Oliver and Comcare (Compensation) - [2019] AATA 888

Oliver and Comcare (Compensation) [2019] AATA 888 (15 May 2019)
Division:GENERAL DIVISION
File Number(s): 2016/4926, 2017/0156, 2017/7685
Re:Catrina Oliver
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mark Hyman, Member
Date:15 May 2019
Place:Canberra

The decisions under review are affirmed.
........................................................................
Mark Hyman, Member
Catchwords
COMPENSATION – rehabilitation – whether the applicant is obliged to undertake the rehabilitation program determined for her – whether the applicant had a reasonable excuse for refusing or failing to undertake the rehabilitation program – where the credit of the applicant and some of her witnesses is in question – where the evidence of medical specialists is at odds with the evidence of the applicant and her general practitioner – whether a new rehabilitation program should be made for the applicant – evidence of the experts should be preferred – decisions under review affirmed
PRACTICE AND PROCEDURE – prima facie contempt of the tribunal – where a witness admitted to contravening a direct order of the tribunal – apparent collusion and fabrication of evidence – effect on credit of witness – effect on credit of applicant
Legislation
Administrative Appeals Tribunal Act 1975, ss 34E, 35, 37, 38AA, 39
Evidence Act 1995, s 128
Listening Devices Act 1992 (ACT), ss 4 and 5
Safety, Rehabilitation and Compensation Act 1988, ss 36, 37, 38, 40
Cases
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Australian Postal Corporation v Forgie [2003] FCAFC 223
Australian Postal Commission v Hayes [1989] FCA 176
Boyes v Colins [2000] WASCA 344
Buck v Comcare [1996] FCA 388
Buttigieg and Comcare [2017] AATA 1002
Ismailjee and Australian Postal Corporation [1995] AATA 555
Kingham v Cole [2002] FCA 45
McGuinness v Comcare [2007] FMCA 1486
Morton v Colonial Mutual Life Assurance Society Limited [2013] FCA 681
Ramsay v Australian Postal Commission [2005] FCA 640
Shi v Migration Agents Registration Authority [2008] HCA 31
Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396
REASONS FOR DECISION
Mark Hyman, Member
15 May 2019

This decision is about three matters, all relating to a rehabilitation program for the applicant, Ms Catrina Oliver: first, whether Ms Oliver should be obliged to undertake a rehabilitation program that was developed for her by her employer, the Department of Social Services (DSS - matter 2016/4926); second, whether Ms Oliver’s compensation rights (including her right to continue proceedings under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act)), which were suspended because she did not undertake the rehabilitation program, should be reinstated (matter 2017/0156); and third, whether a new and different rehabilitation program should be developed for Ms Oliver (matter 2017/7685). Ms Oliver has an accepted workers’ compensation claim under the SRC Act; her accepted condition is characterised as “unspecified disorder of synovium, tendon and bursa (left) and wrist sprain (left)” with a date of injury of 30 July 2012.
On 14 July 2016 DSS determined under subsection 37(1) of the SRC Act that Ms Oliver should undertake a rehabilitation program, beginning on 14 July 2016 (i.e. the same day). Ms Oliver sought reconsideration of the determination on 25 July 2016 (T83[1]) on the basis that the program would cause her pain levels to increase, would affect her work and would cause psychological distress (T81). Comcare reviewed DSS’s decision and affirmed it in a reconsideration decision dated 19 August 2016 (T85). On 15 September 2016 Ms Oliver applied to this tribunal for review of Comcare’s decision.
[1] References are to T-documents from matter 2016/4926 unless otherwise indicated; references to ST-documents are to a combined set of material for matters 2016/4926 and 2017/0156.
Under subsection 37(7) of the SRC Act, an injured employee’s rights to compensation and to continue proceedings under the SRC Act are suspended if the employee refuses or fails, without reasonable excuse, to participate in a rehabilitation program provided under the section. On 4 November 2016 DSS made a determination that Ms Oliver’s rights were so suspended (T6 of 0156). On 28 November 2016 Ms Oliver sought reconsideration (T8, T8.1 of 0156), and Comcare reaffirmed the decision in a reconsideration determination dated 23 December 2016 (T14 of 0156). On 9 January 2017 Ms Oliver sought review by this tribunal (T1 of 0156).
On 30 August 2017 Ms Oliver wrote to DSS asking for a new rehabilitation program. On 27 September 2017 DSS responded to Ms Oliver’s letter denying her request (T5 of 7685). Ms Oliver requested reconsideration on 13 October 2017 (T7 of 7685) and Comcare affirmed DSS’s decision in a reconsideration determination dated 8 December 2017 (T1.1 of 7685). On 20 December 2017 Ms Oliver sought review by this tribunal (T1 of 7685).
The tribunal heard all three matters together on 8-11 April 2019. Ms Oliver represented herself and Mr Peter Woulfe of Counsel represented Comcare, briefed by Ms Shery William of Comcare. Ms Oliver called four lay witnesses: a work colleague and former supervisor, Ms Lisa Trevorrow; her husband, Mr Mark Oliver; her mother, Ms Annette Deans; and her aunt, Ms Jacqueline McNamara. Comcare called two lay witnesses, Ms Marion Levy and Ms Margie Lam, both rehabilitation case managers; and two experts, Dr Uthum Dias, an occupational physician, and Professor Peter Youssef, a rheumatologist. All witnesses appeared in person except the expert witnesses, who appeared by telephone.
The tribunal had before it a body of documentary material, comprising the documents provided under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for each of the three matters (the T-documents); supplementary T-documents provided under section 38AA of the AAT Act (combined for matters 4926 and 0156); and a large number of documents and other records tendered at the hearing, as set out below:

Document or other record	Date or date filed	Exhibit number
Witness statement of Ms Lisa Trevorrow	Undated, filed 31 August 2017	A1
Witness statement of Mr Mark Oliver	16 October 2017	A2
Witness statement of Ms Annette Deans	Undated, filed 31 August 2017	A3
Witness statement of Ms Catrina Oliver	15 March 2017	A4
Witness statement of Ms Catrina Oliver	16 March 2017	A5
Witness statement of Ms Catrina Oliver	7 September 2017	A6
Witness statement of Ms Catrina Oliver	11 December 2017	A7
Witness statement of Ms Catrina Oliver, with 20 attachments	31 January 2019	A8
Comcare file material obtained under Freedom of Information legislation	Various dates, tendered 10 April 2019	A9
Surveillance material on DVD, with accompanying report and still photographs	For 1-8 November 2017, tendered 9 April 2019	R1
Surveillance material on DVD, with accompanying report and still photographs	For 4-31 January 2018, tendered 9 April 2019	R2
Handwritten record of rehabilitation meeting	Undated but appears to record details of meeting of 7 September 2016	R3
Record of attendance at and payments by Ms Catrina Oliver at child care centre	From 5 July 2015 to 4 May 2018, tendered 10 April 2019	R4
Report of Professor Peter Youssef	10 May 2017, with briefing letter dated 4 May 2017	R5
Supplementary report of Professor Youssef	11 October 2017, with briefing letters dated 27 September 2017 and 4 October 2017	R6
Amended statement of Ms Marion Levy	14 December 2017	R7
File note by Ms Marion Levy	13 October 2015	R8
Outline of evidence of Ms Margie Lam	11 December 2017	R9
Extracts of the personal diary of Ms Jacqueline McNamara for 2019	Tendered 10 April 2019	R10
Email exchange between Ms Catrina Oliver and Ms Jacqueline McNamara	Various dates, tendered 10 April 2019	R11
Witness statement of Ms Jacqueline McNamara	8 December 2017	R12
Supplementary report of Dr Uthum Dias	9 June 2017, with briefing letter dated 5 June 2017	R13

