Samuel Singh and Comcare
[2012] AATA 652
•26 September 2012
[2012] AATA 652
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/3084
Re
Samuel Singh
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Dr Hadia Haikal-MukhtarDate 26 September 2012 Place Sydney DecisionThe decision under review is set aside. In substitution it is decided that the Applicant had a reasonable excuse for failing to undertake the rehabilitation program provided by the Australian Taxation Office.
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Senior Member A K Britton
CATCHWORDS
WORKERS’COMPENSATION – rehabilitation program – failure to undertake return to work plan – whether there was a reasonable excuse – reliability of expert witness – professional detachment – decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 37(1), 37(7),
CASES
Australian Postal Corporation v Forgie [2003] FCAFC 223
Comcare v Singh [2012] FCA 136
McGuinness v Comcare [2007] FMCA 1486
Pascoe v Australian Postal Corporation [2004] FCAFC 4
Re Singh and Comcare [2011] AATA 533SECONDARY MATERIALS
REASONS FOR DECISION
Senior Member A K Britton
Dr Hadia Haikal-Mukhtar
Where a person refuses or fails, without reasonable excuse, to undertake a rehabilitation program, their right to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) is suspended (s 37(7) of the Act). Former Australian Taxation Office (ATO) employee, Mr Samuel Singh, challenges a decision made by Comcare that he failed, without reasonable excuse, to undertake a rehabilitation program provided under s 37 of the Act. He applied to the Administrative Appeals Tribunal for review of that decision. On review, the Tribunal (differently constituted) set aside Comcare’s decision, finding that Mr Singh had a reasonable excuse for failing to undertake the subject program (Re Singh and Comcare [2011] AATA 533). The Federal Court on appeal set aside the Tribunal’s decision and remitted the matter for reconsideration (Comcare v Singh [2012] FCA 136). The President has directed that we are to constitute the Tribunal for the purposes of the remitted proceedings.
In these reasons we address whether Mr Singh had a reasonable excuse for failing to continue the rehabilitation program he was directed by Comcare to undertake in October 2009. A separate but related Comcare decision affirmed by the original Tribunal — to direct Mr Singh to participate in the subject program — was not the subject of appeal to the Federal Court and is binding on us. Central to that decision was the finding that the subject rehabilitation program ― a “return to work program” (RTWP) ― was a suitable program for Mr Singh to undertake.
There is no issue that Mr Singh failed or refused to undertake the subject rehabilitation program, the issue in dispute is whether he had a reasonable excuse for doing so.
Statutory framework
Section 37(1) of the Act provides that Comcare may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program. A “rehabilitation program” includes “vocational training” (s 4(1)). Section 37(7) provides:
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.
It is settled that s 37(7) requires an “excuse ‘personal to the employee’ and not an opinion by the Administrative Appeals Tribunal as to the appropriateness of the particular program”: Pascoe v Australian Postal Corporation [2004] FCAFC 4 at [19]. Whether the excuse proffered was reasonable must be objectively assessed and requires all relevant circumstances to be taken into account. That assessment requires the decision-maker to “... 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”: Pascoe v Australian Postal Corporation [2004] FCAFC 4 at [20]; Australian Postal Corporation v Forgie [2003] FCAFC 223 at [40]. The focus of that assessment must be on the proffered excuse and not on the “reasonableness of the program itself”: Pascoe v Australian Postal Corporation [2004] FCAFC 4 at [21].
Background to disputed return to work plan
Mr Singh commenced as an internal auditor at the ATO in March 2005. Apart from two short periods, Mr Singh has not worked at the ATO since mid-2006.
Mr Singh claimed that shortly after commencing at the ATO, he was subjected to bullying and harassment. In September 2007, Comcare accepted his claim for compensation in respect of an “adjustment disorder with depression”.
Mr Singh failed as directed to undertake a RTWP (the first RTWP), which required him to commence work in January 2008. He was certified unfit for work on 6 February 2008 by his treating psychiatrist (since October 2006), Dr Thomas Stanley.
