Pascoe and Australian Postal Commission
[2004] AATA 892
•24 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 892
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos. N2003/754, N2003/755,
GENERAL ADMINISTRATIVE DIVISION ) N2003/756 Re GEORGE PASCOE Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen Date24 August 2004
PlaceSydney
Decision The Reviewable Decision of 12 January 2000 is affirmed.
This matter is listed for a directions hearing on 1 October 2004 at 9.30am.(Sgd) M D Allen
…………………………………..
Senior Member
CATCHWORDS
WORKERS COMPENSATION – Federal Court remittal – whether Applicant had reasonable excuse for failing to attend rehabilitation program – medical certificates issued were a result of exaggerated symptomatology by the Applicant – despite being accepted by Respondent the medical certificates cannot form the basis of reasonable excuse – decision under review affirmed.
Australian Postal Corporation v Pascoe [2003] FCA 390
Pascoe v Australian Postal Corporation (2004) 77 ALD 464
Cavell v Repatriation Commission (1988) 9 AAR 534
Reg v Green (1971)126 CLR 28
Comcare v Mooi (1996) 42 ALD 495
Commonwealth v Holland & Sandiford (1991) 24 NSWLR 198
Woodbrige v Comcare (1994) 20 AAR 196
Safety, Rehabilitation and Compensation Act 1988 s37
REASONS FOR DECISION
24 August 2004 Senior Member M D Allen 1. On 30 August 2002, the Administrative Appeals Tribunal handed down a decision which set aside three reviewable decisions made by the Respondent concerning the Applicant and substituting in lieu thereof decisions in his favour.
2. That Administrative Appeals Tribunal decision was appealed to the Federal Court by the Respondent and on 30 April 2003, Whitlam J allowed the appeal and remitted the matters to the Administrative Appeals Tribunal to be heard and decided again: see Australian Postal Corporation v Pascoe [2003] FCA 390.
3. An appeal against the judgment of Whitlam J to the Full Court of the Federal Court was unsuccessful. See Pascoe v Australian Postal Corporation (2004) 77 ALD 464.
4. The gravamen of the judgment of Whitlam J is found at paragraph 40 thereof. At paragraph 6 of his judgment, his Honour set out the relevant subsections of section 37 of the Safety, Rehabilitation and Compensation Act 1988, (“the SRC Act”) namely:
“(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
(2)…
(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) …
(5) …
(6)…
(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
(8) Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.”
Then stated at paragraph 20:
“The approach of the Tribunal to the issue of “reasonable excuse” under s37(7) of the Act was fundamentally flawed. It was not concerned with whether a determination should be made under s37(1). The Tribunal used the provisions of s37(3), particularly pars (e) and (f), as a checklist for a purpose for which they were not intended. Its gaze should have been fixed firmly on the object of s37(7), which had effect only where a determination was in force and a program provided.”
5. To my mind the term “reasonable excuse” is not one that can be subject to further elucidation. It simply means an excuse that the Tribunal in fact considers in the circumstances of the case to be reasonable: see Burchett J in Cavellv Repatriation Commission (1988) 9 AAR 534 at 539 quoting Davies J:
“In the absence of ambiguity other words should not be used in place of the words used by the legislation”.
See also R v Green (1971)126 CLR 28.
6. It was submitted by the Applicant’s Counsel that if an employee presented a doctor’s certificate, which was then accepted by the employer, this would constitute a reasonable excuse not to undertake or attend upon work directed as part of a rehabilitation program. I disagree. If the certificate has been issued fraudulently and the employee is aware of this, or if it is based upon symptoms described by the employee being symptoms he is not suffering or is exaggerating or based upon signs of injury or disease that are feigned, than the excuse although purportedly supported by a doctor’s certificate is not a reasonable one.
7. Upon the matter coming on before me for rehearing, it was agreed between the parties that the immediate issue for me to decide was whether, in terms of ss37(7) SRC Act, the Applicant did have a “reasonable excuse” for not undertaking a rehabilitation program as directed by the Respondent.
