Parsons and Telstra Corporation Limited
[2003] AATA 224
•7 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 224
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2001/255, 339
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL PARSONS Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Dr P Staer, Member Date7 March 2003
PlacePerth
Decision The decisions under review are affirmed.
…...........(sgd P Staer)..............
Member
CATCHWORDS
WORKERS COMPENSATION: suitability of Return to Work Program (RTWP)-fitness for RTWP- failure to continue RTWP-suspension of rights to compensation-reasonable excuse
Safety, Rehabilitation and Compensation Act 1988 ss 34, 36, 37(7)
REASONS FOR DECISION
7 March 2003 Dr P Staer, Member Introduction
1. On the 27th of February 2001 Telstra made a determination under Section 37(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) that Michael Parsons has been assessed capable of undertaking a rehabilitation program (T114 of application W2001/255). This determination was restated on the 15th of May 2001 (T150). The applicant requested a reconsideration on 24 May 2001 (T155). On reconsideration the original decision was affirmed on 5 July 2001 (T175). On 12 July 2001 the applicant made application for review by the Administrative Appeals Tribunal. (T1)
2. On 1 August 2001 Telstra made a determination under Section 37(7) of the Safety, Rehabilitation and Compensation Act 1988 that Michael Parsons’ rights to compensation under this Act and to institute or continue any proceedings under this Act in relation to compensation are suspended on and from August 1, 2001 until an approved Rehabilitation Plan is recommenced. (T8 of application W2001/339). On 9 August 2001, Mr Parsons, through his solicitors made a request for reconsideration (T13) and on 24 August 2001 on a reconsideration by Telstra the original decision was affirmed (T15).
3. On 17 September 2001 (T1 of W2001/339) the applicant sought review by the Administrative Review Tribunal of the reconsideration at (T15/339) and asked for it be listed for hearing at the same time as application W2001/255.
Preamble
4. The hearing commenced on 9 September 2002 before Mr R.D. Fayle, Senior Member and Dr P.A. Staer, Member. The first day was spent in hearing submissions as to whether the Tribunal had jurisdiction. This was considered by the Tribunal and a decision handed down on 10 September that the Tribunal did indeed have jurisdiction.
5. The hearing resumed on 11 September 2002 and witnesses were heard on the 11 and 12 of September 2002 with submissions on 13 September 2002. Mr Fayle and Dr. Staer considered the matter at some length and came to a decision and commenced drafting reasons but before this could be completed and handed down Mr Fayle unfortunately deceased.
6. On 7 February 2003 at a Directions Hearing before Deputy President Hotop the parties agreed that Dr. Staer could hand down the decision.
Jurisdiction
7. The initial two days of the hearing were spent in argument as to whether the tribunal had jurisdiction. On 10 September 2002 the Tribunal made the following finding in relation to the question of jurisdiction:
“MR FAYLE: This is the ruling in the matter of the question of jurisdiction, which was put to the Tribunal yesterday and for which the Tribunal adjourned, to deliberate on. The hearing in the matter of Michael Parsons (the applicant) and Telstra Corporation Limited (the respondent), AAT file references W2001/255 (255) and W2001/339 (339) commenced on 9 September 2002. Soon after commencement, it became apparent that for reasons unconnected with the issues for determination but not unrelated to the parties' respective interests in the underlying compensation claim by the applicant, that the Tribunal should deal firstly with whether it has any relevant power arising from these proceedings.
A hearing was held on 18 December 2001, before a differently constituted Tribunal, for the specific purpose of considering (i) whether the Tribunal had jurisdiction in matter 339; and (ii) whether the application 255 be dismissed pursuant to section 42B of the Administrative Appeals Tribunal Act 1975, as being frivolous or vexatious. Parties made relevant submissions, both in writing and orally, relating to both the issues. As a result of that hearing, the Tribunal directed that the matters should not be dismissed as frivolous or vexatious.
Whilst no written order or direction was issued, the Tribunal's internal record relating to the hearing indicates that it ruled that the Tribunal did have jurisdiction. That being the case, the matter has proceeded to the present time. The respondent on 9 September 2002 raised the issue of whether the Tribunal had any powers in relation to the present matters, notwithstanding that it may have jurisdiction. In its submissions on 9 September 2002 the respondent referred to its previously written submissions, filed on 13 December 2001, in preparation for the directions hearing of 18 December 2001 and made additional oral submissions.