Following Ms Oliver’s evidence-in-chief and a passage of cross-examination, Comcare asked that video surveillance material be shown, and continued the cross-examination in light of the surveillance material. The material, together with the written reports and still photographs that were tendered at the same time, was also sent to the two expert witnesses, although the copy sent to Dr Dias apparently went astray, and Dr Dias was only able to draw on the still photographs in giving evidence.
In the course of the hearing, as issues arose, I became aware of the existence of various other documents that might cast light on relevant matters before me. Some of the exhibits listed above reflect the tendering during the hearing of documents so discovered during the proceedings. Some of these documents, and also the surveillance material, raise privacy issues, as they show or refer to third parties who have otherwise no involvement in the proceedings. I issued an order under section 35 of the AAT Act prohibiting the disclosure of the identity of third parties in Exhibits R1, R2, R4, R10 and R11.
The appearance of surveillance material part way through a hearing may be a legitimate tactic to test a witness’s evidence, but it presents challenges to the tribunal in properly managing a hearing. Mr Woulfe points to Buttigieg and Comcare [2017] AATA 1002 as support for the contention that as long as such surveillance material is protected under legal professional privilege, and is prepared after documents have been provided to the tribunal under section 37 of the AAT Act, there is no obligation on a respondent in a tribunal hearing to give the tribunal advance warning or provide the material in advance, seeking an order under section 35 of the AAT Act to maintain the element of surprise for the applicant. This arises because section 38AA of the AAT Act, which obliges a respondent to provide supplementary material to the tribunal before a hearing, does not override legal professional privilege in the way that section 37 does.
Cases such as Australian Postal Commission v Hayes [1989] FCA 176; (1989) 23 FCR 320 (Hayes), Boyes v Colins [2000] WASCA 344; (2000) 23 WAR 123, Australian Postal Corporation v Bessey (2001) 32 AAR 508, Kingham v Cole [2002] FCA 45; (2002) 118 FCR 289, Ramsay v Australian Postal Commission [2005] FCA 640; (2005) 147 FCR 39; and Morton v Colonial Mutual Life Assurance Society Limited [2013] FCA 681 all lend support to the admission of surveillance material to allow a party to challenge the other party’s account of events, especially with regard to the existence or severity of an injury or disability. But in Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396 (Tuimaseve) the Federal Court concluded that the use of surveillance material purely to attack an applicant’s credit (by showing inconsistencies between the applicant’s evidence and the surveillance material) may be a denial of procedural fairness.
In this instance the surveillance material has been brought forward to challenge Ms Oliver’s claims regarding the severity of her pain. In my view it fits within the ambit of the basis for the use of surveillance material set out in Hayes and the other cases referred to above. It does not fall into the category covered by Tuimaseve. For that reason I admitted the material and allowed it to be used in further cross-examination of Ms Oliver.
I was left, however, with issues relating to case management and procedural fairness. An applicant who is confronted with surveillance material without warning in a hearing must be allowed to seek an opportunity to respond – to prepare material in response, to reshape the case, to gather additional evidence – so as to have a reasonable opportunity of presenting his or her case; section 39 of the AAT Act imposes a duty on the tribunal to ensure that parties have such an opportunity. In this instance, Ms Oliver was invited to nominate what adjustments to the proceedings might be made to ensure that she could adequately present her case. She elected to proceed without change.
ISSUES
In matter 4926 the issue before the tribunal is whether Ms Oliver should be obliged to undertake the rehabilitation program determined for her under subsection 37(1) of the SRC Act on 14 July 2016.
In matter 0156 the issues before the tribunal are:
·whether Ms Oliver refused or failed to participate in the rehabilitation program determined for her under subsection 37(1) of the SRC Act on 14 July 2016; and
·if so, whether she had a reasonable excuse for so refusing or failing.
In matter 7685 the issue before the tribunal is whether Ms Oliver should be provided a new rehabilitation program under subsection 37(1) of the SRC Act. Clearly, if I were to find in the other two matters that Ms Oliver should complete the original rehabilitation program, and had refused or failed to participate in that program without reasonable excuse, then it is likely that the third issue would fall away. If I were to find, on the other hand, that Ms Oliver had a reasonable excuse for refusing or failing to participate in the earlier program, and did not need to participate in that program, then the third issue would stand to be considered.
THE LEGISLATIVE FRAMEWORK
Part III of the SRC Act deals with rehabilitation of injured employees. The scheme of this part of the Act, broadly put, is as follows:
·Divisions 1 and 2 set up some of the administrative arrangements, in particular the accreditation of rehabilitation program providers;
·section 36 allows the “rehabilitation authority” (usually, and specifically in this instance, the employer) to assess an injured employee’s suitability and capacity for rehabilitation;
·section 37 allows the rehabilitation authority to determine a rehabilitation program for the injured employee;
·section 38 provides for Comcare to take responsibility for reviewing decisions made under sections 36 or 37 by the rehabilitation authority;
·section 39 provides for Comcare to supply alterations, vehicle modifications and aids and appliances to injured employees once they have been assessed for and have met their rehabilitation needs; and
·section 40 imposes a duty on a rehabilitation authority to assist an injured employee to rejoin the workforce.
Section 37 of the SRC Act, the central provision for present purposes, reads as follows:
37 Provision of rehabilitation programs
(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.
(2) If a rehabilitation authority makes a determination under subsection (1), the authority may:
(a) provide a rehabilitation program for the employee itself; or
(b) make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.
(2A) A determination under subsection (1) is not a legislative instrument.
(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36(8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee’s opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee’s attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
(4) The cost of any rehabilitation program provided for an employee under this section shall be paid by the relevant authority in relation to that employee.
(5) Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:
(a) if the employee is undertaking a full‑time program—compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would, but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of the program; or
(b) if the employee is undertaking a part‑time program—compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full‑time program.
(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.
(7A) However, subsection (7) does not operate to suspend the employee’s right to compensation for the cost of medical treatment that is payable under section 16.
(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.
It is evident that the purpose of Part III of the SRC Act is to ensure that injured employees are able to return to work as soon as is reasonably possible; it is the role of the employer, as rehabilitation manager, to encourage and facilitate that return to work.
REHABILITATION – THE EVIDENCE
Ms Oliver’s rehabilitation history
Ms Oliver lodged a claim for compensation on 3 August 2012 (T4). She stated that the injured part of her body was the “left hand wrist” and identified the injury as left hand RSI (scilicet: repetitive strain injury) and left hand carpal tunnel syndrome. Ms Oliver’s employer at the time was the Department of Families, Housing, Community Services and Indigenous Affairs, later renamed DSS (and so identified henceforth in this decision). Ms Oliver gave 30 July 2012 as the date on which she had first sought medical attention. Her duties at DSS were clerical, working as the executive assistant to a senior executive of the Department. Comcare accepted the claim on 14 September 2012 (T8). The accepted conditions were “unspecified disorder of synovium, tendon and bursa (left) (wrist) (inflammatory type synovitis problem)” and “wrist sprain (left) (extensor carpi ulnaris tendonosis)”.
Ms Oliver’s wrist and hand condition persisted, and following a number of investigations (T5, T6, T11, T13, T14) she underwent surgery (arthroscopy, debridement and excision of the pisiform bone) on 26 April 2013 by Dr Maurizio Damiani, an orthopaedic surgeon (T16). Following surgery Ms Oliver developed what was described by Dr Damiani as “a pain syndrome” and a form of adhesive capsulitis (T17, T18, dated 3 and 4 July 2013 respectively).
In parallel with these developments, DSS was making attempts to rehabilitate Ms Oliver. A rehabilitation provider, ACTSAFE Australia, assessed her in a report dated 12 September 2012 (T7) and recommended that she should continue with the medical treatment she was receiving (a planned cortisone injection), with physiotherapy, and with pacing of activities of daily living and that she should receive home help for three hours each week. At this time Ms Oliver was yet to return to the workplace.
A document headed “Attachment to return to work plan” appears at T10, dated 16 November 2012. (The document, and others in the same format that follow, refers to a determination under subsection 37(3) of the SRC Act and sets out a list of factors taken into account. The reference to subsection 37(3) is an error: the SRC Act provides for a determination to be made under subsection 37(1), and the matters listed in subsection 37(3) must be taken into account in making that determination.) An assessment was made under section 36 of the SRC Act (that assessment, meeting the requirements of subsection 36(8), is the report at T7), and the matters to which regard is to be had in making a determination under subsection 37(1) are all considered and taken into account in the plan. A report by a consultant surgeon, Dr Thomas Davis, dated 12 December 2012 (T13) notes that it is proposed to provide dictation software for Ms Oliver. Dr Davis took the view that with that assistance Ms Oliver could return to work.