8. Before me were the exhibits in the original proceedings, together with some additional material being marked as follows, namely:
A2 -
a chronology of events
A3 -
a bundle of documents extracted from the Applicant’s rehabilitation files with the Respondent
A4 -
copy documents being facsimile documents passing between the Commonwealth Rehabilitation Service and the Applicant’s general practitioner Dr Hollo
A5 -
copy report of Dr Hollo dated 16 June 1999
9. The Applicant was originally injured in the course of his employment with the Respondent as a truck driver. After initial acceptance of liability for back injury the Respondent made a determination on 29 April 1997 that it was no longer liable to pay compensation for any back condition. This determination was the subject of a reviewable decision on 3 September 1997, which in turn was by consent set aside by the Administrative Appeals Tribunal on 28 October 1998 and an on going liability for back injury accepted by the Respondent.
10. On 31 March 1999 the Respondent determined that the Applicant was to commence a rehabilitation program. No request was made by the Applicant for any reconsideration of this determination.
11. There is no dispute that the Applicant failed to recommence work in accordance with the rehabilitation program. On 7 April 1999 a letter was sent to him requiring him to explain in writing within seven days why he had not undertaken the requirements of his rehabilitation program. A reply to this letter was forwarded to the Respondent by the Applicant’s then solicitors.
12. On 4 May 1999, the Respondent wrote to the Applicant in the following terms, namely:
“Your rehabilitation counsellor arranged for you to commence a graded return to work on 6/4/1999 at the Sydney North Letter Facility. You failed to comply with the request to commence work on 6/4/1999.
Arrangements have now been made for you to commence a return-to-work program at Prince Alfred Park, beginning on 10/5/1999.”
The Applicant did not attend work as required by this correspondence.
13. A formal determination was issued on 7 May 1999 requiring the Applicant to commence a rehabilitation program starting on 11 May 1999. The Applicant carried out these duties. On 13 May 1999 an alteration was made to that determination which required the Applicant to commence full time duties on 17 May 1999.
14. The Applicant on 19 May 1999 consulted his general practitioner Dr Hollo and was given a sick leave certificate.
15. The Respondent, on 15 May 1999, issued a further determination pursuant to ss 37(1) SRC Act. That determination reads inter alia:
“As discussed with you previously an amendment has been made to the Determination of Section 37(1), SRC Act 1988 issued on 31/03/99. This decision was set aside in the reconsideration of 06/05/99 to enable you to participate in a short upgrading program prior to commencing work at Sydney North Letters Facility.
…
You are now required to commence full-time selected Mail Officer Duties at Sydney North Letters Facility at 6am on Thursday, 3rd June 1999.”
No review was sought regarding that determination and neither did the Applicant report for duties.
16. On 30 August 1999, a determination was issued which read inter alia:
“I refer to your claim for compensation in respect of left sciatica and request for compensation beyond your last determination that ceased on 17 May 1999.
…
As previous {sic} mentioned specialist medical opinion does not support your total incapacity from work and have not received any recent medical evidence contrary to that opinion. Therefore I determine that from 18 May 1999 to 24 September 1999, liability for total incapacity is not payable under section 19 of the above Act.
Any time of work should be treated as leave as recommended by your manager.”
17. In a letter to the Respondent dated 28 September 1999, the Applicant wrote inter alia:
“On 13-20 August 1999 I received letters from the Rehabilitation Section. Again they have requested that I submit in writing my reasons for not participating in a rehabilitation program. I can only interpret these repetitive enquiries as a refusal (on their part) to accept my illness and back complaint as a reasonable explanation for not attending.
I also requested that my Consulting Psychiatrist Dr Samad be contacted in writing and to my knowledge this request has not been complied with to date and I would like to add that I have been under prescribed medical treatment by the above doctor and Dr Hollo my General Practitioner.
I have suffered and still am suffering from left-side chest pains for which my general practitioner referred me to a Consultant Cardiologist and as a result I had to undergo several tests that included an ECG and Stress Test.”