Mr Chris Prast, of Slater Gordon, represented the applicant before the Tribunal. The respondent was represented by Mr Ben Dube of counsel, instructed by Ms Rosemary Waldron-Hartfield of Sparkes Helmore. The Tribunal had before it documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) in respect of each application. The applicant has accepted the facts as set out in paragraphs 3 to 16 of the respondent's outline of submissions, filed on 11 December 2001.
Those are: On 2 May 2000 the respondent accepted liability in relation to muscle strain injury to back, suffered by the applicant on 26 April 2000 (T6-W01/255). Between May 2000 and February 2001 the respondent made a number of determinations pursuant to section 37(1) in order to assist the applicant in returning to work (T21, T57, T90, T114-W01/255). During this period the applicant had periods of partial and total incapacity for work.
On 15 May 2001, the respondent made a determination pursuant to section 37(1) of the Act that the applicant was capable of undertaking a rehabilitation program. That program incorporated a return to work plan (RTWP) and a rehabilitation plan. The initial period of the RTWP was from 21 May 2001 until 1 June 2001. The rehabilitation plan's expiry date was 10 August 2001 (T151-152-W01/255). The applicant did not commence his rehabilitation program on 21 May 2001.
On 24 May 2001 the respondent reconsidered it’s own motion pursuant to section 62 of the Act, the determination of 15 May 2001. The determination was affirmed in all respects other than changing the commencement date of the RTWP to 28 May 2001 (T157-W01/255). The applicant commenced his rehabilitation program on 28 May 2001. On 10 July 2001 the applicant failed to attend work (T179-W01/255). The applicant has not returned to work since 10 July 2001.
On 12 July the applicant sought review of the reviewable decision of 24 May 2001 (the W2001/255 application). On 19 July 2001 the respondent wrote to the applicant seeking an explanation for his failure to undertake the rehabilitation program and alerting him to the potential application of section 37(7) of the Act (T181-W01/255). On 26 July 2001 the applicant's solicitor provided reasons for the applicant's absence from work (T7-W01/339).
On 1 August 2001 ;the respondent wrote to the applicant and notified him that his entitlements under the Act were suspended by operation of section 37(7) of the Act with effect from 1 August 2001 (T8-W01/339). On 9 August 2001 the applicant's solicitor requested reconsideration of the respondent's "determination" under section 37(7). On 10 August 2001 the applicant's rehabilitation program expired. On 24 August 2001 respondent "affirmed upon reconsideration" the suspension of 1 August 2001 (T15-W01/339). On 17 September 2001 the applicant sought review of the "reviewable decision" of 24 August 2001 (the W01/399 application).
In essence, the respondent submits that both applications should be dismissed. In relation to application 255, the respondent contends that as the rehabilitation program established pursuant to section 37(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), expired on and from 1 August 2001 then the Tribunal has no power retrospectively to review a section 37(1) determination. In relation to application 339 the respondent submits that there is no "reviewable decision" before the Tribunal.
That is, in particular, the suspension of the applicant's entitlement to compensation under the SRC Act is by force of operation of section 37(7) of the SRC Act and that there can be no "determination" under section 37(7) for the purposes of section 60(1) of the Act. In that event it submits that there is no "determination" amenable to reconsideration under section 62 of the SRC Act. In that case, it is submitted, that there is no reviewable decision upon which an application to the Tribunal could be founded, pursuant to section 64 of the SRC Act. In those circumstances, it was submitted, the Tribunal is without jurisdiction.
On the other hand, the applicant contends that in both applications 255 and 339 it was clear that the respondent was dealing with the issues as if each was a "reviewable decision" and that the Tribunal should review those decisions. The applicant further submitted that because the respondent was required to decide whether the applicant had a reasonable excuse before his rights under the SRC Act could be suspended under section 37(7) of the SRC Act, that is a decision of the genre that is within the jurisdiction of the Tribunal.
Discussion
The relevant starting point is section 37(7). The Tribunal notes that suspension by operation of law requires a consideration of whether the refusal or failure on the part of the employee to undertake a rehabilitation program is dependent on whether the employee does so without reasonable excuse. The Tribunal finds some ambiguity in the actual wording of section 37(7) which speaks of refusing or failing to undertake a rehabilitation program. Clearly, the applicant did commence to undertake the program. Even though the applicant began the program a week late the suspension in question has not been sheeted home to that failure but rather to the failure arising from non-attendance at work on 10 July 2001.
