Oliver and Comcare (Compensation)

Case [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

  1. 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.

  2. 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…

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AGLC
Oliver and Comcare (Compensation) [2019] AATA 888
Case
[2019] AATA 888
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Oliver against decisions made by Comcare concerning her rehabilitation program and the suspension of her compensation rights. The dispute centred on whether Ms Oliver had a reasonable excuse for refusing or failing to undertake a rehabilitation program determined for her under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The Tribunal was required to consider the evidence of various medical practitioners, including specialists and Ms Oliver's general practitioner, as well as the credibility of Ms Oliver and some of her witnesses.

The legal issues before the Tribunal were whether Ms Oliver was obliged to undertake the rehabilitation program determined for her, and whether she had a reasonable excuse for refusing or failing to do so. The Tribunal also considered whether a new rehabilitation program should be made for Ms Oliver, and whether there were any prima facie contemptuous actions by a witness, which could affect the credit of that witness and potentially Ms Oliver.

The Tribunal reasoned that the purpose of Part III of the SRC Act is to facilitate the return of injured employees to work, with employers playing a key role in this process. In Ms Oliver's case, the Tribunal found that her asserted reasons for not complying with the rehabilitation program, such as chest pain, anxiety, bullying, and consequent pain in her right arm, were not supported by the evidence. The Tribunal noted that childcare issues appeared frequently in the documentary record as a significant factor. Crucially, the Tribunal preferred the evidence of the medical specialists over that of Ms Oliver and her general practitioner, whose medical certificates were considered to be based entirely on Ms Oliver's self-report. The Tribunal also found indications of collusion and fabrication of evidence, which compromised the credit of certain witnesses. Consequently, the Tribunal concluded that Ms Oliver had no reasonable excuse for failing to comply with the rehabilitation program, and therefore her request for a new program was dismissed.

The Tribunal affirmed the decisions under review, finding that Ms Oliver had failed to provide a reasonable excuse for her refusal or failure to participate in the rehabilitation program. As a result, the suspension of her compensation rights was upheld.

Orders

Orders of the court

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Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 EVIDENCEMs 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.