18. By letter dated 1 December 1999, the Respondent determined:
“Pursuant to section 37(7) of the Safety, Rehabilitation and Compensation Act 1988, I hereby determined that the Claimant’s entitlement to compensation is suspended on and from today, 1 December 1999, until such time as you begin to undertake the rehabilitation program which was subject of the determination dated 25 May 1999.”
19. As stated above, the issue before me was whether or not the Applicant had a “reasonable excuse” not to commence the rehabilitation program. The Respondent purported to suspend the Applicant’s rights to compensation only from the 1st of December 1999, although the evidence is clear that at no time did the Applicant even attempt to undertake the rehabilitation program which he was mandated to undertake pursuant to the determination of 25 May 1999.
20. In considering whether the Applicant had a reasonable excuse or not for failing to undertake the rehabilitation program, I regard the relevant date as 10 August 1999. It was by notice dated that day that the Applicant was requested to provide reasons as to why he had not attended and warned that failure to provide a reasonable excuse would result in his rights to compensation being suspended.
21. Before the original Tribunal the Applicant gave evidence and was extensively cross-examined. During evidence in chief, he stated that in 1997 he had received training as a mail sorter but had been unable to pass the training course. His evidence was that he just could not cope with that type of work and the training officer said that he did not have the aptitude to do it.
22. The duties at North Sydney which formed the Applicant’s rehabilitation program were mail sorting duties and in cross-examination, the Applicant clearly admitted that he did not want to do mail sorting duties again.
23. Other excuses were proffered such as a lack of seating on trains. But the evidence was that the Applicant would have obtained a seat from his home station at whatever hour he travelled. Likewise, I find it hard to accept that if he could travel to East Sydney to see his general practitioner he could not manage a shorter trip to North Sydney, his place of employment.
24. The Applicant also gave evidence before me. I do not intend to refer to all of his evidence but state that the overwhelming impression I got of the Applicant was that he did not like mail sorting duties, regarded himself as incapable of doing them and would do all that he could to avoid having to do them.
25. Part of the Applicant’s objection to the duties at North Sydney were that they were indoors and formerly as a truck driver, he had been used to outdoor work. I regard the Applicant as dissembling in regard to this proffered excuse. I accept that it was an excuse fixed upon on by him but with no relationship to the reality of his situation. Prior to being directed to North Sydney, he had deliberately applied for a position working with computers, which would have of necessity involved indoor work and when he was unsuccessful in his application, appealed against his rejection. These are hardly the actions of a person who has a negative reaction to working indoors.
26. The Applicant conceded before me in cross-examination that his general practitioner told him he thought he could manage the duties physically but he did not try as he had trouble “last time” and he felt upset at being forced to go back and doing something he could not do.
27. Although the Applicant claimed that at the time he was directed to attend at the North Sydney mail centre, he was suffering from chest pains and getting depressed, he conceded that no heart condition had been found upon examination. He had refused to undergo an angiogram although he had undertaken a stress test.
28. The notes made by the Applicant’s rehabilitation counsellor at Australia Post are in the section 37 documents. These reveal that on 2 June 1999, the Counsellor Ms Yamani had spoken with the Applicant’s general practitioner regarding the Applicant undertaking a Weight Watchers program and the general practitioner said he could see benefit in this. However, the Applicant did not wish to commit to the program.
29. In his report dated 11 July 2000 Dr Gertler, Psychiatrist opined that the Applicant was suffering an adjustment disorder with anxious and depressed mood, which developed on the basis of his physical complaints.
30. The Applicant referred to his being “depressed”. Dr Gertler cross-examined in the previous proceedings had stated:
“Question: This man has no psychiatric restrictions over and above his physical restrictions?
Answer: No. If a job could be found for him that would suit him from a physical point of view and which he was capable of performing from an intellectual point of view, then no doubt he would work.”