Further, section 37(7) speaks of the employee being suspended "until the employee begins to undertake the program". Clearly, in this instance, the employee had begun the program but had not carried it on. In the Tribunal's opinion, to make any sense of the provision, having regard to its clear intent, the expression in section 37(7) "to undertake a rehabilitation program" must mean "to begin and to continue to undertake a rehabilitation program". For without attributing such a meaning the provision would simply be rendered nugatory by an employee commencing a rehabilitation program and walking away from it soon thereafter without any fear of suspension under section 37(7).
In the Tribunal's opinion, the legislature did not intend to restrict suspension to those circumstances but rather only where, without reasonable excuse, the employee refuses or fails to undertake and to continue a rehabilitation program. In the Tribunal's opinion, the fact that the applicant in this matter commenced the rehabilitation program has not taken him outside the scope of possible suspension pursuant to section 37(7).
Section 60 of the SRC Act includes a definition of "determination" for the purposes of Part VI - Reconsideration and Review of Determinations, of the SRC Act. That definition states:
Interpretation
60.(1) In this Part:
"determination" means, a determination, decision or requirement made under sections 8 ..... 37 ..... under paragraph 114B(5)(a) or under Division 3 of Part X.
That includes a "decision". In the opinion of the Tribunal, the respondent made a decision about the reasonableness or otherwise of the applicant's excuse for not continuing the rehabilitation program. That then, pursuant to the above definition, establishes a "determination" for the purpose of Part VI - Reconsideration and Review of Determinations of the SRC Act. The Tribunal notes that the decision of Tamberlin J in Trajkovski v Telstra (1998) 153 ALR 248 supports this conclusion. In that judgment his Honour said:
"It is common ground that the language of section 37(7) makes it clear that the suspension of rights under section 37(7) operated directly and without the need for any antecedent decision. Nevertheless, as a practical matter, some person, or body, must make a decision as to its application in any specific case... It is apparent from the terms of [subsection 37(7)] that the determination whether there has been a failure to undertake a program without reasonable excuse calls for an "objective" determination of both the law and the facts". (253)
In that judgment his Honour made reference, with approval, to the Tribunal decision in Re Martiniello and Comcare Australia (1994) 33 ALD 774. In that case the Tribunal concluded that in its opinion "the applicant's failure to undertake a [rehabilitation] program was unreasonable and did not exhibit any reasonable excuse for that failure and we are therefore satisfied that section 37(7) applies to the facts of this case". (254) His Honour then noted that "It is apparent from these remarks that the AAT considered it had authority to determine whether it had jurisdiction". (254)
In Trajkovski, Tamblin J addresses the duty of the AAT, making reference to Collector of Customs (NSW) v Brian Lawlor Automotive Proprietary Limited (1979) 24 ALD 307 in a context clearly applicable to the present matter. That is, an applicant will have standing if there exists a decision in fact which purports to have been made in the exercise of powers conferred by an enactment. That obtains, whether or not as a matter of law, it was validly made and whether or not action on the basis there was power to make the decision was right or wrong. (See: Bowen CJ at 317).
In the present matters of applications 255 and 339 the T documents for each application clearly set out what was purported to be a determination (see T114 in 255 and T8 in 339) and a reviewable decision (see T157 and T175 in 255 and T15 in 339). For those reasons the Tribunal considers that the earlier pronouncement of the Tribunal on 18 December 2001 that the Tribunal has jurisdiction in these two matters is fully supported and that the Tribunal has before it valid application for review. The Tribunal should now proceed to review on merits, subject only to hearing from parties as to possible adjournment arising from matters which were first brought to the attention of the applicant's representative, as distinct from the applicant, yesterday when these issues were being agitated.
So, the Tribunal stands ready to proceed in this matter.”
Evidence
8. Witness hearing commenced on Wednesday 11 September. The Tribunal had before it the documents filed by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) in relation to applications W2001/255 and W2001/339 and the following exhibits:
A1 Applicant’s summary of evidence dated 12 August 2002
R1 Request for consultation signed by Dr Johnston (22/1/01)
R2 Clinical notes of Dr Johnston
R3 Affidavit of Keith Glance sworn 3 September 2002
R4 Affidavit of Danielle Adams sworn 11 September 2002
R5 Affidavit of David O’Sign sworn 10 September 2002
R6 Outline of evidence of Douglas Short dated 3 September 2002
R7 Outline of evidence of Annabelle Walker dated 3 September 2002
R8 Photocopy of bundle of file notes made by Ms A Walker from 8/1/01-12/9/01
R9 Report of Dr Alan Home dated 23 July 2002
R10 Bundle of documents of briefing material supplied to Dr Home9. The first witness was the applicant Michael Parsons.
