Sambastian and Australian Postal Corporation

Case [2012] AATA 822

[2012] AATA 822

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2007/2985

Re

Armand Sambastian

APPLICANT

And

Australian Postal Corporation

RESPONDENT

DECISION

Tribunal

Deputy President D G Jarvis and
Professor PL Reilly AO, Member
Date 22 November 2012
Place Adelaide

The decision under review is affirmed.

........... [Signed] .............

Deputy President D G Jarvis

CATCHWORDS

COMPENSATION - Commonwealth employee - refusal to undertake rehabilitation program - applicant did not have reasonable excuse for refusal or failure to undertake rehabilitation program - date at which existence of reasonable excuse is to be determined - whether consideration should be confined to excuses proffered by applicant - whether suspension of entitlement to compensation applied to all entitlement under Safety, Rehabilitation and Compensation Act, or only to entitlement for compensation for injury referred to in rehabilitation program - meaning of "reasonable excuse" - decision under review affirmed.

PRACTICE AND PROCEDURE - Jurisdiction - AAT decision in proceedings arising from claim for compensation made after refusal by applicant to undertake rehabilitation program - held that AAT had no jurisdiction to determine status of its decision, or rights or liabilities of parties by virtue of s 37(7) of Safety, Rehabilitation and Compensation Act

LEGISLATION

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

CASES

Australian Postal Corporation v Forgie (2003) 130 FCR 279

Ganin v NSW Crime Commission (1993) 32 NSWLR 423
Kowalski v Repatriation Commission [2011] FCAFC 43
McGuiness v Comcare (2007) 99 ALD 57
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Re Johanson and Civil Aviation Safety Authority [2012] AATA 239
Re Menz and Border Express Pty Ltd [2012] AATA 203
Re Sambastian and Australian Postal Corporation [2010] AATA 141

Victims Compensation Fund v Brown (2003) 201 ALR 260

SECONDARY MATERIALS

The Macquarie Dictionary (5th Edition, 2009)

REASONS FOR DECISION

Deputy President D G Jarvis and
Professor PL Reilly AO, Member

22 November 2012 

INTRODUCTION

  1. These proceedings arise out of a reviewable decision by Australia Post to suspend the rights to compensation of the applicant, Armand Sambastian, on the grounds that he refused, without reasonable excuse, to undertake a rehabilitation program involving a postal walk round that was to commence in April 2007. In a decision dated 26 February 2010, we remitted this reviewable decision to Australia Post for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), and gave detailed reasons for our decision.[1]

    [1] Re Sambastian and Australian Postal Corporation [2010] AATA 141.

  2. In a decision on remittal dated 27 April 2010, Australia Post affirmed its earlier determination. Mr Sambastian, by his former lawyers, then made a further application to review the decision on remittal. We assume that this application was made out of an abundance of caution, but in fact it was unnecessary, because under s 42D(8) of the AAT Act, if the decision-maker affirms the reviewable decision on remittal, the original proceeding resumes.

    ISSUE BEFORE THE TRIBUNAL

  3. The issue before the tribunal is whether Mr Sambastian refused or failed, without…

Continue reading Sambastian and Australian Postal Corporation

Sign in free to access the full text

Details
AGLC
Sambastian and Australian Postal Corporation [2012] AATA 822
Case
[2012] AATA 822
Decision Date

CaseChat Overview and Summary

Sambastian v Australian Postal Corporation involved a dispute between the applicant, Mr Sambastian, and the Australian Postal Corporation regarding the applicant's refusal or failure to undertake a rehabilitation program. The legal issues before the court were whether Mr Sambastian had a reasonable excuse for not undertaking the rehabilitation program and whether the tribunal had jurisdiction to determine the status of its earlier decision. The court held that the applicant did not have a reasonable excuse for his refusal or failure to undertake the rehabilitation program and that the tribunal had no jurisdiction to determine the status of its earlier decision.

The court found that the reasonable excuse for not undertaking the rehabilitation program should be assessed objectively, considering all the circumstances surrounding the applicant's refusal or failure. The court rejected the argument that the inquiry should be confined to the excuses proffered by the applicant. The court also noted that the excuse should have some justification, assessed objectively.

