Pascoe and Australian Postal Corporation
[2002] AATA 745
•30 August 2002
DECISION AND REASONS FOR DECISION [2002] AATA 745
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1997/1457
) No N2000/381
) No N2001/831
GENERAL ADMINISTRATIVE DIVISION )
Re GEORGE PASCOE
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member
Date30 August 2002
PlaceSydney
Decision The decision in application N1997/1457 is set aside and the tribunal substitutes its own decision that the applicant qualifies for an amount of compensation in respect of a permanent impairment affecting his lower limbs and thoraco-lumbar spine to the extent of 24% whole person impairment. The matter is remitted to the respondent for it to assess the amount payable. The decision in application N2000/381 is set aside and the tribunal substitutes its own decision that Mr Pascoe had a reasonable excuse for failure to engage in the return to work program directed on 25 May 1999 and so his compensation rights were not suspended in accordance with s 37(7) of the Act. The decision in application N2001/831 is set aside and the tribunal substitutes its own decision that the applicant was entitled to incapacity payments from 18 May 1999 to 24 September 1999 at full normal weekly earnings rate. This matter is remitted to the respondent for it to assess the rate payable. The applicant is entitled to costs associated with these three applications in accordance with the tribunal's general practice direction.
[SGD] M J SASSELLA
Senior Member
CATCHWORDS
WORKERS' COMPENSATION – whether tribunal has jurisdiction to consider suspension of compensation rights because of employee's failure or refusal to engage in rehabilitation program – meaning of rehabilitation program – whether return to work program is rehabilitation program –whether employee had permanent impairment because of sciatica and lumbar spine disc prolapse and disc lesion – whether employee qualified for incapacity payments at full normal weekly earnings rate – decisions under review set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4(1) ("injury", "permanent", "rehabilitation authority", "rehabilitation program", "suitable employment"), (9), 14(1), 19(2), (4), 24(5), 27, 34, 36, 37(1), (2), (3), (4), (5), (7), 73B
Chowdhary v Bayne (1999) 29 AAR 100
Denison-Smith and Comcare, Re (2000) 31 AAR 202
Gibson and Commonwealth of Australia, Re (1985) 7 ALD 558
Quis and Comcare, Re (2001) 64 ALD 485
Trajkowski v Telstra Corporation (1998) 81 FCR 459
Wilkinson v Australian Postal Corporation (AAT 13413, 30 October 1998)
REASONS FOR DECISION
30 August 2002 Mr M J Sassella, Senior Member
THE APPLICATIONS BEFORE THE TRIBUNAL
Application N1997/1457 is an application to the Administrative Appeals Tribunal ("the tribunal") by George Pascoe ("the applicant", "the employee"), date of birth 1 October 1956, for review of a decision dated 8 September 1997 made by an officer, a delegate, in the reconsideration section of Australia Post ("the respondent") (ex TD1/T3). That decision affirmed an earlier decision dated 17 January 1997 (ex TD1/T2) rejecting Mr Pascoe's claim dated 13 August 1996 (ex R9) for a lump sum payment for permanent impairment of his back with left sciatica.
Application N2000/381 is an application to the tribunal for review of a decision dated 12 January 2000 by the acting manager of the Australia Post Work Environment Branch (ex TD2/T66). That decision affirmed an earlier decision dated 25 May 1999 (ex TD2/T55) requiring Mr Pascoe to engage in a rehabilitation program.
Application N2001/831 is an application to the tribunal for review of a decision dated 29 September 1999 made by an officer, a delegate in the respondent's reconsideration section (ex TD2/T63). That decision affirmed an earlier decision dated 30 August 1999 (ex TD3/T5) with the effect that Mr Pascoe did not qualify for weekly compensation payments from 18 May 1999 to date, that meaning 24 September 1999.
All three applications stem from an incident reported by Mr Pascoe on 6 May 1992 in which he injured his back (N1997/1248, T3) which led to a claim for compensation on the same date (N1997/1248, T4) that was accepted on 11 August 1992 (N1997/1248, T7/99).
HEARINGThe tribunal convened a hearing in this matter in Sydney which occupied the days of 15 and 16 May 2001 and 20 November 2001. Mr L T Grey of counsel represented Mr Pascoe. Mr G Johnson of counsel represented Australia Post. The tribunal heard oral evidence from Mr Pascoe, Dr J Lawson (a physician), Dr D Lovell (a psychiatrist), Dr A Hodgkinson (an orthopaedic surgeon), Ms F Yamani (an Australia Post rehabilitation counsellor) and Dr R Gertler (a psychiatrist). The tribunal received into evidence the following documents:
Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T3) for application N1997/1457, provided by the respondent.
Exhibit TD2 – Section 37 Statement and associated documents (exhibits T1 – T67) for application N2000/381, provided by the respondent.
Exhibit TD3 – Section 37 Statement and associated documents (exhibits T1 – T7) for application N2001/831, provided by the respondent.
Exhibit A1 – Report by Dr D Bornstein, orthopaedic surgeon, 27 January 1998.
Exhibit A2 – Report by Dr R Gertler, psychiatrist, 11 July 2000.
Exhibit A3 – Report by Dr J Lawson, physician, 8 August 2000.
Exhibit A4 – Report by Dr P Giblin, orthopaedic surgeon, 7 February 1997.
Exhibit A5 – Report by Dr Giblin, 19 July 1995.
Exhibit A6 – Report by Dr A Samad, psychiatrist, 17 April 1998.
Exhibit A7 – Report by Dr P J S Bentivoglio, neurosurgeon, 2 July 1998.
Exhibit A8 – Report by Dr Lawson, 21 June 1996.
Exhibit A9 – Report by Dr Bentivoglio, 26 August 1998.
Exhibit A10 – Report by Dr Bentivoglio, 29 September 1999.
Exhibit A11 – Report by Dr A Loefler, orthopaedic surgeon, 21 July 1998.
Exhibit A12 – Report by Dr R C Hudson, orthopaedic surgeon, 2 October 1998.
Exhibit A13 – Report by Dr A Robertson, psychiatrist, 5 July 1999.
Exhibit A14 – Report by Dr Hudson, 20 August 1999.
Exhibit A15 – Applicant's statement of facts and contentions, undated.
Exhibit A16 – Report by Dr Giblin, 17 November 1997.
Exhibit R1 – Report by Dr A Hodgkinson, 30 May 2000.
Exhibit R2 – Report by Dr J Chen, occupational physician, 13 June 2000.
Exhibit R3 – Report by Dr D Lovell, psychiatrist, 27 June 2000.
Exhibit R4 – Letter dated 13 December 1999 from applicant to Australia Post reconsiderations officer.
Exhibit R5 – Letter dated 20 April 1999 from Andrew Fegent & Company, Solicitors and Attorneys, to respondent.
Exhibit R6 – Letter dated 20 August 1999 from applicant to Ms F Yamani.
Exhibit R7 – Letter dated 13 August 1999 from applicant to Ms F Yamani.
Exhibit R8 – Claim by applicant for lump sum permanent impairment payment in respect of psychiatric disorder, spinal injury (neck and back) and injury both legs, 22 May 1996.
Exhibit R9 - Claim by applicant for lump sum permanent impairment payment in respect of spinal injury (neck and back) and injury both legs (referred pain to both legs), work-related psychiatric injury, 13 August 1996.
Exhibit R10 – Report by Dr H Marsden, surgeon, 9 December 1996.
Exhibit R11 – Documents from Australia Post Promotions Appeal Board.
Exhibit R12 – Surveillance videotape, 19, 20, 21 May 2000.
Exhibit R13 - Report by Dr D Lovell, psychiatrist, 10 July 2000.
Exhibit R14 – Report by Dr Hodgkinson, 15 July 2000.
Exhibit R15 – Report by Dr C A Boland, psychiatrist, 12 March 1998.
Exhibit R16 – Statement by Ms F Yamani, 13 March 2001.
Exhibit R17 – Medical review form completed by Dr L Pierides, 6 May 1999.
Exhibit R18 – Report by Brimar Investigations Pty Ltd, 24 June 2000.
Exhibit R19 – Letter dated 8 February 2001 from State Rail to Australia Post.
Exhibit R20 – Respondent's statement of facts and contentions, 30 August 2000.
During the hearing and in preparing these reasons much reference was made to the Section 37 Statement and associated documents in a previous application, N1997/1248. These documents have for ease of reference been marked as exhibit AH1.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGSAn underlying requirement for entitlement to any compensation is that the employee has sustained an injury in accordance with the definition in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). The tribunal finds that Mr Pascoe suffered an injury as reported and claimed on 6 May 1992 (ex AH1/T3). The issues that arose in this set of applications were:
The respondent determined that Mr Pascoe should undertake what the respondent regarded as a rehabilitation program. It appears that he may not have complied with this determination. Does s 37(7) of the Act apply to Mr Pascoe such that his rights to compensation under the Act have been suspended and any proceedings under the Act cannot be instituted or continued until he begins to undertake that program?
The first issue involves the question whether the return to work program devised for Mr Pascoe was a rehabilitation program under the Act.
A related matter is, if the program was a rehabilitation program, did Mr Pascoe have a reasonable excuse for refusing to undertake the program?
Whether Mr Pascoe was entitled to weekly incapacity payments between 18 May and 24 September 1999.
Whether Mr Pascoe qualifies for payment of lump sum compensation in respect of a permanent impairment.
applicability of s 37(7) of the act
It has been held by the Federal Court that s 37(7) operates automatically, without the need for a decision by a delegate, where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee. Section 37(7) suspends the employee's compensation entitlements.
However, the court also held in the Chowdhary (footnote 5) decision that the tribunal can inquire into whether the employee had a reasonable excuse for his or her refusal or failure where there are reviewable decisions on other connected matters before the tribunal. In the present case there is at least one reviewable decision. A claim for lump sum compensation (ex TD1 refers) was lodged on 13 August 1996 at a time when there was a determination in force under s 14(1) of the Act to the effect that the respondent was generally liable to pay appropriate compensation to the applicant, and there was no suspension of rights in place under s 37(7) of the Act. This claim was rejected and a reviewable decision affirmed that rejection.