His summary of evidence dated August 2002 was accepted.
10. The evidence went through the applicant's injuries in 1995 and 1996 but the main incident was a 26 April 2000 when he was lifting a pillar while working in Welshpool. Following this injury he said he has had continuing back pain. Physiotherapy, hydrotherapy, medication and also counselling with Dr O'Sign have not significantly helped.
11. Mr Parsons placed great reliance on his treating doctor, Dr Alastair Johnston . Dr Johnston appeared to be very ready to give him certificates for being off work and ultimately after the applicant had seen a number of Telstra nominated doctors he went back to Dr Johnston and quoting from his summary of evidence,
"He ( Dr Johnston) said not to see Dr Gillet again if he was going to treat you you like that. We then agreed not to send me back to work again and to make me unfit for life.”
Mr Parsons was asked about his rehabilitation programs and he felt they were not specifically tailored for to his needs and at times he was forced into a rehabilitation program even when Dr Johnston was signing him off as unfit for work.
A further comment from the applicant’s summary of evidence,
"When I went back to work on the last occasion before I ceased doing the rehabilitation program, I felt frustrated and angry because rather than doing any meaningful work I was simply returned to the depot and was doing clerical duties for which I had no training, skills, experience or instruction.
I felt I was just being pushed around and not given any meaningful rehabilitation."
In the course of giving evidence it did appear to the tribunal that when Mr Parsons found the inside work difficult he was given more outside work particularly "ride on" type of duties which he had at times apparently enjoyed.
12 The Tribunal's overall impression of Mr Parsons was that he was telling the truth as he saw it. The Tribunal observed that while Mr Parsons was giving evidence he sat comfortably in his chair and on several occasions spent at least an hour without moving or having to get up and move around. A couple of times he sat for as much as two hours without showing obvious discomfort
The Tribunal acknowledges that he does have a back problem and does have ongoing pain in his back. The big question before the Tribunal was what is the significance and severity of that pain.
Dr. Alastair Johnston
13 Dr. Johnston has been the applicant's treating a general practitioner since 1993. The first mention in his notes of the back injury of April 2000 was on 30 August 2000.
14 Dr Johnston has issued many progress medical certificates. He seemed to have a reluctance to confer or work with the rehabilitation providers and said that he accepted the symptoms as related to him by the Mr. Parsons. He seemed very ready to make Mr Parsons totally unfit for work on the basis of what Mr Parsons told him and there is not a great deal of evidence of his undertaking specific examination
15 On 6 March 2001 he gave a progress medical certificate which stated "fit for trial of work as per recommendations from CountryWide". However by 4 April 2001 he reports Mr Parsons as being "totally unfit for work for life" due to failure of rehabilitation and he recommended Mr Parsons be made totally and permanently incapacitated. Dr Johnston gave no factual evidence as to what changes in the applications condition warranted such a radical change in his assessment.
16 The Tribunal was not impressed with Dr Johnston as a witness and felt he had not looked objectively at his patient. He had made little attempt to contact those who were providing rehabilitation and apart from his notes on the work certificates had very little input into the rehabilitation even though he was invited to do so
17 He was questioned about the overall management of Mr Parsons and he acknowledged he had not explored every avenue of treatment and he had not referred Mr Parsons to a pain management specialist. In spite of having a report from Dr Galton-Fenzi which was from a referral made by Dr Johnston himself he did not follow up Dr Galton-Fenzi's recommendation that Mr Parsons be seen by a Dr John Salmon who is a pain specialist obtaining good results in chronic back pain.
Dr. Robert Gillett
18. Dr Gillett is an occupational physician who saw Mr Parsons on four occasions. He worked closely with the rehabilitation provider and on one occasion made an on site inspection of Mr Parsons work place. He gave his evidence in a clear and forthright manner. His has four reports in the T documents.
T79 24 October 2000:
He states,
"Clinically there is not much to find.
In my opinion given the psychological aspects of this case I would question the value of work hardening per se. I would explore a trial root sleeve injection to assist in reducing his pain levels.”
