Re Sambastian and Australian Postal Corporation

[2010] AATA 141

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 141

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos    2007/2985 and 2008/2716

GENERAL ADMINISTRATIVE DIVISION		)
Re		ARMAND SAMBASTIAN

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Deputy President D G Jarvis and Professor P L Reilly AO, Member

Date26 February 2010

PlaceAdelaide

Decision

1.      In matter number 2007/2985 in respect of the refusal to undertake            the rehabilitation program, the tribunal:

(a) remits the decision under review to the respondent for reconsideration, pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth);

           (b)      reserves liberty to apply within 28 days in relation to the period within which the decision under review is to be determined;

           (c)      directs that in the absence of any such application, the decision under review is to be reconsidered on or before 30 April 2010; and

           (d)      reserves the question of costs for further consideration.

2.      In matter number 2008/2716 in respect of the claim for compensation for the right elbow injury, the tribunal:

(a)       sets aside the decision under review, and in place of that decision, decides that the respondent is liable for compensation in respect of the injury to the applicant’s right elbow;

           (b)      reserves liberty to apply within 14 days in relation to the costs of the proceedings; and

           (c)      orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by the applicant. 

D G Jarvis
  (Signed)

Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employee – refusal or failure to undertake rehabilitation program without reasonable excuse – excuse need not be stated by applicant – objective test of reasonableness – whether reasonableness of excuse must be determined at time of refusal to undertake program and also thereafter until program is undertaken – relevance of evidence arising after refusal to undertake rehabilitation program – decision to suspend right to compensation remitted to respondent for further consideration – injury to elbow – decision to deny liability set aside – meaning of “without reasonable excuse”.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14 and 37(7)

Australian Postal Corporation v Forgie & Anor (2003) 130 FCR 279

Buck v Comcare (1996) 66 FCR 359

Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426

Comcare v Murphy [1996] FCA 1232

Ganin v NSW Crime Commission (1993) 32 NSWLR 423

Kizbeau Pty Limited v W.G. & B. Pty Limited (1995) 184 CLR 281

Pascoe v Australian Postal Corporation (2004) 77 ALD 464

Shi and Migration Agents’ Review Authority (2008) 235 CLR 286

Trajkovski v Telstra Corporation Limited (1998) 81 FCR 459

Butterworths, Cross on Evidence (4^th Australian Edition)

Harold Luntz, Assessment of Damages for Personal Injury and Death (3rd Edition, 1990)

REASONS FOR DECISION

26 February 2010   Deputy President D G Jarvis and   Professor P L Reilly AO, Member

1.        The applicant, Armand Sambastian, is an employee of the respondent, Australian Postal Corporation (Australia Post).  He injured his left shoulder on 8 August 2001 in the course of his employment, and experienced aggravations of that injury during his employment at various time between 2003 and 2005.

2.        He went overseas for personal reasons in September 2005, and returned about one year later.  He was due to resume work at Australia Post in October 2006, but did not do so, and claims that he remains incapacitated from working as a postal delivery officer.

3.      Australia Post provided a rehabilitation program which was to commence in April 2007.  Mr Sambastian claimed that the work entailed in the program would have aggravated his shoulder condition, and also his right elbow, which during the course of the discussions leading to the preparation of the rehabilitation program, he claimed he had injured in 2002 in the course of his employment.

4.      Australia Post first rejected his claim for compensation for his shoulder injury, but later accepted liability for it, and for aggravations of it.  However, Australia Post made a reviewable decision that Mr Sambastian’s entitlement to compensation is suspended because he refused, without reasonable excuse, to undertake the rehabilitation program.  Australia Post also decided to deny liability for compensation for the injury to the right elbow.  Mr Sambastian has applied to this tribunal for review of these decisions.

Issues before the Tribunal

5.      The issues before the tribunal are accordingly:

(a)whether Mr Sambastian refused or failed, without reasonable excuse, to undertake the rehabilitation program;

(b)whether by virtue of s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) his rights to compensation under that Act are suspended; and

(c)whether Australia Post is liable to pay compensation in respect of an injury to his right elbow.

6.      The applicant’s Amended Statement of Facts, Issues and Contentions includes a further issue, namely the “validity” of the rehabilitation program.  This issue was not pursued at the hearing.

7.      Certain sub-issues arise from the evidence before us, as follows:

(a)is the determination of whether Mr Sambastian had a reasonable excuse for refusing or failing to undertake a rehabilitation program confined to a consideration of

·           the excuses he communicated to Australia Post; or

·           his subjective excuses; or

can the consideration extend to matters which, viewed objectively, constitute a reasonable excuse;

(b)can the determination be informed by relevant evidence or events which do not become available, or occur, until after the date of the initial refusal or failure; and

(c)is it necessary to consider whether a reasonable excuse exists at any time during the period after the initial refusal or failure until the employee begins to undertake the program?

Background

8.      The following background facts are not in contention, and are derived from the applicant’s evidence and the documentary material before us.

9.      Mr Sambastian is aged 38.  He started working for Australia Post in June 1999 as a postal delivery officer.  This entailed sorting mail into its delivery sequence, packing it for delivery and then delivering the mail.

10.     On 8 August 2001 Mr Sambastian was using a motorcycle to do his round, and hurt his left shoulder.  He was placing mail in a high letterbox, but lost his balance; the motorcycle tumbled beneath him, and he twisted his shoulder.  He completed an Incident Report Form later that day, and the next day went to see a general practitioner.  He was referred for physiotherapy, and was later referred for an x-ray and an ultrasound scan, which did not reveal any injury.

