kilograms or 8 kilograms, there is no evidence from Australia Post of what it is he did or failed to do that meant he had not begun to undertake the program. There is only Mr Waring’s evidence that Mr O’Connor was a difficult person to deal with because he had to be chased for medical certificates when they were needed and because he took to lying on the floor of the UMS area during designated breaks. The way in which Mr O’Connor failed to undertake the program from 19 November 2007 until the lifting of the suspension on 8 February 2008, if any, is not documented and was not described in evidence by Mr Waring. No other witness addressed the period.
11. We have only Mr O’Connor’s evidence to go on. His evidence is that he performed work in accordance with the program. The leave records indicate that he attended work on at least 90% of the designated days in the period for the hours set out in the program. Mr O’Connor’s credibility may be damaged, but his evidence and the leave records, are the only evidence we have of whether he undertook the program from 19 November. In the absence of evidence to the contrary, we find that he did.
was the rehabilitation program determined on 13 january 2010 suitable?
12. In considering whether the rehabilitation program was suitable we must first look at the evidence of Mr O’Connor’s medical condition.
13.
On 23 April 2007 an MRI scan of Mr O’Connor’s lumbosacral spine was reported as showing multiple lumbar spondylitic changes, post-operative change at
L 4/5 extending down to the L5 nerve root, with no compressive nerve root lesion.
14. On 19 May 2008 an MRI scan of the lumbosacral spine was reported as demonstrating a large left paracentral disc herniation at the L 4/5 level associated with an annular tear. An L5 laminectomy was present with enhancement of the granulation tissue. Facet joint degenerative changes were present within the lower lumbar spine.
15.
A further MRI scan of the lumbosacral spine was performed on
31 March 2009 and was reported as demonstrating a left sided moderate size disc herniation at L4/5 with left L5 and L4 nerve root compromise – S1 nerve root compromise, with a small disc herniation at L5/S1.
16.
Dr Stening, consultant neurosurgeon, performed a laminectomy on
Mr O’Connor in August 2006 and a further L4/5 laminectomy and partial discectomy in September 2008. In evidence to the Tribunal he said that although he thought the applicant had a “very strange personality” and was at times “evasive”, he had “absolutely” no doubt that he was suffering a significant back problem which was supported by MRI scans and the operations on his back. Dr Stening described Mr O’Connor as having suffered a significant L4/5 disc rupture:
It’s, you know, maybe a centimetre in diameter, maybe between seven millimetres and a centimetre in diameter, much larger than the disc bulges that people often see in MRIs of people with low level back pain. In other words – and asymmetrical, in other words, it’s on one side and not on the other.
17. In his report of 3 February 2010, Dr Stening concluded that Mr O’Connor should be retrained. When questioned about this statement Dr Stening said :
I am not entirely familiar with the amount of activity that is required in sorting mail. But I always had concerns that he would get back to the actual delivery process though, carrying a bag or riding a conveyance across sometimes uneven ground. I thought that might be a problem for him.
18.
He said that in his consultation with Mr O’Connor on 25 January 2007, he had reported pain across his back, hips and left leg which worsened with exertion. In his report of 6 April 2009, Dr Stening noted that as Mr O’Connor pushed closer to normal hours in his return to work program, he was reporting a recurrence of leg and back pain and concluded that he has to back off on his return to work program, as there appeared to be a level beyond which he cannot progress. On 4 May 2009
Dr Stening noted that Mr O’Connor experienced further exacerbations of pain on return to work. On 3 February 2010, Dr Stening concluded that Mr O’Connor should be retrained.
19.
In a brief report dated 10 March 2010 Dr Stening said it is evident that
Mr O’Connor is experiencing discogenic pain. He agreed with Dr Malouf’s decision to certify him totally incapacitated from 18 to 29 January 2010.
20. When presented with evidence of Mr O’Connor rafting and jumping off a rock into the water in Colorado, Dr Stening said:
I don’t think that any of that material was inconsistent with what he told me, although I can’t be absolutely certain whether what he told me was accurate but I had no reason to disbelieve him.
21. On 7 September 2010, Dr O’Neill, consultant neurologist, following a comprehensive synopsis of Mr O’Connor’s clinical history, concluded that while there is a significant psychosomatic component to his presentation at examination, it is clear that, given this background history of work related low back problems, he will not return to his previous work as a postal delivery officer. In oral evidence, Dr O’Neill confirmed his written opinion and agreed that a degree of exaggeration at examination is not unknown in an individual with chronic pain. When asked whether a rehabilitation plan that required upgrading to normal hours and duties is realistic, he answered that it is not, although he was unable to recall the exact nature of those duties. In relation to photographs of Mr O’Connor engaged in various physical activities on a trip to the United States in May 2010, Dr O’Neill considered that they were inconsistent with his presentation on examination.
22.