T108 15 February 2001:
" As I explained to Mr Parsons it would be my opinion that he has the physical capacity to undertake the tasks outlined of that of a depot site manager/trainer however I am mindful of significant interpersonal conflict issues involved in this case.
The nature of the proposed duties are of a light to medium sedentary nature. I would question the ability of the roles to provide substantial amounts of job satisfaction.
In my opinion from the physical perspective the duties outlined clearly are within Mr Parsons capabilities as demonstrated by the Functional Capacity Evaluation. Mr Parsons should be able to undertake these duties on a permanent basis".
In my opinion Mr. Parsons would be able to participate in a graduated return to work program. The restrictions would be in relation to repetitive bending and manual handling activities in excess of 12.5kg. I think it reasonable that Mr. Parsons be started on a half time basis and that his hours be reviewed on the basis of an hour per day per fortnight such that after a period of two months he should be able to achieve full time emplyment.”
T164 12 June 2001:
"At review today Mr Parsons from a clinical perspective has not changed at all.
This case is a classic of the maximum self reported disability with evidence of minimal physical impairment.
In my opinion ultimately I am unable to determine any reason from a clinical perspective why Mr Parsons will not be able to resume full-time permanently modified role with Telstra.
He recommended referral to Dr Geoffrey Gee for further pain management.”
T174 3 July 2001:
"Ultimately I would support the view of Dr Lee that Mr Parsons has a capacity for a substantial, if not full working capacity in an altered role".
"I note that Mr Parsons continues to be clearly focused on the fact that he is totally and permanently unfit for work. Clearly he is demonstrating that this is not the case".
Dr Evelyn Lee T133 28 March 2001
19. Dr. Lee is a vocational physician who saw Mr Parsons once. She presented well in the witness box and gave clear and forthright opinions of the examination and management of Mr Parsons. I
Parts of her report read:
"…he was concerned that his employer was reluctant to release him".
"I believe he is willing to resume the work trial at the end of the 10 day period. I would recommend that he resumes at 4 hours 3 days a week and attend hydrotherapy on a daily basis. Upgrading of duties is conditional on his progress. In the second week if he is coping this could be increased to 4 hours 5 days a week for the next two weeks. By the fourth week, if he continues to make progress, his hours could be increased to 6 hours 5 days a week. My expectation is that he will require significant support during the work trial.”
She considered it would be worthwhile for an ergonometric assessment of his work tasks in the field and further modification of his fields tasks. She mentions a number of ways in which his participation in work could be improved. She agreed that he should continue his work trial.
20 When questioned about the psychological aspects are of this case she stated in cross examination
“At the end of the day it does depend on the person, the patient who has a great deal of insight and understanding of their condition and the importance of picking up that advice and running with it, will have a much better prognosis of coming out of that, still remaining in full remunerative employment. Those people who have delayed taking up that advice will be much slower, and to a large extent it depends on themselves. All the doctors are all there, all the para medical people can advise, but at the end of the day it is up to the patient to decide are they going to be motivated enough to pick up and work hard on those different options...
Motivation, yes....they have to understand their condition, they have to understand keeping a fit body, a toned up body and going through a range of exercises on a daily basis, these are the maintenance things you have to do for yourself, and you will end up with a much better back than someone who has not done that, who has allowed the muscles to go into disuse and so forth.”
Transcript, 12.9.02, page 7
Dr. Alan Home, (Report Exhibit R 9), 23 July 2002
21. Dr Home is an Occupational Physician, practising with Murdoch Vocational Health and has had 13 years experience as a Specialist in work related injuries and illnesses and management of those injuries and illnesses
Dr. Home had been given briefing material including other doctors’ reports, a Worksite Assessment Overview by Annabelle Walker and a Job Description of the duties of a Telstra Depot Site Manager (Exhibit R10).
22. He had examined Mr. Parsons on 23 July 2002 and submitted a 5 page report. In answer to specific questions he stated:
1. In my opinion Mr Parsons is physically fit to perform the work described in the attached job description detailing the duties of a depot site manager/trainer
2. I would not place any work restrictions or limitations upon Mr Parsons performing the modified job that Telstra has designed as part of his rehabilitation programme.
3. I would place medical restrictions with regard to Mr Parsons overall capacity for work and specifically I would restrict him from lifting weights heavier than 10 kilos from the ground and weights heavier than 15 kg if well positioned at waist height. I would restrict him from work requiring repetitive bending throughout the working day
5. I am not aware of any medical reasons to Mr Parsons' continued absence from duties since the 11th of July 2001.
6. I did not consider Mr Parsons "totally and permanently incapacitated" for any type of employment. It is my opinion that Mr Parsons retains a physical capacity for full-time work of a semi-sedentary and light manual nature.”
