Ramsay and Australian Postal Corporation
[2004] AATA 690
•30 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 690
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1022 and Q2002/856
GENERAL ADMINISTRATIVE DIVISION ) Re GORDON RAMSAY Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date30 June 2004
PlaceBrisbane
Decision The Tribunal:
(a) finds that the applicant had a reasonable excuse for failing to undertake the rehabilitation program commencing on 12 March 2001, pursuant to section 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (file number Q2001/1022);
(b) affirms the decision of the respondent dated 17 September 2001 (which affirmed the decision of 7 March 2001), that the respondent is no longer liable to pay compensation to the applicant in respect of his neck, back, right shoulder and right knee conditions; and
(c) being satisfied that it has no jurisdiction in relation to application number Q2002/856, directs that the application be dismissed.
............(Sgd)...........
J Cowdroy
Member
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – suspension of benefits – applicant failed to attend rehabilitation program – rights to compensation suspended pursuant to section 37(7) of the Safety, Rehabilitation and Compensation Act 1988 – applicant had reasonable excuse for failing to undertake rehabilitation program – current medical certificate not addressed in determination – respondent failed to consult treating GP – applicant unable to drive due to medication – respondent failed to have regard to relevant considerations when preparing rehabilitation program – reasonable excuse
WORKERS’ COMPENSATION – benefits and entitlements – cessation of liability – neck, back, shoulder and knee injuries sustained in motor vehicle accident – aggravation of pre-existing degenerative changes – ongoing symptoms referrable to degenerative changes – only temporary aggravation of conditions – no longer liable to pay compensation
WORKERS’ COMPENSATION – benefits and entitlements – claim for compensation – claim for permanent impairment – respondent refused to consider claims on basis that rights to compensation suspended under section 37(7) of the Act – jurisdiction - whether “decision” or “determination” had been made – whether refusal to make “decision” or “determination” – as rights suspended respondent could not make a determination or refusal – no jurisdiction
Safety, Rehabilitation and Compensation Act 1988 ss 14, 24, 37(7), 60, 61, 62
Administrative Appeals Tribunal Act 1975 s 3(3)
Trajkovski v Telstra Corporation Ltd (1998) 81 FRC 459
Buck v Comcare (1966) 66 FCR 359
Australian Postal Corporation v Long [2003] FCAFC 223
Australian Postal Corporation v Forgie (2003) 202 ALR 63
Director-General of Social Services v Chaney (1980) 3 ALD 161
Director-General of Social Services v Hales (1983) 47 ALR 281REASONS FOR DECISION
30 June 2004 Ms J Cowdroy, Member 1. The applicant has filed two applications for review with the Tribunal. The first (Q2001/1022) is an application for review of decisions of the respondent, dated 17 September 2001, to suspend the applicant’s workers’ compensation payments pursuant to section 37(7) of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) with effect from 29 March 2001 (hereinafter referred to as “the suspension decision”) and to affirm a decision of 7 March 2001 which determined that liability for compensation for injuries to the applicant’s neck, back, right knee and right shoulder had ceased (hereinafter referred to as the “cessation decision”).
2. A preliminary issue arises in this case in relation to the suspension decision. Section 37 of the Act provides:
“(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
…
(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36(8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee's opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee's attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
…
(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
(8) Where an employee's right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.”
3. Section 37(7) is a self-executing section. It is not necessary for a decision to have been made for it to have operation (Trajkovski v Telstra Corporation Ltd (1998) 81 FRC 459 at 464; Buck v Comcare (1966) 66 FCR 359 at 363; Australian Postal Corporation v Long [2003] FCAFC 223 and Australian Postal Corporation v Forgie(2003) 202 ALR 63). Therefore, in relation to the suspension decision, the Tribunal is not reviewing the decision of 17 September 2001, its jurisdiction is confined to considering whether the applicant had a reasonable excuse for failing to undertake the rehabilitation program. By virtue of section 37(7), the Tribunal cannot review the cessation decision of 17 September 2001 unless it is satisfied the applicant had a reasonable excuse for not attending the rehabilitation program.
4. The second application for review (Q2002/856) relates to the respondent’s refusal to consider claims by the applicant for compensation for a psychological injury described as adjustment disorder with depressed mood in a setting of chronic pain, and his claim for permanent impairment for injuries to his back, right shoulder and both knees, and the psychological injury (hereinafter referred to as “the new claims”).
5. Following the applicant lodging these new claims on 31 May 2002, the respondent’s Claims Manager wrote to the applicant, on 10 July 2002, declining to consider the claims on the basis that his rights to compensation had been suspended pursuant to section 37(7) of the Act (Q2002/856: T20, folio 54; and T2, folio 9). When the applicant sought a reconsideration of that decision, the respondent expressed the view that no determination had been made in the case and therefore there was no reviewable decision pursuant to section 62 of the Act (Q2002/856: T1, folio 7, and T2, folio 9).
6. A jurisdictional issue also arises in relation to this application for review, namely, whether there is a decision which can be reviewed. There is also a question of whether section 37(7) operates to prevent consideration of these new claims.
