Sambastian and Australian Postal Corporation

[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 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

4. 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.

5. 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.

6. 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.

7. 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.

8. The return-to-work plan entailed Mr Sambastian carrying out a postal walk round for a period of five days, whereby he would first sort mail at a depot, and then deliver it using a trolley, with each day’s shift being for five hours.  The walk round was known as Round 49.  The plan stipulated that other employees were to “band” the mail, that is, place rubber bands around mail that had been sorted into bundles, and would lift Mr Sambastian’s trolley into a van.  It further stipulated that there were medical restrictions including no heavy lifting of more than five kilograms, there was to be no work above left shoulder height, and repetitive left shoulder movement was to be avoided.  The plan was to be reviewed after the five day period.

9. Mr Sambastian’s general practitioner had previously referred Mr Sambastian to Dr Meegan.  The referral letter advised that Mr Sambastian asserted that he could not do the duties involved in the walk round, and wanted only clerical duties.  It also noted that he had a tennis elbow of longstanding, but that the general practitioner was not involved in the management of that problem.[4]  Regrettably, Dr Meegan had overlooked this issue when he provided his opinion as to the suitability of the walk round at a worksite assessment which he had made on 20 April 2007.

   [4] [2010] AATA 141 at [24] and [25].

10. The return-to-work plan referred to the injury to the left shoulder, but did not refer to the right elbow injury.  However, the medical restriction on lifting due to the shoulder condition entailed a lower range of weight than a restriction on lifting in respect of the elbow injury.  This restriction was referred to in a medical certificate provided by the general practitioner who was treating the elbow condition.[5]

    [5] [2010] AATA 141 at [29].

11. Mr Sambastian refused to participate in the rehabilitation program at a meeting on 26 April 2007, being the day before the return to work was to commence.  Later, in a letter dated 25 May 2007, he gave two reasons for his refusal, 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, and this would result in harassment.[6]

    [6] [2010] AATA 141 at [30].

12. After the refusal to undertake the rehabilitation program, further medical reports were obtained.  These included a report dated 24 June 2008 from Dr Meegan, in which, following an examination of the right elbow, he expressed the opinion that the duties involved in the return-to-work program would exceed Mr Sambastian’s restrictions, and would aggravate his condition.  At the hearing which gave rise to our previous decision, Dr Meegan gave evidence confirming the opinion he expressed in his report of 24 June 2008, and also that he had not taken into account the condition of the right elbow when providing his earlier report of 20 April 2007 in respect of the return-to-work plan.  Contrary opinions as to Mr Sambastian’s ability to do the walk round were expressed in evidence by Associate Professor Bauze, and in reports of Dr Begg, a rheumatologist.  They both considered that Mr Sambastian would be able to undertake the walk round.

    REASONS FOR REMITTAL AND SUBSEQUENT EVENTS

13. In the reasons for our previous decision, we observed that the reviewable decision made by Australia Post as to whether there was a reasonable excuse for refusing to undertake the rehabilitation program, in view of facts that subsequently emerged, was unsatisfactory.  That was because Mr Sambastian had not been present at a worksite assessment on 20 April 2007, which preceded the formulation of the return-to-work program; Dr Meegan did not take the right elbow condition into account when he provided advice to Australia Post after participating in the worksite assessment; and Dr Meegan had not been shown the footpaths involved in Round 49, and was not familiar with trolley that was to be used on the round.[7]  We further pointed out that Dr Meegan’s opinion as expressed in his evidence was based on assumptions as to the nature of the footpath that would be traversed in the walk round, 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.[8]

    [7] [2010] AATA 141 at [60].

    [8] [2010] AATA 141 at [65].

14. When Australia Post affirmed its earlier determination following the remittal effected by our earlier decision, it made no reference to having undertaken any further investigations in relation to the matters to which we had referred in our reasons for our decision.  We are accordingly unaware whether or not it carried out any such investigations.  If it did, the outcome does not appear to have been taken into account.

15. In accordance with our suggestions, steps were then taken to ascertain whether any work had been done on the footpath in question since April 2007 (when the return-to-work program would have commenced) and the present time.  These inquiries indicated that there had not been any significant changes to the footpath since 27 April 2007, being the date when the return-to-work plan was to commence.[9]

    [9] Exhibit A15, Annexure SML 2.