In his oral evidence he confirmed his report and on being questioned about the future of a man of 33 with chronic back pain stated:
"There is no evidence certainly from my work and also my reading, understanding of the condition, the back pain is - inexorably gets worse overtime. Quite the contrary in fact if you look at research that has been undertaken on populations....40 to 60-year-olds actually have a slightly higher incidence of back pain than people over the age of 60 which is quite interesting because their degenerative you would expect to be getting worse...and approximately 20 percent of people between the age of 40 and 60 have what they would describe as chronic or recurrent back pain. The vast majority of those people are working or leading productive and active lines so to take your question, I don't think that is really a scenario that is realistic because we don't see them the vast majority of these people becoming invalidated or invalided or retiring or becoming much worse overtime. In actual fact usually symptoms stabilise and people get control of their back condition, they work out what they can and can't do and slot themselves into work that is appropriate for them. That would be the usual scenario.” Transcript, 12.9.2002, page 15
Mr Douglas Short
23. Mr. Short was Area Service Manager for Telstra and was involved in Mr. Parsons’ rehabilitation program.
24. He affirmed his Outline of Evidence Statement (Exhibit R6).
25. Mr Short gave a picture of the functioning of Telstra in relation to Mr Parsons' work and rehabilitation. He outlined how the rehabilitation was a cooperative program worked with himself, Mr Parsons’ team leader, Keith Glance and Annabelle Walker at Countrywide Injury Management.
26. He related how Telstra had offered Mr Parsons Depot duties as Depot Site Manager as part of his graduated return to work programme. A specific position of SME (subject matter expert) was being trialled in the Southern Area and it was felt that Mr Parsons could fit well into these duties .
"Mr Parsons duties required him to provide skills training and cross-discipline training. Mr Parsons was well-suited to this SME position as he had the requisite practical knowledge of fault finding and cable jointing. It is my understanding Mr Parsons was very good at his duties as faultman, and therefore his expertise and knowledge was invaluable to those he trained. In my opinion Mr Parsons had the ability to teach others and was more than capable in doing so."
He did not believe Mr Parsons genuinely trialled the administrative duties identified for him.
27. In the meetings that Mr Short, Keith Glance and Annabelle Walker had with Mr Parsons he felt they were congenial and calm but that Mr Parsons used the meetings to vent his frustration.
He said it was always Telstra's intention to rehabilitate Mr Parsons into a full-time position that suited his restrictions but was also of value to Mr Parsons.
In his discussions with Mr Parsons, it appeared that he wished to be invalidity retired. However Telstra rejected Mr Parsons and his general practitioner's opinion that he is a totally incapacitated for work.
Annabelle Walker
28. Outline of Evidence Ex R7 and hand written File notes Ex R8 over 70 pages detailing the case management of Mr Parsons were before the Tribunal.
29. Ms. Walker has been an Occupational Therapist for 8 years and has been involved in the area of vocation and rehabilitation for the last 5 and a half years. Currently she is Regional Manager for Countrywide Injury Management.
30. Ms. Walker affirmed her outline of evidence.
31. She was case manager for Mr Parsons from January 2001 onwards having taken over from Danielle Adams who was case manager from May 2000 to December 2000.
32. Ms Walker outlined the role of a case manager which is to liaise with all parties formulate a return to work program with regard to the employees limitations and restrictions, to implement and monitor the graduated return to work programm and make alterations and assessments along the way as necessary.
She had extensive liaison with Telstra, the doctors involved and Mr Parsons. Both from her notes and from her oral evidence there was a progressive breakdown of relationship between Mr Parsons and his employer.
33. On the 15th of May 2001 she attended a meeting with the employee, Keith Glance and Douglas Short at the employee’s home. The employee was advised that he was required to attend work on Monday. If it failed to do so his wages would be suspended. The employee refused to return to work. Mr Parsons after this became increasingly angry but refused a further counselling which was offered.
In her outline of evidence she states:
“It is my opinion that the rehabilitation programme was reasonable and appropriate having regard to the employee’ injury and circumstances. The programme was designed with regard to the employee’ capabilities, skill, experience and restrictions.
Is my opinion that, throughout my involvement with Mr Parsons’ return to work, Telstra acted appropriately in their dealings with the employee.”