Dr Maxwell’s opinion followed a meandering course. On 20 October 2006 he observed that there was slow resolution post surgery of Mr O’ Connor’s symptoms and again, on 4 April 2007, he noted that Mr O’ Connor was making very slow progress; that he was complaining of continuing low back pain and that mild radicular signs and symptoms were noted at L5 on the left. Dr Maxwell recommended that Mr O’ Connor continue with up grading in his return to work program and considered that surgery was not a possibility at that time On 23 May 2007, Dr Maxwell commented that possible fibrosis was responsible for some of Mr O’Connor’s intermittent sciatic symptoms. On 13 May 2008, Dr Maxwell said that Mr O’Connor was somewhat difficult to rehabilitate, was generally pain focussed and that subsequent progress post discectomy has been somewhat disappointing and psychological factors are starting to play a part. On 29 March 2009, Dr Maxwell reported that Mr O’Connor may have sustained further disc protrusions and that he was unfit for work. On 27 August 2009 Dr Maxwell reported that Mr O’Connor was complaining of symptoms suggestive of irritation of the L5 nerve root, that he was still recovering from left L5 radiculopathy and that his restrictions in relation to work should be monitored on the basis of clinical improvement and symptoms. On
16 December 2009 Dr Maxwell noted that there were signs and symptoms of L5 radiculopathy probably due to nerve root tethering and that there was little to be gained by further surgery.
23. However, in a report dated 18 February 2011, Dr Maxwell said he was not convinced Mr O’Connor had any hard radicular signs. He said there was evidence of conscious fabrication of the physical signs and said the photographs taken of his trip to America would indicate that he is not as disabled as he states.
24. In his oral evidence to the Tribunal Dr Maxwell said Mr O’Connor’s trip to the United States was evidence of a functional improvement that supported a program of return to full postal officer duties. However, he agreed that he had only viewed photographs and had no information about the activities depicted, whether those activities exacerbated his symptoms or how Mr O’Connor spent the rest of his trip.
25.
Dr Malouf is Mr O’Connor’s general practitioner, appointed by Australia Post. He has issued in excess of 30 medical certificates in respect of Mr O’Connor. He described Mr O’Connor as a person who “overcompensates” because people do not accept that his pain is as bad as it is. He said he has a severe back problem. By
December 2009 Dr Malouf considered that Mr O’Connor should, in accordance with
Dr Matheson’s opinion, be retrained. He considered that he would never return to full duties and said he conveyed this view to Mr O’Connor’s supervisors and to
Ms Youssef.
26. On 10 August 2009, Dr Vote, a consultant orthopaedic surgeon, reported that Mr O’Connor would always have permanent limitations and that he is not fit for heavy work.
27.
On 26 May 2009 Dr Matheson, a consultant neurosurgeon, reported to Australia Post that Mr O’Connor should be retrained in some form of clerical work and that he was not able to continue delivery work at the Post Office.
On 1 December 2009 Dr Matheson reported that there was scarring on the left side at the L4/5 level on the MRI scan of 19 November 2009 and that Mr O’Connor continued to report low back pain and left leg pain to the lateral calf consistent with L5 involvement. Dr Matheson considered Mr O’Connor would benefit from the further opinion of Dr Mobbs, neurosurgeon.
28.
In a report dated 17 February 2010, Dr Mobbs said Mr O’Connor’s back pain is activity related in that when he works harder or does any heavy lifting or twisting then the pain gets worse. The leg pain travels down the left leg in a classic distribution in the L5 territory. In a further report of 2 March 2010 Dr Mobbs concluded that Mr O’Connor’s current work is not suitable for his back problem and again in a report dated 17 March 2010 opined that Mr O’Connor was not suited to return to his usual duties. He was in favour of further surgery, in contrast with
Dr Stening who considered that would be dangerous.
29. By January 2010 the prevalence of medical opinion among Mr O’Connor’s treating doctors and Australia Post appointed doctors was that Mr O’Connor’s work was not suitable for him. Drs Stening, Malouf and Matheson considered that he should be either retrained or the rehabilitation programs for return to his postal officer duties should be abandoned. Dr O’Neil, although unsure of the precise duties involved, later considered that upgrading to full duties and hours was not realistic. Only Dr Maxwell thought otherwise.
30.
Mr O’Connor’s exaggeration of his symptoms was acknowledged by
Drs Malouf and Stening but they stood by their opinions. Dr O’Neil agreed that chronic pain is “an awful thing” and a person with that pain might be more demonstrative of it in an assessment process.
31. We should say a word about Mr O’Connor’s United States trip. It was foolish of him to have undertaken a five day road trip, sitting in a car for hours, and remarkably foolish of him to have attempted white water rafting, albeit it in relatively calm conditions, and to have jumped from a rock into the water just because everyone else was doing it too. He seems to have been motivated towards this foolishness by a new romance.