Regarding the tribunal's jurisdiction, the court held that it did not have jurisdiction to determine the status of its earlier decision in another matter. The court found that the issue of jurisdiction had not been raised previously and that the applicant's rights to compensation and to institute or continue any proceedings under the Safety, Rehabilitation and Compensation Act were suspended until he began to undertake the program.

In conclusion, the court found that Mr Sambastian did not have a reasonable excuse for his refusal or failure to undertake the rehabilitation program, and the tribunal had no jurisdiction to determine the status of its earlier decision. The court affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue before the tribunal is whether Mr Sambastian refused or failed, without reasonable excuse, to undertake a rehabilitation program provided for him, within the meaning of s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). This section provides as follows:(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.BACKGROUND After we remitted the matter for reconsideration Mr Sambastian went to the United States of America and terminated the instructions of his former lawyers. He was represented by his current lawyers when the proceedings resumed before us. The events which preceded the resumed hearing may be summarised as follows. In 2004 Mr Sambastian claimed compensation for an injury to his left shoulder on 8 August 2001, which he said occurred in the course of his employment, and for aggravations of that injury during his employment at various times after 2003. Liability was originally denied, but was later accepted after he took proceedings in this tribunal. The tribunal made a consent decision in those proceedings in 2006. He also claimed compensation in 2008 for an injury to his right elbow which he said occurred on 7 March 2002 in the course of his employment. An MRI in November 2007 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.”[2] A diagnosis of osteoarthritis was made, and there was evidence which indicated that the degenerative process in the right elbow was initiated by the trauma on 7 March 2002. Australia Post denied liability for this claim. We set aside its subsequent reviewable decision to affirm this denial of liability, for reasons set out in a decision of 26 February 2010 in matter number 2008/2716, which we heard at the same time as the within proceedings.[2] [2010] AATA 141, at 38. Australia Post arranged for a worksite assessment on 20 April 2007, and for Mr Sambastian and an occupational physician, Dr J Meegan, to attend. Mr Sambastian refused to attend this assessment, but Dr Meegan did attend, and advised that the proposed return-to-work duties were suitable. Australia Post then formulated a return-to-work plan and rehabilitation program, covering a period from 27 April to 4 May 2007, on the basis of a report from Dr Meegan, dated 20 April 2007, in which he confirmed that the proposed duties appeared suitable. It was not contended on behalf of Mr Sambastian that no valid rehabilitation program had been created on the grounds that Australia Post had failed to have regard to Mr Sambastian’s attitude to the program as required by s 37(3) of the SRC Act.[3] Any such contention would no doubt have been countered by the evidence of Mr Sambastian’s refusal to attend the worksite assessment, and the presence of Dr Meegan, who had previously examined him on referral from his treating general practitioner, and had been advising as to his capacity for work.[3] See McGuiness v Comcare (2007) 99 ALD 57, where the significance of this subsection was considered.