Following surgery, Dr Damiani recommended to ACTSAFE Australia on 4 July 2013 (T18) that Ms Oliver could return to work but only using the left hand to a minimal extent. A closure report by ACTSAFE Australia, dated 4 July 2013 noted that Ms Oliver’s return to work was not completely successful; that she continued to suffer significant pain; and that she was receiving further treatment and assistance, including physiotherapy, cortisone injections, analgesic medications, careful pacing and home help.
Ms Oliver asked that she move to a different rehabilitation provider, and her case was taken over by a provider named Injury Treatment, which appears to have provided rehabilitation services to about the end of 2014; a further determination under subsection 37(1) of the SRC Act was made by DSS (T30, dated 29 October 2013). Over that period Ms Oliver made further attempts to return to work, but did not get beyond seven hours a day for two days a week. Her progress was limited by a number of factors, including restructuring of the workplace with accompanying inadequate assignment of tasks, a slow response regarding the provision of an ergonomically suitable work station, pain and reduced range of motion in her wrist, uncertainty regarding her prognosis, and a variety of psychosocial factors (T23, T25, T28, T29, T31, T32, T34, T35, T36, T38, T41, T45, T46). There was also a hiatus because she had a second child on 2 September 2014 (Exhibit A3) and was on maternity leave from 29 August 2014 to 22 June 2015. The medical record shows that Ms Oliver’s condition underwent little change during the period; she saw a number of doctors, including medico-legal experts to whom Comcare referred her (T39, T48, T49, T50). Some of these doctors were now diagnosing some contribution from a chronic pain syndrome (T39, T55). Ms Oliver began physical therapy with Fit to Manage Rehabilitation Specialists, but after Fit to Manage submitted a report claiming that her strength and endurance had markedly improved she refused to continue the course (T40, T42, T43, T44).
After the birth of her second child Ms Oliver began with new rehabilitation providers, Incorporating Ergonomics and Active Recovery (together known as IPAR), who undertook initial needs assessments on 3 July 2015 (T52) and 22 June 2015 (T53) (it appears that Incorporating Ergonomics was the rehabilitation provider and Active Recovery provided treatment). A further determination was made under subsection 37(1) of the SRC Act by DSS (T54, dated 13 July 2015). At this point it was recorded that Ms Oliver had returned to work on 22 June 2015 at four hours per day, two days a week; that this would increase to five hours per day, two days a week on 6 July 2015, and to six hours a day two days a week on 20 July 2015.
Comcare referred Ms Oliver to a consultant occupational physician, Dr Matthew Paul, who saw Ms Oliver on 15 July 2015 for an assessment of her suitability and capacity for rehabilitation, under section 36 of the SRC Act. Dr Paul’s report (T55) notes Ms Oliver’s history and diagnosis and advises that she is not capable of returning to her pre-injury level of employment. The report further states that the current hours proposed are appropriate, and should be increased over three to six months; and that this should be done in conjunction with a multidisciplinary pain management program. Dr Paul recommended that Ms Oliver should continue to make use of voice-activated software and ergonomic equipment for keyboarding, use her right hand for most tasks, take breaks as needed and use the left hand as she could tolerate. Dr Paul said that the primary barriers to increased hours were “pain and a reduced tolerance of activity”.
Comcare also referred Ms Oliver to Dr Han Thai, a consultant occupational physician (T56, dated 19 August 2015). Dr Thai, in a report dated 3 September 2015 (T59), concludes that the barrier to a return to full-time work is physical pain, with no psychological barrier identified. Ms Oliver could return to pre-injury hours provided she minimised use of the left hand. Dr Thai noted that caring for her younger child could be limiting Ms Oliver’s return to work.
In September 2015 Ms Oliver, her general practitioner Dr Rauf-Rahim, her rehabilitation provider Ms Marion Levy, her case manager Ms Margie Lam and her supervisors Ms Janice Chapman and Ms Carolyn Wilkes agreed to and signed a set of “return to work guidelines” (T58, signed on 2 September 2015 except by Dr Rauf-Rahim, who signed on 3 September). The guidelines, based on Dr Paul’s assessment, outlined a graduated return to full-time hours, with 22 hours weekly in September, rising to 27 hours in October, 32 hours in November, and 37.5 hours (a full-time load) in December.
Ms Oliver raised questions about her potential to increase her hours, and about the interaction between her injury and her duties at home, which also contributed to her pain levels (T60, T61, T63, T64). On 6 November 2015 Ms Oliver met with Dr Rauf-Rahim, Ms Oliver’s mother, Ms Deans, Ms Levy and Ms Lam (T65). At this stage Ms Oliver was still working 19.5 hours per week (three days at 6.5 hours per day), and Dr Rauf-Rahim refused to approve any increase, noting that Ms Oliver reported pain and had said that she thought she could never increase her hours beyond that level. The meeting agreed that the present rate would stay in place until the end of January.
Ms Levy reported on a further case conference held on 28 January 2016 (T68) at which Ms Oliver said that she was still struggling to manage at 6.5 hours a day, three days a week. That discussion also covered the comparative demands of work and caring for her children at home, and the contribution of family to household chores. The attendees (Ms Oliver, Ms Levy and Dr Rauf-Rahim) discussed the possibility of spreading the hours worked over five days, which Dr Rauf-Rahim favoured; Ms Oliver is reported as noting that childcare would be a factor in any such arrangement.
Comcare referred Ms Oliver to Dr Mohamad Mourad, a consultant orthopaedic surgeon (T67). Dr Mourad ‘s report (T70) is dated 11 February 2016. Dr Mourad concluded that Ms Oliver’s condition was chronic and unlikely to change regardless of further treatment; that she could return to full-time work if she was provided with voice-activated dictation software, used a splint and was restricted to lifting no more than 5 kg with her left hand (folio 274 - elsewhere in the report the figure of 2 kg appears – see folio 278). Ms Oliver should consult a pain management specialist and a return to work program should be developed by an occupational physician.
At about the same time events were taking place that do not touch directly on the issues to be decided here but may have influenced Ms Oliver’s attitude to her rehabilitation program. The reports of Dr Thai and Dr Mourad (T59, T70) each concluded that Ms Oliver’s original wrist condition was not caused by her employment, and that her subsequent condition, described by a number of doctors as a chronic pain syndrome, but by others in different terms such as “reflex sympathetic dystrophy”, was the result of surgery. Those opinions apparently prompted Comcare to arrive at a “no present liability” decision denying liability for further medical expenses and incapacity payments. Comcare wrote to Ms Oliver on 10 March 2016 giving notice of an intention to take such a decision (Attachment C to Exhibit A8) and took the decision on 18 April 2016 (Attachment D to Exhibit A8). Ms Oliver requested reconsideration of that decision but also lodged a new claim for compensation, on 19 April 2016 (ST64) in relation to “complex regional pain syndrome” and “osteopenia”. On 3 June 2016 Comcare denied the new claim on the basis that the condition had not been adequately diagnosed (ST72, identifying the condition as “reflex sympathetic dystrophy, upper limb (left)”). On 15 June 2016 Comcare revoked the earlier “no present liability” decision (ST73) on the basis that Ms Oliver had not been shown to suffer a chronic pain syndrome, but remained affected by the original injury (the reconsideration decision contains no discussion of the causation issues considered by Dr Mourad and Dr Thai).
The 2016 rehabilitation program
Following Dr Mourad’s recommendation, Comcare referred Ms Oliver to Dr Uthum Dias, a consultant occupational physician. Dr Dias’s report, dated 11 May 2016 (T77) concludes that Ms Oliver continues to suffer from a chronic regional pain syndrome and associated conditions of the left wrist (disuse osteopaenia, tears to the triangular fibrocartilage complex, scapholunate ligament, mild chronic synovitis of the distal radioulnar joint and intercarpal joints and mild extensor tenosynovitis over the left wrist). The condition was unlikely to resolve in the foreseeable future. There was, however, “no objective medical reason” why she should not return to full-time duties with appropriate restrictions, namely use of voice-activated software, a limit on keyboard activities to 75% of normal, an ergonomic work station and a lifting restriction with the left hand of 1 kg. These restrictions would have to remain for the foreseeable future. Dr Dias recommended a graduated return to full-time hours, as follows:
·weeks 1 to 4: 5.5 hours per day for four days with three hours on the fifth day (25.5 hours [sic; in fact 25] per week);
·weeks 5 to 8: 5.5 hours per day, five days a week (28 hours [sic; in fact 27.5] per week);
·weeks 9 to 12: 6.5 hours per day, five days per week (33 hours [sic; in fact 32.5] per week); and
·week 13 onwards: full-time hours of 7.5 hours per day, five days per week (37.5 hours).
Dr Dias noted that Ms Oliver had mentioned childcare limitations as a reason for not wishing to return to full-time hours.
At a case conference held on 17 June 2016, attended by Ms Oliver, Dr Rauf-Rahim, Ms Lam, Ms Levy and Ms Deans (T87, folio 343), Ms Oliver stated on more than one occasion that she could not increase her hours because of pain, and that she disagreed with Dr Dias’s conclusions. Dr Rauf-Rahim is reported as having confessed to being torn between loyalty to her patient and accepting the expert views of a specialist such as Dr Dias. Ms Oliver announced that she would take leave for a month, as she needed a holiday.