11.     He had recurrences of shoulder pain periodically after that, and completed further Incident Report Forms in respect of his shoulder pain in October 2003 and August 2004.  He requested alternative duties.  His work then alternated between driving a van, doing a scooter round or doing a walk round.  He said the walk round was usually for two weeks at a time.  It entailed pushing a trolley.

12.     He consulted general practitioners from time to time regarding his shoulder pain.  They issued certificates periodically when his shoulder pain recurred, and copies of these certificates were tendered (exhibit R5).  He finally lodged a claim for compensation in respect of his shoulder on 1 September 2004 (exhibit R1, T7, pages 26-28).  Australia Post rejected the claim, and in a subsequent reviewable decision, affirmed that rejection.  Mr Sambastian applied to this tribunal for review of that reviewable decision, and it was set aside in a consent decision of this tribunal in April 2006, when the tribunal recorded that Australia Post had accepted liability in respect of the left shoulder injury and subsequent aggravations of it.

13.     In the meantime, his then general practitioner, Dr Wilkinson, had referred him to Dr Martin, an orthopaedic surgeon.  On 5 August 2005, Dr Martin performed an arthroscopy debridement of the posterior-inferior labrum of the left shoulder.  In a report dated 29 August 2005, Dr Martin said:

“7.I would advise restrictions on working with his arm at or above shoulder level and using heavy weights or performing repetitive actions above shoulder level.

8.I believe that he should have settled from the surgery approximately two to three months following the operation.

9.I have provided him with a medical certificate certifying him unfit until the 18^th of September 2005, and then for light duties for a month following that.” (exhibit R2, pages 117-118)

In a medical certificate dated 15 September 2005, Dr Martin certified that Mr Sambastian was fit to return to pre-injury workplace duties on 18 September 2005 (exhibit R5, page 25).

14.     Late in September 2005 Mr Sambastian went to the United States.  He went on a driving tour around the country in a campervan.  For some months he also did unpaid work two nights a week as a night clerk/security officer in a hostel in West Hollywood where he was staying.  This work was not physically demanding.  One of his main functions was to receive guests who arrived after hours.

15.     He returned to Adelaide after 12 months.  He was due to return to work at Australia Post late in October 2006, but did not believe that his shoulder was “ready” (exhibit A1, paragraph 43).  He went to see a general practitioner, Dr Southcott, and obtained a certificate that he was fit to return to modified duties from 26 October to 15 November 2006 with the restrictions “not to raise left amr above shoulder, no reptitive left arm duties, not to lift > 2 kg with left arm” [sic] (exhibit R5, page 26).

16.     Mr Sambastian saw Dr Martin again on 16 November 2006 complaining of continuing symptoms in his shoulder.  Dr Martin arranged for an MRI arthrogram.  This did not show any significant labral detachment, but did show irregularity in the area of the previous injury and surgery, although no sign of significant capsular-laxity.  Dr Martin did not consider that any further surgical intervention would be beneficial, but referred to the possibility of more physiotherapy to improve strength.  Dr Martin also reported as follows:

“3.He suffered a left shoulder injury as outlined in previous reports.  He has ongoing pain and loss of some function in his left shoulder, which he says has never fully recovered following his surgery.

4I would advise review by a registered Occupational Therapist or Occupational Physician to assess his fitness for work, especially, with regard to duties as a Postal Delivery Officer.

…

6.Given that he has ongoing shoulder pain, some 15 months from surgery, his prognosis for returning to unrestricted duties is guarded at best.” (exhibit R2, page 125)

17.     After that Mr Sambastian’s general practitioner referred him to an occupational physician, Dr Meegan.  In a report dated 29 January 2007, Dr Meegan referred to the history of the injury and subsequent repair of the labral tear and said that a functional assessment could give a further guide to work restrictions, and a worksite visit could assess any suitable alternate duties.  His report also recorded that Mr Sambastian was complaining that previously offered duties were unsuitable (exhibit R2, page 70).  There was no evidence before us as to what duties Dr Meegan was referring to when he mentioned the so-called “previously offered duties”, or as to when such duties had been offered to Mr Sambastian.

18.     Australia Post had requested various medical reports concerning Mr Sambastian, both before he went to the United States and after he returned.  These reports included a report dated 31 January 2007 from an occupational physician, Dr Graham, from Australia Post Health Services.  In response to specific questions regarding Mr Sambastian’s fitness to return to work, Dr Graham replied:

“Mr Sambastian should avoid tasks which require abduction and external rotation of the left shoulder.  This would include reaching to letterboxes above shoulder height to deliver letters.  He should also avoid leaning forwards and lifting heavy containers of mail.

I would consider him fit to perform other duties of a postal delivery officer.  In particular he would be fit to sort mail, given that this is carried out with the right hand, the left hand being held close to the body.  He would also be fit to undertake a walk round.” (exhibit R1, page 58).

Formulation of Rehabilitation Program

19.     After receiving this report, a rehabilitation counsellor with Australia Post, Ms McLennan, arranged a meeting at the Marleston Delivery Centre on 21 February 2007.  Mr Sambastian attended with Ms McLennan and two other Australia Post employees.  Ms McLennan identified a round, referred to as “Round 49”, as involving duties that were suitable having regard to Mr Sambastian’s restrictions.  This was a motorcycle round, but Ms McLennan was later advised that it could be shortened to a walk round, using a trolley.  Ms McLennan then arranged for Mr Sambastian, and his general practitioner, Dr Southcott, to attend a case conference on 5 March 2007 to discuss the suitability of the proposed Round 49 duties.