16. After Australia Post affirmed its earlier determination and the original proceedings resumed in this tribunal in accordance with s 42D(8) of the AAT Act, Australia Post applied to strike out the proceedings pursuant to s 42B of the AAT Act. We refused that application. We reiterated that a determination of whether an employee has a reasonable excuse within the meaning of s 37(7) of the SRC Act for refusing or failing to undertake a rehabilitation program should not be confined to the subjective excuse(s) proffered by an employee, and excuses that were objectively reasonable should also be taken into account.[10]  We further decided that it was permissible, when determining the reasonableness of the excuse, to consider the issue of whether an employee’s medical condition would prevent the employee from undertaking the program or put the employee at risk of exacerbating an injury or disease.  We again reiterated the need for further medical assessments to be undertaken, taking into account the nature of the footpath and the manner in which the trolley could be pushed and (if necessary) manoeuvred.

    [10] [2010] AATA 141 at [5(a)]. As to that aspect, see our further comments in paragraph 25 below.

17. Notwithstanding the history of this matter and our explanation of our earlier inability to determine the reasonableness of Mr Sambastian’s excuse, it appears that Dr Meegan was not requested to make any assessment of the footpath where the walk round was to be conducted, or of the nature and manoeuvrability of the trolley, and did not do so.

18. We arranged for a view on the resumed hearing.  We first went to an Australia Post depot so that we could understand the process involved in sorting the mail before the commencement of the proposed walk round.  We then inspected a trolley of the type in use in April 2007, and also walked along that part of the footpath of King William Road that extended from Mary Street to Park Street, Hyde Park, being part of the walk round.  We observed that small retail shops abut a significant portion of this part of the walk round on both sides of the road.  We also observed for ourselves the nature of the footpath and the kinds of obstructions that were present, particularly in the portion abutted by shops.  Our observations were recorded in notes agreed (after some difficulty) by both parties.[11]

    [11] See Exhibit R18.

19. 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

20. 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.

21. 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.

22. 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.

23. Both doctors also agreed that if it was necessary for the trolley to traverse a kerb, there would be less force required than to lift the full weight of the trolley, because the kerb would be traversed by pushing down on the handle at the rear of the trolley to raise the front wheels of the trolley and then wheeling the trolley over the kerb on its large back wheels.  They agreed that Mr Sambastian was capable of performing such a manoeuvre.  However, Dr Meegan thought that if there was a lot of lifting and manoeuvring of the trolley over kerbs, he would regard the work as unsuitable, but not if it was a matter of wheeling the trolley up and down footpath ramps.[16]

    [16] Transcript, 22.08.2012, page 21, lines 23 – 25 and page 23, lines 36 – 47.

24. 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

1. 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].

2. 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] 5^th Edition, 2009.

   At what date should the reasonable excuse exist?

3. In the reasons for our earlier decision, we raised the question of the date at which the reasonable excuse should exist. Although this issue has still not been fully argued by counsel, we consider that s 37(7) requires determining whether there was a reasonable excuse for the failure or refusal during the period from the date of that failure or refusal until the time when the employee begins to undertake the program, or if that has not occurred, as at the time when a determination is made as to whether the rights to compensation should be suspended.[19]  In the present matter, that determination was made on 8 May 2007, and affirmed on reconsideration on 29 June 2007.[20]  In our opinion, that reconsideration and our decision on review should examine whether a reasonable excuse existed as at the date of the primary determination.[21] 

   [19] We note that in Re Menz and Border Express Pty Ltd [2012] AATA 203 at [51] - ]52] Senior Member Creyke decided that the reasonableness of the excuse should be determined as at the date when the decision was made that no reasonable excuse existed for the applicant’s failure to return to work.

   [20] Exhibit R1, T37, page 85; the primary determination is T34, page 81.

   [21] See Australian Postal Corporation v Forgie (2003) 130 FCR 279 at [40], where it was explained that some deliberative human action, in the form of evaluating the reasonableness of the refusal or failure to undertake the rehabilitation program, is required in order for the employee’s entitlement to compensation to be suspended.