Over the next few weeks a new rehabilitation program was drafted, provided to Ms Oliver and Dr Rauf-Rahim for reaction and comment, and revised in the light of comments (return to work schedule and draft outline of subsection 37(3) considerations at T79 and T79.1, dated 17 June 2016; comments by Ms Oliver dated 20 June 2016 at T80; revised considerations dated 6 July 2016 at T78). Ms Oliver wrote to DSS on 8 July 2016 stating that she was unable to increase her hours due to pain, psychological stress and the denial and reinstatement of liability by Comcare (T81). Ms Oliver said that her letter constituted her “reasonable excuse” for non-participation in the rehabilitation program. DSS wrote back to Ms Oliver on 14 July 2016 (T82) stating that the program would go ahead, and that the opinion of Dr Dias had been preferred. The letter mentions that Ms Oliver would be taking leave until 22 August, which would become the start date for the program; and also mentions that Dr Rauf-Rahim had been consulted: the rehabilitation case manager had telephoned Dr Rauf-Rahim on 8 July 2016 and had advised that any reaction needed to be provided by that same day. A new draft of the subsection 37(3) considerations is attached (without date); this draft is more detailed than earlier versions, especially with regard to Ms Oliver’s attitude to the program.
On Monday 25 July 2016 Ms Oliver formally requested (T83) reconsideration of the rehabilitation program (in practice she requested reconsideration of the working hours assigned to her, but for present purposes the two requests can be regarded as the same). Comcare took a reconsideration decision on 19 August 2016 affirming the decision (T85); that reconsideration decision is the decision under review in matter number 4926.
The suspension decision
On 8 September 2016 DSS wrote to Ms Oliver (T86) noting that a failure or refusal to participate in the rehabilitation program could lead to suspension of her compensation rights under the SRC Act, applying subsection 37(7) of that Act. The letter urged Ms Oliver to participate in the program and advise of reasons for not doing so, with supporting information. Her rights would be suspended if she had not complied within seven days. On 16 September 2016 Ms Oliver sent an email to DSS (ST84, folios 441-2) saying that she had not been able to comply because she had not been able to find a cleaner (I understand a cleaner for her home), could not work for longer hours because of pain levels, and would resort to using sick leave if necessary. DSS responded on the same day by email advising that personal leave would not be granted. Meanwhile, Dr Rauf-Rahim provided a medical certificate (ST83) dated 5 September 2016 limiting Ms Oliver’s weekly hours to 22 (5.5 hours per day, four days per week).
There was a further case conference held on 7 September 2016, with Ms Oliver, Dr Rauf-Rahim, Ms Lam, Ms Levy and Ms McNamara present. Ms Levy’s notes of that meeting (T87, folios 344-5) state that Ms Oliver reported being unable to sustain the increased hours of 25 per week, and that the level of pain had brought her to tears. Dr Rauf-Rahim said that she wanted Ms Oliver to work more hours, but did not feel able to tell her to do so when she was coming to her in tears.
On 20 September 2016 DSS formally suspended Ms Oliver’s compensation rights (T88), applying subsection 37(7) of the SRC Act. The delegate preferred specialist medical opinion (Dr Thai, Dr Mourad, Dr Dias), and concluded that Ms Oliver had not provided a reasonable excuse for her failure or refusal to undertake the program. On 13 October 2016, however, DSS restored Ms Oliver’s rights, as she had worked the longer hours required by the rehabilitation program on 12 October 2016. On 14 October 2016 Dr Rauf-Rahim issued a medical certificate (ST91) recording worsening pain to Ms Oliver’s left wrist and finding her unfit to work that day. A further certificate was issued for Monday 17 October 2016 (ST92.1) recording “still c/o of flare up of L wrist pain with tingling and Numbness in her L fingers. Ongoing R shoulder pain due to overuse” [sic]. Dr Rauf-Rahim varied the hours of work to six hours a day, four days per week.
DSS sent a further letter to Ms Oliver on 28 October 2016 (T5 of 0156) noting that she had once again failed or refused to abide by the rehabilitation program, and once again warned her of the possibility of suspension. On 4 November 2016 DSS wrote again to Ms Oliver, suspending her compensation rights under subsection 37(7) of the SRC Act (T6 of 0156). On 28 November 2016 Ms Oliver sought reconsideration of the DSS suspension decision (T8 of 0156), providing in support a statement (T8.1 of 0156) and a “workplace hazard and incident report form” dated 3 November 2016 (T8.2 of 0156). The form reported increased pain in the left wrist but also in the right shoulder and wrist as a result of the attempt to increase working hours.
At about this time, or perhaps earlier, Ms Oliver engaged legal representation. She saw another occupational physician, Dr Leon Le Leu, apparently at the suggestion of her lawyers. Dr Le Leu’s report, dated 1 December 2016 (T10.1 of 0156) found that Ms Oliver’s rehabilitation program was inappropriate, in that it was increasing her symptoms and causing her to deteriorate rather than improve. She should only work 5.5 hours per day, four days per week with limitations to keyboard use, lifting and use of the left hand and arm as previously recommended. She should not use either hand or arm at or above mid-breast level.
On 23 December 2016 Comcare reconsidered the determination made by DSS and affirmed it (T14 of 0156). This is the reviewable decision in matter 0156. DSS sent a letter to Comcare in the lead up to the decision supporting its initial determination (T11).
Ms Oliver submitted a new claim for compensation in respect of an overuse injury of her right shoulder and wrist “from not being able to use my left wrist/arm” (T13 of 0156, dated 8 December 2016). DSS opposed the claim (T15 of 0156). Dr Thai provided a further report on Ms Oliver following a referral by Comcare on 9 January 2017 (T17.1 of 0156). Dr Thai’s report is dated 18 January 2017 (T17 of 0156). It appears that this report was undertaken in connection with Ms Oliver’s new claim for compensation. Dr Thai did not believe that the condition of Ms Oliver’s right wrist and shoulder was work-caused.
The evidence before me does not disclose how the new claim was decided, but it appears likely that it has no direct bearing on the matters before me.
The request for a new rehabilitation program
On 30 August 2017 Ms Oliver wrote to Ms Lam by email requesting a new rehabilitation program (Attachment Q to Exhibit A8). On 20 September 2017 Ms Oliver wrote to DSS expressing dissatisfaction with the rehabilitation program, and particular discomfort with her case manager, Ms Margie Lam. On 27 September 2017 DSS wrote to Ms Oliver (T5 of 7685) denying a request for a new rehabilitation program, and noting that compensation would remain suspended while she did not comply with the current program. DSS agreed to assign a new rehabilitation case manager.
Ms Oliver’s legal representatives sent a letter dated 13 October 2017 (T7 of 7685) to Comcare asking that the DSS decision regarding a new rehabilitation program be reconsidered. On 8 December 2017 Comcare affirmed the initial determination in a reconsideration determination (T1.1 of 7685). That determination is the reviewable decision in matter 7685.
Late in the proceedings Ms Oliver sought to tender material provided by Comcare in response to a freedom of information application. This material comprised file notes and records by Comcare, many of them showing that Comcare from time to time encouraged DSS to show greater flexibility with regard to the rehabilitation program. The material was taken into evidence as Exhibit A9, with one entry dated 31 August 2017 redacted as it contains material related to conferencing before the tribunal (see section 34E of the AAT Act).
The surveillance material
As noted above, Comcare obtained and put before the tribunal surveillance material (Exhibits R1 and R2) covering periods in November 2017 (R1) and January 2018 (R2). Comcare submitted, and I accept, that the material was, until made available to the tribunal, protected by legal professional privilege, in that it was obtained for the dominant purpose of providing legal services to Comcare in the context of the current proceedings before the tribunal.
The material was shown at the hearing, and Ms Oliver was cross-examined with regard to some of the footage. Subsequently Professor Youssef and Dr Dias were sent the material and questioned with regard to it (Dr Dias did not receive the video material and saw only still photographs).
Among the material appearing on the video footage were:
·Ms Oliver using her left hand to open and/or close a car door, especially when taking one or both children from the car, and to strap a child into a car seat (R1, 2 November 2017 at 14.42; 3 November 2017 at 7.47 and 14.42; 4 November 2017 at 15.54; 8 November 2017 at 15.11 and 15.55; R2, 16 January 2018 at 14.48 and 17.08; 17 January 2018 at 11.13);
·Ms Oliver using her left hand to carry loads, especially shopping; sometimes using the left hand to assist in carrying a heavy object where the main load is on the right hand (R1, 4 November 2017 at 15.11; 5 November 2017 at 11.56; 8 November 2017 at 15.44 and 15.55; R2, 16 January 2018 at 16.57, 16.59 and 17.08; 25 January 2018 at 17.34);
·Ms Oliver lifting a child with both hands (R1, 2 November 2017 at 14.42; 4 November 2017 at 15.24 and 15.54; R2, 16 January 2018 at 17.08; 17 January 2018 at 11.38);
·Ms Oliver driving her car using both hands (R1, 1 November 2017 at 16.39; 4 November 2017 at 11.19; R2, 15 January 2018 at 7.49; 29 January 2018 at 8.03).
The lay evidence