Mr Pascoe made what Australia Post regarded as a request for resumption of weekly compensation payments on 13 August 1999 (ex R7) at a time when he had failed to undertake the rehabilitation program the subject of a direction on 25 May 1999 (ex TD2/T55). The automatic effect of s 37(7) of the Act was to make that August request ineffective. However, there was one reviewable decision (the permanent impairment decision described in paragraph 9 above) already on foot when s 37(7) commenced operation in this context, ie on 3 June 1999, the date of commencement of the projected rehabilitation program. The tribunal is therefore able to consider whether Mr Pascoe had a reasonable excuse for his refusal or failure to undertake the rehabilitation program.
was the program a genuine rehabilitation program?The rehabilitation program in question in application N2000/381 was the subject of a determination dated 25 May 1999 (ex TD2/T55). The features of the determination were:
Duties were to be full-time.
Duties were to commence at 6.00 am.
The location was to be Sydney North Letters Facility.
From oral evidence the duties involved letter sorting.
Mr Grey submitted that this was not a rehabilitation program in accordance with s 37(1) of the Act. He said that there was a distinction between a rehabilitation plan as contemplated in s 37 and a return to work program such as this. He conceded that a return to work can be part of a rehabilitation program but that a rehabilitation program is more than simply that. He relied on Re Wilkinson and Australian Postal Corporation (AAT 13413, 30 October 1998) as authority. Senior Member R P Handley (as he then was) delivered a decision with reasons that were relevant to the present case. In paragraphs 82-95 Handley SM said:
"82. With regard to the first issue, s 37(1) enables the Respondent to make a determination that the Applicant should undertake a rehabilitation program and to make arrangements with an approved program provider for the provision of such a program. There is no dispute that the Respondent did make such a determination and did make arrangements with an approved program provider, Kairros Pty Ltd, for the provision of a rehabilitation program for the Applicant. The first issue is whether Kairros provided a rehabilitation program for the Applicant. The Applicant disputes this.
"83. The definition of 'rehabilitation program' in s 4(1) states:'"rehabilitation program" includes medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training'
"The Tribunal notes that while this definition states what is included - treatment, therapy and training - it is not an exhaustive definition. It is, therefore, useful to consider the objective of a rehabilitation program which, in terms of the Act, is obviously an important matter.
"84. The Macquarie Dictionary defines the word 'rehabilitation' in its first general sense as 'restoration to former health'. When used in a medical context, its meaning is:'the use of medical, social, educational or vocational measures or a combination of these to train or retrain someone who has a disability as a result of illness or injury.'
"The emphasis given by the definition in the New Shorter Oxford Dictionary is on 'restoration'. Perhaps the most pertinent definition is that in Black's Medical Dictionary (38th ed, 1995):
'REHABILITATION is the restoration to health and working capacity of a person incapacitated by disease, mental or physical, or by injury.'
"85. The Macquarie Dictionary defines 'program' as including
'1. a plan or policy to be followed.
'2. a list of things to be done; agenda.'"86. In Re Oellering and Secretary, Department of Health, Housing and Community Services (1992) 16 AAR 198, the Tribunal, which was required to determine whether there was a rehabilitation program, identified (at 199) the issue as being:
'whether there is a plan, policy, list or agenda which was formulated for the purpose of restoring the applicant to her greatest potential physically, mentally, socially and vocationally...'
"87. In his oral submission, Mr Ingram submitted the Act draws a distinction between rehabilitation and suitable work. He referred to s 40(1) which imposes a duty on the employer, where an employee is undertaking or has completed a rehabilitation program, to take all reasonable steps to provide the employee with suitable employment or to assist the employee to fund such employment. Further, Mr Ingram said ss 37(3) and (5) suggest that where a person is undertaking a full-time rehabilitation program, the person is not engaged in normal remunerative employment. The Tribunal notes that the connection between the definition of 'rehabilitation program' in s 4(1) and the obligation on the employer pursuant to s 40(1) was also made by the Tribunal in Re Fox and Department of Defence (1996) 40 ALD 614 at 620.
"88. In the Tribunal's opinion, a rehabilitation program in the context of the Act is a plan for the restoration of an employee, who has suffered a disease or injury, to optimum health and working capacity given any limitations imposed by their condition. Such a plan can include medical treatment, broadly defined, therapy, and physical or vocational training.
"89. The Tribunal noted the employer's duty to provide suitable employment in s 40(1) arises both where an employee is undertaking or has completed a rehabilitation program. In the Tribunal's opinion, it is reasonable for an employer to propose a program for the rehabilitation of an employee while the employee is, at the same time, undertaking suitable employment with the aim of promoting that rehabilitation. The phrase 'suitable employment' is defined in s 4(1) as work for which the employee is suited having regard to factors such as '(i) the employee's age, experience, training, language and other skills' and '(ii) the employee's suitability for rehabilitation or vocational retraining'.
"90. The Tribunal notes the Respondent's 'Rehabilitation and Return to Work Policy and Implementation Guidelines', revised edition dated September 1996 (R4), emphasises in its Policy Statement:'As part of a structured occupational rehabilitation and return to work process, Australia Post will encourage and assist employees:
? to remain at work safely following an injury or illness; and/or
? to resume their normal duty in the workplace quickly.
'Similarly, the aims of the policy include"Enable injured/ill employees to remain at work or return to the workplace quickly, safely and cost effectively;..."
"91. The Tribunal must consider whether in the Applicant's case a rehabilitation program was provided for the Applicant. There appear to be two relevant documents: the Return to Work Program dated 1 April 1997 (T48, p 234) which was in effect at the date the Applicant's compensation payments were suspended on 11 June 1997, and the Rehabilitation Plan (R2) in respect of the period 1 April 1997 to 30 June 1997. Mr Polin submitted that the two documents should be read together as constituting the rehabilitation program.
"92. The Rehabilitation Plan (R2) states its goal is 'Graduated Return to Full time work in delivery centre of Australia Post'. The various actions listed are concerned with monitoring the Return to Work program, discussing other tasks and the upgrading of hours, and counselling the client. The Return to Work Program (T48, p 234) lists duties to be undertaken by the Applicant which, according to her evidence, include some she has never undertaken before, but might, nevertheless, be capable of. It also includes limited computer training and states more generally that the Applicant will:'gradually increase computer skills, and familiarising yourself with other tasks to be learned.'
"93. The second page of the Program includes 'Work Restrictions' and states that the 'carrying of satchels or bags' must be avoided. While delivering mail in town, the Applicant is to use the trolley provided. The second page also sets out 'Monitoring Arrangements'. The provider is to regularly monitor progress with the program and the Applicant is to 'immediately report any significant medical change or any difficulties' in performing the duties to her supervisor and provider.
"94. The Tribunal noted there had been a number of earlier programs which had included both physiotherapy and occupational therapy. The Program in effect on 11 June 1997 should therefore be read in the context of the history of the Applicant's rehabilitation since June 1996.
"95. On the basis of the documentary and oral evidence, both of the Applicant and Ms Forbes, the Tribunal concluded that as at 11 June 1997, there was in effect a rehabilitation program satisfying the Tribunal's understanding of the meaning of that term in the context of the Act, set out above. In the Tribunal's opinion, the program was intended to restore the Applicant's health and working capacity to an optimum level given the limitations imposed by her condition."Given the tribunal's approach in Re Wilkinson (above) the tribunal in this matter will consider what exactly went into Mr Pascoe's rehabilitation program to see whether it complied with the standards suggested by Handley SM.
5 January 1999: the Commonwealth Rehabilitation Service ("CRS") prepared an initial interview report (ex TD2/T31). Salient points were that Mr Pascoe referred himself to the CRS. He advised his goal as to return to a meaningful job in line with his retraining activities in the computer technology area. He advised the CRS that he would prefer "assistance to pursue retraining or locate employment in the networking and support information technology vocation external to Australia Post". Mr Pascoe said that if he were required to return to Australia Post "a position would need to be identified that was suited to his physical restrictions and in line with his training background". This was forwarded to Australia Post on 7 January 1999 (ex TD2/T32).
16 February 1999: the CRS wrote to Australia Post with a progress report (ex TD2/T36). The report described Mr Pascoe's intention in approaching the CRS as seeking assistance to return to suitable employment. The emphasis was on Australia Post looking for suitable duties for Mr Pascoe.
3 March 1999: a CRS progress report for Australia Post noted that Mr Pascoe had initiated an office administration course with the Community College at Ourimbah (ex TD2/T37). He was attending the course three days a week and the course had 11 more weeks to run. The CRS had advised Mr Pascoe that neither CRS nor Australia Post were sponsoring the course. Australia Post was still looking to find Mr Pascoe suitable duties.
21 April 1999: Mr Pascoe signed a case management plan revision already signed by officers of the CRS and Australia Post (ex TD2/T43). This plan was to run from 21 March to 11 June 1999. Activities concentrated on the efforts required of CRS. The emphasis was on workplace assessments and facilitating return to work.
10 May 1999: in a progress report the CRS noted that Australia Post had reported that alternative duties were available from 21 April 1999 (ex TD2/T51). These involved three months filing duties at Prince Alfred Park and then progressing to various locations around the Sydney Metropolitan area. Mr Pascoe's doctor, Dr Hollo, had advised against duties involving travelling long distances. Dr Pierides had, however, advised Australia Post that Mr Pascoe would be fit to undertake three weeks of alternate duties, including the travel. Dr Gliksman, an occupational physician, had assessed the duties as appropriate. Mr Pascoe had been contacted and it was unclear whether he would attempt a return to work.