20.     Ms McLennan went to Dr Southcott’s rooms for the case conference, but Mr Sambastian did not attend.  The case conference was rescheduled to 7 March 2007.

21.     On 6 March 2007, Ms McLennan telephoned Mr Sambastian to advise him of the rescheduled case conference.  He then told her that he had consulted another general practitioner, Dr Barnes, in relation to a right elbow condition arising from an accident at work in 2002, and that Dr Barnes had issued a medical certificate for modified duties from 6 March to 27 April 2007, with restrictions as follows, namely “(a)void heavy lefting ie less than 10 kg, clerical duties would be ideal” [sic] (exhibit R5, page 31).  Ms McLennan had not previously been made aware of a right elbow condition.

22.     The case conference with Mr Sambastian and Dr Southcott proceeded on 7 March 2007.  Dr Southcott gave evidence that it was apparent that there was a difference between Mr Sambastian and Australia Post in relation to the proposed Round 49, and thought it best to refer the matter to Dr Meegan, to whom he had previously referred Mr Sambastian.  During the case conference, Mr Sambastian referred to having injured his elbow at work in 2002.

23.     Ms McLennan subsequently made arrangements for Dr Meegan to attend a worksite assessment with Mr Sambastian on 20 April 2007.  By letter of 11 April 2007, Mr Sambastian advised that he did not propose to attend the assessment for a number of reasons, which he enumerated (exhibit R1, T27, page 65).  Ms McLennan made a determination pursuant to s 36(3) of the SRC Act that he was required to attend, and advised him of her determination by letter dated 13 April 2007.  Notwithstanding this, he advised her two days before the assessment that he did not propose to attend.

24.     On 20 April 2007, the worksite assessment proceeded.  Dr Meegan attended with Ms McLennan and three other employees of Australia Post.  Mr Sambastian did not attend.  After being informed of the duties that would be involved in Round 49, Dr Meegan expressed the view that Mr Sambastian would be able to undertake the duties.  In a report dated 20 April 2007 to Ms McLennan, Dr Meegan summarised his understanding of the duties that would be entailed in the rehabilitation program and concluded:

“In summary the duties viewed were almost entirely involving use of the right arm only.  They did appear suitable in my view and keeping with his restrictions.” [sic] (exhibit R1, T29, page 71).

25.     Earlier in the same report, Dr Meegan referred to Mr Sambastian having been “returned” to him through his general practitioner.  This was so; Dr Southcott had written to Dr Meegan on 7 March 2007 referring to Mr Sambastian’s assertion that he could not do the duties involved in the walk round and wanted only clerical duties.  Dr Southcott also said in this referral letter:

“I note he has a tennis elbow of long standing but I am not involved in the management of this problem.” (exhibit R2, page 72).

Regrettably Dr Meegan overlooked this issue when providing his opinion as to the suitability of the walk round at the worksite assessment on 20 April 2007.

26.     In a letter of 5 April 2007 reporting back to Dr Southcott, Dr Meegan recorded that Mr Sambastian was concerned that he would not cope with the trolley round offered to him by Australia Post, and said:

“I have given him the same advice as per my last letter to you, which would involve undertaking a functional assessment and work site visit to identify his capacity and suitability of duties.  It is likely Australia Post will arrange that through their preferred providers.” (exhibit R2, page 73).

In the event, and not surprisingly in view of the subsequent opinion expressed by Dr Meegan following the worksite assessment meeting, Australia Post did not arrange a functional assessment.

27.     A further meeting took place at the Marleston Delivery Centre on 26 April 2007.  The applicant attended with Ms McLennan and two other Australia Post employees.  Ms McLennan had partially prepared a pro forma return-to-work plan.  This was discussed and supplemented at the meeting.  It reflected the duties that had been explained to Dr Meegan at the worksite assessment meeting six days earlier.

28.     The plan entailed Mr Sambastian commencing a return to work on 27 April 2007.  It included the proposition: “Armand was assessed and found capable to undertake a rehabilitation program” (exhibit R1, page 75).  The duration of the plan “for this stage” was 27 April to 4 May 2007, involving five hours per shift from Monday to Friday.  Mr Sambastian was to be driven to and from the round in a van.  Other employees were to “band” the mail, that is, place rubber bands around mail that had been sorted into bundles.  The medical restrictions included:

“No heavy lifting > 5 kgs

No work above left shoulder height

Avoid repetitive left shoulder movement

No banding of mail.”

29.     The date and injury was described (incorrectly) in the work plan as “18/08/04, Left shoulder”.The work plan did not include any reference to an injury to the right elbow, but Ms McLennan pointed out during her evidence that the above restriction on lifting entailed a lower range than that required by Dr Barnes’ medical certificate.  Under the heading “Other actions to be taken during this period” Ms McLennan had inserted “Report any increase in systems/concerns to Supervisor and/or Rehab Counsellor immediately.” (exhibit R1, page 76).

30.     Mr Sambastian refused to sign the work plan, and made it clear that he would not participate in it.  In a letter dated 25 May 2007 (exhibit R1, T36, page 84), he gave two reasons for not participating in the rehabilitation program, namely that he had done the relevant duties in the past and they had aggravated his condition, and  that the plan required a large amount of assistance from other workers, which would result in harassment.