Evidence

Evidence Before The Court

Arrangements were also made for concurrent evidence to be given by Dr Meegan and Associate Professor Bauze on the resumed hearing. A copy of our earlier decision was provided to Dr Meegan,[12] but apparently not to Associate Professor Bauze. Notwithstanding the references we made in our earlier decision to the importance of the nature of the footpath and associated issues, it appears that Dr Meegan’s attention was not drawn to those matters, and that he did not inspect the footpath prior to giving further evidence at the resumed hearing. In the case of Associate Professor Bauze, it appeared from his resumed evidence that he was generally familiar with the footpath.[12] See Exhibit A13(a), being a briefing letter which requested a further report, but did not draw attention to the further necessary factual investigations that led to us being unable at the time of our earlier decision to determine the reasonableness of the excuse for not undertaking the rehabilitation program.EVIDENCE ADDUCED AT THE RESUMED HEARING At the resumed hearing, Mr Sambastian gave evidence as to his activities since the earlier hearing, and as to his symptoms and condition. He also said that he had not received any offer of further employment, training or rehabilitation from Australia Post, and had no contact from them since at least 2009, apart from communications through this tribunal, and apart from pay advices on a regular basis, which showed net pay of $0. Dr Meegan and Associate Professor Bauze gave concurrent evidence at the hearing. After conferring together in accordance with the tribunal’s concurrent evidence procedures, both doctors reported that they were in agreement regarding diagnosis. They said that their starting point was that Mr Sambastian has osteoarthritis in the elbow of his right (dominant) arm, and has had surgery to his left shoulder, and has ongoing symptoms from both those body regions. They further agreed that there was a functional limitation on lifting over about five kilograms on a frequent basis with up to 10 kilograms occasionally. They were provided with notes of the tribunal’s observations on the view. They considered that the sorting of the mail was a non-issue, because the shelves at the depot did not exceed eye level in height, and although there would be some repetitive handling of mail that might be expected to some extent to aggravate symptoms, this was not unreasonable. Their shared view was that the duties involved in the return-to-work plan were “overall, ... suitable and ... there might have been a reasonable expectation that the worker attempt them.”[13][13] Extract of transcript, 22.08.2012, page 3, lines 7 – 9. The agreed position expressed by the doctors differed from the opinion previously expressed by Dr Meegan in his report of 24 June 2008, where he said:In the light of the diagnostic problem list and restrictions I have outlined for heavier lifting over about five kilograms, work above shoulder height and repetitive shoulder movement and for heavier gripping and pushing and repetitive activity with the elbow in my opinion he would not tolerate the duties of the walking round which involve pushing and pulling of a thirty five kilograms trolley and the other duties you have listed. Those duties are likely to exceed his restrictions and aggravate his condition given his deterioration and his current state.[14]He explained that he had changed his opinion because he had been told that the trolley weighed up to 85 kilograms and that there was also a need to lift the trolley over the kerb. His reference during his concurrent evidence to the weight of the trolley differed from the evidence he had previously given.[15] [14] Exhibit A2.[15] For example, he gave evidence that he was uncertain as to the weight of the trolley or the forces involved in pushing it, but he assumed that it was more than five to 10 kilograms: transcript 24.11.2009, page 150, lines 14 – 16; page 154, line 21; page 155, lines 8 – 10; and page 156, lines 18 – 20 and 38 – 39. In his report of 24 June 2008, he recounted that according to information provided to him in a letter from Mr Sambastian’s then solicitors, a trolley when full of mail could weigh up to 35 kilograms, and that on occasions it would be necessary to lift the trolley over bumps, kerbs and other obstacles: see Exhibits A2 and A3.

Decision

Reasons for decision

In the course of her argument, Ms Eszenyi also referred to a series of letters from Mr Sambastian’s former solicitors to Australia Post’s solicitors requesting that a revised return-to-work plan be prepared.[30] It appears that there was no reply to these letters. Counsel for Australia Post, Mr G Johnson SC, said in response to this submission that the return-to-work plan was appropriate, and there was no obligation on Australia Post to respond to the letters. If that response represented Australia Post’s attitude at the time, it would seem to us to be inconsistent with the emphasis in the SRC Act on rehabilitation, particularly in view of the provision to Australia Post of the revised opinion expressed by Dr Meegan in his report of 24 June 2008, in which he took the elbow condition into account, and the references in the letters to the failure to obtain a functional assessment (as Dr Meegan had recommended). It would also seem to us to be inconsistent with Australia Post’s obligations under Division 1 of Part VII of the SRC Act, to the extent that those obligations are relevant to Australia Post. However that may be, on the facts as we have found them, the assertions and requests in the letters do not support the contention that there was a reasonable excuse for not undertaking the program.Was our earlier decision in matter number 2008/2716 to set aside the reviewable decision re liability for the injury to the elbow a nullity?[30] See Exhibit A10, being a bundle of copy letters of various dates between 30 October 2007 and 8 July 2008. We have so far addressed the issues that arose in matter number 2007/2985, relating to whether Mr Sambastian had a reasonable excuse for not undertaking the rehabilitation program. As we said above, those proceedings were heard at the same time as a separate application to this tribunal which arose out of the rejection by Australia Post of a separate claim for compensation which Mr Sambastian had made in respect of an injury to his elbow. Those proceedings were the subject of matter number 2008/2716. In our earlier decision, we set aside the reviewable decision, and decided that Australia Post was liable for compensation in respect of the injury to the right elbow.[31][31] See paragraph 6 above. On the resumed hearing of the present proceedings, Mr Johnson made one final submission, namely that if there was no reasonable excuse for the refusal to undertake the rehabilitation program, then this tribunal had no jurisdiction to entertain or determine the separate proceedings in respect of the elbow, and accordingly, the decision in matter number 2008/2716 was a nullity. This issue of jurisdiction had not previously been raised on behalf of Australia Post. Mr Johnson submitted that by virtue of s 37(7) of the SRC Act, if Mr Sambastian had refused or failed, without reasonable excuse, to undertake the rehabilitation program, his “rights to compensation under (the SRC) Act, and to institute or continue any proceedings under (the SRC) Act in relation to compensation” would have been suspended until he had begun to undertake the program. He submitted that the words quoted above would apply to the proceedings in this tribunal in respect of the elbow.