13 May 1999: Ms Yamani, Australia Post rehabilitation counsellor, wrote to Mr Pascoe (ex TD2/T52). She noted he had been undertaking a business administration course since February 1999. At his request his teacher had contacted Ms Yamani to advise her of the course hours. She had advised Ms Yamani that Mr Pascoe had organised five days full-time office work in Sydney which was to take place on 12, 14, 19 and 20 May 1999. Australia Post agreed to provide duties meeting the criteria for the work experience. These duties were noted to be within Mr Pascoe's physical restrictions. He had also to attend classes on 26-28 May 1999 and would need to take recreation leave for these days off. Mr Pascoe had said it would be difficult for him to work from 10.39 am to 6.30 pm because of child care responsibilities. Ms Yamani said that he could commence work as early as 9.00 am. She told him that he was to commence full-time duty on 17 May 1999. His work trial would end on 2 June 1999. This was expressed to be a s 37(1) determination.
9 June 1999: a CRS progress report (ex TD2/T56) noted that Mr Pascoe had commenced filing duties at Prince Alfred Park on 11 May 1999. Ms Yamani had advised she was looking for duties in line with Mr Pascoe's "formal training practical placement requirements". By 17 May 1999 Mr Pascoe was still working but was "down" and "depressed". He had been prescribed Prozac. He was then certified unfit for work on 24 May 1999. Mr Pascoe told the CRS that he preferred working outdoors and that doing filing indoors had contributed to the onset of chest pains and stress related anxiety. He had said he was too stressed to continue to undertake his formal retraining course. When he received the formal determination to return to suitable duties at the Sydney North Letters Facility he "appeared to become physically distressed". He advised that he had already attempted mail officer training in the past and had failed. He queried who had decided that he had the intellectual capacity for these tasks. The CRS had also looked for a suitable weight loss program as recommended by doctors. He refused to participate in a Weight Watchers program. Initially he advised CRS that he could not attend because he had to work and did not have the time. The CRS asked that it be noted that the program was conducted near Mr Pascoe's home and was offered at various times of the day. The report continued, "Since having been certified unfit for work Mr Pascoe continues to advise CRS Rehabilitation Consultant that he has no time to make any decision regarding participation in this program and that he has been too unwell to make such a decision". Dr Hollo had certified Mr Pascoe as totally unfit for work.
6 July 1999: in a CRS progress report (ex TD2/T57) it was noted that Mr Pascoe had advised the CRS that he no longer required its services. The respondent had asked that the CRS keep the file opened while investigations were undertaken.
20 August 1999: the CRS final progress report (ex TD2/T60) was to the effect that Mr Pascoe had been asked to sign a case management plan revision form in order to continue in his CRS rehabilitation program. He had advised that he did not want to be involved in that program and would rather deal with Australia Post directly. Mr Pascoe's rehabilitation program had been handed over to Australia Post internal rehabilitation services. In the course of this report a useful summary of medical opinions and attempts to secure a return to work appeared. Following liaison with Dr Hollo and taking account of recommendations by Drs Pierides and Gliksman, Mr Pascoe was directed to resume alternate duties at Sydney North Letters Facility on the basis of medical advice in relation to Mr Pascoe's compensable condition. This return to work did not eventuate because Mr Pascoe presented a medical certificate from Dr Hollo stating that he remained unfit for work. Alternate clerical duties were offered at Prince Alfred Park and assessed as appropriate. A return to work program was developed in consultation with Drs Hollo and Gliksman, taking account Dr Pierides' recommendations also. Mr Pascoe returned to these clerical duties for a short time and progress was monitored by the CRS and Ms Yamani. Mr Pascoe then presented a medical certificate dated 16 June 1999 and took time off work. Dr Hollo advised that Mr Pascoe's medical condition was psychological rather than medical. Mr Pascoe had not returned to work since then. Dr Hollo had advised the CRS that Mr Pascoe had told him that he was continuing to experience shortness of breath, claustrophobic and panic symptoms. He had advised Mr Pascoe that he could not cope with the idea of working inside. Because of the onset of these symptoms Dr Hollo considered Mr Pascoe unfit to work in a sorting room. Dr Hollo told the CRS that he continued to recommend the Mr Pascoe that he lose weight as that would improve his general health and reduce the risk of further cardiovascular problems.
The tribunal found some additional information of note in Ms Yamani's rehabilitation case notes (ex TD2/T67). At page 211 it was noted on 2 December 1998 that Australia Post had called the CRS and intimated that Mr Pascoe was unfit for work until 26 January 1999 because of his back condition and that he had been last at work in 1997. It was noted that Mr Pascoe had failed the mail officer test. He had been placed in an office "at transport" and then placed off work because no further selected duties were available.
At page 212 Australia Post noted on 8 December 1998 that Mr Pascoe did not wish to have Australia Post rehabilitation involvement in the management of his injuries.
At page 213 notes of a discussion between Ms Yamani and the CRS indicated that the initial needs assessment was completed on 15 December 1998, that Mr Pascoe was very focused on past events regarding rehabilitation and compensation, that Mr Pascoe was seeing a psychiatrist monthly for stress related to Australia Post, and that he had not indicated whether he would claim compensation for this.
The agreed course of action was to obtain a medical review from Dr J Chen, check the availability of selected duties and look at redeployment.
At page 235 Ms Yamani recorded on 4 May 1999 that she had discussed with Prince Alfred Park Mr Pascoe's filing duties. These were to involve minimal lifting, walking short distances and filing in a cabinet involving four shelves between shoulder and knee height.
At page 242 Ms Yamani noted a conversation with Dr Pierides on 6 May 1999 in which the doctor said that Mr Pascoe was grossly obese.
At page 248, on 10 May 1999, Ms Yamani recorded a conversation she had had with Ms S Flindell who was involved in Mr Pascoe's office administration course. They discussed Mr Pascoe's projected work placement associated with the course. He was to be involved in word processing, data entry, spreadsheets, "access to computer" access, the MYOB accounting package, filing, letter writing and internal and external customer service.
At page 252, on 11 May 1999, Ms Yamani summarised a conversation she had had with Mr Pascoe. In that conversation he advised that he strongly disagreed that he had a capacity to do selected duties mail officer work on afternoon shift at Sydney North Letters Facility. He felt that Australia Post should provide him with an administrative position in management information systems. Ms Yamani explained that such duties were not available and that the mail officer duties had been offered in accordance with the then current medical advice. In the same conversation Ms Yamani told Mr Pascoe that Australia Post could offer him work experience for his course including word processing, data entry and telephone message work. So far as the Prince Alfred Park filing duties were concerned, Mr Pascoe requested an earlier start time because of child care duties.
At page 256, on 12 May 1999, Ms Yamani noted that Mr Pascoe disputed his fitness to upgrade to full hours in the following week.
At page 261, on 13 May 1999, Ms Yamani noted that the Prince Alfred Park manager had reported that the filing duties had been completed and additional records management duties had been made available to Mr Pascoe. That led to a meeting with Ms Yamani in which the managers were fully apprised of Mr Pascoe's work restrictions and in which data entry possibilities were identified.
At page 265, on 14 May 1999, Ms Yamani met with two others in management and it was agreed that Mr Pascoe could work four hours a day from 17 to 21 May 1999, as he had requested and as Dr Pierides had advised.
At page 266, on 17 May 1999, an operational area had been identified as able to offer duties appropriate for Mr Pascoe's work experience.
At page 267, on 17 May 1999, it was noted that Mr Pascoe started work at a level of four hours a day on 11 May 1999, with an upgrade to full hours from 24 May 1999.
At pages 273-274, on 2 June 1999, Ms Yamani had spoken with Dr Hollo. Dr Hollo had agreed that he could see benefit in Mr Pascoe doing a Weight Watchers course. However, Mr Pascoe did not wish to commit to the program. Mr Pascoe had told Dr Hollo he was no longer interested in the office management course and would not be completing it. Ms Yamani noted that the CRS was to follow up with Mr Pascoe's psychiatrist. The CRS told Ms Yamani that Mr Pascoe was angry regarding the offer of mail officer duties at the Letters Facility as he believed that he had attempted this previously and had been unsuccessful. He also indicated to the CRS that he may not have an aptitude for such work.
At page 275, on 22 June 1999, Ms Yamani noted a telephone conversation with the CRS. He had told the CRS that it was "not needed" as he felt that anything recommended by the CRS was overruled by the Australia Post rehabilitation unit. He had told the CRS he was not willing to return to work.
At page 277, on 25 to 30 June 1999, Ms Yamani recorded attempts to contact Mr Pascoe on four occasions. Each time she left a message for him to call back but he did not do so.
At pages 282-283, on 6 August 1999, the CRS agreed to contact Dr Hollo regarding his latest medical certificate. Australia Post was concerned that Dr Hollo was indicating that Mr Pascoe could not work indoors when he recently completed an administration course on a full-time basis. Ms Hardiman from the CRS told Ms Yamani on 10 August 1999 that she had spoken with Dr Hollo. He had indicated to Ms Hardiman that he was issuing medical certificates "in accordance with what [Mr Pascoe] wants him to write". He had said that Mr Pascoe was indicating feelings and symptoms of panic, fear and stress about working in a sorting room.
The tribunal has perhaps devoted too much space to this rehabilitation material. However, as the hearing was largely about such matters and this was a central issue in the overall group of applications, such attention is justified.
The tribunal is of the view that there was a rehabilitation program in place in accordance with the principles enunciated in the Wilkinson case (above). The arrangements made between the CRS, Australia Post and Mr Pascoe were intended to restore Mr Pascoe to improved, if not perfect, health and working capacity, given the limitations imposed by Mr Pascoe's medical condition. As Handley SM said in Wilkinson (above), it is reasonable for an employer to include as part of such a program the assigning of suitable employment with the aim of promoting the rehabilitation. Later in the reasons for decision Handley SM recited the factors that convinced him that there was a rehabilitation program in place. The program in that case had as its aim the graduated return to full-time work in a delivery centre of Australia Post. Various actions were listed to monitor the return to work program, discuss other tasks with the employee, upgrade the employee's hours and provide counselling. There was provision for limited computer training. That plan listed the employee's work restrictions and monitoring arrangements. There had been earlier plans providing for physiotherapy and occupational therapy.