Ms Oliver gave evidence herself and called four witnesses: a former supervisor, Ms Trevorrow; and three family members, namely Mr Oliver, Ms Deans and Ms McNamara. Comcare called two lay witnesses, Ms Lam and Ms Levy.
Ms Oliver
Ms Oliver made a total of five witness statements, dated 15 and 16 March 2016; 7 September and 11 December 2017; and 31 January 2019 (Exhibits A4, A5, A6, A7 and A8 respectively). The first and second of these statements appear to be alternative drafts of the one statement, as they have a great deal of common material. Both are signed and dated. The statements each recount the injury and its effects on Ms Oliver, including the limitations imposed on what she can do as a result. They note that pain prevents her from working longer hours in the workplace, and contrast her capacity to pace herself in work done at home compared with work done in the office. One difference between the two is that paragraph 27 of Exhibit A4, which is missing from A5, states that Ms Oliver cares for her daughter on Wednesdays (her day off) “because it is a financial practical arrangement”, and that she would enrol her daughter for childcare on Wednesdays when needed. The statement also notes that Ms Oliver’s mother could step in if she were unable to care for her daughter. Exhibit A6 covers much of the same ground but puts more emphasis on the way in which avoidance of use of her left hand has caused Ms Oliver’s right arm to begin showing symptoms (presumably this statement was prepared in connection with Ms Oliver’s right wrist and shoulder claim). Exhibit A7 is a much longer statement, describing the history of Ms Oliver’s attempts at rehabilitation; her interactions with Comcare over matters such as home help; the rehabilitation program of 14 July 2016; her week-by-week attempts to comply with that program and the successes and failures of those attempts; Ms Oliver’s attendance on pain specialist Dr Romil Jain and occupational therapist Ms Helen Spiteri; Ms Oliver’s difficulties with Ms Lam and Ms Levy; and her wish to return to full-time hours. Exhibit A8, the most recent statement, supplements earlier statements mainly by pointing to actions by DSS, Ms Lam, Ms Levy and Comcare that Ms Oliver regards as occasioning stress and anxiety that in her contention are unhelpful to her recovery from her injury.
In oral evidence Ms Oliver recounted the occurrence of her injury and the course followed since then, up to and including her efforts to return to work in 2016. She noted that the adjustments made for her have been only partly successful in addressing her limitations: for example, the voice-activated software is not suitable for some kinds of work that she does, such as travel arrangements, and she is constrained in using it by the open plan office arrangement, which is too noisy. In her view, the assessments that have been made of her capacity for rehabilitation have failed to take into account her level of pain and her psychological stress. The reports from her general practitioner, Dr Rauf-Rahim, have been given too little weight.
Under cross-examination Ms Oliver explained that her duties comprised emails, organising travel and accommodation, credit card acquittals, and similar activities. At the time she had stopped participating in the rehabilitation program she had barely been able to lift a cup, she drove with her right arm only, and used only her right arm when lifting her children. She said that the Comcare process was itself stressful, but that it was the pain itself, not the stress, that prevented her from complying with the rehabilitation program. Ms Oliver acknowledged that her supervisors over the period in question, including Ms Lisa Trevorrow, had been supportive.
Ms Oliver, under repeated questioning, insisted that childcare was not a problem. Despite the appearance of the issue at numerous places in the documentary record, to a number of which she was taken, Ms Oliver said that childcare was not a barrier to her return to work. There may have been occasions when childcare and work occasioned a tension or conflict, but that was only rarely the case, and some of the records of this occurring are simply wrong. Ms Oliver acknowledged that the record of her use of the childcare centre (Exhibit R4) showed a pattern of her using the centre on Mondays, Tuesdays, Thursdays and Fridays, but insisted that that simply reflected that her pain levels necessitated that she have Wednesdays away from work, in accordance with her doctor’s medical certificates. When away from work she took care of the children herself rather than send them to childcare.
On seeing the video surveillance material Ms Oliver accepted that it showed her using the left hand to a greater degree than her evidence otherwise might suggest. By way of re-examination, Ms Oliver said that she was more limited in her ability to use her left hand in July or August 2016, when the rehabilitation program began, than at the time the surveillance material was collected; and that the surveillance footage showed her doing her best to comply with the suggestions of her doctors that the preferred treatment for her chronic pain was to use the left hand where possible, even if it caused pain.
Ms Lisa Trevorrow
Ms Trevorrow’s witness statement (Exhibit A1) states that she was at the time of the statement Ms Oliver’s supervisor; that Ms Oliver used voice-activated software but its contribution was limited by the noisy environment; that attempts to find a quieter environment had been unsuccessful; and that during the period in 2016 under the rehabilitation program Ms Oliver had spoken of increased pain in her left wrist and right shoulder, and on at least one occasion had broken down in tears. When spoken to about what might be troubling her it was always her left wrist that she referred to.
In oral evidence Ms Trevorrow reported that she had been Ms Oliver’s supervisor from 2016-18. She had a social relationship with Ms Oliver, for example they might sometimes have lunch. Ms Trevorrow said that she could tell when Ms Oliver was in pain, because she would become quieter. When her hours had increased, that is what had happened, and so she knew that Ms Oliver was struggling with increasing pain. When she was asked, at such times, she would burst into tears.
Ms Trevorrow said that she had done her best to make the workplace accommodating for Ms Oliver, but the voice-activated software, for example, would make errors sometimes, and Ms Oliver would have to type or use her mouse to correct it, and so there was no reduction in keyboard use. But they had made other changes – scheduling meetings to break up the day, for example. She tried to set up a separate office for Ms Oliver, but could not do so for a worker at Ms Oliver’s level, so she was moved to a spot with less traffic. Ms Trevorrow described Ms Oliver as a hard worker, with plenty of commitment, who likes to get things done and tried to be responsible. Others had relied on her.
Under cross-examination, Ms Trevorrow acknowledged that she had done her best to organise work to limit its impacts on Ms Oliver, for example through the ergonomic work station and by varying her tasks. But most of Ms Oliver’s work, nonetheless, was at the computer. Because she was a committed worker she would never ask to take a break because she was in pain; rather, Ms Trevorrow would notice that she was in pain and would intervene. Ms Oliver operated in the workplace as something of an expert in computers and a variety of software systems.
Mr Mark Oliver
Mr Oliver’s statement (exhibit A2) says that he has been married to Ms Oliver for ten years; that since her injury her behaviour and capacity have changed significantly; that many previously routine tasks and activities have become difficult or impossible for her; that her ability to take care of the children is compromised by her condition, causing her emotional distress; that her condition has worsened rather than improved in recent years; that her condition was quite severe during the period of the rehabilitation program in 2016; and that periods of rest (holidays, weekends) lead to a noticeable lessening of her symptoms.
In oral evidence Mr Oliver said that after Ms Oliver attended the Fit to Manage program she came home very angry and frustrated. He saw during the period of the rehabilitation program in 2016 that she was shorter in temper, appeared to be in pain, and was not coping well mentally. When she increased her hours he could see pain in her face and that she would have more difficulty doing things. This was a noticeable change at the time, but the same pattern persists now – if she works more hours there is more pain noticeable and if fewer hours less pain.
Under cross-examination Mr Oliver stated that his hours of work are standard; at home he provides help with the children and does many other duties about the home, including cleaning, repairing things, making things, mowing the lawn, shopping, washing up and generally things other than the paperwork, which is his wife’s. When questioned about the history of Ms Oliver’s interchanges with Fit to Manage and the 2016 rehabilitation program Mr Oliver recalled generalities but no specific events, dates or times. He acknowledged that he was able to identify pain behaviour in his wife but that he could only see that at home as he did not attend her workplace or medical appointments. On re-examination Mr Oliver said that he spoke to his wife once or twice a day at work and she would refer frequently to her pain in those conversations. He said he made dinner perhaps twice or three times a week – perhaps up to four times a week during the period of the 2016 rehabilitation program.
Ms Annette Deans
Ms Deans, Ms Oliver’s mother, provided a written statement (exhibit A3), to the effect that she left her own employment in December 2014; that she was able to help care for Ms Oliver’s younger daughter as a result; that she has continued to provide or supplement childcare; that Ms Oliver took up paid childcare for four days per week for her younger daughter from January 2016; that she (Ms Deans) has remained available to provide care on Wednesdays when and if needed; and that Ms Oliver has never been without options for Wednesdays if it were to be necessary for childcare to be provided, including during the period of the 2016 rehabilitation program.
In oral evidence Ms Deans repeated her statement that she had always been available to provide childcare for Ms Oliver’s children. She also said that she recalled her daughter ringing her after returning from Fit to Manage, complaining that the therapist had shouted at her. She said that she had noticed many changes as her daughter tried to increase her hours in 2016 – limitations on what she could do, including rocking her child, for which she needed to use a swing, or hanging clothes on the line, which was very difficult for her. She was also affected emotionally, and frequently in tears. When her daughter had the Wednesday off she was noticeably better, more relaxed, happier and less stressed. She could do more, including with the children.
Under cross-examination Ms Deans said that she had had no significant exchange with her daughter leading up to giving evidence. With regard to the medical review meeting she attended on 9 March 2016 (recorded by Ms Levy at T73), Ms Deans agreed that she was present when Ms Oliver said that her symptoms remained the same regardless of the hours she worked; and that Dr Rauf-Rahim had favoured an increase to 5.5 hours per day, five days per week. But Ms Deans denied that Ms Oliver said that this was not possible because she did not have childcare organised for Wednesdays. Ms Deans asserted that she was in fact available on Wednesdays to care for the children, and did so for appointments; but did not need to do so when Ms Oliver was at home. On re-examination Ms Deans said that she could not recall the exact date of the meeting referred to in cross-examination, but that there had been mention of childcare and Ms Oliver had said she would have to check whether childcare on a Wednesday was available. If Ms Oliver was unable to care for her younger daughter Ms Deans would do it.
Ms Jacqueline McNamara
Ms McNamara’s witness statement (Exhibit R12) is limited in its scope to a meeting that Ms McNamara attended on 7 September 2016, with Dr Rauf-Rahim, Ms Oliver, Ms Lam and Ms Levy. The statement notes her attendance at the meeting, attaches a typed record which she says she made or began on the same day as the meeting, and proposes some drafting changes to that record, for clarity. The attachment thus purports to be an alternative to the record of the same meeting made by Ms Levy (at T87, folio 344). Ms McNamara’s record covers much of the same ground but also elaborates on some of the matters in a good deal more detail than Ms Levy’s.
In oral evidence Ms McNamara said that at the meeting of 7 September 2016 Dr Rauf-Rahim had provided direct and plain comments on Ms Oliver’s inability to tolerate the increased hours in the 2016 rehabilitation program and the amount of pain caused to Ms Oliver by her attempts to comply. Dr Rauf-Rahim had wanted to increase the hours but felt she could not. She herself (Ms McNamara) was not always in Canberra but when she did come here she could see changes in Ms Oliver, who would hide the pain but reveal it by the way she spoke.
Under cross-examination Ms McNamara said that she had been a registered nurse (she has now retired and says she is a “grey nomad”) and was used to taking notes at meetings. She had attended the meeting to support her niece (Ms Oliver’s mother and mother-in-law had both been away) and had prepared the note for the same reasons. Ms McNamara also said that she had seen Ms Oliver being upset and in tears during the rehabilitation program; she had been distressed in telephone conversations, and had spoken of her pain; she had been unable to undertake normal activities, including housework and playing with the children; and her social life had been greatly reduced. She was simply unable to do the hours and days asked of her.
In re-examination Ms McNamara mentioned that she had always kept a diary, but added that as a grey nomad she had been obliged to destroy her diaries. She also acknowledged that some (but not all) handwritten notes of the meeting of 7 September 2016 had been retained. These notes were then tendered. An adjournment followed to enable the notes to be provided and made available to the parties. Mr Woulfe expressed a wish to continue cross-examination after perusal of the notes, and requested that Ms McNamara be directed not to speak to anyone during the adjournment. I made such an order.
In the lead up to the adjournment Mr Woulfe noted that after asserting that no other documents were available, Ms McNamara had now revealed that other documents did in fact exist. Mr Woulfe suggested that a warning be given to Ms McNamara under section 128 of the Evidence Act 1995 (that section allows a witness to escape the consequences of self-incrimination in court proceedings by avoiding the need to answer a question or by being exempted from prosecution if a self-incriminating answer is given). I advised Ms McNamara that although the tribunal was not bound by the rules of evidence, there was a general wish under the law to ensure that witnesses were aware of the risks of self-incrimination and she could seek the tribunal’s assistance to avoid self-incrimination, or the consequences of self-incrimination, should she need to.
After the adjournment Ms McNamara insisted that the handwritten notes provided during the adjournment (and appearing as Exhibit R3) were not the contemporaneous notes from the meeting, but had been put together later. She said that the actual notes she had taken at the meeting had been destroyed. On the afternoon of the meeting she had made the typed record of the meeting, then destroyed the original handwritten notes. She had reconstituted the handwritten notes at a later time for the purposes of Ms Oliver and her then legal representatives.
On reopening cross-examination Mr Woulfe obtained an admission from Ms McNamara that immediately following the adjournment she had spoken to Ms Oliver; partly in respect of the document stored on Ms Oliver’s mobile phone (the handwritten notes) but also with a reference to further discussions that she and Ms Oliver would have outside the hearing room. Ms McNamara admitted to having spoken to Ms Oliver and to having done so while aware of my direction not to communicate with others while cross-examination was yet to be completed.
Cross-examination resumed in relation to the handwritten notes. Mr Woulfe suggested that the handwritten notes looked like a contemporaneous record rather than a later record. Ms McNamara said that if the notes had been a contemporaneous record she would have included abbreviations, shorthand, dot points and the like. Mr Woulfe obtained some recognition from Ms McNamara that abbreviations, shorthand and dot points did occur in her record, but Ms McNamara insisted that this was nevertheless a later record. Mr Woulfe challenged Ms McNamara that the typed record annexed to her witness statement included a number of entries that did not appear in the handwritten notes: most of the section relating to the reasonable excuse letter is not reflected in the handwritten notes; other omissions include references to some of Dr Rauf-Rahim’s comments such as “crying in pain and I can’t touch her”.
In the course of the cross-examination Mr Woulfe established that although diaries for previous years (up to 2018) had been destroyed, Ms McNamara still held a diary from 2019. Mr Woulfe called for the diary to be provided. Ms McNamara produced the diary for 2019, and I examined it and identified the days on which entries appeared that might have some relevance to the proceedings. This material was extracted and copies provided to the parties (the collected extracts appear as Exhibit R10). The entry for 11 March 2019 refers to emailing material relating to the tribunal proceedings to Ms Oliver. Mr Woulfe asked for the email exchange referred to in that entry to be provided, and Ms Oliver was able to do so, from a record on her mobile phone. The email exchange appears as Exhibit R11. Two of the emails in that exchange are worthy of note: one is from Ms Oliver to her barrister at that time, dated 10 November 2017, in the following terms “Not sure if this would help this is the statement she had done from her own notes not from the recording she is a very detailed note taker and keeps a diary of all events ect” [sic]. The statement appearing as an annex to Ms McNamara’s witness statement is attached to the email and is evidently the statement referred to in it. The other email of note is from Ms McNamara to Ms Oliver, dated 23 November 2017, as follows:
This is stage 1.
I did not document on the 2^nd document when the names where mentioned. You will have to listen and get back to me.
Both these entries offer little illumination regarding the matters before me, but each includes a reference suggesting that some form of recording might have been made of the meeting of 7 September 2016. Mr Woulfe raised a question regarding whether there might have been an offence against subsections 4(1) and/or 5(1) of the Listening Devices Act 1992 (ACT), which create offences of using a listening device to record a private conversation, including a private conversation to which the person is a party, and of divulging or communicating a recording of a private conversation knowing it was made with a listening device (I note that each of these two sections contain exemptions that may prove in this case capable of providing a defence).
Ms Marion Levy
Ms Levy’s witness statement (Exhibit R7) touches on meetings dated 13 October 2015 and 9 March 2016; refers to Ms Oliver’s frequent references to not having childcare arranged for Wednesdays, and Ms Levy’s belief that “Ms Oliver was using her incapacity payments in place of childcare arrangements on Wednesdays”; notes that Ms Oliver had not complained about noise as an obstacle to use of voice-activated software; and suggests that the medical reports support Ms Oliver’s capacity to undertake the rehabilitation program arranged for her.