Issues Before the Tribunal
7. The first issue for determination by the Tribunal in this case is whether the applicant’s rights to compensation have been suspended by virtue of section 37(7) of the Act. If it is found that the applicant had a reasonable excuse for failing to attend the rehabilitation program, the Tribunal will be able to review the cessation decision and determine the jurisdiction issue in relation to the new claims.
8. To decide whether section 37(7) applies in this case, the Tribunal needs to decide:
§whether the applicant has been required to attend a rehabilitation program pursuant to section 37(1) of the Act; and, if so
§whether the applicant failed to attend the rehabilitation program; and, if so
§whether the applicant had a “reasonable excuse” for failing to attend the rehabilitation program.
Hearing
9. This application was heard by the Tribunal on 1 and 2 September 2003 and 31 March 2004. The applicant was represented at the hearing by Mr Rangiah of counsel, and the respondent was represented by Ms Downes of counsel.
10. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibits A3 and A4) and the following documentary exhibits:
§Exhibit A1 Statement of Gordon Ramsay, dated 5 March 2003;
§Exhibit A2 Statement of Deborah Harris, dated 3 April 2003;
§Exhibit A5 Rehabilitation Program;
§Exhibit A6 Letter to Clarke and Kann, Solicitors from Maurice Blackburn Cashman, Lawyers, dated 28 August 2003
§Exhibit A7 Report of Dr Chalk, dated 14 November 2000;
§Exhibit A8 Report of Dr Chalk, dated 28 August 2003;
§Exhibit A9 Report of Dr Robinson, dated 17 November 2002;
§Exhibit A10 Report of Dr Coyne, dated 20 July 2001;
§Exhibit A11 Report of Dr Coyne, dated 4 July 2002;
§Exhibit A12 Report of Dr Coyne, dated 22 August 2003;
§Exhibit R13 Letter from Clarke and Kann, dated 2 June 2003, enclosing additional medical reports of Dr Goode and typed memo of Dennis Hoffman;
§Exhibit R14 Copy of Kate Harrison’s file;
§Exhibit R15 Video, photographs and field notes;
§Exhibit R16 Video (of period 10 November 2000 to 13 January 2001);
§Exhibit R17 Letter from Dr Fardoulys, dated 1 September 2003;
§Exhibit R18 Statement of Kate Harrison, dated 6 February 2004;
§Exhibit R19 Statement of Dennis Hoffman, dated 20 January 2004;
§Exhibit R20 Statement of Kate Harrison, dated 31 March 2004; and
§Exhibit R21 Memo from Manager, Injury Prevention and Management Unit, dated 2 September 2002, in relation to the approval of in-house rehabilitation program providers.
11. The Tribunal was also provided with lengthy submissions and chronologies by the parties at the conclusion of the hearing, which have been taken into account by the Tribunal in the determination of this matter.
Factual Background
12. At all relevant times, the applicant was employed as a postal delivery officer with the Bundall Delivery Centre of Australia Post. In August 1999, the applicant was involved in a motor vehicle accident in which he sustained injuries to his neck, back, right shoulder and right knee. The respondent accepted liability for these injuries and paid compensation benefits to the applicant from 24 August 1999 to March 2001. During this period, the applicant underwent three arthroscopic procedures on his right shoulder and an arthroscopy on his right knee, received steroid injections and underwent extensive physiotherapy.
13. On 7 March 2001, Kate Harrison, a delegate of the respondent (see Exhibit R21) wrote to the applicant in the following terms (Q2001/1022: T158, folio 201):
“Determination of Section 37(1), SRC Act 1988
In pursuance of the provisions of the Safety Rehabilitation and Compensation Act 1988 and in particular Section 37(1), I hereby determine on the evidence available:
1.That Gordon Ramsay shall commence on a rehabilitation program as follows:
Separately documented in Return to Work Program commencing on 12 March 2001 and ending on 6 April 2001.
2.The claimant will be entitled to weekly payments of compensation in accordance with Section 37(5) of the Act.
Reasons for determination
You have been assessed as capable of participating in a rehabilitation program by treating Orthopaedic Surgeon, Dr J. Fardoulys (report dated 21/12/00) and Dr P. Duke, Orthopaedic Surgeon (report dated 22/02/01). Further advice has been received from Dr Duke and Dr J. Walters, Orthopaedic Surgeon which confirms your fitness to return to work.”
14. The applicant took issue with the authority of Ms Harrison to make this determination. He suggested that only a principal officer of Australia Post was authorised to make the decision under section 37(1). On the basis of the oral evidence, though, the Tribunal accepts that Ms Harrison was duly authorised to make the determination of 7 March 2001.