4. The excuses that had been proffered by Mr Sambastian prior to 8 May 2007, according to his evidence, were his assertions at the meeting on 26 April 2007 that he could not do a trolley round and could not push the trolley, and that the plan did not take his injuries, including his elbow injury, into consideration.[22]  In a subsequent letter of 25 May 2007 he also said that the return-to-work plan would involve a large amount of assistance from other workers, which would result in harassment.[23]  As appears later in these reasons, we have considered these excuses (including the harassment concern, on the assumption that it existed as at 8 May 2007), and we have also made an objective assessment of other potential excuses arising from his medical conditions (including his ability to sort mail prior to commencing the walk round), and having regard to the evidence now before us, we have decided that none of the excuses was reasonable.

   [22] Transcript 23.11.09, page 62 line 36 to page 64, line 33.

   [23] Exhibit R1, T36, page 84.

   Contentions and discussion as to the reasonableness of the excuse

5. Counsel for Mr Sambastian, Ms D Eszenyi, contended that Mr Sambastian’s first expressed excuse (namely that he had done light duties previously that consisted of walk rounds, and they had aggravated his condition) was reasonable, because his attitude to Round 49 could be informed by his past experience.  She referred to the summary in our previous decision of his evidence of his previous experience of such light duties.[24]  She contended that this had to be considered in conjunction with the fact that the rehabilitation program referred only to the left shoulder, and made no reference to the right elbow, and further that Dr Meegan, who had provided advice by reference to which the plan had been formulated, had not taken the right elbow into account.

   [24] [2010] AATA 141 at [31].

6. We do not accept these contentions.  Whilst Mr Sambastian apparently had some familiarity with Round 49 when he used a scooter, he had not previously conducted a walk round along the relevant footpaths.  We are not satisfied from our view and the evidence now before us that the sorts of obstructions and difficulties that he claimed to have experienced with other walk rounds in other places would necessarily apply to Round 49.  It is correct that the elbow injury was not referred to in the return-to-work plan, but he was not sure that he had read the plan before he refused to participate in it.[25]  Furthermore, he had told Australia Post about the elbow condition prior to the formulation of the plan, and he should not have assumed that the plan did not take the elbow condition into account.  In any event, the lifting restriction in respect of the elbow that had been advised to Australia Post by the treating general practitioner was less than the restriction applicable to the shoulder condition.  Mr Sambastian also admitted in cross-examination that he had not appreciated that the return-to-work plan was only for a period of five days, and it was then to be reviewed.  Finally, Mr Sambastian’s expressed concerns about the sorting of the mail were not supported by the concurrent evidence which we have now received, and we have also taken into account our observations at the view as to the height of the shelves and the availability of the letter holder, which we think would have been of assistance.

   [25] Transcript 23.11.09, page 64, lines 1 – 3.

7. Ms Eszenyi then submitted that Mr Sambastian’s second expressed excuse, namely that the return-to-work plan necessitated assistance from co-workers and this would result in harassment, constituted a reasonable belief on his part and a reasonable excuse.  However, there is no evidence that he expressed concern about harassment when he refused to participate in the return-to-work plan on 26 April 2007.  Later, in his letter of 25 May 2007 giving reasons for not attending the rehabilitation program, he referred to an experience of a former worker on 26 April, but that reference was clearly hearsay, and he did not call the worker concerned to give evidence.  Australia Post has an anti-harassment policy, and we accept that this would have been enforced.[26]  It is also relevant in relation to this excuse that the plan was to be reviewed after five days, so that there would have been an opportunity to address any difficulties if there had been any harassment notwithstanding the policy.  For the above reasons, we do not accept that Mr Sambastian’s concern about harassment was reasonable.

   [26] See the evidence of Peter Francis David McDonald, transcript, 27.11.2009, page 100, lines 22 – 46.

8. Ms Eszenyi next pointed out that the return-to-work program was only offered for a period of five days, terminating on 3 May 2007, and it had never been extended or re-offered. She drew attention to the provisions of s 37(7) of the SRC Act, to the effect that the employee’s right to compensation are “suspended until the employee begins to undertake the program”, and she contended that as the program was available for such a short period, Mr Sambastian had no opportunity to obtain further medical advice as to whether his elbow injury would prevent or impede him from undertaking the program, and as a result, his refusal to do so was not unreasonable.  However, his inability to recall whether he read the return-to-work plan raises doubts as to this excuse; he had, prior to the preparation of the return-to-work plan, informed Australia Post of the elbow injury, and we are not satisfied that he did not know that it did not allow for the elbow injury.  Further, other contemporaneous correspondence sent to Mr Sambastian indicated that the return-to-work plan would continue to be available after the five days nominated in the plan.  A letter dated 30 April 2007 from Australia Post requested Mr Sambastian to advise in writing his excuse for not undertaking the rehabilitation program within seven days from the date of the letter (that is, within a period that expired after 3 May 2007, the final day of the program), and advised that his rights to compensation under the SRC Act would be suspended until he undertook the program, thus indicating that the program continued to be available after the first five days specified in the return-to-work plan.[27]  A further indication of the continuing availability of the return-to-work plan is contained in a letter dated 15 May 2007 to Mr Sambastian from Australia Post.[28]  Finally, the reviewable decision dated 29 June 2007 describes the return-to-work program as a “regime that is both achievable and sustainable in your case” (emphasis added).[29]

