Pascoe and Australian Postal Corporation - [2002] AATA 745

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] AATA 745
Decision Date: 30 August 2002

CaseChat Overview and Summary

The case of Pascoe and Australian Postal Corporation was heard by the Administrative Appeals Tribunal, which was tasked with resolving disputes regarding workers' compensation. Mr Pascoe, the applicant, had suffered injuries in the course of his employment which led to a claim for compensation. The primary issues before the tribunal were whether the tribunal had jurisdiction to consider the suspension of compensation rights due to Mr Pascoe's failure or refusal to engage in a rehabilitation program and whether Mr Pascoe had a permanent impairment qualifying him for incapacity payments at the full normal weekly earnings rate.

The tribunal had to determine the meaning of a "rehabilitation program" under the Safety, Rehabilitation and Compensation Act 1988 and whether the return to work program constituted a valid rehabilitation program. Additionally, the tribunal assessed whether Mr Pascoe had a permanent impairment that would entitle him to incapacity payments at full normal weekly earnings rate. The tribunal examined the submissions and evidence, including previous tribunal decisions and statutory definitions, to make these determinations.

In its reasoning, the tribunal concluded that the return to work program did indeed constitute a rehabilitation program as it aimed to restore Mr Pascoe's health and working capacity. The tribunal found that Mr Pascoe had a reasonable excuse for his failure to engage in the return to work program, which meant his compensation rights were not suspended. Furthermore, the tribunal determined that Mr Pascoe had a permanent impairment affecting his lower limbs and thoraco-lumbar spine, qualifying him for incapacity payments at full normal weekly earnings rate from 18 May 1999 to 24 September 1999.

The tribunal set aside the previous decisions and substituted its own decisions, remitting the matter to the respondent for reassessment of the amounts payable for compensation and incapacity payments. Mr Pascoe was also awarded costs associated with the applications, in line with the tribunal's general practice direction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 FINDINGS An 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: 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: 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."

Decision

Reasons for decision

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.DECISIONS 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.I certify that the 146 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior MemberSigned: ..................................................................................... AssociateDates of Hearing 15, 16 May 2001, 20 November 2001 Date of Decision 30 August 2002Counsel 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

Ratio Decidendi

Legal Principle Established

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