15. The return to work program (Exhibit A5) required the applicant to report at the Bundall Delivery Centre at 3am on 12 March 2001. During his first week back at work, the applicant was to work four hours a day with a ten minute break. In the second week, he was to work five hours per day, and in the third week, six hours a day. He was to return to full-time work in week four of the program. The program specified that the applicant was not to undertake motorcycle deliveries, could not carry out repetitive tasks above shoulder height with his right arm, and was restricted from carrying/lifting weights in excess of 15kgs. The rehabilitation program set out his duties as follows:
“TIMETABLE OF DUTIES:
Weeks 1 & 2:
§Collect mail for sorting (direct letter trays – up to 7kg in weight and non-standard mail stored in ‘crabpots’)
§Sort 1-drop mail in to a 2 module v-sort frame (each module having 5 shelves where the mail is reasonably evenly distributed and there is ~20% requirement for above shoulder height reach with negligible weight involved)
§Process Return-to-Sender mail and redirections
§Strip down frame and band mail – store in mail bags (each weighing 5 – 10kg)
From Week 3 (as above plus the following)
§Load ~ 10 mail bags in to van using trolleys
§Van Delivery – drive van to each nominated highrise building and drop off mailbag to front reception
§Ad hoc administrative and operational support tasks if time permits”
16. On 8 or 9 March 2001, Deborah Harris of the Communications, Electrical and Plumbing Union contacted Dennis Hoffman on behalf of the applicant (see Exhibits A2 and R19). Mr Hoffman’s notes of the conversation were annexed to his affidavit, and provide as follows (Exhibit R19):
“Debby Harris of CRPU phone (3255 0440).
Gordon Ramsay has been in contact and was not able to phone himself.
He is living at Redcliffe and is unable to attend on Monday for work as has been arranged.
The matter of the move from the Gold Coast was mentioned.
It was explained that our position was that he held a position at Bundall and was merely on leave.
Debby acknowledged the situation. She says the decision has bowled him over. He was not sufficiently confident to phone. I indicated that if it was a matter that Gordon needed time to make arrangements, it may be possible to negotiate some other leave in the interim.
She explained that he is seeing solicitors and the reason that he is not able to return to work on Monday will be explained in further contact.
Debby Harris nor Gordon have been in contact with Jamie Moore at Bundall.
I indicated I would pass advice to Kate Harrison and Jamie Moore.”
17. Ms Harris’ record of the conversation is somewhat different. Her notes of the conversation were (Annexure D to Exhibit A2):
“Rang Kate Harrison’s no. as she was person who sent return to work. Advised Gordon would not be returning to work on Mon – as he is not residing on Coast any more – Hoffman said he hasn’t put in for any transfer.
I advised he is on medication which prevents him from driving. Hoffman advised he would tell DC Mgr. I advised Hoffman Gordon was seeking legal advice and someone would contact him at a later time to advise of his period of absence and the reasoning. ‘All I am doing is advising he will not be attending’.
Hoffman said if he is not ready the program could be moved forward – I said that will be up to Gordon after he has received legal advice – Gordon to see his pschyc (sic) on 20th and to see his GP today for a certificate on medical grounds.”
18. Her file note was expanded upon in her affidavit. Ms Harris said (Exhibit A2):
“20.I then had a conversation with Mr Hoffman concerning the proposed rehabilitation program and I took notes of that conversation. …
21.In the course of the conversation I advised Mr Hoffman that Mr Ramsay would not be returning to work on Monday, 12 March 2001 for the following reasons:
(i) He no longer resided on the Gold Coast;
(ii) He was taking medication which prevented him from driving;
(iii) He was covered by his GP’s medical certificate.
22.Mr Hoffman indicated that Mr Ramsay had not applied for any transfer from the Bundall Mail Centre and started arguing and I stated clearly to him the following:
‘All I am doing is advising he will not be attending’ (work on Monday 12 March 2001).
23.Mr Hoffman informed me that he would advise the Delivery Centre manager and said that if Mr Ramsay was not ready to return to work the problem could be moved forward, that is, suggesting a possible later start date.
24.I advised Mr Hoffman that Mr Ramsay was seeking legal advice and that someone would contact him at a later time to advise of his period of absence, and the reasons.
25.I advised Mr Hoffman that Mr Ramsay was to consult his psychiatrist on 20 March 2001 and was to consult his general practitioner that day (8th March 2001).”
Section 37(7) - Does the Applicant have a Reasonable Excuse?
19. On the basis of the material before me, I am satisfied that Ms Harrison’s letter of 7 March 2001 amounted to a determination under section 37(1) of the Act and that Ms Harrison held the necessary delegations to make that determination. I am also satisfied that the rehabilitation program prepared by Ms Harrison complies with section 37(2) of the Act.
20. The Tribunal is also satisfied, on the basis of the evidence of the applicant and Ms Harris, that the applicant notified the respondent, via Ms Harris, prior to the commencement date of the rehabilitation program, that he would not be returning to work as directed on 12 March 2001 for the following reasons:
§He was no longer residing on the Gold Coast;
§He was taking medication which prevented him from driving; and
§He had a medical certificate from his GP until 31 March 2001.
21. When making a determination under section 37(1), the respondent is required to have regard to the matters set out in section 37(3). Ms Harrison refers in her determination to reports by Drs Walter, Duke and Fardoulys.