31.     It was apparent from his evidence before us that he maintains that the work would aggravate his shoulder and elbow, because that had been his experience from having done walk rounds before.  He said that in his experience the trolleys weighed 35 kg to 45 kg when loaded with mail.  He gave evidence to the effect that it was not only necessary to push the trolley, but also to “lift it and push down, pull up” (transcript 23.11.09, page 35, line 45), because on occasions the trolley would have to traverse kerbs.  He referred to obstacles on the footpaths and also to pedestrians, which meant that it was not always possible to use the ramps that traversed kerbs.  He also referred to concerns about having to be involved in more turning movements when sorting the mail before setting off to deliver it; these concerns were based on proposals to provide a letter holder so that he would not have to use his left arm, and to lower the height of shelves on the frames where letters were to be put when sorted.  He said that he had seen other people try to use a letter holder and they gave up because it did not work.  He also said that using his right hand only would mean that it would have taken longer to sort out the mail.  He was also concerned about proposals that other people would assist in some of his tasks, because they would have been involved in their own work, and he would have ended up having to do the tasks himself.

32.     According to the evidence of another Australia Post employee who was at the return-to-work plan meeting, Mr McDonnell, Mr Sambastian was told that he was to be accompanied on the walk round by a team leader who would take appropriate action if there were any issues.  This matter was not referred to by Ms McLennan or included in the written work plan, and it was not put to Mr Sambastian in cross-examination.  We are not satisfied that this arrangement formed part of the work plan.

33.     Later opinions were provided by Dr Meegan and by medical witnesses consulted by Australia Post as to the suitability of Walk Round 49.  We will refer to these below.

History of claim in respect of right elbow

34.     We have referred above to the time when Ms McLennan first became aware of a right elbow injury.  In his evidence, Mr Sambastian described an incident that caused his elbow injury.  He said that on 11 March 2002, while he was delivering mail, the front wheel of his motorcycle became caught between the grass/dirt area and the footpath, causing him to lose control.  The motorbike then collided with the front wall of the adjacent property, jarring his right elbow.  His description of the jarring was amplified in the following passage in cross-examination:

“ … I remember it quite clearly, that the handlebar initially pulled away from me quite strongly and then towards me quite strongly.  I think, when it pulled away – I’m not too sure if it was when it was pulled away or pushed towards me that I felt or heard a large click.  I thought I had broken the bone, but it seemed to work fine afterwards.” (transcript 24.11.09, page 46 lines 41 – 45)

He said that the force of the impact bent the front fork of the motorcycle, and it required a significant force to do that.

35.     He filled out an accident report form for Australia Post’s insurers (exhibit R3, T3, page 5).  Part 6 to this form required a disclosure of “Injuries as a result of this accident (including all parties)” and included space for names to be included, as well as “Names of the above attended by a doctor or removed to hospital”.  Mr Sambastian inserted “None” in this section of the form.

36.     Mr Sambastian also completed a second form, namely an Australia Post Incident Report Form, and again did not disclose any injury in response to a question inquiring as to the “Nature of injury or illness apparent at the time of report and part of body affected” (exhibit R3, T4, page 7).  He said that whilst he did not disclose an injury in the form he had filled in, he had taken a copy of the form because he was “a bit worried” about his elbow (transcript 23.11.09, page 59).

37.     Mr Sambastian said that his elbow felt sore for a few days afterwards, but he did not seek medical attention or take time off from work.  In the course of cross-examination, he was asked whether his elbow was a serious disabling injury.  He said:

“But initially I didn’t think it was much. … Initially there was just numbness in the elbow and it wasn’t too bad.”  (transcript 23.11.09, page 58, line 29-32)

He added that his elbow was painful and numb on the day it happened and for the first few days, and then it seemed to be okay but it would flare up.  He said that although he continued to have symptoms from his elbow, his left shoulder was his main concern.  He lodged a formal claim for compensation in respect of his elbow on 18 March 2008.

38.     Mr Sambastian did not seek medical advice about his elbow until 1 March 2007.  He went to see a different general practitioner, namely Dr Barnes, who arranged for an x-ray.  It did not reveal any abnormality.  In November 2007, he referred Mr Sambastian to an orthopaedic surgeon, Dr Waters, who arranged an MRI.  This revealed that there was a “full thickness loss of the articular cartilage overlying the capitellum.  No loose body is seen within the joint.  Common flexor tendinosis.” (exhibit R3, T6, page 10).  Dr Waters reported that clinically Mr Sambastian was behaving “as though he has a loose body with the catching episodes” and recommended a review by Dr Bain for consideration of an elbow arthroscopy (exhibit R4, page 158).

39.     Australia Post had previously referred Mr Sambastian to Associate Professor Bauze.  In a report dated 14 February 2008, Associate Professor Bauze referred to Mr Sambastian’s elbow symptoms, which included pain when the right elbow was fully extended, and pain in the elbow with any straining or squeezing or repetitive activity with his right hand.  He recorded on examination that there was tenderness over the radio-capitellum joint on the outside of the right elbow but otherwise no tenderness, and there was a full range of movement without pain.

40.     Australia Post had also referred Mr Sambastian to a rheumatologist, Dr Begg.  In a report dated 16 September 2009 he made a diagnosis of osteoarthritis of the radio-capitellum joint of the right elbow.  In answer to a question as to the cause of the right elbow condition, he reported:

“In the absence of any history of some other event other than the incident on 7 March 2002 it is presumed that the degenerative process in the right elbow was initiated on that date, due to cartilage contusion on the capitellum from a forceful impact event.” (exhibit R4, T9, page 63).

41.     Dr Begg further reported that the symptoms described were consistent with the MRI findings, that without further treatment Mr Sambastian was likely to feel variable discomfort in the right elbow from time to time, and that the suggested arthroscopic debridement of the elbow would not cure the condition, but could minimise the symptoms if they were found to be intolerable.