31. Dr Robertson, Psychiatrist, in a report dated 5 July 1999 opined the Applicant suffered an adjustment disorder with anxious and depressed moods as a result of his back injury.
32. Interestingly, Dr Robertson goes on to say:
“His inability to work full-time and earn a reasonable income appears to be the main factor precipitating and perpetuating his anxiety and depression…”
Just how this fits with the Applicant’s refusal to undertake a rehabilitation program with pay, I am not sure but it cast doubts upon the opinion of Dr Robertson.
33. Dr Robertson also went on to state:
“He very much prefers to work outside (including driving) and tends to become somewhat anxious if working indoors although this is well short of actual claustrophobia.”
Again, the evidence in this matter contradicts this as the Applicant was more than anxious to obtain a position working with computers, which as stated above would necessarily involve inside work.
34. The Applicant’s treating psychiatrist was Dr Samad, however no report was obtained from Dr Samad, contemporaneous with the events of 1999 when the Applicant was directed to undertake the rehabilitation program. In a report dated 4 November 1997, Dr Samad diagnosed the Applicant as suffering from a “major depressive reaction, anxiety stress reaction and lower back injury” and stated “Patient’s condition has been aggravated by his back injury”.
35. In a later report dated 5 December 1997, Dr Samad stated inter alia
“The patient is paranoid, but there is no overt psychosis.”
and added that the Applicant psychiatric condition of major depressive reaction and anxiety stress reaction had been aggravated by his back injury.
36. Although in a letter to Ms Yamani at the Rehabilitation section of Australia Post dated 27 July 1999, the Applicant invited her to contact Dr Samad as to his fitness for work, no report by Dr Samad as to the Applicant’s mental state at that time appears to have been tendered on his behalf.
37. Dr Lovell, Psychiatrist assessed the Applicant on 22 June 2000 at the request of Australia Post. In his report of 27 June 2000, he noted that the Applicant continued to consult Dr Samad every four to six weeks. Dr Lovell opined:
“I do not believe that Mr Pascoe suffers from any psychological diagnosis at present. He is overweight and unfit. He is mistrustful of Australia Post. He described some difficulties with motivation. He is not having any active psychotherapeutic treatment but continues to be prescribed Sertraline (Zoloft) 100mg bd. There was no clear history of depressive symptoms.
I do not believe that he suffers from any work-related psychiatric impairment. He states that he was unable to attend work on account of back pain aggravated by travel. He was angered that he was not successful in an application for a position at MAS branch and believed that he was trying to be pushed to learn how to sort mail and did not believe he had the aptitude for this job. He did not seek any psychiatric treatment until there was a possibility that he would be medically retired.”
38. Cross-examined, Dr Lovell conceded that the Applicant was demoralised but added that that did not amount to a psychiatric illness.
39. Dr Boland, psychiatrist examined the Applicant at the request of the Respondent on 12 March 1998 and his report is dated that day. He opined of the Applicant:
“He describes himself as being distressed, depressed and frustrated but the above symptoms do not constitute a formal psychiatric illness.”
40. Dr Boland’s report concluded by stating:
“In my opinion Mr Pascoe is capable of holding down any job which he is physically capable of as well as being skilled by virtue of his age, qualifications and experience. His current psychiatric status does not in my opinion impair him to any degree from holding a job down provided he is physically capable of that job.”
41. That conclusion in Dr Boland’s report, admittedly produced in 1998 before the direction to undertake a rehabilitation program, is markedly similar to the opinion of Dr Gertler, the Applicant’s witness in cross-examination and referred to above.
42. Given the evidence of the psychiatrists in this matter and the lack of contemporaneous psychiatric reports from the treating psychiatrist Dr Samad, together with the fact that the opinions of Dr Robertson were not supported by the evidence, I am more persuaded by the opinions of Drs Boland and Lovell, namely that the Applicant was psychiatrically fit to undertake any job he was physically able to do and that although the Applicant may have been distressed, depressed and frustrated at being directed to again attempt mail sorting duties, these symptoms did not amount to a psychiatric illness.