22. Dr Walters provided reports in relation to the applicant dated 6 October 2000 (Q2001/1022: T112, folio 135-137) and 1 March 2001 (Q2001/1022: T145, folio 177-178). In his first report, Dr Walters opined (at 136-137):
“Mr Ramsay does have evidence of moderately severe degenerative change in his cervical spine, and to a lesser degree in his lumbar spine… I think that the aggravating affect of the motor vehicle accident would have been temporary, and I would have expected the affect of this to have resolved after fourteen months. No doubt these changes were present prior to the accident, but symptoms which were precipitated have persisted since.
I would agree with all of the comments previously made by Dr Goode in his reports. I would regard ongoing symptoms as being due to pre-existing degenerative changes. One could however argue that there is some small residual component due to the injury, as he states he had no symptoms in his neck or back prior to that date. I do not think that any further treatment or rehabilitation would be of benefit, apart from those directed towards helping him psychologically, and with pain relief. I do not think he is currently employable, and I think it is unlikely that he will ever return to productive work.”
23. In the later report, which was prepared at the request of the respondent, Dr Walters expressed a different view of the applicant’s condition. The respondent had forwarded to Dr Walters video recordings of the applicant, during which the applicant could be seen riding a bicycle, working in his wife’s shop and driving a motor vehicle. Dr Walters did not examine the applicant at the time, however, on the basis of the video material, stated:
“The level of physical activity indicated in the videotape is considerably greater than he suggested to me at the time of my assessment on 5 October 2000. He said that his level of pain during the day was five out of ten, and there was no indication of this in any of the activities observed on the tape. Mr Ramsay told me he did not drive and clearly he is able to drive. He described considerable panic when attempting to ride a motor cycle, but he was seen riding his bicycle freely on busy roadways.
Mr Ramsay told me that he could not sit or stand for longer than fifteen minutes. The tapes would suggest that he is capable of standing for much longer periods, and he was observed working in his wife’s shop for prolonged periods. I had raised with him the possibility of working as a mail sorter, and he indicated he would be unable to cope with this. This is at variance with his observed activities in the shop.
My previous statement of him being ‘currently unemployable’ needs clarification. I was rather guarded about his prognosis in view of the fact that he had been off work without any improvement in his symptoms for a period of fourteen months, - and the fact that he did not seem able to cope with clerical type activities. Perhaps I should have qualified this by saying that his apparent restrictions were more in a psychological sense, as there was no evidence from a physical viewpoint that he would be unable to undertake such work. I indicated that the only treatment which would be of value would be towards helping him psychologically, rather than physically.
I have answered most of the questions which you raise.
There were inconsistencies with his reported level of symptoms to me and what was demonstrated on film.
I would not regard Mr Ramsay as being totally incapacitated for work by virtue of his back, neck, or shoulder condition. I would not envisage Mr Ramsay having any difficulty using public transport.
The tape suggests a good level of functional capacity in relation to walking, standing, sitting, and undertaking activities in his wife’s store.
I would not place any specific work restrictions with regard to Mr Ramsay’s back condition, although on the basis of his history he would be best to avoid heavy lifting.
I would regard Mr Ramsay as being capable of undertaking a return to work program.”
24. Dr Duke provided two reports in relation to this matter dated 22 January 2001 (Q2001/1022: T179, folio 255-259) and 26 February 2001 (Q2001/1022: T161, folio 205-209 and T173, folio 226-230). Dr Duke saw the applicant on 16 January 2001, and, in his report of 22 January 2001, opined:
“This fellow would appear to have had a right shoulder injury which was relatively minor. He has not ruptured any of the ligaments or tendons around the shoulder in a significant fashion and he has not caused any fractures. That is how it is classified as a minor injury.
He continues to have ongoing cervicobrachial pain and shoulder pain despite adequate surgical treatment.
He appears to have injured his AC joint which was probably arthritic prior to the injury.
He now would appear to have minimal troubles in the right shoulder.
Opinion:
§ Permanent Impairment
Permanent impairment here I would estimate to be 5% of the upper limb as a result of right shoulder injuries.
§ Prognosis
It would appear that the chance of this fellow returning to work is quite poor and therefore the prognosis must be poor. He has had three operations which appear to have given only some relief to his shoulder problems. The patient told me that he was 75% better.
§ Treatment Recommendations
I would recommend this fellow not have any further surgery. There is no physiotherapy or other treatment that will make him any better.
§ Future Work Capabilities
It is my opinion that this fellow is unlikely to return to work form what I have seen. However I feel that a 5% impairment of the shoulder in this gentleman’s situation should not preclude any further work occurring. He may not be able to safely ride a motor cycle and should possibly consider vocational retraining to a lighter more sedentary type job.
Therefore it is my opinion that the current condition of the (sic) this fellow’s shoulder does not render him totally incapacitated for employment.
§ Rehabilitation
This fellow is suitable for a return to work program. The only restrictions I would place on his shoulder is that he not perform any heavy or overhead repetitive work. He should not ride a motor cycle.
He can perform any tasks above shoulder height but should not perform repetitive tasks above his shoulder height. He would be able to lift anything up to 15kg when carrying things.”