32. Ms Hayes, Mr O’Connor’s new friend at the time, gave evidence to the Tribunal by telephone from the United States. She said that they visited an amusement park during their time together in Indiana and that Mr O’Connor had appeared anxious about riding the rollercoasters and while he had ridden two at one amusement park, he declined to do so at the second. She said he had been uncomfortable on the five day road trip, which had been her idea, and that they would have to stop so that he could stretch and lie on the ground. She described a gruelling schedule, driving all day and on one occasion until 3.00 am. She said she observed him to be in great discomfort after the rafting and the jump into the water. Again, this had been her idea. She said she did not find out about his back injury until the end of the trip and had put his apparent discomfort down to his being a man confined in a car for hours at a time.
33. We do not set much store by these activities for which Mr O’Connor seems to have suffered. We do not think they signify functional improvement or an ability to undertake the full duties of a full time postal officer. They were foolish bravado of a kind unlikely to be able to be sustained.
34. The rehabilitation program determined on 13 January 2010 provided for five stages of upgraded work over six weeks, culminating in a return to full duties and full hours.
35. The weight of medical opinion establishes that it would be impossible that Mr O’Connor would, after six weeks, be able to return to full duties and full hours. This is so notwithstanding that in the past programs had been amended, overtaken by other programs, commenced again after the program’s objectives had not been met and, to a greater or lesser extent, incorporated or had regard to medical practitioners’ opinions and recommendations. The program was determined as documented; there was no proviso nor any guarantee that it would be amended or reviewed to accommodate difficulty for Mr O’Connor. This program seemed to fly in the face of the current medical opinion, including the opinion of some Australia Post appointed doctors. This program appeared to ignore the opinions of Drs Malouf and Matheson and the referral to Dr Mobbs made by Dr Matheson. Dr Stening’s later evidence that program was a waste of time and Dr Mobbs’ recommendation of further surgery give an indication of how futile was the goal of a return to full duties and full hours in a mere six weeks.
36. The plan was clearly, on the available medical opinion and the evidence before us, not suitable and should not have been determined. It exhibits a failure to have proper regard to the factors set out in section 37(3) of the Act and to the majority medical opinion at the time.
did mr o’connor have a reasonable excuse for not undertaking the
13 january 2010 rehabilitation program?
37. We have concluded that the rehabilitation program was not suitable and was against prevailing medical opinion. This alone constitutes reasonable excuse.
38.
We note also the circumstances in which the decision to suspend
Mr O’Connor’s rights to compensation was made. On 11 January 2010 Dr Malouf certified Mr O’Connor fit to work three hours per day for three days per week for the following four weeks with detailed restrictions. The certificate also noted that Mr O’Connor had been referred to see Dr Mobbs for a further opinion and that he has “pain and discomfort all of the time and his pain is exacerbated easily. It is difficult to find suitable work for him to do.” On 13 January a new program was determined, identical to the previous program, following the restrictions recommended by Dr Malouf for two weeks, but then moving over the next four weeks to full duties for full hours. Mr O’Connor said he was in great pain at the time but it is unclear whether Mr O’Connor attended work on 13 and 14 January. On 15 January Australia Post wrote to Mr O’Connor noting that he had not attended work on 15 January and asking him to advise by 24 January the reasons why he had not undertaken the rehabilitation program. The letter advised that in the absence of satisfactory reasons his rights to compensation would be suspended. On Monday 18 January
Mr O’Connor provided a medical certificate from Dr Malouf certifying him unfit for all work from 18 to 29 January. On 19 January, five days before the advised deadline for the provision of his reasons for absence and the day after he had submitted the certificate from Dr Malouf, Mr O’Connor’s rights to compensation were suspended. He was given no opportunity to state his reasons for not undertaking the program and the medical certificate of Dr Malouf was disregarded.
39.
Mr O’Connor was not fit to undertake the rehabilitation plan determined on
13 January 2010. This is also borne out by the reports of Dr Mobbs in March 2010 in which he said that further surgery should be considered and Mr O’Connor should be retrained for appropriate duties.
40. Mr O’Connor had a reasonable excuse for not undertaking the 13 January rehabilitation program.
Decision
41. The Tribunal sets aside the decisions under review and instead decides:
i) In relation to the reviewable decision dated 17 July 2008 (2008/3740):
Mr O’Connor’s rights under the Safety, Rehabilitation and Compensation Act 1988 should be reinstated on and from
19 November 2007.
ii) In relation to the reviewable decision dated 3 November 2010 (2010/4889):
Mr O’Connor had a reasonable excuse for not undertaking the rehabilitation program determined on 13 January 2010
iii) In relation to the reviewable decision dated 23 December 2010 (2011/0157):
the rehabilitation program determined on 13 January 2010 was not appropriate for Mr O’Connor and failed to take into account the matters in section 37(3) of the Act.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr J Campbell, Member
Signed: .................[sgd].............................................................
AssociateDates of Hearing 13 & 14 December 2010,
11, 12 & 13 May 2011
Date of Decision 31 May 2011
Counsel for the Applicant Mr Leo Grey
Solicitor for the Applicant Mr Max Emanuel
Counsel for the Respondent Miss Rhonda Henderson
Solicitor for the Respondent Ms Donna Hatton, Australian Postal Corporation
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