42.     Dr Meegan said in the course of his evidence that having regard to Mr Sambastian’s age, the osteoarthritis in the elbow was more likely to be traumatic in origin than due to the natural progression of osteoarthritis, because it would be unusual in his experience for someone at 37 years of age to have a full thickness cartilage loss in their elbow without some initiating trauma (see transcript, 24.11.2009, page 22, line 6).

Legislative Provisions

43. Section 14(1) of the SRC Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations, and provides as follows:

“14(1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.” 

44.     The word “injury” is defined in s 4(1) of the SRC Act as in force at the time of the asserted injuries relevantly to mean “an injury … suffered by an employee … arising out of, or in the course of, the employee’s employment.”

45. Division 3 of Part III of the SRC Act provides for rehabilitation programs. Section 37(7) provides as follows:

“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.”

Consideration

Claim in respect of right elbow

46.     Counsel for Australia Post, Mr Gilchrist, was critical in a number of respects of Mr Sambastian’s credibility, and submitted that his evidence should not be relied upon unless it was inherently likely or independently corroborated.  Mr Gilchrist referred to a number of specific instances where, he submitted, Mr Sambastian provided a deliberately inaccurate or incomplete history in order to manipulate or deceive certain of the medical witnesses who gave evidence.  Mr Gilchrist was also critical that Mr Sambastian had consulted a different general practitioner, Dr Barnes, regarding his elbow, rather than returning to Dr Southcott, the general practitioner whom he had consulted concerning his shoulder condition after his return from his first period of absence in the United States.

47.     We have considered all of the criticisms of Mr Sambastian’s credibility, and in doing so we have carefully reviewed all of the evidence and material before us.  We think that in certain respects, Mr Sambastian was not able to articulate his position clearly.  This may well explain some discrepancies in the histories recorded in some of the medical reports before us.  It was also apparent that at times he became disconcerted during the course of his cross-examination, and that he was mistrustful of Australia Post’s response to his claims for compensation.  However, on the whole, we found Mr Sambastian’s evidence to be reasonably consistent, and think that he did his best to recall relevant events.  We find that he gave an honest description of the events to which he attributes his shoulder and elbow injuries and of his symptoms and their effect on him from time to time, and we accept that he was a truthful witness.

48.     We think it unnecessary to address each of the criticisms levelled by counsel.  However, it is appropriate to say that we accept Mr Sambastian’s explanation that he consulted Dr Barnes because he had recently moved to a new address, and we note that he stopped seeing Dr Southcott in connection with his shoulder soon after he saw Dr Barnes and had been reassessed by Dr Meegan.  We accept Dr Meegan’s evidence that he did not tell Mr Sambastian that he need not attend the worksite assessment on 20 April 2007; nevertheless, we note that there is a contemporaneous reference, in Mr Sambastian’s letter to Australia Post of 11 April 2007 (exhibit R1, T27, page 65) to his having made some inquiries, presumably either of Dr Meegan or his rooms, as to the time of the day when Dr Meegan would be able to attend the proposed worksite assessment.  It is correct that the letter includes the statement that Dr Meegan had said that his attendance was not necessary.  Nevertheless, there was no evidence that Australia Post enquired at the time whether Dr Meegan had said this, or as to the inquiries that Mr Sambastian had made that led to his making this statement; and the concluding statement in his letter that he “would prefer to attend but only if a more reasonable time were arranged” is consistent with a mistaken belief that his attendance was not necessary.

49.     Mr Sambastian may also have been mistaken in his recollection that he told Dr Meegan about his elbow condition at his second consultation with him, but we also note that prior to the date of the second consultation Dr Southcott had, as mentioned above, referred to a “tennis elbow of longstanding” with the qualification that he was “not involved in the management of this problem”, and Dr Meegan candidly admitted in his evidence that he had overlooked the elbow at the time of the worksite assessment on 20 April 2007.

50.     Mr Gilchrist was also critical of Mr Sambastian’s evidence as to whether or not he had applied for citizenship in the United States.  Mr Sambastian subsequently provided a detailed account of his communications with the United States migration authorities and his decision not to proceed with an application for citizenship.  He produced documents which were consistent with his earlier somewhat confused explanation of steps he had taken that had led him to say that he had applied for citizenship.

51.     Mr Gilchrist further contended in particular that we should not accept Mr Sambastian’s evidence that his right elbow condition was caused by the motorcycle accident on 7 March 2002, or his denial that there had been some other trauma that precipitated his right elbow condition.  Mr Gilchrist pointed out that no injury had been reported in the incident report form or in the motor vehicle accident report form, that Mr Sambastian did not seek medical attention at the time of the accident, or indeed until about five years later, that he did not have time off from work because of his elbow, and that he did not request any modification of his work by reason of elbow symptoms.

52.     Mr Sambastian said in effect that after the accident, he could bend his elbow, and it was painful and numb for a few days and then it seemed alright, but it would flare up.  It seems clear that the impact with the wall was a forceful one, because it bent the front fork of the motorcycle.  We accept that the impact caused jarring to the elbow in the manner which Mr Sambastian described in his evidence.  We further accept his evidence that he did suffer some symptoms in the period immediately after the accident and then periodically after that.  We also accept his evidence that his main concern was with his left shoulder, which subsequently necessitated surgery, and this might also explain his lack of attention to his elbow symptoms.