25. Dr Duke’s later report was also prepared at the respondent’s request after he had viewed video surveillance recordings of the applicant. In that report, Dr Duke stated:
“There appears to be significant disparity between this gentleman’s reporting of symptoms and his reporting of general physical restrictions and what he is actually able to apparently do on the video tape evidence. It would appear quite clear that this gentleman is embellishing his symptoms. I felt that this was probably the case when I saw him on 16/1/01. In my assessment then, it was my opinion that he was unlikely to return to work. What I specifically said was ‘it was my opinion that this fellow is unlikely to return to work from what I have seen’. In other words it was my feeling that this gentleman did not want to return to work and that his symptom reporting was going to continue until he was allowed to be paid out and cease work as a postal delivery officer.
…
I commented previously that the chance of this fellow returning to work is quite poor and by this I meant as follows:
§I felt this gentleman had no significant desire to return to work and wanted to no longer work for Australia Post. This was the impression of the situation from talking to this gentleman and perusing the other reports that were available to me at the time.
§From the video surveillance, I can say to you that this gentleman is physically capable of performing his previous job. It is my impression from the video surveillance and from seeing this gentleman that he would not need a rehabilitation program and could simply get straight back to work. It would be reasonable to offer him a strengthening program as he did have some disuse atrophy of the right shoulder but it is my firm opinion that this gentleman would not be in any way restricted from riding a motor cycle and performing full duties as a postal delivery officer.
…
This gentleman has obviously embellished his symptoms and should be offered a return to work program and if he declines it can then be said that he was offered every reasonable chance to return to work.
I would say that my estimation of 5% upper limb impairment as a result of this gentleman’s injuries is far in excess of what is actually the case having observed the video tape evidence as well as the other reports from Mister Investigations as well as Dr Stephen Goode.
I would like to change my estimate of permanent impairment and say this gentleman has a 1% impairment of the upper limb as a result of right shoulder injuries received in the accident. It is my firm opinion that this gentleman’s AC joint problems did not result from the accident as described and that in all probability the level of symptom reporting to the treating surgeon was excessive enough to warrant that surgeon believing surgery was indicated…”
26. Dr Fardoulys prepared numerous letters and reports in relation to the applicant, dated 17 December 1999 (Q2001/1022: T37, folio 48), 20 January 2000 (Q2001/1022: T64, folio 79), 12 May 2000 (Q2001/1022: T85, folio 104), 23 June 2000 (Q2001/1022: T90, folio 109), 18 July 2000 (Q2001/1022, T108, folio 128) and 21 December 2000 (Q2001/1022: T113, folio 138 and T151, folio 188). Dr Fardoulys’ reports relate to the surgery he performed on the applicant’s shoulder and knee and, in his early reports, he opines that the applicant would not be fit to return to work at that time. In his report of 21 December 2000, Dr Fardoulys advised that he had discharged the applicant from his care and considered that he has a permanent impairment of 10% in relation to his shoulder injury. He suggested that worksite assessment or a functional capacity evaluation may be useful in the applicant’s case.
27. On 3 January 2001, Dr Meyer, the applicant’s treating GP, provided a medical certificate covering the period 1 January 2001 to 31 March 2001 (Q2001/1022: T139, folio 170; see also Annexure C to Exhibit A2). In a covering letter to Kate Harrison, the applicant refers to the certificate as covering the period 1 January 2001 to 3 March 2001. In the T documents, the respondent refers to the certificate variously as expiring on 3 March and 31 March (see, for example, Q2001:1022: T142, folio 173 and T143, folio 175). However, it is clear to the Tribunal that the certificate covers the period 1 January 2001 to 31 March 2001.
28. No mention is made of this certificate in the section 37(1) determination prepared by Ms Harrison on 7 March 2001. It is not clear why the certificate was not referred to. Although Drs Walters and Duke expressed the opinion that the applicant was no longer unfit for work, they had not had the opportunity of re-examining him and instead based their opinions on the video surveillance recordings obtained by the respondent. In Dr Walters’ case some five months had passed between the time he had last seen the applicant and the viewing of the video recordings.
29. The Tribunal considers that it would have been appropriate for the respondent to contact the applicant’s treating GP for his opinion as to the applicant’s fitness for work before making the determination under section 37(1). Dr Meyer would have been aware of the level of pain killers and anti-depression medication being taken by the applicant and would have been able to give an opinion as to the applicant’s ability to drive whilst taking this medication and his general fitness for work.
30. The Tribunal notes that, in his report of 20 July 2001 (Exhibit A10), Dr Coyne refers to the applicant’s medication levels, their sedative effect and their effect on his ability to undertake a rehabilitation program. Dr Coyne stated:
“Given that Mr Ramsey (sic) has symptoms noticeable at night time, and that he is taking night time sedating agents as treatment of these symptoms, one would feel that if possible it would be best for any rehabilitation program to be carried out when he is less likely to be sedated and when his pain is less likely to be noticeable.”