In the present case, in addition to plans involving return to work there was encouragement given to him to complete an office training course and encouragement to engage in a weight loss program, a program arguably not necessitated by anything related to Mr Pascoe's employment. In relation to decisions made concerning Mr Pascoe's return to work, despite findings it will make below, the tribunal is satisfied from the evidence in ex TD2/T67 that Ms Yamani acted bona fide in dealing with Mr Pascoe's rehabilitation and in attempting to find him duties within his capabilities. In the tribunal's view Ms Yamani did her best to assist a client who was, to say the least, difficult.
did mr pascoe have a reasonable excuse for failing or refusing to undertake the rehabilitation program?Mr Pascoe failed to fulfil the requirements of his rehabilitation program in a number of respects. He refused to partake of the weight reduction program. He failed to complete his office administration course which appeared to become a supplement to the rehabilitation program and was facilitated for him by Australia Post at the final phase. As regards graduated return to work proposals, he had not commenced the return to work program proposed for 6 April 1999. He started the return to work program that commenced on 11 May 1999 but left that program on 19 May 1999. He then refused to commence the return to work program at the Letters Facility on 3 June 1999. The decisions under review flowed from the last of this list of failures. That will be the focus of the tribunal's consideration.
The materials indicate a number of reasons that might help explain Mr Pascoe's failure or refusal to engage in the return to work program the subject of the s 37(1) direction on 25 May 1999.
He had requested placement in a position suited to his physical restrictions and his training background (ex TD2/T31). This, from other evidence, would have been, in Mr Pascoe's view, an information technology position.
He told the CRS that he preferred working outdoors (ex TD2/T56).
Dr Hollo considered that Mr Pascoe could not cope with the idea of working indoors (ex TD2/T60).
He had tried letter sorting at an earlier time and had been unsuccessful at that work (ex TD2/T67/274).
The tribunal will consider these reasons further but pauses to note several other matters that cast some doubt on the genuineness of Mr Pascoe's efforts at rehabilitation. He told the CRS that he no longer wanted their services because their recommendations were overruled by Australia Post. This is not borne out by the documents. There is no indication in any of the CRS progress reports or in Ms Yamani's case notes of any conflict between Ms Yamani and the CRS.
Mr Pascoe did not return calls made to him by Ms Yamani in late June 1999. He missed an opportunity to discuss the situation and consider alternative possibilities by interrupting communication in this way.
Dr Hollo was issuing medical certificates under dictation by Mr Pascoe rendering his stated opinion on Mr Pascoe's medical condition at least unreliable.
There was evidence at the hearing about a number of the issues flagged above. Mr Pascoe discussed his earlier experience in mail sorting. He had done this in May 1997. It had come about because of the way his rehabilitation was progressing. His compensation payments were at risk and he thought he should try something new. He took to sorting and participated in a training period. He was able to do this work in a seated position. He did this work for one month. He said that he had a run-in with the depot manager and "spat the dummy". He took one week off. He did not "pass sorting". He was tested and failed in respect of speed and accuracy. He told the tribunal that he felt that the work was beyond him. The work involved a combination of physical and brain demands. Mr Pascoe said that he preferred outside work as a truck driver. A training officer's report said that Mr Pascoe had had trouble sorting mail and remembering places. He had recommenced driving after this month of sorting.
In cross-examination it was put to Mr Pascoe that he had not failed at mail sorting. Rather he had declined to attend further. Counsel suggested that Australia Post had never told Mr Pascoe that he could not do mail sorting. Mr Pascoe responded that the trainer told him that he had lacked aptitude for the job. Counsel replied that Australia Post did not remove him from this work, to which Mr Pascoe responded that Australia Post did not encourage him to do sorting.
As regards the commencement of work at the Sydney North Letters Facility on 3 June 1999, Mr Pascoe told the tribunal that he was off work and sick on that day. He had been ill since 19 May 1999.
In cross-examination Mr Pascoe discussed an application he had made for promotion or transfer to an information technology position in the Management Information Systems Branch advertised on 17 July 1997 (ex R11). The job responsibilities were to provide software and production support to users of office automation, desktop publishing and multimedia software packages, including advice on software functionality and usage. The job also required the development and production of manuals, reports, documents and presentation material involving image capture and manipulation, graphic design and facilities/media set-up using desktop publishing and multimedia technology. Exhibit R11 indicated that, on the basis of the applicants' theoretical knowledge, Mr Pascoe was rated higher than another candidate, a Mr McDermott. The selection committee, however, was concerned that Mr Pascoe was notably ahead of Mr McDermott in only one question, a question dealing with the knowledge of desktop publishing products. The selection committee therefore decided to have three candidates complete a practical examination. Mr McDermott was the best performer in this examination. Mr McDermott was selected for the position and Mr Pascoe appealed on the basis of superior efficiency. Mr Pascoe's appeal was dismissed because he did not prove to the satisfaction the promotions appeal board his claim of superior efficiency. The tribunal notes that the papers in ex R11 show that Mr Pascoe has a certificate in Information Technology (Network Support) from Ultimo TAFE College.
In oral evidence Mr Pascoe said that he had been upset to be passed over for this position. He thought he would give the job a go and felt that he was the best person for the job. He considered that the practical examination had been imposed with a view to ruling him out of success in his application. He did not accept the outcome which suggested that Mr McDermott was preferable in the practical component.
The tribunal asked Mr Pascoe what he would regard as an acceptable rehabilitation program. He said he would prefer a program leading to him doing limited runs as a driver, some clerical work and database work. The tribunal pursued derogatory comments Mr Pascoe had made about the computer training courses he had done. While he considered he had a particular aptitude for information technology these courses had been "full of women" and the later course had been the sort of course a woman would do. It had focused on typing, data entry, handling the telephone and running appointments for executives.
It was suggested that, if Mr Pascoe was equipped to do computer work, he could do mail sorting. Mr Pascoe responded that mail sorting emphasised skills in speed and accuracy. Computer work did not require speed. It was possible to work slowly and carefully.
Mr Johnson in cross-examination of Dr Gertler, a psychiatrist called by the applicant to give evidence, asked whether Mr Pascoe was suited intellectually to mail sorting work. Dr Gertler said that Mr Pascoe could do intellectually any job within his physical capabilities. Dr Boland, another psychiatrist (ex R15), had agreed with that assessment.
Mr Johnson in final submissions conveniently summarised the factual issues bearing upon the proposed rehabilitation program, especially its return to work aspects. The first was Mr Pascoe's attitude to rehabilitation. He did not want to do it although he could do it. This was a reference to work involving mail sorting. Mr Johnson quoted from the transcript of the May hearings. Mr Pascoe had said that he was not too thrilled with the proposal and that he had tried it earlier and could not do it. He said that Australia Post knew this and had it documented. Later he had said that Australia Post was very unreasonable over mail sorting and was aware that he would refuse to do it. Later again Mr Pascoe said that he wanted a meaningful job with computers. Mr Johnson said that Mr Pascoe sought to impose conditions that had nothing to do with any disability stemming from his back injury. Later again Mr Pascoe had said that he desired to "move on" from sorting, rather than that he could not do it. In her evidence Ms Yamani agreed with Mr Grey that a rehabilitation program is prone to fail where the aims of the employee undertaking the program differ from those of the employer offering the program.
The second matter was said to be Mr Pascoe's intellectual capacity to do training. Mr Johnson suggested that there was little difficulty in this. Mr Pascoe had completed a TAFE course and had applied for and nearly obtained an APA 3 position. Indeed, Mr Pascoe's view was that he was the best candidate for that job. Mr Johnson argued that if he could do that job he could do mail sorting. Further there was the psychiatric evidence that Mr Pascoe was intellectually fit for mail sorting.
The third matter was that Mr Pascoe was living at Bateau Bay on the NSW Central Coast whereas the return to work program required him to get to St Leonards, an inner northern Sydney suburb, on a daily basis. It was suggested that he could not drive the lengthy distance involved. Further, it was suggested that it was unreasonable to require him to travel by rail from home to and from work because load factors may preclude him from obtaining a seat. Standing for lengthy periods would exacerbate his physical injuries. Mr Johnson pointed out in response that Mr Pascoe travelled from Bateau Bay to Sydney to see his doctors in Double Bay and Greystanes. In response to that it was argued that there is a very great difference between travelling occasionally to see a doctor and travelling daily for work.
The fourth matter was that, if Mr Pascoe travelled to and from work by train, he would run the risk of not obtaining a seat. Medical assessments were that Mr Pascoe should not stand for more than 30 minutes at a time (eg Dr Gliksman, ex TD2/T30). Mr Johnson responded to this by referring to material from the State Rail Authority on load factors on the relevant route (ex R19). These figures showed that on a sampling done on 22 June 1999 involving trains from Woy Woy to Sydney no train had a passenger load factor that exceeded 100%. It was indicated that, as Mr Pascoe would board at Tuggerah, that is before a train heading to Sydney had its maximum complement of passengers, he would be even more likely to obtain a seat. It was conceded that there may be a need to hunt through several carriages to find a seat at times because of the uneven distribution of passengers through the carriages of a train. While Ms Yamani agreed in cross-examination that she could not guarantee that Mr Pascoe would always find a seat on the train, Mr Pascoe conceded in evidence that he could usually find a seat, even in peak time.
The fifth matter was a problem for Mr Pascoe with the proposed start and finish times. These originally interfered with his child care obligations and involved times of travel that were unsatisfactory. Mr Johnson submitted that Mr Pascoe's wishes were accommodated in this respect. As noted earlier, Australia Post agreed to permit Mr Pascoe to commence and finish earlier in the day than was originally proposed.