53.     Mr Gilchrist also referred to the delay before a claim for workers’ compensation was made in respect of the elbow injury.  However, we take into account Mr Sambastian’s perception to the effect that managers and fellow employees resented people who were injured and lost time from work.  We also note that there was a significant delay before he made a claim for compensation in respect of his shoulder injury, and it appears also, from the history he provided to Dr Begg, that he continued to work following his shoulder injury.  The delay in claiming compensation for the elbow and the failure to take time off work is of less significance when viewed in the light of his response to the earlier shoulder injury.  We also note that Australia Post summoned the records of the various general practitioners and other specialists who have been involved in Mr Sambastian’s treatment or the assessment of his shoulder and elbow conditions, and there is no reference in any of the extensive material produced in response to the summonses to any other event which might explain the condition of the right elbow, as revealed by the MRI scan.

54.     We find that the condition of the right elbow, as confirmed by the MRI examination, and Mr Sambastian’s evidence as to his intermittent symptoms in the elbow, are consistent with an injury to the elbow occurring at the time and in the manner he described, and that his elbow injury was caused by the impact with the wall as he has claimed.  Australia Post is accordingly liable for compensation in respect of this injury.

Did the applicant have a reasonable excuse for refusing or failing to undertake the rehabilitation program?

55. Section 37(7) of the SRC Act is expressed in terms that are self-executing. However, as was pointed out by a Full Federal Court in Australian Postal Corporation v Forgie & Anor (2003) 130 FCR 279, the suspension of an employee’s right to compensation must be preceded by an officer of the determining authority forming an opinion that there has been an unreasonable refusal or failure to undertake a rehabilitation program. The Court accordingly decided that this tribunal had jurisdiction to review suspension decisions made under s 37(7), as such decisions are “determinations” within the meaning of s 60 of the SRC Act.

56. We referred in paragraphs 30 and 31 above to Mr Sambastian’s reasons for refusing to undertake the rehabilitation program. We consider that a determination of whether an employee has refused or failed, without reasonable excuse, to undertake a rehabilitation program within the meaning of s 37(7) of the SRC Act should not be confined to the subjective excuse(s) proffered by an employee, and that excuses that are objectively reasonable should also be taken into account in considering the application of s 37(7): Ganin v NSW Crime Commission (1993) 32 NSWLR 423. An objective construction was also given to the words “without reasonable excuse” in s 57(2) in Buck v Comcare (1996) 66 FCR 359 at 361 and to those words in s 37(7) in Trajkovski v Telstra Corporation Limited (1998) 81 FCR 459 at 464, and that aspect of those cases was not disapproved by the Full Court in Australian Postal Corporation v Forgie (supra).  In Ganin (supra) the relevant Act provided in effect that a person should not “without reasonable excuse … refuse or fail to answer a question” that the person was required to answer by the presiding member of the New South Wales Crime Commission.  The Court of Appeal held that the issue was whether the witness had a reasonable excuse, not whether the witness expressed a reasonable excuse.  In the course of his judgment, Kirby P, as he then was, said:

“… the question is not whether the excuse stated or subjectively conceived was reasonable.  It is whether, at the relevant time of refusal to answer the question as required, there was, or was not, a reasonable excuse.  In accordance with orthodox canons of construction these words would not be given a narrow meaning.”

We are mindful that s 37(7) does not entail a criminal sanction for its breach, but it does entail a significant consequence, namely that the employee’s rights to compensation under the SRC Act are suspended; in our view it would be inconsistent with the beneficial nature of the Act for the words “without reasonable excuse” in s 37(7) to be given a narrow meaning.

57.     It also follows from Ganin that in applying s 37(7) other words should not be substituted for the statutory expression “without reasonable excuse”.

58.     It is now approaching three years since Mr Sambastian refused to undertake the program.  Additional information has become available, and subsequent events have occurred, over the intervening period.  This raises questions as to the date at which the reasonableness of the excuse is to be determined, and the relevance of such subsequent information and events.

Reasonableness of excuse as at date of refusal to undertake rehabilitation program

59.     If we confine our consideration to the facts known as at the date of Mr Sambastian’s refusal to undertake the program, we consider, and find, that he did not have a reasonable excuse for refusing to undertake the program.  The duties involved in Round 49 were such that he would not have to ride a motorcycle or use his left arm to any significant extent.  The plan took into account the restrictions referred to in the medical certificate from Dr Barnes relating to the symptoms in Mr Sambastian’s right elbow.  There was nothing to suggest that the footpath was unsuitable for the use of a trolley, or that there were obstructions that would make the round unsuitable.  The duration of the plan was for only one week (a matter which Mr Sambastian said in evidence he had not appreciated at the time).  The plan required him to report any increase in symptoms or concerns to his supervisor and/or the rehabilitation counsellor immediately.  The duties involved in the plan had previously been explained to Dr Meegan, and he advised that they appeared suitable and in keeping with Mr Sambastian’s restrictions.  Similarly, Dr Graham had earlier expressed the view, from his knowledge of the duties of a postal delivery officer, that Mr Sambastian would be fit to sort mail, given that this was carried out with the right hand, and would also be fit to undertake a walk round.

60.     However, the determination of Australia Post in relation to whether there was a reasonable excuse for refusing to undertake the program was, in view of facts that have since emerged, unsatisfactory.   Mr Sambastian was not present at the work site assessment on 20 April 2007.  Dr Meegan did not take the right elbow condition into account when he provided advice to Australia Post after participating in the work site assessment.  Further, he was not shown the footpaths involved in Round 49, and was not familiar with the trolley that was to be used on the round. 

61.     As a general proposition, it is clear that we are entitled to, and should, take into account relevant evidence up to the date of the hearing, and it would be an error of law to disregard relevant medical evidence available after the date of the reviewable decision, and up to that date: Comcare v Murphy [1996] FCA 1232; Shi v Migration Agents’ Registration Authority (2008) 235 CLR 286.  In Shi, Kirby J said succinctly, at [41]:

“When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available.  This rule of practice is no more than a feature of good public administration.”