31. In an earlier report, dated 9 May 2001 (Q2001/1022: T166, folio 216-217), Dr Coyne commented:
“I have no direct knowledge of any rehabilitation program for Mr Ramsay or how any such program was organised. I agree it would in general be appropriate for a post-injury rehabilitation program to be prepared in consultation with treating doctors. I note that your letter of 06.04.01 comments that Mr Ramsay’s rehabilitation program involved starting at 3am. The appropriateness of this would presumably relate to Mr Ramsay’s normal duties. I agree that the use of adjuvant night-time medication such as Zoloft and Temaze would need to be considered when planning such a start time.”
32. The Tribunal agrees. A treating doctor’s opinions are relevant considerations to which a decision-maker should have regard pursuant to section 37(3)(h) of the Act. The failure to refer to Dr Meyer’s certificate and to specifically reject its contents further implies the respondent did not consider the certificate or the views of the treating GP when making the determination under section 37(1).
33. Accordingly, the Tribunal is satisfied that the applicant was entitled to rely on the certificate provided by Dr Meyer as a reasonable excuse for failing to report for duty on 12 March 2001 and undertake the rehabilitation program. Further, the Tribunal is satisfied that the fact that Mr Ramsay experienced most of his pain during the early hours of the morning, in light of the lack of consultation in the preparation of the rehabilitation program, would also amount to a “reasonable excuse” under the Act.
34. Given these findings, the Tribunal can proceed to consider the cessation decision and the new claims issue.
The Cessation Decision
35. On 7 March 2001, Dennis Hoffman, Claims Manager with the respondent, determined that the respondent was no longer liable to pay compensation to the applicant in relation to the injuries he sustained in the motor vehicle accident on 24 August 1999 (Q2001/1022: T156, folio 198-199). He stated:
“1.The degenerative changes in the cervical spine and the lumbar spine from which you now suffer are no longer influenced by effect from injury on 24 August 1999. Consequently there is no further entitlement in terms of section 14(1) of the Safety Rehabilitation and Compensation Act 1988 in respect of this condition.
2.The effects of injury to the right knee on 24 August 1999 have resolved. Any effects of that injury would not preclude or restrict return to employment and there is no further requirement for medical treatment. Consequently there is no further entitlement in terms of the provisions of section 14(1) in respect of the condition of the right knee.
3.Since surgery, recovery of the right shoulder has stabilised and the condition does not preclude return to suitable employment. I find further to this that Australia Post is able to offer suitable full time work within medical indications.
Now therefore I determine that you are not entitled to further payment of compensation under section 19 of the Act in respect of any injury resulting from the accident of 24 August 1999.”
36. In making the above determination, Mr Hoffman had regard to medical reports prepared by Drs Fardoulys, Walters and Duke. The contents of those medical reports have been discussed earlier in this decision (at pars 22 to 26), and their content appears to support the respondent’s finding that there was no longer a connection between the applicant’s injuries and the motor vehicle accident on 24 August 1999.
37. There were other medical reports before the Tribunal.
38. Exhibit A9 is a report by Dr Mark Robinson, a hand and upper limb surgeon, dated 17 November 2002. Dr Robinson opines:
“The accident is likely to have aggravated underlying degenerative changes in his cervical spine, lumbosacral spine and right knee. The aggravation of this degenerative change accounts for increasing symptoms three years after the accident.
I have viewed the video provided with this file. The video demonstrated Mr Ramsay in the community performing a variety of activities including walking, swimming, assisting in a retail outlet and riding a pushbike.
Of note there is a paucity of spontaneous activity with the right arm. He lacks a symmetrical arm swing whilst walking. He is noted to be carrying a plastic bag in his left hand preferentially. Mr Ramsay is noted to point with his right arm on four occasions on 11.10.2002 his right arm is elevated to just shoulder height. There are other times where his hand is raised to shoulder height including serving in the take away shop and closing the roller door with a hook. There is no identifiable evidence of Mr Ramsay voluntarily using his right arm for prolonged activities at and above shoulder height. The activities viewed in the video are consistent with his described disability. There is no evidence of Mr Ramsay performing activities outside his described disability with reference to his right shoulder.
…
The injuries are consistent with the stated cause. He has aggravated multiple areas of chronic degeneration. The accident has caused asymptomatic degenerative changes to become symptomatic. The natural history of many symptomatic areas of osteoarthritis is for a gradual progression of the development of symptoms. Mr Ramsay has developed a psychiatric diagnosis and this will have a negative impact on the way his symptoms impact on his lifestyle and general functioning. The injuries are consistent with the stated cause.
Future Capacity for Work
It is unlikely that Mr Ramsay will return to work with Australia Post. The video has demonstrated an ability to work in a retail outlet. There would be functional and psychological benefits to returning Mr Ramsay to a host employer or trial employment program. With adequate treatment of his psychiatric condition (of which I am not an expert) I would recommend a functional capacity evaluation and assessment by a vocational officer to identify alternate employment options for Mr Ramsay. …
Further Comments
Mr Ramsay feels he has been treated harshly by Australia Post during the rehabilitation phase. A combination of this perception and the development of depression following the accident has had a negative influence on his rehabilitation and prolonged his level of symptom reporting. He needs to finalise this aspect of his life with Australia Post. … An accurate prognosis is difficult considering the reported increase in symptoms from progression of the degenerative changes over the last 12 months.”