34. Further evidence before the Tribunal from the T Documents:
Dr. Patrick Hanrahan, Rheumatologist. 1 September 2000 T50
6 November 2000 T82
28 June 2001 T17035. In his earlier reports Dr Hanrahan supports a return to work program but in his last report states:
“He has become angry and bitter and tells me he “hates Telstra”
“his pain is consistent with discogenic pain, he has had recurrences over the years and appears to have reached the stage where he cannot cope. He became tearful and I can't see him returning to any form of significant employment. He is very young and I think he realises that it would be in his best interests if he could remain at work but he appears to have had a serious attempt to do this and I do not believe he is fit for work.”
Dr. Soni Narula, Neurosurgeon 11 April 2001 T136
3 May 2001 T146
36. He confirmed the low back problem and stated:
“Should his work be classified as that of heavy nature it may be better in the long-term to relocate to a different area, which is not a strenuous.
“I have gone through the Depot site manager/trainer duties attached along with this. It is my opinion that Mr Parsons would be able to undertake this duty part-time and then leading to full-time eventually.”
David O’Sign, Psychologist 30 April 2001 T143
37. Mr. O’Sign was concerned about the perceived inconsistent messages being received by the Applicant from Telstra leading to uncertainty about his future.
“Mr Parsons could have benefited from more pain management intervention but this has been difficult as the majority of intervention has been focused on support/stress counselling.’
“If inconsistencies or different opinions regarding Mr Parsons case exist it is important that the different viewpoints are presented to Mr Parsons along with the reason why a particular decision has been made. If decisions in relation to Mr Parsons case are made without any explanation to Mr Parsons it is likely that he will feel anger and frustration particularly if different opinions have been presented to him.
“Mr Parsons would benefit from ongoing support counselling to ensure he is coping adequately.”
Dr. David Wright, Orthopaedic Surgeon, 29 June 2001, T172
38. In answer to specific questions Dr Wright stated:
“Mr Parsons suffers from low back pain which is associated with degenerative change in the lumbar spine. He displayed considerable anger and agitation about his condition and I was left with a strong impression that psychological factors were involved in his presentation”
“Degeneration of this nature is never the result of a single injury and in Mr Parsons case, would have been present long before his compensation claim of the 26 April 2000 and it would have been present before 1995 when he states he first injured his back while working for Telstra.’
“I agree with Mr Narula surgical treatment is not indicated for Mr Parsons”
“I do not believe that Mr Parsons is physically unfit for his pre-employment duties. His incapacity appears to be genuine but due to psychological factors”.
“Whilst I do not believe that he is suffering from a physical injury, all the other factors, including his anger and reaction to the earlier physical injury, were a direct result of his work with Telstra”.
“I agree with the other doctors, who’s reports you send me, that Mr Parsons has a capacity for work and the light duties that he was provided with appeared to be within his capabilities. Mr Parsons stated many times, when he was with me, that he believes that he is totally unfit for work and cannot understand why Telstra keeps wanting him to go back to work”
“The overall prognosis for Mr. Parsons is poor because of his anger and hostility towards his employer”
“He does, in my opinion, need further psychological investigation and counselling. He should also continue his exercise program”.
Dr. Brian Galton-Fenzi, Occupational Physician
Report, 20 July 2001 to Dr. Johnston attached to R2
39. This report was from a private referral from Dr. Johnston.
“Therefore in proposing a diagnosis, the evidence is that he has ongoing of discogenic pain arising principally from the lumbar L5/S1 segmental level, but the degenerative discs L1 to L4 are, which may occasionally be exacerbated by over-activity”
“The evidence in the literature continues to support that in the long-term, best clinical management is to encourage individuals to return to work in jobs of avoiding certain precipitating activities. Given the relationship between Mr Parsons and his current employer, then a return to work in this environment may well be fruitless. Finding alternatives would seem to be extremely difficult as noted by the work trials had been undertaken to date”.
I stated that back pain was common and that maintaining a near normal life as possible was the only way forward. To this end I would recommend he attended a cognitive behavioural therapy course with John Salmon (Pain Specialist) at Bethesda Hospital.”
Dr Johnston did not follow up this option.
Discussion
40. The Tribunal accepts the diagnosis of multilevel degenerative disc disease and that the incidents with Telstra in 1995, 1996 and particularly 26 April 2000 were aggravations of an underlying problem rather than being in the cause of the problem. Telstra has not denied liability for these injuries.