In her oral evidence Ms Levy referred to her care in record-keeping, as an important part of her work. Such records might be important, for example, if there was a change in the case manager. She also referred to the importance of initial needs assessment reports, as an example of such records. Thus when her initial needs assessment report dated 7 July 2015 identified “limited childcare arrangements in place” as a barrier to return to work, that was a significant inclusion and could be relied on as an accurate reflection of information provided in the assessment. Childcare issues continued to arise in Ms Oliver’s rehabilitation process and they continued to be referred to as difficult. Ms Levy said that her role included providing input in the development of the return to work plan; the plan did not incorporate a great deal of flexibility because the recommendations of Dr Dias were very specific and clear.
In cross-examination Ms Oliver challenged Ms Levy regarding her unwillingness to vary the agreed plan in light of Ms Oliver’s pain and difficulty complying and the advice of various health practitioners. As an example Ms Oliver pointed to T15.2 of 0156, folio 70, paragraph 5, where Ms Levy criticised a physiotherapist for suggesting a reduction in hours worked. Ms Levy said she did not recall the exact context, but suspected that perhaps mixed messages were being conveyed by different people involved in Ms Oliver’s case. In further questions regarding the meeting recorded by Ms McNamara, Ms Levy was unable to recall most of the details recorded by Ms McNamara but omitted from her own report, but she did recall Dr Rauf-Rahim saying that Ms Oliver was in pain while working 5.5 hours per day for 4 days per week. In re-examination Ms Levy reiterated that the rehabilitation program contained no room for flexibility as it was based on appropriate and specific specialist advice.
Ms Margaret Lam
Ms Lam is or was, a rehabilitation case manager at DSS. Her witness statement (Exhibit R9) refers to three meetings which she attended and the reports she made of those meetings (on 3 October 2015, 6 November 2015 and 17 June 2016, with reports at ST51, T65 and ST75 respectively). In oral evidence she was taken to T65, and noted the reference to childcare arrangements towards the end of the record, attesting to its accuracy. She said that this was an issue that arose frequently throughout the case. Childcare was a barrier to Ms Oliver’s return to work. Ms Lam was also taken to ST51, where there is a further reference to childcare, and again she attested to its accuracy. Mr Woulfe asked Ms Lam about a note at ST79 of a telephone conversation with Dr Rauf-Rahim on 8 July 2019. That note records that Dr Rauf-Rahim was aware of the timeline, that Ms Oliver had not sought an extension of time to comment on the draft rehabilitation program, and that Dr Rauf-Rahim only had to the end of the day to provide comment. Ms Lam said she finished the conversation expecting to hear from Dr Rauf-Rahim if there was an issue.
Under cross-examination Ms Lam acknowledged that she herself was not a doctor or physiotherapist. She said that she recognised that a general practitioner was likely to know a patient well, but that Dr Rauf-Rahim at times threw her hands up and said that she was “only a GP” and that she had to support her patient. Ms Oliver asked her a number of questions about what was said at the meeting on 7 September 2016, the meeting of which Ms McNamara provided a record. Ms Lam could not recall a number of details recorded by Ms McNamara. On re-examination she said that, had such comments been made by Dr Rauf-Rahim, she would have included them in her record of the meeting.
The medical evidence
I have set out the bulk of the earlier medical evidence in outlining Ms Oliver’s rehabilitation history. Additional medical evidence came from further reports by doctors that Ms Oliver continued to see and some new avenues that she explored herself. Further evidence came at the hearing from two expert witnesses, namely Professor Youssef, a rheumatologist, and Dr Dias, an occupational physician.
Dr Rauf-Rahim referred Ms Oliver to Dr Igor Policinski, an orthopaedic surgeon. Dr Policinski provided a report dated 8 March 2016 (T72), noting the complexity of Ms Oliver’s left wrist condition and foreshadowing a range of further investigations. It is not clear whether these proceeded.
Ms Oliver attended Dr Romil Jain, a pain specialist, on referral by Dr Rauf-Rahim. In a report dated 7 November 2016 (T7 of 0156), Dr Jain diagnosed upper limb complex regional pain syndrome and foreshadowed treatment (possible pain blocks, medication and “graded motor imagery”), for which he referred Ms Oliver to Ms Helen Spiteri, an occupational therapist (ST96). Ms Spiteri provided a report to Dr Jain (ST106, dated 25 April 2017) and later reports to Comcare (ST112 dated 26 July 2017 and ST113 dated 9 August 2017) outline treatment she was undertaking and some of the early progress she assessed Ms Oliver as making.
Professor Youssef
Professor Youssef provided two written reports, dated 10 May 2017 (Exhibit R5) and 11 October 2017 (Exhibit R6). In the first report he concluded that Ms Oliver probably had an injury to the left wrist that was asymptomatic until repetitive use in the workplace brought on symptoms. He arrived at a current diagnosis of complex regional pain syndrome; said it may have been contributed to by workplace factors; stated that the condition has been treated, although further treatment options remain available; and concluded that Ms Oliver should be able to work 5.5 hours per day for five days per week with a gradual increase provided work restrictions are maintained.
A good deal of Professor Youssef’s second report relates to Ms Oliver’s right upper limb and was presumably requested in light of her later claim. But the briefing letter also asked specifically about whether Ms Oliver was medically fit to participate in her rehabilitation program on and after 12 October 2016. Professor Youssef noted that he had not examined Ms Oliver at the time, but said that it appeared to him that she had been fit for the rehabilitation program, and noted the absence of any documentation that would explain pain of the severity she reported. He was of the view that there would need to be a significant disorder to cause such symptoms. He concluded that with the restrictions imposed the return to work program was suitable for her.
In adducing oral evidence Mr Woulfe advised Professor Youssef of a number of elements that might be held to support Ms Oliver in her return to work efforts, namely supportive workplace supervisors; an ergonomic work station; a limit on lifting with the left hand of 1 kg; no complaints or requests for a break in work by Ms Oliver; voice-activated software installed; scheduling of meetings to break up her work; a supportive husband who worked a standard day and helped with household duties including preparing meals; the availability of family to help with childcare; a preference by Ms Oliver to care for her children on Wednesdays for financial reasons; and home help sponsored by Comcare (in the second half of 2016). He asked whether these elements weakened or strengthened Professor Youssef’s opinion that she should have been able to undertake the rehabilitation program. Professor Youssef said that those elements should have facilitated the return to work.
Professor Youssef also said that a preferred treatment for complex regional pain syndrome, also called reflex sympathetic dystrophy, is to increase activity, despite the pain; this makes the condition more likely to resolve. In Ms Oliver’s case, by breaking up and varying her tasks she would improve her chances of improvement or at least of not worsening the symptoms. Professor Youssef noted that the history provided by a patient was important in diagnosis and determining the level of impairment. Having viewed the surveillance material, Professor Youssef thought that the capacity he saw demonstrated by Ms Oliver was greater than she had led him to believe at the time he had seen her (in May 2017). There was no grimacing or overt pain behaviour; she used the left hand to lift some items when the right hand was available; there were no signs of distress from repetitive movements.
Professor Youssef also expressed doubt whether the original injury to Ms Oliver’s hand arose from her employment.
In cross-examination Ms Oliver questioned Professor Youssef about how he could know how much pain she was in. Professor Youssef replied that he drew his conclusions from the level of function displayed, the willingness to continue an activity that might be expected to cause symptoms, and the display of pain-related behaviour such as grimaces. Professor Youssef also acknowledged that in some cases return to work plans needed amendment. In re-examination Professor Youssef said that the Fit to Manage program sounded like the kind of intensive program recommended for treating a complex regional pain syndrome; and that in Ms Oliver’s case he had seen no reason why any alteration to her return to work plan might be necessary.
Dr Dias
Dr Dias provided a written report dated 9 June 2017 (Exhibit R13), in addition to the report at T77. In the later report Dr Dias noted that Ms Oliver reported her left wrist unchanged from the previous examination a year earlier. He made no change to his earlier diagnosis. He concluded that with the restrictions already identified there was “no objective medical reason” why Ms Oliver should not return to full-time duties. The rehabilitation program that he had developed for her remained suitable. Ms Oliver had at all material times the capacity to engage with and complete that program. He could see no reason why a minor increase in hours should have brought on the symptoms she reported at the time. There was no need for development of an alternative rehabilitation program.
In oral evidence Dr Dias was asked to take into account the same supportive elements as listed for Professor Youssef. Dr Dias replied that those elements bolstered his opinion that the return to work program was appropriate. This was a supportive environment for accommodating and rehabilitating Ms Oliver’s injury, and made it more probable than not that Ms Oliver would be able to cope with her rehabilitation program at the pace laid out.
Dr Dias had been sent the surveillance material but it had gone astray in transit and he had not received it when he came to give evidence. Comcare had forwarded still photographs by email, and Dr Dias was asked questions on that basis. He said that his opinion had not changed on the basis of what he saw in the photographs, but that it was difficult to draw firm conclusions without having seen the surveillance material in full.
Under cross-examination Dr Dias acknowledged that different occupational physicians can arrive at conclusions that differ from each other, and that rehabilitation programs are intended to be administered with a degree of flexibility. If an injured employee is assessed as not capable of proceeding with a program, then appropriate adjustments would need to be made. When he saw Ms Oliver for a second time, he thought she was capable of full-time work, but thought that she should achieve that by starting from where she had reached in the course of the progressive schedule laid out in the program. But in general he had not seen a lot of change between the two examinations in May 2016 and June 2017, and so his opinion that Ms Oliver was capable of a return to work had not changed.
THE ARGUMENTS OF THE PARTIES
Ms Oliver’s case is that the sole reason for her inability to comply with the rehabilitation program is the unbearable pain that her attempts to comply caused her. With that pain came stress and psychological difficulties. This is attested to throughout the documentary record, and especially in the reports and medical certificates of Dr Rauf-Rahim, who is the doctor who saw her most frequently, and it is also apparent in the report of Dr Le Leu. During the critical period in August-September 2016 she did her best to comply; saw her general practitioner for her pain and distress when she could not comply; obtained the relevant certificates from her general practitioner to document her difficulties; and continued her attempts to meet expectations. She was always rated as positive and a good worker by those who work with her. It is accepted and acknowledged that return to work schedules are likely to vary and require adjustment; but that has never been applied in her case. The voice-activated software has been less effective than expected because of the noise in her workplace and the requirements of the office information technology. Attempted contributions by her, such as her application to work from home for part of the time, have been denied.
Ms Oliver said that childcare was never a barrier for her, and that Comcare’s attempts to present it as a barrier are an exaggeration and reflect the belief of Ms Levy and Ms Lam that non-institutional childcare is somehow unsuitable; but that is not the case. Her mother has always been available to step in when needed and is perfectly capable of doing so. The surveillance material in fact supports her case by clearly showing that she favours her left hand and relies on her right. As for her witnesses, those who provided comment on Fit to Manage, such as Ms Deans, did not pretend to recall a great deal about it, just the outlines; and Ms McNamara has always been argumentative, and so it was no wonder that she showed that quality as a witness before the tribunal.
Comcare argued that the medical evidence, in particular the reports of Dr Thai, Dr Mourad, Professor Youssef and Dr Dias all support the conclusion that Ms Oliver was capable of completing the return to work program developed for her, and their evidence should be preferred. Dr Rauf-Rahim’s evidence should be discounted on the basis that she was relying on Ms Oliver’s self-report; and Ms Oliver herself gave evidence that was unpersuasive and unreliable. For those reasons the logical conclusion is that the rehabilitation program made under section 37 was suitable for Ms Oliver, and Comcare’s reconsideration determination of 19 August 2016 should be affirmed.
The “reasonable excuse” offered by Ms Oliver cannot meet the test set by subsection 37(7) of the SRC Act. Ms Oliver’s reconsideration request (T8.1 of 0156) lists three matters, comprising first chest pain, anxiety, depression and stress arising from the constant pain from the injury; second being bullied and harassed; and third consequent pain in the right arm and shoulder. These assertions should be rejected. The real reasons for Ms Oliver not resuming full-time work relate to the care of her children; childcare issues appear frequently in the documentary record. The medical evidence does not support the contention that Ms Oliver had a reasonable excuse: Dr Rauf-Rahim’s medical certificates need to be discounted because they are entirely based on Ms Oliver’s self-report. The evidence of Mr Oliver, Ms Deans and Ms McNamara, especially the last, is compromised as showing indications of collusion. The expert doctors, on the other hand, say that the reported increase in pain is highly unlikely, especially given the array of support mechanisms that had been deployed; their evidence should be preferred. The conclusion is that Ms Oliver had no reasonable excuse for failing to comply with the rehabilitation program. On that conclusion, her request for a new rehabilitation program falls away.
CONSIDERATION
There are three decisions under review. The first two questions are closely intertwined, and it is not clear that logic demands that one be considered before the other. In the event I have chosen to consider them in what amounts to the order in which they were taken.
Temporal aspects of the decisions
A question which arose at the hearing, and was the subject of brief submissions to me by Comcare, relates to the temporal aspects of the decisions: does the decision about the 2016 rehabilitation program apply to Ms Oliver at that time and only at that time? To put the question another way, am I to determine Ms Oliver’s fitness as at July-August 2016 and immediately thereafter, or is Ms Oliver’s fitness for rehabilitation at later times something I can, should, or must take into account? Does the timing of the various doctors’ examinations have any bearing on those questions? The “reasonable excuse” decision could be subject to similar questions about the timing of its application.
Mr Woulfe for Comcare put to me that the drafting of section 37 makes it clear that a particular rehabilitation program is made for an injured employee at a particular time, and the question on review must be whether, at the time that the rehabilitation program was made for Ms Oliver, it was a program that she was obliged to undertake. Similarly, in his submission the “reasonable excuse” decision applies at the time that Ms Oliver refused or failed to participate in the program, rather than at any later time. Mr Woulfe argued that this is the kind of decision to which the reasoning in Shi v Migration Agents Registration Authority [2008] HCA 31 (Shi) does not apply.
Turning then to the drafting of section 37, it is plain that it is built around a particular rehabilitation program, very much as Mr Woulfe urges. Subsection 37 allows a rehabilitation authority (here DSS) to make a determination that an injured employee “should undertake a rehabilitation program”. Subsection 37(2) allows the rehabilitation authority either to provide the program itself or to outsource it. Subsection 37(3) provides a list of considerations that must be taken into account in the determination under subsection 37(1). The provisions that follow, which set out who will bear the cost, and how compensation is paid while rehabilitation continues, are all clearly focused on the program instituted in the original determination under subsection 37(1). That includes the suspension provision in subsection 37(7) and the subsections that follow and clarify its operation. My conclusion is that the section sets out a process for making a rehabilitation program at a point in time, and it is at that time and under the circumstances prevailing at the time that the decisions must be taken. I accept Mr Woulfe’s contention that this is the kind of decision to which the reasoning in Shi does not apply: the existence of decisions of that kind is explicitly recognised in the High Court’s judgment at [43]-[46] (Kirby J).
Later consultations with doctors will contribute to the making of the decision in the same way that they do in, for example, questions of causation under the SRC Act: while I might recognise that the doctors’ opinions are potentially affected by having been obtained at a time other than that to which the decision relates, some extrapolation to the relevant time is likely to be possible; and whether the condition being assessed is reasonably static or highly dynamic will influence how much weight a doctor’s report can be given.
The credit of Ms Oliver and her witnesses
Whether the rehabilitation program decided for Ms Oliver on 14 July 2016 was appropriate or not, and whether she had a reasonable excuse for not participating in it, depends almost entirely on whether or not she suffered from debilitating pain that made it impossible for her to continue. That is Ms Oliver’s evidence to the tribunal, and it was also what she told Dr Rauf-Rahim and the specialists to whom she was sent. Pain is a subjective matter: there is no objective way of assessing it, and an assessment is dependent on a patient’s account, although some objective signs may be available, such as an antalgic gait (or limp), or overt pain behaviour such as avoidance of use of an injured limb, or grimacing and the like. Ms Oliver’s credit, both as someone dealing with her doctors and more particularly in giving evidence to the tribunal, is therefore critical in arriving at conclusions regarding the reliability of the evidence available to me, including the reliability of the conclusions drawn by doctors who have seen Ms Oliver.