   [27] Exhibit R1, T33, page 78.

   [28] Exhibit R1, T35, page 83.

   [29] Exhibit R1, T37, page 87.

9. In the course of his submissions, Mr Johnson made it clear that the return-to-work plan was still available to Mr Sambastian, although appropriate notice would be needed to enable Australia Post to be ready to proceed with it.

10. We are now satisfied from the further investigations that have been made as to the nature of the footpath, and from the further medical evidence before us, that the rehabilitation program would not exceed Mr Sambastian’s ability to undertake the duties involved in it, having regard to the condition of his left shoulder and right elbow.  We accordingly find that on an objective assessment of Mr Sambastian’s physical capacity to undertake the program, he did not have a reasonable excuse for his refusal to do so, and we further find that his subjective concerns that the walk round would aggravate the condition of his shoulder and elbow did not constitute a reasonable excuse for his refusal.

11. Rehabilitation is an important aspect of the SRC Act, and it is dependent on employees cooperating in the rehabilitation process. Section 37(7) is the mechanism in the Act to provide a very strong incentive to employees to do so, since, if they do not, their rights to compensation are suspended until they do. The best way for Mr Sambastian to find out whether he can manage the return-to-work plan is to proceed with it on the basis that has been formulated. It seems to us that as a matter of common sense, and on all of the facts now known, including the medical evidence we have received, that is what he should now do.

12. 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.

13. 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.

14. 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.

15. Mr Johnson invited us, if we accepted his argument, to note that we had had no jurisdiction to make the determination in respect of the claim for compensation for the elbow.  He relied in support of this proposition on Minister for Immigration and Multicultural Affairs v Bhardwaj.[32]  In that case, a member of the Immigration Review Tribunal determined review proceedings in favour of the respondent in the absence of the applicant, but had not been made aware that the applicant had previously advised by letter that he was unable to attend the scheduled hearing, and was seeking a later hearing date.  When the Tribunal later became aware of this letter, it held a further hearing and made a second decision, this time in favour of the applicant.  Proceedings were taken to challenge the second decision.  The High Court held that the Tribunal had power to make the second decision, as the first decision was made in jurisdictional error and was of no legal effect.  It was therefore competent for the Immigration Review Tribunal to exercise its jurisdiction and determine the review proceedings.

    [32] (2002) 209 CLR 597.

16. In response Ms Eszenyi submitted that s 37(7) should by implication be read down, since Mr Johnson’s contention would preclude an employee from claiming compensation for some future injury which might be wholly unrelated to the injury which gave rise to the rehabilitation program, and she drew attention to the beneficial nature of the SRC Act. As against this, it does not follow that because the SRC Act is beneficial legislation, each provision within the act should be interpreted beneficially; if the words in question are clear, effect should be given to them.[33] Another argument that might counter Mr Johnson’s contention is that ss 36 and 37 should be read together. The provisions commence with the proposition that an employee has suffered an injury resulting in an incapacity for work or an impairment; the assessment of the employee’s capability to undertake the rehabilitation program, and the formulation and provision of the program, are provided for by reference to the injury that the employee has suffered; and the references to the liability to pay compensation in s 37(3) and (5) appear also to relate to the injury suffered by the employee. And as a result, s 37(7) should be interpreted as applying only to rights to compensation and proceedings in respect of the injury referred to in the rehabilitation program.

    [33] See Kowalski v Repatriation Commission [2011] FCAFC 43 at [36], and Victims Compensation Fund v Brown (2003) 201 ALR 260 at [33].