41. The Tribunal felt it had three questions to answer in this matter:
1.Was the rehabilitation program appropriate ?
2.Was the applicant capable of undertaking the rehabilitation program ?
3.Did the applicant to have a reasonable excuse to stop the rehabilitation program ?
Was the rehabilitation program appropriate ?
42. It was not questioned that Telstra itself was the rehabilitation authority and Countrywide Injury Management was an approved provider of rehabilitation programs under s 34 of the SRC Act 1988.
43. The Tribunal accepts that the program set up in consultation with Telstra, Countrywide, the applicant and Dr Gillett was appropriate. The documents before the Tribunal point to discussion about the appropriateness of the program. The work site was the visited by Dr Gillett and changes in dates, modifications of duties were made to accommodate and the applicant.
44. Dr Johnston was rung about the program but he chose not to make input into the program. He initially certified the applicant as fit to undertake the program on1 March 2001 T117. He later, on 15 March 2001, T127, changed the certification as being fit for work trial but to have 2 days off per week. On 4 April 2001, T134 certified Mr. Parsons as ‘Totally unfit for work for life.” He gave no evidence of the change in the applicants condition that warranted such a radical certification in a young man.
45. At no time did Dr Johnston visit the work site and he gave no evidence as to changes in Mr. Parson’s health status that warranted his going from “fit for trial of work” to “Totally unfit for life” over a period of 5 weeks.
Was the applicant capable of undertaking the rehabilitation program ?
46. Section 36 of the SRC Act provides:
36. (1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program.
(2)An assessment shall be made by:
(a)a legally qualified medical practitioner nominated by the rehabilitation authority;
(b)a suitably qualified person (other than a medical practitioner) and nominated by the rehabilitation authority; or
(c)a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.
(3)The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.
47. The Tribunal had before it reports of Drs. Gillett, Lee, Home, Narula, Wright and Galton-Fenzi all saying that the applicant was capable of undertaking the rehabilitation program as it had been set up.
The Tribunal notes that Dr Johnston by this time had certified the applicant “as unfit for work for life.” There was also a report by Dr Hanrahan which was somewhat equivocal that did support the applicant as being unfit for the program at the time when he was examined by Dr Hanrahan.
The Tribunal favours the evidence of Dr Gillett and the other supporting doctors and finds that the applicant was fit to undertake the rehabilitation program which had been set up by Telstra and Countrywide.
Did the applicant have reasonable excuse to stop the Rehabilitation Program ?
48. Section 37(7) of the SRC Act provides:
37(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.
The Macquarie Dictionary defines ‘reasonable’ as;
1. endowed with reason
2. agreeable to reasonable or sound judgment
3. not exceeding the limit prescribed by reasons not excessive
49. At the time the rehabilitation program was being considered, March to July 2001, Mr Parsons had put his house in Huntingdale (10 minutes drive from his work place at Canning Vale) up for sale and having sold the house moved to Mandurah 50 drive minutes from Canning Vale.
50. Mr Parsons claimed that the pain in his back prevented him driving more than 15 or 20 minutes at a time and the Tribunal does not consider it sound judgment to be moving house to Mandurah if he was contemplating continuing work with Telstra. It also seemed unreasonable to the Tribunal that Mr Parsons continued to attend his general practitioner in High Wycombe which was another 20 minutes drive from his work place at Canningvale and the opposite direction to Mandurah.
51. The Tribunal believes that by March 2001 Mr Parsons had already made up his mind that he was TPI and with the collusion of Dr Johnston had made up his mind that he was not going to work again with Telstra. This is borne out by the evidence of Mr O’Sign, the certificates of Dr Johnston and Mr Parsons in his own summary of evidence.
52. As well as failing to carry on with his Return to Work Rehabilitation Program, Mr. Parsons, with lack of encouragement from his General Practitioner, has not taken full advantage of various treatment options available to him such as;
Spinal Injections
Anger/stress counselling
Use of anti-inflammatory medications
Consultation with Dr. Salmon
Conclusion
53. Taking all the evidence before it and for the reasons above, pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decisions under review.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P Staer, Member
Signed: .........(sgd V Wong).....................................
AssociateDate/s of Hearing 9-13 September 2002
Date of Decision 7 March 2003
Counsel for the Applicant Mr C Prast
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr B Dube
Solicitor for the Respondent Sparke Helmore
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