62.     There is also a general principle that evidence of subsequent events may be relevant to the determination of a state of affairs as at an earlier date: see generally, the discussion relating to “retrospectant evidence” in Butterworths, Cross on Evidence (4^th Australian Edition), Vol.1, at [1170], and Kizbeau Pty Limited v W.G. & B. Pty Limited (1995) 184 CLR 281, where the High Court decided that relevant events that occurred after the purchase of a business could be taken into account when determining its value at the date of purchase. This principle also applies to the assessment of damages in tort, where courts commonly have regard to events or developments between the date of the injury and the date of the trial which are relevant to the proper assessment of damages, even though the cause of action is complete at the time of the injury, and the plaintiff is thereupon entitled to have the damages assessed: see Harold Luntz, Assessment of Damages for Personal Injury and Death (3rd Edition, 1990), at [1.4.1].  The cases there cited include Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426 at 431, where it was held that evidence was admissible as to increases in the price of coal that had occurred after a notice had been given requiring the closure of the mine in determining the compensation payable to the owners of the mine. Lord Macnaghten said that the arbitrator should:

“… avail himself of all information at hand at the time of making his award which may be laid before him.  Why should he listen to conjecture on a matter which has become an accomplished fact?  Why should he guess when he can calculate?  With the light before him, why should he shut his eyes and grope in the dark?”

63.     We accordingly consider that in order to determine the reasonableness of the refusal to undertake that rehabilitation program as at the date of that refusal, evidence of subsequent information and events can, and should, if relevant, be taken into account.

64.     The further information that is now available to us includes:

(a)      evidence from Mr Sambastian as to his continuing symptoms and condition;

(b)      a subsequent assessment by Dr Martin in relation to the left shoulder;

(c)       a full investigation of the right elbow condition with the benefit of an MRI scan;

(d)a further report from Dr Meegan of 24 June 2008 in which, following an examination of the right elbow, he expresses the opinion that the duties involved in the return to work program would exceed Mr Sambastian’s restrictions and aggravate his condition;

(e)a further report from Associate Professor Bauze dated 14 February 2008, in which he expresses the opinion that work involving delivering mail into letterboxes, where there was a requirement of stretching the left arm out to the side which would sometimes be combined with a backward or upward movement, would not be suitable for Mr Sambastian, and refers to the “complicating complaint” with the right elbow (exhibit R2, T6, page 35);

(f)the evidence of Associate Professor Bauze to the effect that Mr Sambastian would be capable of doing a walk round, on the assumption that his right arm would not be in an extended position when pushing the trolley, and that he could do this with the arm flexed, and should also be able to use his left arm to push the trolley;

(g)the reports of Dr Begg of 4 and 16 September 2009, and his conclusion that with “self-management and commonsense the applicant is fully capable of performing the alternate duties” (exhibit R4, T9, page 64); and

(h)the evidence, including further medical evidence provided by each party, in the proceedings before us.

65.     The above further information is not, however, decisive.  Dr Meegan’s current opinion as expressed in his evidence was based on assumptions as to the nature of the footpath that would be traversed in Round 49, including such matters as the condition of the footpath, the nature and extent of any obstructions, the number of pedestrians, the slope of the footpath, any variations or undulations in that slope and their extent, the presence of ramps, and the need to traverse kerbs, and the weight, stability and manoeuvrability of the trolley.

66.     We are mindful that Mr McDonnell from Australia Post gave evidence to the effect that the footpath was in good condition, and that the trolleys were carefully designed and stable.  Contrary evidence was given by Mr Sambastian (although we are uncertain as to the extent of his familiarity with the footpaths involved on Round 49).  If our consideration is confined to the situation as at the date of refusal to undertake the rehabilitation program, we will need to decide the state of the footpath and related issues as at that date.  Of course, it would be possible for Dr Meegan and any other person advising as to capacity for employment to inspect the footpath as it is now, and evidence might well be available as to whether the footpath was in the same or a similar condition at the date of the refusal to undertake the work program.  If such information is available, we might have been assisted by a view of the relevant footpaths.  Further, Dr Meegan has expressed the view that it would be of assistance for a functional capacity evaluation to be conducted by an occupational therapist, as this would provide a more objective measure of the restrictions on Mr Sambastian’s ability to use his left shoulder and right arm.  Dr Waters has recommended a review by a surgeon to give consideration to an elbow arthroscopy whereby any loose bodies in the elbow could be removed (exhibit R4, page 158).  It seems to us that these matters, and the issues referred to in the preceding paragraph, should be further investigated.

67.     Mr Sambastian did not request a review of the determination to provide the rehabilitation program communicated to him on 26 April 2007 within 30 days of being notified of that determination.  We note that later there were letters from Mr Sambastian’s solicitors to Australia Post’s solicitors requesting that a functional capacity evaluation should be carried out, and that a further return-to-work plan be prepared in the light of such an evaluation and a further worksite visit by Dr Meegan (see the letters included in exhibit A10).  The letters also advised that Mr Sambastian could not undertake the duties involved in the rehabilitation program, and requested that suitable duties be provided.  They also confirmed that Mr Sambastian was willing and able to return to clerical duties in accordance with restrictions certified by his treating doctor, and asked whether such duties could be provided.  The evidence before us does not include copies of any responses to these letters.  There was no evidence before us that Mr Sambastian was given an explanation as to why (if this was the case) no clerical, or, if this is relevant, van driving duties could be made available to him.