The sixth issue concerned Mr Pascoe's physical abilities as demonstrated in the videotaped evidence (ex R12, ex R18). In relation to that evidence Mr Pascoe agreed at the hearing that he could bend or squat to the floor, that he could lift over 10 kilograms and that he could stand for 30 minutes, sit and then stand again. Dr D Lovell, a psychiatrist, having viewed the video noted (ex R13) that Mr Pascoe was seen shopping in a variety store, standing, squatting and bending to 90 degrees without any apparent difficulties. He was able to lean into the rear seat of a car, alight from and enter the vehicle without difficulties. There had been no suggestion of lower back pain in his behaviours. Dr A Hodgkinson, an orthopaedic surgeon, stated (ex R14) that the video showed nothing that indicated any significant limitation of function that would alter his earlier expressed opinion (ex R1) that Mr Pascoe lacked any wish to resume normal working activities, not because of continuing serious physical disability, but because of a personality problem causing him to lack motivation.
Mr Johnson referred to the medical evidence relating to Mr Pascoe's abilities. Dr Gliksman, who was aware of the working conditions in Australia Post, wrote on 23 April 1999 (ex TD2/T44) that Mr Pascoe was fit to perform the selected mail officer duties outlined in a workplace assessment on 29 March 1999 (ex TD2/T38), which included mail sorting, provided the travel restrictions were observed (ie no standing for more than 30 minutes). Dr Gliksman had reservations about a proposal that Mr Pascoe might lift archiving boxes weighing 12 kilograms. He had earlier imposed a 10 kilogram limit (ex TD2/T33, 27 January 1999).
Dr Pierides, an occupational physician, reported on 7 May 1999 (ex TD2/T48). He considered Mr Pascoe fit for work not involving lifting of weights greater than 10 kilograms on an occasional basis, not involving repetitive bending of his back and involving an ability to change posture regularly from sitting and standing. Mr Pascoe could stand for up to 30 minutes before having to sit for 10 minutes. He saw Mr Pascoe as fit to do a variety of Australia Post functions including letter sorting. He recommended a graduated return to work with three weeks at four hours a day and then progressive return to full-time. He saw the travel from and to Bateau Bay as involving a long day but possible to do without overtime. On 6 May 1999 he had provided a pro-forma to Australia Post (ex R17) that agreed with the report written on the next day except that he saw the four hours a day start to the program as extending to only two weeks.
Dr Lawson, a physician, who had written in support of Mr Pascoe receiving a permanent impairment payment (ex A3), had agreed in oral evidence that Mr Pascoe could stand for over 30 minutes and could lift weights of up to 10 kilograms non-repetitively.
Mr Johnson submitted that Mr Pascoe could do the work required of him. His refusal was said to be based on his dislike for the duties when he could do them physically and intellectually.
It is worth mentioning here some of Ms Yamani's evidence about the thought process behind the rehabilitation program. She was asked whether she had considered looking for work for Mr Pascoe on the Central Coast. She replied that she had not. She referred to material in her statement (ex R16) to the effect that the restructuring of mail centre operations in NSW had meant the closure of many centres, in particular in Sydney. Additionally a large number of clerical positions had become redundant. Such positions were being centralised in Melbourne. This limited the availability of a long term placement with an administrative role for Mr Pascoe. The Sydney North Letters Facility had appeared an attractive option. Placement at this location would reduce his travel time from the Central Coast, the nearest railway station being on the Hornsby line which links to the Central Coast line. This facility was to escape closure in the rationalisation process.
Ms Yamani said that Mr Pascoe had been employed in Sydney and Australia Post looked at an acceptable compromise between operational requirements and Mr Pascoe's needs. The Letters Facility was at St Leonards, five minutes from the station, and was accessible without any uphill walking. Ms Yamani told the tribunal that work in a retail environment in Australia Post had not been considered for Mr Pascoe on the Central Coast or elsewhere. He was unable to meet the inherent requirements of the position because lengthy periods of standing are necessary in those jobs. Conversely, a mail delivery officer can work in a seated position. She later conceded that a retail placement with standing restrictions could be a part of a return to work program but for only a short time. In Mr Pascoe's case the aim was to place him in long term suitable duties.
In his submissions on behalf of Mr Pascoe, Mr Grey referred to several matters. These included:
Mr Pascoe's lack of involvement in the workplace assessment (ex TD2/T38) endorsed by Dr Gliksman (ex TD2/T44).
The determination (ex TD2/T49) requiring Mr Pascoe to undertake full-time duties earlier than Dr Pierides had recommended (ex R17, ex TD2/T48).
The requirement that Mr Pascoe engage in, among other things, mail sorting.
Whether the requirements in s 37(3) for a determination had been observed by the respondent.
The evidence was that Mr Pascoe was approached by the CRS on 24 March 1999 and told of the workplace assessment planned for 4.30 pm on 29 March 1999 at the Sydney North Letters Facility (ex TD2/T67/222). Mr Pascoe told the CRS officer that he would not attend on 29 March 1999 and that he wanted to see Dr Hollo on 30 March to discuss the graduated return to work program. He identified immediate issues relating to travel times and shift times discussed earlier in these reasons.
Dr Hollo's office advised that Dr Hollo could see Mr Pascoe at 10.30 am on 29 March 1999 (ex TD2/T67/223). Mr Pascoe was reported to have told the CRS that he would not see Dr Hollo at 10.30 am "as he normally consults GP at midday to allow time to 'get out of bed' and travel to appointment". He advised that he would not attend on 29 March 1999.
Ms Yamani then contacted Dr Hollo's surgery and ascertained that an appointment was available at 11.45 am (ex TD2/T67/223). The CRS contacted Mr Pascoe about the availability of the 11.45 am appointment (ex TD2/T67/226). The CRS reported to Ms Yamani that Mr Pascoe declined to attend Dr Hollo at the amended time and that he would see Dr Hollo on 30 March 1999.
The workplace assessment was conducted in Mr Pascoe's absence and with the benefit of Dr Gliksman's assessment of Mr Pascoe's physical restrictions.
On 30 March 1999 Dr Hollo certified (ex TD2/T4/22) that Mr Pascoe was unfit for any work whatsoever and that he would review Mr Pascoe in a month's time. On 31 March 1999 Ms Yamani issued the primary determination requiring Mr Pascoe to commence a rehabilitation program on 6 April 1999 at 4.30 pm for full-time hours and doing duties including letter sorting (ex TD2/T40). Ms Yamani agreed with Mr Grey that she knew that Mr Pascoe did not want to do mail sorting. She agreed that, while the duties in the determination met the restrictions imposed by Drs Gliksman and Pierides, Dr Gliksman had not identified mail sorting specifically as an appropriate duty. No input had been sought from Dr Hollo until after the determination was issued. She was aware of Dr Hollo's certificate dated 30 March 1999 when she made her determination but she gave priority to Dr Gliksman's report.
Mr Grey asserted that Ms Watson, the occupational health and safety adviser who conducted the workplace assessment, had said that the assessment should not proceed without Mr Pascoe. It is correct that on 25 March 1999 Ms Watson told Ms Yamani that she could not proceed with the assessment if Mr Pascoe did not attend (ex TD2/T67/224). However, later on the same day she told Ms Yamani (ex TD2/T67/225) that she had liaised with Mr Ian Simpson, senior occupational health and safety adviser in the Australia Post Work Environment Branch, and Ms Lara Mann, an occupational health and safety adviser, who confirmed that, if Mr Pascoe failed to attend, Ms Watson could still write an upgrade program based on Dr Gliksman's report. In the workplace report it was recommended that another assessment be done when Mr Pascoe commenced duties.
Mr Grey was critical of Ms Yamani for not having the assessment postponed. Ms Yamani responded that her assessment of the situation was that Mr Pascoe would probably not attend regardless of what fresh arrangements were made. The tribunal can see Ms Yamani's point in view of Mr Pascoe's lack of reasonable co-operation in relation to seeing Dr Hollo on 29 March 1999 at a time close to a time of day he had said he usually was able to meet (as discussed above in paragraph 62).
Moving on to Mr Grey's arguments about the hours required in Mr Pascoe's return to work program in May 1999 (ex TD2/T49), Mr Grey observed that Dr Pierides on 7 May 1999 had recommended (ex TD2/T48) that Mr Pascoe should commence the filing duties at Prince Alfred Park for four hours a day for the first three weeks with a graduated return to normal activities. On 6 May 1999 Dr Pierides had recommended two weeks at four hours a day (ex R17). In oral evidence it was clarified that Ms Yamani received ex R17 by facsimile on 6 May 1999. She had a discussion with Dr Pierides on 6 May 1999. Dr Pierides promised the report in ex TD2/T48 on 10 May 1999. Ms Yamani relied on the abbreviated opinion in ex R17, assuming that the ultimate report would agree with the abbreviated document. The Australia Post determination required that Mr Pascoe work for four hours a shift for two weeks then for a full shift in the third and final week. Dr Gliksman, an occupational physician (ex TD2/T44, T46), had not recommended a graduated return to work in terms of hours per day. He appeared to see nothing amiss in a return to work for full hours. In any event, the tribunal notes, Ms Yamani opted for a graduated return to work that accorded with Dr Pierides' views as set down on 6 May 1999, the same day on which he saw Mr Pascoe. This appears to the tribunal to be an acceptable course of action for Ms Yamani on that day, given all that was before her.
In the matter of the determination requiring Mr Pascoe to engage in mail sorting at the Letters Facility (ex TD2/T55), this will be addressed in relation to s 37(3) of the Act.
Section 37(3) of the Act is best considered in its total context. Section 4(1) of the Act provides a definition of "rehabilitation authority" for the purposes of the Act. In the case of a licensed corporation such as Australia Post it is the principal officer of that corporation. His or her powers are of course exercised through delegates.