39. The Tribunal also had before it a number of reports by Dr Coyne, neurosurgeon and spinal surgeon, dated 31 May 2000 (Q2001/1022: T82, folio 100-101), 9 May 2001 (Q2001/1022: T166, folio 216-217), 20 July 2001 (Exhibit A10 and Q2001/1022: T170, folio 222), 4 July 2002 (Exhibit A11) and 22 August 2003 (Exhibit A12). In his first report, Dr Coyne states (Q2001/1022: T82, folio 100):
“He said his main spinal problem at present is low back pain. He said pain is in the mid and low lumbar region in the midline. He said if he stands for more than fifteen minutes he gets an ache in his legs. He said he often wakes in the early hours of the morning with back pain, and applies local heat and takes analgesics.
He also has constant neck stiffness and soreness. He said his neck often ‘locks up’ at night. He said he has a constract sharp occipital headache. He said pain radiates towards both shoulders, and also involves the anterior aspect of the right forearm.
…
It seems likely that Mr Ramsay’s motorcycle accident has resulted in injuries to the cervical and lumbosacral spine, which with a reasonable amount of pre-existing degenerative disease are taking a long time to settle. Clinically his main problems seem to be axial pain. There do not seem to be any significant examination findings to suggest significant nerve root or spinal cord compression, and so I don’t think there is going to be anything to offer him from a surgical aspect.”
40. In his report of 4 July 2002 (Exhibit A11), Dr Coyne states:
“It continues to appear likely that Mr Ramsey (sic) sustained musculoligamentous ± discal injuries to his cervical and lumbosacral spine in his motor vehicle accident of August 1999. At almost 3 years following his accident Mr Ramsey (sic) continues with symptoms referable to his cervical and lumbosacral spine as described above. The nature of Mr Ramsey’s (sic) symptoms is consistent with the nature of the injury he describes. As mentioned in my report of 09/05/01, Mr Ramsey’s (sic) imaging studies have shown the presence of pre existing degenerative disc disease, which is likely contributing to the severity and duration of Mr Ramsey’s (sic) symptoms. However, he reports being asymptomatic prior to the motor vehicle accident, suggesting this accident to be the most significant factor in his current condition.”
41. The medical evidence is consistent in relation to one matter. All doctors agree that the applicant had pre-existing degenerative changes in his spine prior to the accident, which were aggravated by the accident. The issue on which there is some disagreement is whether the effects of the aggravation caused by the accident have now resolved and whether the applicant’s symptoms are currently referrable only to his existing degenerative conditions.
42. Dr Walters was firmly of the view, even before viewing the video surveillance of the applicant, that the applicant’s ongoing symptoms were due to the moderately severe degenerative changes in his cervical spine, and to a lesser degree his lumbar spine, and that any aggravating affect of the motor vehicle accident would have been temporary (see report of 6 October 2000, Q2001/1022: T112, folio 136-137).
43. Similarly, Dr Robinson opines that the increasing symptoms three years after the accident are likely to be related to the aggravation of the underlying degenerative changes in the applicant’s cervical spine, lumbosacral spine and right knee. He considers that the accident caused asymptomatic degenerative changes to become symptomatic (see report of 17 November 2002, Exhibit A9).
44. Dr Coyne considers that the pre-existing degenerative changes are likely to be contributing to the severity and duration of Mr Ramsay’s symptoms, although he is of the opinion that the fact the applicant had been asymptomatic prior to the accident implies that the accident is the most significant factor in the applicant’s ongoing symptoms (see Exhibit A11 and Q2001/1022: T82, folio 100).
45. Having regard to all of the medical evidence before it, the Tribunal finds that the applicant’s accident on 24 August 1999 caused an aggravation to pre-existing degenerative changes in his cervical and lumbosacral spine. The Tribunal is satisfied that it is these degenerative changes which are causing the ongoing symptoms in the applicant, and that any aggravation caused by the accident was temporary and its affects have now ceased.
46. In relation to the applicant’s right shoulder, Dr Robinson did not consider any of the activities shown on the video surveillance of the applicant were outside the disability described to him by the applicant.
47. Prior to viewing the video surveillance, Dr Duke had expressed the opinion that the applicant’s shoulder injury was minor, and that his AC joint was probably arthritic prior to the accident. In January 2001, the doctor considered Mr Ramsay to have minimal troubles in his right shoulder and that, although he had suffered some permanent impairment in the shoulder, his shoulder should not prevent him for working. After viewing the video, Dr Duke formed the opinion that Mr Ramsay had been embellishing his symptoms, that he had only a very minor impairment in his shoulder, and that his problems in his AC joint were not the result of the accident.
48. In December 2000, Dr Fardoulys considered the applicant’s shoulder problem to have stabilised and that no further treatment was warranted.