68.     The rehabilitation program was for a closed period, from 27 April to 4 May 2007.  Nothing is said about what is to happen at the end of that closed period, and there is no evidence before us as to that issue.  In particular, there is no evidence before us that Mr Sambastian was advised that the rehabilitation plan remained available for him to undertake at all times subsequent to 4 May 2007.

69.     The rehabilitation program also entailed five consecutive shifts of approximately 5 hours each during the week in question.  It did not entail shorter shifts with stepped increases to longer working hours, depending on the effect of the duties on Mr Sambastian (although it might perhaps be inferred that some adjustments might be made because of the provision in the program requiring any increase in symptoms or concerns to be reported to the supervisor and/or rehabilitation counsellor).  The program was not given to Mr Sambastian in advance of the meeting on 26 April 2007 at which he was asked to agree to it.  It was to commence on the next day.

70.     In Pascoe v Australian Postal Corporation (2004) 77 ALD 464 a Full Federal Court made it clear that it is not the role of this tribunal to consider the reasonableness or appropriateness of the rehabilitation program. However, the Court also, at [14], approved a comment by the primary judge that ‘although the s 37(3) factors are not necessarily irrelevant to a decision made under s 37(7), they do not inform that decision.”  To that limited extent, it seems to us that the matters to which we have referred in paragraphs 66 – 69 above should also be further investigated and taken into account in considering the reasonableness of the excuse for the refusal, and (if Australia Post made it clear that the rehabilitation program continued to be available) the continuing refusal to undertake the program.

Was the excuse reasonable during the period after the date of refusal to undertake rehabilitation program 

71.     Our analysis so far has related to the situation as at the date when Mr Sambastian refused to undertake the rehabilitation program.  However, as also appears from the High Court’s analysis in Shi (supra), it is essential to have regard to the legislation under consideration in order to decide whether that legislation fixes a particular time at which the issue in question must be determined.

72. It is clear that s 37(7) entails considering the position at the date of the refusal or failure to undertake the relevant rehabilitation program. We think that there is a strong argument that s 37(7) should be construed so as to require considering whether there continues to be a reasonable excuse for the failure or refusal during the period from the date of that refusal or failure until the time when the employee begins to undertake the program (or if that has not occurred, until a determination is made as to whether the rights to compensation should be suspended). That is because the reference to the refusal or failure in s 37(7) is in the present, not perfect, tense, and the suspension of the employee’s rights under the SRC Act continues throughout that period. Further, if circumstances were to change after the employee’s initial refusal or failure to undertake a rehabilitation program so that that refusal or failure becomes unreasonable, it would be consistent with the intention of s 37(7) that the employee’s rights to compensation should thereupon be suspended. This suggests that the reverse should also apply.

73. On the above postulated construction of s 37(7), evidence of subsequent events would of course be directly relevant to questions of reasonable excuse. For example, the communication to Mr Sambastian of the opinion expressed by Dr Meegan in the report of 24 June 2008 that the rehabilitation program would exceed his employment restrictions might have constituted a reasonable excuse for his refusal to undertake the program. And that might be the position notwithstanding the contrary opinion expressed by Associate Professor Bauze, since the determination of whether Mr Sambastian had a reasonable excuse would not necessarily entail choosing between competing medical opinions.

74. However, the question of whether our above postulated construction of s 37(7) is correct was addressed only briefly in argument before us, and in view of the conclusion we have reached it is unnecessary for us to express a concluded opinion on this issue.

75. We have concluded that there is insufficient evidence before us in relation to the issues which we think should be further investigated to enable us to make a properly informed decision as to whether or not there was a reasonable excuse for the refusal to undertake the rehabilitation program. In all of the circumstances, we consider that the appropriate decision is to remit the decision in relation to the refusal to undergo the rehabilitation program to Australia Post for reconsideration, pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth). That reconsideration should of course address the issues we have raised above, including in particular, whether or not Mr Sambastian had a reasonable excuse for refusing to undertake the rehabilitation program as at the proposed commencement date of the program, 27 April 2007, in the light of all relevant information subsequently available, and (if the program was available after 4 May 2007 and the above postulated construction of s 37(7) is applied to s 37(7)), whether or not he had a reasonable excuse for refusing to undertake the program, during all or part of the period subsequent to 4 May 2007, again in the light of all relevant information subsequently available.

Decision

76.     In matter number 2007/2985 in respect of the refusal to undertake the rehabilitation program, the tribunal:

(a)remits the decision under review to the respondent for reconsideration, pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth);

(b)reserves liberty to apply within 28 days in relation to the period within which review is to be determined;

(c)directs that in the absence of any such application, the decision under review is to be reconsidered on or before 30 April 2010; and

(d)reserves the question of costs for further consideration.

77.     In matter number 2008/2716 in respect of the claim for compensation for the right elbow injury, the tribunal:

(a)sets aside the decision under review, and in place of that decision, decides that the respondent is liable for compensation in respect of the injury to the applicant’s right elbow;

(b)reserves liberty to apply within 14 days in relation to the costs of the proceedings; and

(c)orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by the applicant.

I certify that the 77 preceding paragraphs are a true
copy of the reasons for the decision herein of Deputy President D G Jarvis and Professor P L Reilly AO, Member

Signed:         …..................................................................................
           L. Staker  Associate

Date/s of Hearing  23 – 27 November 2009
Date of Decision  26 February 2010

Date of receipt of

final submissions  4 December 2009
Counsel for the Applicant         Mr T White 
Solicitor for the Applicant          Tindall Gask Bentley 
Counsel for the Respondent     Mr K Gilchrist
Solicitor for the Respondent     Gilchrist Connell