As discussed in Wilkinson (above), s 4(1) defines also a "rehabilitation program". This is a non-exclusive definition that includes a wide range of types of assistance – the program may include medical, dental, psychiatric and hospital services, physical training and exercise, physiotherapy, occupational therapy and vocational training.
Section 34 of the Act then provides Comcare with a power to approve, by instrument in writing, for the purposes of the Act, a person who may provide rehabilitation programs. Such a person is an "approved rehabilitation provider". This approval power can be delegated to any officer or employee of the Commonwealth or a Commonwealth authority (s 73B of the Act). In the present case the CRS was the approved rehabilitation provider. An approved rehabilitation provider is in a special position where a rehabilitation authority determines that an injured employee should undertake a rehabilitation program (s 37(1) of the Act).
Section 36(1) of the Act then provides that a rehabilitation authority may at any time arrange for the assessment of an employee's capability of undertaking a rehabilitation program where the employee has sustained a work injury resulting in an incapacity for work or an impairment. Section 36(1) also imposes on the rehabilitation authority an obligation to arrange such an assessment where the injured employee makes a "written request". The remainder of s 36 explains how the assessment is to be done.
It may be carried out by a legally qualified medical practitioner nominated by the rehabilitation authority (s 36(2)(a) of the Act).
It may be carried out by a suitably qualified person other than a medical practitioner (s 36(2)(b) of the Act). Again, such an assessor is nominated by the rehabilitation authority.
It may be carried out by a panel of legally qualified medical practitioners and/or suitably qualified other persons, in each case nominated by the rehabilitation authority (s 36(2)(c) of the Act).
The rehabilitation authority may require the employee to be examined by person(s) performing the assessment (s 36(3) of the Act). There are sanctions for failure to co-operate (s 36(4), (7) of the Act).
The rehabilitation authority pays costs associated with the assessment (s 36(5), (6) of the Act).
The assessor(s) must provide to the rehabilitation authority a "written assessment of the employee's capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require" (s 36(8) of the Act). The report at ex TD2/T31 would qualify in the present case.
The rehabilitation authority may make a determination that an employee who has sustained a work injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and may make arrangements with an approved program provider for provision of the program (s 37(1) of the Act). A rehabilitation authority is not to make such arrangements with a program provider not approved by Comcare under s 34 of the Act (s 37(2) of the Act). Such a determination can be made only after an assessment has been carried out in accordance with s 36 of the Act. The tribunal has already held above in paragraph 32 that such a determination has been made in the present case.
The rehabilitation authority, in determining that an employee should undertake a rehabilitation program must have regard to a range of matters listed in s 37(3) of the Act. These include any written assessment provided in accordance with s 36(8) of the Act (s 37(3)(a) of the Act), the effect on future compensation if the program is undertaken (s 37(3)(b)), the cost of the program (s 37(3)(c)), any improvement in the employee's opportunity to be employed if (s)he completes the program (s 37(3)(d)), the likely psychological effect on the employee of not providing the program (s 37(3)(e)), the employee's attitude to the program (s 37(3)(f)), the relative merits of any alternative and appropriate rehabilitation program (s 37(3)(g) and any other relevant matter (s 37(3)(h)). The tribunal will consider these matters in paragraph 73 and following.
The costs of a rehabilitation program provided under s 37 are to be met by Australia Post (s 37(4) of the Act).
The employee who undertakes a rehabilitation program under s 37 does not qualify for incapacity payments but is paid an equivalent amount under s 37(5) of the Act.
An employee who fails, without reasonable excuse, to undertake a rehabilitation program provided under s 37 is penalised in that his or her rights to compensation are suspended until (s)he begins to undertake the program (s 37(7) of the Act). Such an employee cannot institute or continue any proceedings under the Act.
Addressing the matters for consideration in s 37(3) of the Act, the tribunal finds that in making her determination in ex TD2/T55 Ms Yamani had regard to the CRS assessment in ex TD2/T31 and the subsequent progress reports of the CRS. This is clear from her notes in ex TD2/T67.
The tribunal finds that Ms Yamani was cognisant of the possibility of a future reduction in Australia Post's liability to pay compensation if Mr Pascoe undertook the program. As noted earlier, Ms Yamani had selected work at the Letters Facility because it was an option providing potentially long term or permanent work for the applicant. His return to work, unless for less than normal weekly earnings, would have meant that Australia Post no longer had to make incapacity payments.
There is no evidence concerning the attention given by Ms Yamani to the cost of the program. It is, however, inconceivable that an in-house rehabilitation counsellor would not work within the budgetary guidelines in a case such as this. There is nothing to suggest any negligent, reckless or intentional disregard of cost in this case.
The tribunal finds that Ms Yamani had regard to Mr Pascoe's employment potential following a successful completion of the program. Her evidence was that the return to work program had the potential to lead to full-time work for Mr Pascoe.
The need for Ms Yamani to have regard to the likely psychological effect on Mr Pascoe of not providing the program can be seen to have been met when Ms Yamani gave the CRS the go-ahead to proceed with a program for Mr Pascoe after he referred himself to the CRS. So far as the determination on 25 May 1999 was concerned, Ms Yamani had to have regard to this matter yet again. Arguably, given Mr Pascoe's aversion to mail sorting, not providing the program may have been more beneficial than actually providing the program. On 30 June 1999 Dr Hollo wrote (ex TD2/T4/24) that he had seen Mr Pascoe on that day. Mr Pascoe still had chest pains and a recurrence of his left buttock and leg pain. He "still" felt very nervous about working inside. On 28 July 1999 Dr Hollo wrote that Mr Pascoe was still very anxious and depressed and could not cope with the idea of working inside. Mr Pascoe saw Dr A Robertson, a psychiatrist, on 30 June 1999 and Dr Robertson reported on 5 July 1999 (ex A13) that Mr Pascoe "very much prefers to work outdoors (including driving), and tends to become somewhat anxious if working indoors, although this is well short of claustrophobia".
Dr J Chen, an occupational physician, wrote on 13 June 2000 (ex R2) that, while she considered Mr Pascoe physically capable of undertaking the proposed duties at the Letters Facility, consideration should be given to his expressed difficulties in learning these new tasks when planning and implementing the rehabilitation program. She said also that in her experience many postal transport officers find it difficult to adjust to the environment in a mail centre. "Whether it is reasonable to require such a person to participate and work in the Mail Centre when it was not their original choice of location, is probably an administrative matter, not medical. It may be appropriate for an independent specialist in psychiatry to comment on the above." She also recommended IQ and other testing to ascertain Mr Pascoe's aptitude for mail sorting. These comments by Dr Chen, a specialist consulted extensively in workers' compensation matters, and one familiar with Australia Post working conditions, are cogent in the view of the tribunal. Dr D Lovell, a psychiatrist, reported on 27 June 2000 (ex R3) but did not address the issue raised by Dr Chen.
Dr Samad, a treating psychiatrist, wrote on 4 November 1997 (ex TD2/T6) that Mr Pascoe's retention, recall and concentration are poor. This could help explain his difficulties with mail sorting.
The tribunal admits to some difficulty with the issue of Mr Pascoe working inside. Mr Pascoe has himself sought computer positions which would be indoors work positions. He has more recently expressed interest in returning to postal transport duties but it is clear that he should not do such work for any length of time because of his orthopaedic condition which may be constitutional, work-related or a combination of both. This was the view of Dr I T Lorentz, a neurologist (ex TD2/T9), Dr Hodgkinson (ex TD2/T11), Dr Gliksman (ex TD2/T33), Dr D Bornstein, orthopaedic surgeon (ex A1), Dr J Lawson, a physician (ex A3), Dr Chen (ex R2) and Dr H Marsden, a surgeon (ex R10).
Dr Hollo's expressed opinion must be open to some doubt given his statement that he wrote in his certificates what Mr Pascoe asked him to say (see paragraph 30 above). Dr Robertson's comments on Mr Pascoe's problems with working indoors, together with Dr Chen's observations about the difficulties experienced by some transport staff redeployed into a mail centre, tend to suggest to the tribunal that the full likely psychological effects on Mr Pascoe from requiring him to do mail sorting indoors at the Letters Facility was not a matter given consideration by Ms Yamani.
Ms Yamani said in evidence that she was aware that Mr Pascoe did not want to engage in mail sorting. From her evidence it appeared to the tribunal that Ms Yamani had found it difficult to identify available duties within Mr Pascoe's restrictions and that she had decided to take up the offer of duties, including sorting, at the Letters Facility. This appeared acceptable as sorting was not precluded by Mr Pascoe's restrictions. The tribunal pauses to comment that all that s 37(3) requires is that a decision-maker must have regard to the list of factors. It does not say that any factor should be decisive in producing a result. However, in this instance, especially given Dr Samad's comments above about Mr Pascoe's difficulties with memory and concentration, the tribunal considers that it would have been preferable for Ms Yamani to have given greater consideration to Mr Pascoe's attitude to the program, in as much as it involved mail sorting.
Section 37(3)(g) requires that regard be had to the relative merits of any alternative and appropriate rehabilitation program. This provision had no application in Mr Pascoe's case as there was no alternative program on the table.
No other matters have been suggested as requiring Ms Yamani's attention in accordance with s 37(3)(h). That provision therefore had no application.
In view of the tribunal's findings in relation to the psychological effect of the return to work program embodied in the determination affirmed on review, and in view of the tribunal's findings as regards the role accorded Mr Pascoe's attitude to the proposed program, the tribunal finds on balance that Mr Pascoe had a reasonable excuse for his failure to undertake the rehabilitation program. This means that Mr Pascoe's rights to compensation and to institute or continue proceedings under the Act are not suspended.
did mr pascoe qualify for weekly incapacity payments between 18 may and 24 september 1999?In the applicant's statement of facts and contentions (ex A15) it was contended that Mr Pascoe was entitled to incapacity payments under s 19 of the Act between those dates on the basis of total incapacity. The tribunal notes that there is scant evidence of total incapacity relating to this or any other period. The strongest evidence in Mr Pascoe's favour came from Dr Hollo in a series of medical certificates.