43. In this regard, I consider the Applicant’s case has distinct similarities with that of the claimant in Comcare v Mooi (1996) 42 ALD 495, especially at p499.
44. Having seen the Applicant give evidence and be cross-examined and having regard to the transcript of the early proceedings, my overwhelming impression of the Applicant was that he was determined not to undertake mail sorting duties and would continue to create excuses not to do so.
45. Counsel for the Applicant submitted that while medical certificates from the Applicant’s general practitioners certifying as to the Applicant’s inability to work were accepted by the Respondent, then he had a reasonable excuse not to attempt the rehabilitation program. Some debate occurred regarding a file note made by Ms Yamani as to Dr Hollo simply writing certificates at the direction of the Applicant. I do not regard this diary note as conclusive in any way as it involves second hand hearsay.
46. I do however accept that something was said by the Applicant’s general practitioner to a Ms Hardiman of the Commonwealth Rehabilitation Service to indicate that the certificates were to be regarded as requested by the Applicant.
47. The Applicant was cross-examined on this matter and said it that it was his general practitioner who asked if he required “cover for work”. I am however satisfied that as at August 1999 the Applicant was not suffering any psychiatric illness preventing him from working nor was he suffering any cardiac condition. In other words, he was quite capable of working and any medical certificates issued were as a result of exaggerated symptomatology, behaviour deliberately engaged in by the Applicant to avoid complying with the rehabilitation program. As such, despite the doctors’ certificates being accepted at face value by the Respondent, the said certificates did not and cannot form the basis of a reasonable excuse.
48. None of the other reasons proffered by the Applicant for non-compliance with the rehabilitation program, for example ill health, back pain, difficulty in travelling, intellectual inability to perform mail sorting duties or aversion to insight work, amount to a reasonable excuse for failure to comply with the rehabilitation program.
49. There are some remarks in the report of Dr Chen of 13 June 2000 that would suggest that it was unreasonable to expect the Applicant to work in a mail centre. To my mind, this has no bearing on the question whether the Applicant had a reasonable excuse for his refusal to undergo the rehabilitation program. The question of the appropriateness or otherwise of the program is determined pursuant to s 38 SRC Act and that question was not before me.
50. The reviewable decision of 12 January 2000 is affirmed as I am satisfied that the Applicant had no reasonable excuse for failing to undertake the rehabilitation program. That however does not finally determine this matter.
51. On 31 January 2001, the Applicant resigned from his employment with the Respondent. Although still an “employee” for the purposes of the SRC Act, see Commonwealth v Holland & Sandiford (1991) 24 NSWLR 198, it is clear that once the Applicant had resigned from his employment and the Respondent had accepted that resignation then the reasonableness or otherwise of any existing rehabilitation program was irrelevant, the contract of employment having ceased to exist.
52. That is not to say that a rehabilitation authority might not be able to require a former employee to undertake a rehabilitation program arranged by some other body, for example, as in this case the Commonwealth Rehabilitation Service, but following resignation, the Applicant could not be required to attend for work at Australia Post. This did not mean however that he was precluded from seeking compensation forever and a day: see Hill J in Woodbridge v Comcare (1994) 20 AAR 196 at 206.
53. The question of whether the Applicant is now and has been since 31 January 2001, entitled to compensation pursuant to Part II of the SRC Act is still a live matter before the Tribunal. This being so, the decision of this Tribunal will also include a direction that the matter be listed for a directions hearing on 1 October 2004 at 9.30am in order to set a timetable for further proceedings on the substantive question of the Applicant’s current entitlements under the SRC Act.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: (E.Pope) .....................................................................................
AssociateDate/s of Hearing 22 and 23 July 2004
Date of Decision August 2004
Counsel for the Applicant Mr L T Grey
Solicitor for the Applicant Carroll & O’Dea
Counsel for the Respondent Mr G T Johnson
Solicitor for the Respondent Forners Solicitors
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