A second RTWP was designed and in April 2008 the ATO again directed Mr Singh to return to work. He asserted that the plan was unsuitable, attended work for half a day and did not return. A week later he was dismissed. In June 2009 he was reinstated by order of Fair Work Australia.
Mr Singh returned to work as directed under a third RTWP on 7 October 2009. He worked for five half-days (over two weeks) but did not return to work after being certified unfit for work by Dr Stanley on 19 October 2009. His employment was finally terminated in July 2011.
Development of the return to work program
Following Mr Singh’s reinstatement in June 2009, the ATO appointed a rehabilitation provider to formulate an appropriate RTWP. Mr Singh objected to that appointment and the ATO appointed an alternative provider, “Pronto Health”.
At the request of Comcare, in July 2009, psychiatrist Dr Inglis Synnott assessed Mr Singh and found him fit to work and undertake the generic duties of an APS [Australian Public Service] 6 officer. Dr Synnott recommended that Mr Singh start on reduced hours (four hours per day, three days per week) increasing to full-time duties after six weeks. In addition, he recommended that Mr Singh be “shielded” from his former colleagues whom he alleged had subjected him to bullying and harassment. Dr Stanley agreed that Mr Singh was fit to return to work and endorsed the restrictions recommended by Dr Synnott.
In September 2009, the ATO advised Mr Singh that a position as a Learning and Development Coordinator had been identified and assessed as suitable for him to undertake under the proposed RTWP. Mr Singh promptly raised with Ms Fiona Green of Pronto Health and Ms Natasha Damar, the ATO manager responsible for overseeing his return to work, his concern that he lacked the qualifications and skills for the proposed role, pointing out that he was an accountant by profession. In addition, he raised concerns with what he saw as the lack of particulars about the proposed role.
Subsequently, Mr Singh was issued with, and invited to comment on, a draft RTWP. The stated object was to “assist Mr Singh in his return to work and complete an APS 6 role with the ATO working full hours”. Under the plan, Mr Singh was required to work as a Learning Development Coordinator, commencing on reduced hours (four hours per day, three days per week) increasing to full hours over 16 weeks and report to ATO Director of Workplace Development, Mr Sandy Nadazdy.
In an email dated 29 September 2009, Mr Singh elaborated on his concern that he was unqualified for the proposed role:
The proposed role in the RTWP is not suitable for me as:
· I am not qualified for the role,
· it will not properly rehabilitate me, and
· has potential to re-aggravate depressive illness.
As explained above, I do not have any formal qualification or experience for this role. It would require full academic training plus work experience to be effective in the role. Undertaking this role would be deskilling me rather than applying and enhancing my technical skills. Moreover, I do not want to change my profession.
My Suggestion
The ATO will need to seek a role that I am suitably qualified to undertake right away.
From the initiation of the settlement process for termination of employment, I have maintained that I would like to move forward. On that basis I could attempt a start of my rehabilitation with the proposed role. The duties proposed in the Suitable Duties Plan No 1 appear possible to undertake. It is only for a period of two weeks. As a stepping stone, I could start my rehabilitation with these duties. However, I don’t think I would be able to cope with technical duties in this role because I do not possess the technical proficiency required. The RTWP should be amended to reflect that this is a role in transition.
In reply, Ms Damar stated that the duties Mr Singh would be allocated did not relate to an existing position and therefore a final job description could not be provided. She wrote that changes to Mr Singh’s specific duties would be reflected in future plans in consultation with his treaters. She refuted the contention that the role would leave Mr Singh “deskilled”.
On 2 October 2009, a final RTWP was issued. Apart from some minor amendments it was identical to the draft plan.