Ms Oliver brought to the hearing a calm and unruffled manner, but it was noticeable that in giving evidence herself she was very resistant to the cross-examination process, refusing very frequently to make reasonable concessions. That is always a telling development: it shows that a witness while giving evidence is attempting to engage in advocacy rather than to put facts before the tribunal. That calls into question the value of the evidence given and may throw doubt on the witness’s credit more generally.
In this case a further question arises because three members of Ms Oliver’s family gave evidence, namely her husband (Mr Mark Oliver), her mother (Ms Annette Deans) and her aunt (Ms Jacqueline McNamara). It is usual in cases where family members give evidence in support of an applicant to treat that evidence with some caution purely because family members are more likely than others to give evidence that is coloured by their proximity to the applicant. That caution can be dispelled, of course, in a case where the evidence given has every appearance of being independent and untouched by the colouration referred to above. But that was not the case here. Both Ms Deans and Mr Oliver showed a level of partiality and an unwillingness to make appropriate concessions that reinforced the sense that their evidence should not be accepted without close examination.
Ms McNamara’s evidence is a special case. That evidence, as set out above, presented clear indications that it was arrived at by collusion. There were indications of possible offences under the Listening Devices Act 1992 (ACT) and what appears to have been a prima facie contempt of the tribunal. These are matters that do not relate directly to the issues in these proceedings and they are being taken up separately. But they do not engender confidence in Ms McNamara’s evidence. It also appears highly likely to me that Ms McNamara created in the typed note of the meeting on 7 September 2016 a record specifically designed to reinforce Ms Oliver’s case. I do not find it in the least plausible that she made a handwritten record, produced an accurate typed version, destroyed the original notes and then redrafted the original notes in handwritten form. Simply the appearance of some of the documents makes that unlikely: the handwritten notes contain “notes to oneself” of the kind that characterise a contemporaneous handwritten record but are less likely to appear in a record that has been reconstituted at a later time. Ms McNamara’s explanation, involving the email capabilities of her laptop computer and mobile phone, are entirely unconvincing.
Further, Ms McNamara was argumentative in the extreme as a witness, never answering a question in cross-examination directly but on every occasion seeking to say what she wanted to put forward rather than responding to what she was asked. As a result, I reached the conclusion that Ms McNamara’s oral evidence, her witness statement and any documents she provided to the tribunal should be discounted unless they came forward without any opportunity of prior fabrication. The last is true of the handwritten note at Exhibit R3 and the diary extracts at Exhibit R10, as both were provided in real time; but I can set no store by the typed note annexed to Exhibit R12. Mr Woulfe pointed to a number of entries where that note departed from the handwritten notes at R3, but having concluded that the typed record is infected by collusion and fabrication, I do not propose to have any regard to it.
The indications of collusion between Ms Oliver and Ms McNamara not only call into question Ms McNamara’s evidence; they also suggest that I should be very cautious about Ms Oliver’s evidence more generally; and that extends to what Ms Oliver has told the various doctors she has seen. That caution may of course be tempered if her evidence is supported or corroborated in some other way.
Was Ms Oliver obliged to undertake the rehabilitation program?
Subsection 37(3) of the SRC Act requires that eight matters (or, more explicitly, seven specific matters and “any other relevant matter”) are to be taken into consideration in the making of the determination under subsection 37(1), as set out above. McGuinness v Comcare [2007] FMCA 1486 is authority for the proposition that a purported rehabilitation program that fails to take into account all of the mandatory considerations cannot be regarded as a rehabilitation program, and no obligation for the injured employee to abide by it would then arise, nor would a reasonable excuse for a refusal or failure to undertake it be needed.
It has not been argued by either party that the rehabilitation program was not properly made. It was made by DSS, taking into account the matters specified in subsection 37(3), and the determination, including reasons, was provided in writing to Ms Oliver. Each of the matters specified under subsection 37(3) is considered afresh below.
An assessment under subsection 36(8)
Ms Oliver had been assessed on numerous occasions by the time she saw Dr Dias. He made a professional assessment of her capacity for rehabilitation, at the request of the rehabilitation authority. That assessment meets the requirements of section 36 of the SRC Act, and his report meets the requirements of subsection 36(8) and is therefore appropriately taken into account under paragraph 37(3)(a). Dr Dias concluded that Ms Oliver was capable of rehabilitation and recommended a precisely specified and detailed rehabilitation program. His recommendation, in a general sense, accorded with the views of a number of doctors who had conducted previous examinations of Ms Oliver: Dr Mourad, Dr Thai and Dr Paul all concluded that Ms Oliver was capable of rehabilitation and return to work, at the time they assessed her, and all recommended similar adjustments and accommodations for that purpose.
Dr Le Leu, seeing Ms Oliver somewhat later, came to a different conclusion, and Dr Rauf-Rahim also took a different view. Dr Le Leu’s report was plainly influenced by Ms Oliver’s account of the pain she suffered in attempting to follow the rehabilitation program. For the reasons already explored, I have reservations about the extent to which Ms Oliver’s accounts of pain can be relied on, whether those accounts are evidence before the tribunal or a history given to a doctor. I prefer the view of Dr Dias; apart from relying less on Ms Oliver’s self-report, his report was done much closer to the time; it aligned with all the earlier examinations; and he appeared before the tribunal, gave evidence and submitted himself to cross-examination.
As for Dr Rauf-Rahim’s evidence, on a number of occasions she is reported as having acknowledged a degree of tension between acting on behalf of her patient, on the one hand, and being guided by the opinions of experts on the other. In recognising a need to be her patient’s advocate, Dr Rauf-Rahim was drawing back from maintaining the objectivity that would allow her to come to an evidence-based conclusion about Ms Oliver’s rehabilitation prospects. This is not an unusual situation for a general practitioner. I only have hearsay evidence of this tension, between objective provider of medical advice and as patient advocate, but the point is uncontested. Dr Rauf-Rahim also acknowledged that as a general practitioner she can inevitably speak with less authority on expert matters than the specialists. She did not appear as a witness, and so none of these considerations could be tested through cross-examination, nor could her evidence more generally. Given that Ms Oliver’s account of her own pain is to be viewed with a degree of caution, I have concluded that Dr Rauf-Rahim’s evidence should be accorded less weight than that of the specialists, who are not cast in an advocacy role in the same way.
My conclusion is that on the basis of the medical evidence from expert providers, the rehabilitation assessment by Dr Dias was a suitable basis for a rehabilitation program for Ms Oliver.
Reduction in future liability
Clearly if Ms Oliver were to be successfully rehabilitated and be able to return to full-time employment, Comcare’s liability would be reduced.
Cost
I have no reason not to accept that the cost of the program is in line with industry standards. That was DSS’s assessment and it has not been challenged in the course of the matter.
Improvement in employability
It seems to me incontrovertible that if Ms Oliver were to be successfully rehabilitated she would be more readily employed.
The likely psychological effect on Ms Oliver of not completing the program
Ms Oliver’s evidence is that her attempts to undertake the program caused her extreme levels of pain and accompanying psychological stress. It is clearly to be inferred that a relaxation of the program, to a level that she attests she would be capable of, would allow her to cope better. It might therefore be inferred that not completing the rehabilitation program would have psychological benefits rather than costs for Ms Oliver.
That line of reasoning rests, however, on an acceptance of Ms Oliver’s evidence. For the reasons I have already given, I am reluctant to take Ms Oliver’s evidence at face value. The most likely explanation seems to be that she prefers – for whatever reason – to be at work for four days each week, and that she resists the rehabilitation program because it requires her to be in the office for five days. Compelling her to attend for five days (or else to seek approval to work for four days a week) is not likely to produce psychological benefits in the short term, although arguably it may do so in the longer term, if she adjusts to full-time work once again. Continuing to avoid full-time work may confirm Ms Oliver in her preferred mode of engagement with the workplace, but it is not clear what the psychological consequences might be. No evidence has been led regarding Ms Oliver’s psychological state.
On the whole I cannot reach a clear conclusion regarding the psychological effects of not participating in the rehabilitation program.
Ms Oliver’s attitude to the program
This decision touches on this issue at considerable length. Ms Oliver has declared herself interested in rehabilitation, but protests she is not capable of participating at the level and pace provided. She has been resistant over an extended period, going back almost to the time of her injury. Rehabilitation programs instituted by ACTSAFE and Injury Treatment were unsuccessful; the IPAR program is at least the third attempt. It is unavoidable that Ms Oliver has been resistant to at least the level of rehabilitation that the program entails, and appears likely to remain so. She now has a compromised relationship with some of those who would be engaged in any future rehabilitation process, and it does not seem that the breakdown in relations would be easily remedied. Some of those problems seem to be likely whether or not the current rehabilitation program proceeds, or some alternative to it.
The relative merits of any alternative and appropriate rehabilitation program
Ms Oliver has herself sought a new rehabilitation program in matter 7685, but her request, at Attachment Q to exhibit A8, asks for a new program on the basis that the previous program has now expired, and without specifying how a new program would be different. Given the assessment made by Dr Dias and other experts in occupational medicine, I cannot see that there are compelling reasons for structuring a rehabilitation program differently from that put forward by Dr Dias, or that a different program would in some material way be more appropriate. It appears likely that Ms Oliver’s aim would be to maintain her work hours at something close to a full day for four days per week. That approach could only be sensibly adopted if Ms Oliver’s account of her pain is accepted, and I have given reasons why I believe that account should be viewed with caution.
Any other relevant matter
I am not aware of any other matter that needs to be considered.
Conclusion
The rehabilitation put forward by DSS in July 2016 under the determination at T82, and affirmed by Comcare on 19 August 2016 (T85) is a program that is properly and appropriately made for Ms Oliver, despite her resistance to it and the doubtful psychological consequences of insisting she complete it. She is obliged to undertake it.
Did Ms Oliver refuse or fail to comply with the rehabilitation program?
At one time there was Federal Court authority to the effect that subsection 37(7) of the SRC Act is “self-executing”, that is, that a suspension under the subsection occurs when an injured employee commits the refusal or failure specified in the section (see Buck v Comcare [1996] FCA 388). Later cases established an understanding that a determination needed to be made under subsection 37(7), and that determination, once affirmed by Comcare under section 38, becomes a reviewable decision for this tribunal (see Australian Postal Corporation v Forgie [2003] FCAFC 223). That requires the tribunal to decide first whether the applicant refused or failed to comply with the program and second if so, whether the applicant had a reasonable excuse for so doing.
It is not at issue that Ms Oliver refused or failed to participate in the rehabilitation program that was determined for her. She is recorded as having complied sporadically and from time to time with the program, but not on an ongoing basis. It is established that “undertake” means in this context “perform”: Ismailjee and Australian Postal Corporation [1995] AATA 555.
Does Ms Oliver have a reasonable excuse for failing to undertake the rehabilitation program?
Ms Oliver put forward an excuse on two occasions during the period July-October 2016. On 8 July 2016, before the program had started, Ms Oliver wrote a letter to DSS (T81) in which she raised three reasons why she would be unable to increase her hours, as follows:
·the “permanent impairment and constant pain” which Ms Oliver said reduced her ability to concentrate and to undertake tasks. She noted that the voice-activated software had been provided but said that it was difficult for her to concentrate on using it in the way she needed to because of her pain;
·“constant stress and anxiety” due to the pain and the compensation process, with the possibility that her psychological state would deteriorate if she undertook additional hours; and
·Comcare had denied liability and then revoked that decision, causing her additional stress.
Ms Oliver noted that she was adhering to her doctor’s recommendations, that she was supported by her family and the workplace, and suggested that going against her doctor’s advice would be detrimental to her health. She said that the letter constituted her reasonable excuse why she would not participate in the rehabilitation program, and wished to continue at her current hours.
DSS wrote to Ms Oliver on 4 November 2016 (T6 of 0156) suspending her compensation rights under subsection 37(7) of the SRC Act, and noting that she had not supplied any reason for refusing or failing to undertake her rehabilitation program. On 28 November 2016 Ms Oliver wrote to Comcare (T8.1 of 0156) seeking reconsideration of DSS’s decision, giving the following reasons:
·constant pain causing chest pain, anxiety, depression and stress; overuse injuries to the right arm and shoulder arising from compensating for the left arm injury;
·harassment and bullying by DSS and Comcare; and
·the present hours of 6 hours per day for four days per week was the maximum she could sustain and was itself a struggle, and causing injury to her right arm and shoulder (and attaching a workplace hazard and incident form in the latter regard).
It is plain that the basis for Ms Oliver’s non-compliance derives from the pain she claims to have suffered from. Indeed, drawing on both the “reasonable excuse” letter at T81 and the reconsideration request statement at T8.1 of 0156, the matters that might be considered to be excuses for non-compliance with the rehabilitation program are:
·pain, especially from the accepted injury to the left wrist and arm;
·psychological consequences associated with the pain, including stress;
·stress associated with the rehabilitation and compensation processes, including bullying and harassment by Comcare, DSS and IPAR; and
·consequential injuries to the right arm.
Of these four excuses, only the first was agitated in the hearing; there is mention in the papers of a variety of other issues (e.g. chest pain has been the subject of tests and cardiological investigation, with no abnormality identified), but Ms Oliver did not adduce evidence with regard to them and advanced no contentions. No evidence has been led, for example, in relation to the psychological distress that Ms Oliver has sometimes complained of. Consequently, I am focusing these reasons on the question whether Ms Oliver’s pain levels provided a reasonable excuse for her non-compliance.
Mr Woulfe took me to Rodriguez v Telstra Corporation Ltd [2002] FCA 30 (Rodriguez) where Kiefel J noted that where an issue is relegated to experts – there, as here, medical experts – it is not for the tribunal to substitute its own reasoning and inferences for those of the expert witnesses. Rodriguez was endorsed by the Full Federal Court in Comcare v Wuth [2018] FCAFC 13 (Siopis, Flick and Perry JJ). I am not sure, however, that what Ms Oliver is asserting and what Comcare is contending in response represent competing medical inferences which need to be resolved by the expert evidence; rather this is a matter of the severity of the pain that Ms Oliver suffers, or suffered at the time. That is largely a matter of an assessment of the evidence relating to that pain. And on that score, for the reasons already explained, some of the evidence must be discounted or put to one side: Ms Oliver’s evidence is affected by issues of credit, as is Ms McNamara’s, even more profoundly. Dr Rauf-Rahim’s evidence must be treated with caution, for the reasons advanced earlier.
There is no dispute that Ms Oliver has an injury to her left wrist; no-one has suggested to the contrary and even to the lay eye her favouring of the right arm and hand when lifting objects of significant weight is apparent, in the surveillance material. But there are three reasons why I assess that the amount of pain Ms Oliver attests to is an exaggeration and not adequate as an excuse for her non-participation in the rehabilitation program:
·both Dr Dias and Professor Youssef took the view that there was no logical and believable explanation for the severe increase in symptoms reported from a very moderate increase in hours; Dr Le Leu took the opposite view, but he did not appear as a witness, and in his report he offered no explanation of why such a severe reaction would be generated by a small increase in hours;
·Professor Youssef, who was the only doctor to see the surveillance footage, concluded that Ms Oliver was more able to undertake activities with her left arm than she had reported to him; and
·Ms Oliver’s credit is decidedly dubious, for the reasons advanced above, so that where a tension arises between her evidence and that of others, especially the experts, I am strongly inclined to prefer their view.
Mr Woulfe urged on me that I should accept that the real reason for Ms Oliver’s non-compliance is that she had a childcare issue on Wednesdays, and she therefore wished to organise her affairs to avoid having to be at her workplace on Wednesdays. He pointed to the frequency with which childcare issues appear in the record (noting appearances at ST45, ST48, T59, ST51, ST50, T76 and ST4) and in particular to statements such as that in paragraph 27 of the witness statement at A4, where Ms Oliver states ”I currently look after my daughter on Wednesday because it is a financial practical arrangement”. In his contention, this makes it plain that Ms Oliver is organising her life around preferred childcare arrangements – preferred both for personal and financial reasons.