Ratio Decidendi

Legal Principle Established

That issue would depend on the frequency and extent of obstructions that might be encountered in performing Round 49. As to this, we noted at the view that in the section of King William Road that is abutted by shops, there were many obstructions in the form of advertising sandwich boards, verandah posts, and in some places outdoor tables and chairs or stands for display of goods. Whilst these obstructions significantly restricted the usable width of the footpath, there was enough room for the trolley to pass along the footpath without the need to remove any obstructions, except for one occasion when a chair had to be moved. The extent of manoeuvring that might have been necessitated by having to “park” the trolley so as not to obstruct the footpath while actually delivering mail to abutting premises was not explored. The footpath was also occasionally obstructed by pedestrians during our view, but the walk round was to commence at 8.30am, and we think it likely that deliveries of mail to the shopping precinct would have been completed before there was any intensive pedestrian use of the shopping precinct. CONSIDERATION In an earlier decision, we expressed the view that the inquiry as to whether there was a reasonable excuse for the refusal or failure to undertake the rehabilitation program should not be confined to the subjective excuse(s) proffered by the employee or subjectively conceived by the employee, and excuses that are objectively reasonable should also be taken into account. We referred in this regard to Ganin v NSW Crime Commission where Kirby P (as he then was), when considering legislation prohibiting witnesses from refusing to answer questions “without reasonable excuse”, said:There is no apparent reason to read down exemptions for “reasonable excuse” in s 18(2) of the Act. On the contrary, there is every reason to give the words used their ordinary construction. They simply ask whether the refusal to answer the question was “without reasonable excuse”. As Ireland J rightly pointed out, 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. A similar objective interpretation appears to have been contemplated in Australian Postal Corporation v Forgie, where the court described the process of assessing whether a reasonable excuse existed within the meaning of s 37(7) as follows:Such a process requires that the person at least consider the circumstances surrounding the employee’s failure or refusal to undertake a rehabilitation program and to evaluate what is reasonable in the circumstances.[17][17] (2003) 130 FCR 279 at [40]. However, we are also mindful that the word “excuse” in s 37(7) is used in a somewhat different context, and in circumstances where a determination will need to be made as to whether the excuse is such that a person’s entitlement to compensation should be suspended. Having regard to the need for administrative efficiency, Parliament might have intended that the “excuse” that is to be evaluated is the excuse stated by the employee concerned. According to the Macquarie Dictionary[18] the meaning of the noun “excuse” can include “that which is offered as a reason for being excused” as well as the objective meaning (preferred in Ganin) of “something tending to excuse; a ground or reason for excusing”, and the verb “excuse” means relevantly “to release from an objection or duty”. In view of the conclusion we have reached on the evidence now before us it is not necessary to choose between these two meanings of “excuse”. The additional qualification that the excuse is to be “reasonable” imports, in our view, a requirement that the excuse should have some justification, assessed objectively.[18] 5th Edition, 2009.At what date should the reasonable excuse exist?