49. On the basis of the medical evidence available to the Tribunal, the Tribunal is satisfied that the shoulder injury the applicant suffered in the accident was relatively minor, that the condition had stabilised by December 2000, and that it was not preventing him from working, albeit with some appropriate limitations on the kinds of work he undertook. Accordingly, the Tribunal finds that the respondent’s decision to cease compensation in relation the applicant’s shoulder was properly made.
50. Similarly, having regard to the evidence before the Tribunal, it is clear that the effects of the injury to the applicant’s right knee in the motor vehicle accident have resolved and that the knee condition is not preventing the applicant from working.
51. Accordingly, the Tribunal affirms the decision under review in so far as the respondent determined that liability for compensation for injuries to the applicant’s neck, back, right knee and right shoulder had ceased.
The New Claims
52. On 10 July 2002, the respondent wrote to the applicant advising that his “Claim for Rehabilitation and Compensation” and “Compensation Claims for Permanent Injury” could not be considered until the proceedings in this Tribunal in relation to the suspension issue had been resolved (Q2002/856: T20, folio 54). The applicant requested a reconsideration of the decision, and the respondent replied, on 21 August 2002, stating (Q2002/856: T24, folio 59):
“This letter of 10 July informed you that Mr Ramsay’s rights to compensation had been previously suspended under s37(7) of the SRC Act. As a result he could not issue any new determinations which related to the same matter.
…
The Claims Manager has specifically stated that he is not and will not be making a determination in regard to this matter. As there is no determination, it follows that there is nothing for me to reconsider under section 62. Therefore your request of 18 July could not be entertained.”
53. The first question for the Tribunal is whether the letter of 10 July 2002 amounted to a determination under the Act. Section 60 defines a “determination” as a determination, decision or requirement made under, relevantly, sections 14 or 24 of the Act. “Decision” is defined as having the same meaning as in section 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth), that is:
“(a)making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.”
This definition is broad and is intended to cover ultimate or operative determinations rather than determinations of issues arising in the course of making an ultimate or operative determination: Director-General of Social Services v Chaney (1980) 3 ALD 161. However, the Federal Court warned against taking a narrow or pedantic approach to determining whether a decision falls within the scope of review by the Tribunal (Director-General of Social Services v Hales (1983) 47 ALR 281), and considered that the meaning of decision “must take its colour and content from the enactment which is the source of the decision itself”. Lockhart J said:
“It is necessary to examine the Act which confers jurisdiction on the AAT and the administrative framework in which it operates to determine whether there is a ‘decision’ susceptible of review under the AAT Act. A pronouncement which alters rights or imposes liabilities is readily classified as a ‘decision’, but the word has wider scope. It may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities: Duncan v Defence Force Retirement and Death Benefits Authority (1980) 3 ALD 113 at 117…”
54. In this case, the respondent advised the applicant that they could not consider his permanent impairment claims or his claim for compensation for his psychiatric condition as his rights to compensation were suspended by virtue of section 37(7) of the Act. As mentioned earlier, section 37(7) is a self-executing section. It comes into operation as a result of a person’s failure to undertake a rehabilitation program. The respondent does not need to make a determination for it to have effect. Its effect is immediate and continues until such time as a decision-maker is satisfied that the person had a reasonable excuse for failing to undertake the program.
55. At the time the respondent wrote to the applicant on 10 July 2002, section 37(7) was in effect, the respondent not being satisfied that the applicant had a reasonable excuse for failing to undertake the rehabilitation program. As such, the respondent was prevented, by section 37(7), from considering the new claims. They were not in a position to make a determination. Similarly, they were not in a position to refuse to make a determination. They could do nothing in relation to the applicant’s new claims until the issue of suspension was resolved.
56. As such, the Tribunal is satisfied that the respondent’s letter of 10 July 2002 did not amount to a determination in this matter, nor was it a refusal to make a determination. It was just a letter advising that the respondent was unable to consider the claims as the applicant’s rights had been suspended pursuant to section 37(7). Similarly, the letter of 21 August 2002 cannot be considered a determination or reconsideration of a determination. As such, the Tribunal is satisfied that it does not have jurisdiction in relation to application number Q2002/856.
57. The Tribunal notes, though, that given its findings in relation to the section 37(7) issue, the respondent should consider the new claims without delay.
Decisions
58. For the reasons given above, the Tribunal:
(a)finds that the applicant had a reasonable excuse for failing to undertake the rehabilitation program commencing on 12 March 2001, pursuant to section 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (file number Q2001/1022);
(b)affirms the decision of the respondent dated 17 September 2001 (which affirmed the decision of 7 March 2001), that the respondent is no longer liable to pay compensation to the applicant in respect of his neck, back, right shoulder and right knee conditions (file number Q2001/1022); and
(c) being satisfied that it has no jurisdiction in application number Q2002/856, directs that the application be dismissed.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: S Oliver
AssociateDates of Hearing 1 and 2 September 2003; 31 March 2004
Date of Decision 30 June 2004
Counsel for the Applicant Mr Rangiah
Solicitor for the Applicant Maurice Blackburn Cashman
Counsel for the Respondent Ms Downes
Solicitor for the Respondent Clarke and Kann
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