On 27 April 1999 Dr Hollo certified the applicant unfit for work until 31 May 1999 due to an ongoing back/spinal problem (ex TD2/T4/23).
On 30 June 1999 Dr Hollo recommended that the applicant remain off work for the next month because of chest pains, left buttock and leg pain, sciatica, and very nervous about working inside (ex TD2/T4/24).
On 28 July 1999 Dr Hollo certified the applicant as unfit for work because of back pain, anxiety and depression and inability to cope with the idea of working inside (ex TD2/T4/25).
On 25 August 1999 Dr Hollo certified the applicant as unable to work because of continuing back and leg pain and a very agitated state of mind (ex TD2/T4/26).
On 22 September 1999 Dr Hollo certified the applicant as unable to work because of chronic back problem and his anxiety and depression (ex TD2/T4/27).
However, Dr Hollo is alone among medical experts in finding no work capacity in Mr Pascoe. In addition, the tribunal has already referred to Dr Hollo's statement to the CRS that when writing these certificates he wrote what Mr Pascoe told him to write. In the tribunal's view this makes them of little use.
More to the point, all of Drs Lorentz (ex TD2/T9, T13). Hodgkinson (ex TD2/T11; ex R1), Gliksman (ex TD2/T33, T44), Pierides (ex TD2/T48), Bornstein (ex A1), Bentivoglio (ex A9), Robertson (ex A13), Chen (ex R2), Lovell (ex R3), Marsden (ex R10) and Boland (ex R15) regarded Mr Pascoe as having some work capacity, usually for selected duties.
From a compensation perspective there is on foot an acceptance in principle of liability to compensate Mr Pascoe as required by s 14(1) of the Act. However, to attract incapacity payments during the relevant period Mr Pascoe must come within the provisions of s 19 of the Act. The medical experts listed above agree in general that Mr Pascoe has an incapacity as such is understood under the Act in s 4(9). As a result of his injury, sustained in 1992, Mr Pascoe can no longer engage in work at the same level as immediately before the injury happened.
The measure of Mr Pascoe's weekly payments under s 19 depends on the application of the formula in s 19(2) of the Act:
19.(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee's normal weekly earnings.From this provision, Mr Pascoe should have received his normal weekly earnings less the amount per week that he was able to earn in suitable employment. His ability to earn is addressed in s 19(4) of the Act:
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self-employment)-the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer-the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment-the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition-the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment-the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee-whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.Section 19(4)(a) did not apply because Mr Pascoe had not been employed. Section 19(4)(b) might have applied if it is suggested that Australia Post offered him suitable employment which he failed to accept. Section 19(4)(c) did not apply because Mr Pascoe did not accept any offer of arguably suitable employment embodied in the determination dated 25 May 1999. Section 19(4)(d) may be applicable in that Australia Post did offer Mr Pascoe employment on condition of completion of a rehabilitation program, but the tribunal's earlier findings probably mean that that program was not a reasonable program. Section 19(4)(e) may have applied because Mr Pascoe had not sought suitable employment.
Adopting a practical view of the situation, Mr Pascoe has been assessed by medical experts professing various specialties as fit for clerical work not involving lifting of weights of more than 10 kilograms (although some would say he can lift more than that) and not involving repetitive or prolonged bending, and not involving standing for more than 30 minutes without a 10 minute rest break to follow. Additionally, there is some suggestion that he should not work indoors, although this may apply only to Australia Post mail centres. Mr Pascoe has better than basic computer training. He resigned from Australia Post but not until 31 January 2001. Australia Post offered Mr Pascoe a rehabilitation program, some aspects of which he did not agree with, and a return to work aspect of which he refused to commence but having, according to this tribunal, a reasonable excuse for the refusal.
It is possible that the return to work program referred to in the 25 May 1999 determination was an offer of what Australia Post would see as "suitable employment" in accordance with the definition in s 4(1) of the Act:
suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of … a licensed corporation and who did not subsequently terminate that employment-employment by the … licensed corporation, … in work for which the employee is suited having regard to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence-whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and…
The return to work program proposed on 25 May 1999 was on balance not suitable employment in accordance with the definition because of the same factors that provided Mr Pascoe with an excuse in paragraph 85 above for not participating in the program. Those reasons would be relevant in the context of suitable employment as going to Mr Pascoe's "other skills" and as "any other relevant matter".
That finding has the consequence that s 19(4)(b) and (c) were not applicable to Mr Pascoe as there had not been an offer of, or failure to engage in, suitable employment (following an offer of same).
For the purposes of s 19(4)(d) the tribunal finds that the rehabilitation or vocational retraining program offered to Mr Pascoe was not, for the reasons summarised above in paragraph 85, a reasonable rehabilitation or vocational retraining program. Thus s 19(4)(d) had no application in this instance.
Section 19(4)(e) might appear to have applied to Mr Pascoe, however when the definition of "suitable employment" in s 4(1) of the Act is considered, because Mr Pascoe was still employed by Australia Post between May and September 1999 it was employment within Australia Post that was relevant. This ties in with the obligation cast on an employer in s 40 of the Act:
Duty to provide suitable employment
40. (1) Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment.
(2) In this section:
"relevant employer" means:…
(aa) in relation to an employee employed by a licensed corporation-that corporation; and
…
In the present case Mr Pascoe had embarked on the rehabilitation program coordinated by the CRS, and Australia Post did offer him employment at various times. The particular offer in question on 25 May 1999 was, however, flawed for reasons covered earlier and was not, therefore, the provision of suitable employment.
There is authority suggesting that, where an organisation of the size and with the reach and many facets of Australia Post could not find an injured employee suitable employment, that is reasonable evidence that such work was not available.
The tribunal has considered s 19(4)(e) to see whether Mr Pascoe should have been seeking suitable employment himself during the relevant period. The tribunal doubts that this was required in the current context. Section 40 of the Act imposed an obligation on Australia Post to look for suitable employment for Mr Pascoe. The corporation and its officers were better placed than Mr Pascoe, who was still an employee of Australia Post, to do this. In any case there were two additional relevant factors excusing Mr Pascoe during the relevant period. He had applied unsuccessfully in 1997 for a computer skills position in Australia Post and had pursued in 1998 an appeal when he was not appointed to the vacant position. He could legitimately conclude from that experience that he was not seen by the employer as competitive for such positions. In oral evidence he also told the tribunal that he had applied since January 2001 for clerical jobs, Workcover jobs, shop assistant work with Telstra and porter work in a hospital. This was, of course, after the relevant period but shows some desire to find work and a lack of success in doing so. Second, Dr Hollo was supporting Mr Pascoe in mid-1999 in his belief that he was not fit for work.
The tribunal concludes from this that the correct or preferable decision was that Mr Pascoe had no ability to earn in the relevant period in 1999 and the tribunal so finds. This finding, coupled with the tribunal's finding that Mr Pascoe had a reasonable excuse for his refusal to participate in the relevant return to work program, means that he qualified for incapacity payments in the period from 18 May 1999 to 24 September 1999.
permanent impairmentThe tribunal has before it documentary evidence in relation to possible permanent impairments as follows:
Dr Gertler
Dr Gertler on 11 July 2000 (ex A2) assessed a permanent impairment of at least 10% relating to a psychiatric condition but with no explanation as to how this is justified under table 5.1.
Dr Samad
Dr Samad on 17 April 1998 (ex A6) assessed a psychiatric condition at 10% to 12.5% but offered no explanation.
Dr Robertson
Dr Robertson on 20 August 1999 (ex A14) assessed a psychiatric condition at 10% under table 5.1 but without explanation.
Dr Lawson
On 21 June 1996 (ex A8) Dr Lawson assessed a 15% whole person impairment of the back and a 10% impairment applicable to each leg. There was a 5% whole person permanent impairment of the neck. There was no mention of the Comcare tables.
In respect of the cervical spine Dr Lawson on 27 November 1997 (ex TD2/T7) assessed a 5% impairment in accordance with table 9.6. This represented minor restrictions of movement.
In respect of "right and left leg", and using table 9.5, he found a 10% impairment in respect of each leg.
In respect of the thoraco-lumbar spine he awarded 10%.
On 8 August 2000 (ex A3) Dr Lawson recommended a rating of 20% in accordance with table 9.6 in respect of the thoraco-lumbar spine. This is loss of more than half normal range of movement.
On the same day he recommended ratings of 10% in respect of each leg under table 9.5.
Dr Lawson confirmed his earlier rating of 5% in respect of the cervical spine in accordance with table 9.6.
Dr Lorentz
In respect of "the back" Dr Lorentz on 15 December 1997 (ex TD2/T9) assessed a 10% impairment on the basis of loss of less than half normal range of movement. This must be a reference to table 9.6 relating to the thoraco-lumbar spine. However, he regarded only 25% of this restriction as the responsibility of Australia Post, the remainder being degenerative changes.
Dr Lorentz saw no impairment in the neck.
Dr Hodgkinson
On 21 April 1998 (ex TD2/T12) Dr Hodgkinson assessed a 10% impairment under "table 9". He saw only 50% of this as the respondent's responsibility. There is no table 9, as such. There are tables 9.1 to 9.6. He would seem to refer to table 9.6 and the thoraco-lumbar spine.
On 30 May 2000 (ex R1) Dr Hodgkinson assessed a work-related permanent impairment of the back at "5% of the most severe case". There was no serious leg involvement that bring about a permanent impairment.
Dr Bornstein
On 27 January 1998 (ex A1) Dr Bornstein recommended a rating of 15% in respect of "function of the back" but was not using the Comcare tables.