I am not persuaded by Mr Woulfe’s argument. It is not unusual for young mothers to have childcare arrangements at the front of their minds, and to refer to them accordingly. Further, the sentence quoted above from paragraph 27 of Exhibit A4 is explicable on the basis that while Ms Oliver has Wednesdays at home, she will choose not to pay for childcare because she can care for the children herself. Mr Woulfe’s argument is plausible, but to my mind it is no more than that. It is equally plausible that Ms Oliver liked to work four days each week and to have the fifth day at home with her children – and to be paid compensation in so doing. In the end I do not need to make a finding about what Ms Oliver’s motivation for not complying with her rehabilitation program might be; all I need to conclude is that she had no reasonable excuse for her non-compliance.
It is established that an employee’s dissatisfaction with a rehabilitation program is not of itself a reasonable excuse for non-compliance and that the excuse must be personal to the employee (Australian Postal Corporation v Pascoe [2003] FCA 390). It is not sufficient that the excuse has a rational foundation; there must be an objective element (Comcare v Singh [2012] FCA 136).
Ms Oliver has put forward an excuse which is personal to her, namely her pain; if it was well supported by medical evidence it might well be sufficient to persuade a decision-maker that it was a reasonable excuse (see for example Australian Postal Corporation v Nunez [2014] FCA 1095). But Ms Oliver has made that task more difficult for herself by presenting a case that calls her credit into question, and very possibly has gone further by colluding with her witnesses so as to bolster her case. For the reasons given above, I cannot accept at face value much of her evidence, and I am compelled to view with caution medical evidence that relies on her self-report of pain.
The evidence of Mr Oliver and Ms Deans must be viewed with some care because of their close relationship with Ms Oliver; further, both were resistant to cross-examination. Mr Oliver said that his wife’s left wrist had worsened over the past few years, but that is inconsistent with Ms Oliver’s own statement, after seeing the surveillance material, that she was able to do what appeared on that material because her left wrist had improved since 2016. I give no weight at all in this assessment to Ms McNamara’s evidence.
That leaves Ms Trevorrow’s evidence. She was a good witness, who responded appropriately to cross-examination, and she said that she could see Ms Oliver’s pain levels increase as she worked longer hours. But her evidence must be weighed against that of other witnesses, including medical experts who are well qualified to give an informed opinion to the tribunal. Further, Ms Trevorrow acknowledged that she is a friend of Ms Oliver, at least in the sense that work colleagues become friendly, and no doubt she wished to support Ms Oliver in the present proceedings. Finally, this is a question not of the existence of an injury, but of its severity. Ultimately, I prefer the evidence of the experts; and I note that both to the expert eye (in Professor Youssef) and to the lay eye that I brought myself, the surveillance footage did not appear to show a person struggling with the severe pain from which Ms Oliver claims to suffer.
It is uncontested that Ms Oliver’s return to work was offered extensive facilitation: several adjustments were made at her workplace, including ergonomic furniture, voice-activated software, scheduling of breaks and meetings, and lifting and keyboarding restrictions, and the workplace and her supervisors have been supportive; Mr Oliver is a supportive and helpful husband; and Ms Oliver has significant family support, including for childcare.
Taking all of the above considerations into account, I do not believe Ms Oliver’s reported pain levels and I find that that she does not have a reasonable excuse for failing or refusing to undertake the rehabilitation program determined for her under section 37(1) of the SRC Act.
Should a new rehabilitation program be made for Ms Oliver?
As I have found that the rehabilitation program made for Ms Oliver in July 2016 was appropriate, and in so finding considered and rejected possible alternative programs, it follows that I do not believe that a new rehabilitation program should be made.
The decisions under review are affirmed.

I certify that the preceding 141 (one hundred and forty one) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman

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Associate
Dated: 15 May 2019

Date(s) of hearing: 8-11 April 2019

Applicant: In person

Solicitors for the Respondent:

Counsel for the Respondent:

Ms Shery William, Comcare Legal

Mr Peter Woulfe