17. This tribunal only has jurisdiction that is conferred on it by statute.  Under the SRC Act, that jurisdiction is conferred by s 64 of the SRC Act, which relevantly requires there to have been a decision on reconsideration of a determination in respect of a claim for compensation.  If Mr Johnson’s submission is correct, Mr Sambastian would not even have been entitled to lodge a claim for compensation for his elbow injury, and this tribunal would not have had jurisdiction to consider the elbow claim, because there would not have been any valid proceedings before this tribunal.  The present situation, on his argument, is therefore distinguishable from the situation in Bhardwaj, where the Immigration Review Tribunal had not, following its first hearing, exercised the jurisdiction which it undoubtedly possessed to review the reviewable decision in issue.

18. Once the tribunal has heard and determined proceedings before it, it is functus officio; that is, it has no further authority to deal with the matter.[34]  Further, this tribunal has no inherent jurisdiction to make a decision which would in effect amount to a declaration by the tribunal as to the status of an earlier decision or the rights or liabilities of the parties in consequence of such a decision.  The position as to issues of jurisdiction is otherwise if it becomes necessary for the tribunal in particular proceedings before it to determine whether it has jurisdiction to hear the proceedings, but the tribunal has already heard and determined the proceedings involving the elbow, and is now functus officio.

    [34] See the authorities discussed in Re Johanson and Civil Aviation Safety Authority [2012] AATA 239 at [27].

1. We accordingly have no authority to take any further steps in those proceedings.  The only issue before us on the resumed hearing following the remittal in the present matter is the review of the reviewable decision made on 29 June 2007, in which an officer of Australia Post affirmed an earlier decision of 8 May 2007.[35]  The earlier decision by an officer of Australia Post was as follows:

   Pursuant to Section 37(7) of the Act, I hereby determine that Mr Sambastian’s rights to compensation under this Act and to institute or continue any proceedings under the Act in relation to compensation, are suspended on and from the date of this determination until such time as Mr Sambastian begins to undertake the rehabilitation program which was the subject of the determination dated 26/04/07.

   [35] Exhibit R1, T37, page 85.

2. We have now decided in the present matter to affirm the reviewable decision made on 29 June 2007. It is not necessary for our decision to revisit our decision in the proceedings relating to the elbow claim. Resolving the competing contentions of counsel as to the status of that decision would require us to make a declaration as to which of the constructions of s 37(7) contended for is correct, and that does not arise in the present matter, and would be beyond our jurisdiction. If following our decision Mr Sambastian begins to undertake the rehabilitation program, then it is common ground that his rights under the SRC Act will no longer be suspended, and it will be necessary for the parties to obtain advice as to the status of our decision concerning the elbow claim in matter number 2008/2716. Similarly, if Mr Sambastian claims medical expenses (for example, for an arthroscopy of the elbow, which has been recommended) or some other head of compensation in respect of the elbow injury but without beginning to undertake the rehabilitation program, then again it will be necessary for the parties to obtain advice about the status of our decision in matter number 2008/2716. It would also of course be open to Australia Post to seek judicial review of our decision on the grounds that we did not have jurisdiction.

3. Another option, in the unusual circumstances that have arisen, might be for Australia Post to reconsider its earlier determination in respect of the elbow claim on its own motion, pursuant to s 62(1) of the SRC Act.  If it decides to take that course of action we would expect Australia Post to accept and implement our decision in respect of liability for compensation for the elbow, since our decision was arrived at after an independent review of all of the available relevant evidence adduced by both parties in a lengthy hearing.

4. In summary, for the reasons referred to in paragraphs 41 - 44 above, we consider that we have no jurisdiction to determine the issue raised by counsel as to the status of our decision in the proceedings relating to the elbow claim, and it is not necessary or appropriate for us to do so in order to complete the determination of the matter that was remitted to Australia Post, namely the issues raised by the present proceedings concerning the reasonableness of the excuses for refusing to undertake the rehabilitation program.

   DECISION

5. The decision under review is affirmed.

I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarvis and, Professor PL Reilly AO, Member

....[Sgnd] ....

Associate

Dated 22 November 2012 

Dates of hearing	21 and 22 August 2012
Counsel for the Applicant	Ms D Eszenyi
Solicitors for the Applicant	Langsford Lawyers
Counsel for the Respondent	Mr G Johnson SC and Mr M Snell
Solicitors for the Respondent	Gilchrist Connell