Dr Giblin
On 19 July 1995 (ex A5) Dr Giblin had assessed a 20% permanent impairment of the back and 10% loss of efficient use of each leg at or above the knee. It appears that these ratings were arrived at without reference to the Comcare guide.
On 7 February 1997 (ex A4) Dr Giblin assessed a 15% whole person impairment "in relation to the injury sustained to his back and leg". There was no reference to any table.
On 17 November 1997 (ex A16) he assessed a 10% impairment under each of tables 9.5 and 9.6. Each limb attracted 10% under table 9.5.
Dr Bentivoglio
On 26 August 1998 Dr Bentivoglio (ex A9) assessed Mr Pascoe as having a permanent impairment of back function in the order of 15-20% and of leg function in the order of 10%.
On 29 September 1999 (ex A10) he assessed a 15-20% permanent impairment of back function and 10% in respect of legs.
Dr Chen
On 13 June 2000 Dr Chen (ex R2) assessed under table 9.6 a 10% permanent impairment of the "lumbo-sacral spine". There was no rateable impairment of the lower limbs. She apportioned 75% of the impairment to work-related factors and 25% to constitutional factors including obesity.
Liability under s 14(1) of the Act exists only in relation to conditions of "left sciatica" (ex AH1/T7, 11 August 1992) and a "back condition" or "back injury" (ex AH1/T46; ex TD2/T14). On the evidence before the tribunal, there has been no acceptance of liability in respect of a neck condition or a psychiatric condition. Therefore, in as much as the claim for a permanent impairment payment and the supporting evidence relates to non-accepted conditions it is not relevant to the resolution of application N1997/1457.
The tables of relevance are tables 9.5 and 9.6. Table 9.5 relates to the lower limbs and accords an impairment rating based on the employee's physical mobility in standing, walking and coping with grades and steps. Mr Pascoe's sciatic condition is relevant to this table. This table was misapplied by several of the doctors who applied its rating to each leg, thereby doubling the gross rating. At the same time Drs Hodgkinson and Chen saw no basis for any impairment rating under table 9.5.
Dr Hodgkinson did not explain how he reached his conclusion (ex R1). At the tribunal hearing he said that the video evidence supported his view. Dr Chen, however, noted (ex R2) that neurological examination of the lower limbs revealed normal strength and sensation. The right ankle jerk was slightly diminished. Despite the right ankle jerk, she saw no rateable impairment in the lower limbs. In her history she recorded that Mr Pascoe may go shopping with his wife. He has back pain and pain in his leg when shopping. If possible he sits down after walking for half to three-quarters of an hour when his back pain builds up. There was no history of difficulties with grades and steps such as would attract a minimum 10% rating in table 9.5.
Dr Bentivoglio (ex A9) recorded in 1998 that Mr Pascoe had mild symptoms in the left leg, no leg weakness but walking and standing made the pain worse. There was no neurological deficit but walking made the pain worse (ex A10).
At the tribunal hearing Mr Pascoe said on oath that he was in pain while seated. The pain was down both legs. He said he was able to walk for short distances. He cannot play golf because he is on his feet a long time. He said that he has problems going up and down slopes and climbing stairs. This causes leg pain. The video evidence suggested that Mr Pascoe might be freer to bend, squat and stand than some doctors had concluded to be the case. However, there was no video evidence suggesting that he had no difficulty with grades, steps and distances.
The tribunal is aware that the Comcare tables aim to assess the adverse effects on the range of movement and functionality of the body's systems in arriving at an impairment rating. Pain as an effect stemming from use of a limb or the spine is of less relevance in assessing under s 24 of the Act the percentage impairment than in assessing the lump sum to be paid, an action done under s 27 of the Act, once a permanent impairment at a compensable level has been found to exist. However, in relation to table 9.5 it is likely that the onset of acute pain is the factor that most usually impedes an employee from dealing with grades and steps. The tribunal is satisfied on balance that Mr Pascoe satisfies table 9.5 and warrants a 20% rating under that table.
The tribunal is satisfied that the condition is permanent in that it is likely to continue indefinitely (as required by the definition in s 4(1) of the Act). It is generally accepted that Mr Pascoe has a disc protrusion at L4/5 with radiculopathy (eg Dr Gliksman, ex TD2/T33). Dr Pierides also detected a significant disc lesion at L3/4 (ex TD2/T48).
Turning to Mr Pascoe's lumbar spine condition, even the respondent in its statement of facts and contentions (ex R20) conceded that there was a 5% permanent impairment. This seems to reflect Dr Hodgkinson's assessment in May 2000 (ex R1) where he recommended a 10% rating for table 9.6 but reduced by half to reflect the contribution of Mr Pascoe's employment to the total. Drs Lorentz (ex TD2/T9) and Chen (ex R2) agreed with a 10% rating under table 9.6. Dr Chen would reduce that to 7.5% to account for a 25% contribution from constitutional factors.
Drs Bornstein, Giblin and Bentivoglio expressed views which cannot be accommodated because they did not address the Comcare tables at all or in any explanatory fashion.
Dr Lawson in August 2000 (ex A3) recommended a 20% rating under table 9.6. In examination Dr Lawson found all lumbar movements restricted. Forward flexion was 60 degrees with "loss of normal mechanics of lower back movement".
Of the doctors favouring a 10% rating Dr Lorentz (ex TD2/T9) observed in December 1997 that Mr Pascoe could comfortably reach within 30 centimetres of the ground with his outstretched hands. Lateral movements were restricted by a few degrees only. Extension caused a little pain after 30 degrees. Straight leg raising was 75-90 degrees on each side. There was loss of less than half normal movement.
Dr Hodgkinson (ex R1) found in May 2000 that he could flex to reach his knees. Right and left tilting and rotation was pain free and Mr Pascoe could sit up from a supine position, albeit with some complaint. In oral evidence Mr Pascoe said that Dr Hodgkinson hat hurt him when he had to do these movements.
Dr Chen (ex R2) in June 2000 observed that active trunkal flexion was possible to 70 degrees with fingertips just below the patella. This was a 75% range of flexion. Trunkal extension was slightly restricted to 20 degrees, 25 degrees being the full range. This was accompanied by some back pain. Lateral flexion of the thoraco-lumbar spine was limited to 20 degrees in both directions, 25 degrees being the full range. Rotation of the trunk was unrestricted bilaterally but was accompanied by pain in the left calf with rotation towards the right. In a seated position straight leg raising was possible to 90 degrees bilaterally, accompanied by a sensation of tightness in both hamstrings. In a supine position straight leg raising was possible to 50 degrees bilaterally with pain over the lateral aspect of the ankles.
The video evidence showed that Mr Pascoe could squat to pick items up from a floor and that he could bend forward and rest his hands on his knees. Dr Lovell (ex R13) observed Mr Pascoe bending forward to 90 degrees in the video evidence. Drs Lovell and Hodgkinson (ex R14) saw no significant limitation of function in the video material. Dr Lawson in oral evidence called attention to Mr Pascoe "squat lifting" in an effort to keep his back straight.
The tribunal finds on balance on the totality of this evidence that Mr Pascoe is only slightly restricted in relation to his thoraco-lumbar spine. In accordance with table 9.6 this would attract a rating of 5%. The tribunal considers it appropriate to discount this figure because of the underlying degenerative condition. Dr Chen suggested that 75% of the impairment could be attributed to employment. Dr Hodgkinson said only 50%. This is beneficial legislation and the tribunal is minded to accept the more beneficial of these two recommendations. Mr Pascoe therefore attracts an impairment rating of 3.75%, rounded to 4%, in respect of the thoraco-lumbar spine.
The tribunal has therefore accorded Mr Pascoe a 20% rating under table 9.5 and a 4% rating under table 9.6. Applying the combined values table in the Comcare tables, this equates to an overall impairment rating of 23%.
CONCLUSIONMr Pascoe has succeeded in his applications in that it has been decided that:
the tribunal had jurisdiction to consider whether Mr Pascoe had a reasonable excuse for failure to engage in the return to work program the subject of a determination on 25 May 1999; and
Mr Pascoe had a reasonable excuse for failing to engage in that program; and
Mr Pascoe was entitled to incapacity payments at full normal weekly earnings rate for the period from 18 May 1999 to 24 September 1999; and
Mr Pascoe is entitled to a lump sum compensation payment in respect of a whole person permanent impairment of 24%, the quantum of that payment to be determined by Australia Post on remission from the tribunal.
Mr Pascoe's costs in respect of all applications are to be paid by Australia Post in accordance with the tribunal's general practice direction.
DECISIONSThe decision in application N1997/1457 is set aside and the tribunal substitutes its own decision that the applicant qualifies for an amount of compensation in respect of a permanent impairment affecting his lower limbs and thoraco-lumbar spine to the extent of 24% whole person impairment. The matter is remitted to the respondent for it to assess the amount payable.
The decision in application N2000/381 is set aside and the tribunal substitutes its own decision that Mr Pascoe had a reasonable excuse for failure to engage in the return to work program directed on 25 May 1999 and so his compensation rights were not suspended in accordance with s 37(7) of the Act.
The decision in application N2001/831 is set aside and the tribunal substitutes its own decision that the applicant was entitled to incapacity payments from 18 May 1999 to 24 September 1999 at full normal weekly earnings rate. This matter is remitted to the respondent for it to assess the rate payable.
The applicant is entitled to costs associated with these three applications in accordance with the tribunal's general practice direction.
I certify that the 146 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed: .....................................................................................
AssociateDates of Hearing 15, 16 May 2001, 20 November 2001
Date of Decision 30 August 2002
Counsel for the Applicant Mr L T Grey
Solicitor for the Applicant Carroll O'Dea Solicitors
Counsel for the Respondent Mr G Johnson
Solicitor for the Respondent Australian Government Solicitor
2
0