In an email to Ms Damar dated 6 October 2009, Mr Singh repeated his concern that he lacked the necessary qualifications to undertake the proposed role. He stated that he was prepared to give the program “a go” as the ATO was “enforcing a determination under S37 of the SRC Act”. He stated that his agreement was subject to assurances previously provided:
· the role does not require any additional formal qualifications to what I currently have,
· the skills and qualifications acquired in my qualifications and employment are considered suitable for me to be effective in the role,
· proper instructions, guidance and training will be provided to assist me in undertaking my duties,
· the role meets the definition of ‘suitable employment’ as provided in Section 4(1) of the SRC Act,
· you do not consider the role is deskilling
· my skills will be further developed
· that my treating doctor will be continually consulted in relation to the rehabilitation,
· and the role will rehabilitate me.
In closing he wrote “I reserve my rights to appeal your determination as there appears no other way to change it to match my needs”.
Undertaking the return to work program
Shortly after commencing work on 7 October 2009, Mr Singh raised with Mr Nadazdy his previously expressed concerns. In an email dated 8 October 2009, Mr Nadazdy assured Mr Singh that he would not be allocated tasks that required specialist industrial relations knowledge. Mr Nadazdy explained that the issued job description “was not intended to represent the job you are performing, or will be performing” but rather to provide an indication of the type of work a person at his level would perform. He emphasised that “the purpose of this rehabilitation program is to introduce you to a supportive work environment in which you can function, not to develop you into an L&D [learning and development] co-ordinator”. Mr Nadazdy asserted that the plan provided “a significant degree of certainty”, pointing out that “you know exactly what your tasks are for the first two weeks, after which your case manager and doctor will decide what else you will be able to do on a fortnightly basis”.
On 9 October 2009, Mr Singh met with Ms Green and Mr Nadazdy to review the plan. Prior to the meeting, Mr Singh contacted Ms Green and stated that he was “really uncomfortable” about the meeting proceeding in the absence of Dr Stanley — who had been invited to attend but was apparently unavailable — and requested that the meeting be recorded. After the meeting, Mr Singh emailed Mr Nadazdy and again requested a “full job description”, asserted that he was unqualified to undertake the role, and confirmed that he intended to “appeal the RTWP”.
Mr Singh continued to attend work on alternate half days in accordance with the plan, until 19 October 2009, when he was certified as totally incapacitated for work with an uncertain return date.
On 26 October 2009, Dr Stanley again certified Mr Singh totally unfit for work with an uncertain return date. On the same day, Mr Singh lodged a 15 page submission outlining what he believed to be the shortcomings of the RTWP. Mr Singh asserted that any further participation would be injurious to his health.
In the latter part of 2009, Ms Green endeavoured without success to meet with Mr Singh.
In early March 2010, the ATO advised Mr Singh of its preliminary conclusion that he had not provided a reasonable excuse for his failure to return to work and in support provided Dr Synnott’s opinion that he was fit to continue to undertake the RTWP. On 1 April 2010, Mr Singh was advised that a decision had been made to suspend his entitlements from 1 April 2010. That decision was affirmed on reconsideration.
Dr Stanley certified Mr Singh totally unfit for work at regular intervals, in the period between first certifying him unfit to work and 1 April 2010. Dr Stanley is of the opinion that Mr Singh remains unfit for work.
Contemporaneous medical opinion
Assessment by Dr Synnott
Dr Synnott saw Mr Singh at the request of Comcare in November 2009. In a report dated 20 November 2009, Dr Synnott concluded that Mr Singh met the diagnostic criteria of an adjustment disorder but cautioned against concluding on the basis of that diagnosis “any significant impairment or incapacity”. Dr Synnott believed that, given Mr Singh’s negative mindset and lack of motivation the plan was doomed to fail. He said:
[Mr Singh] does not like it and does not want to return to work with it—he said it led to deterioration in his psychological state. This will prove to be a self-fulfilling prophecy.
In my opinion:
[T]he diagnosis of Adjustment Disorder is an incomplete and simplistic conceptualisation of the situation—there are quite likely other factors materially impacting on the situation. These include: his attitude to the situation (appears set and possibly inflexible and the question is whether his expectations would be difficult to meet and so there will be no successful return to employment); his pattern of behaviour (appears maladaptive and raises the question whether there will be any successful return to work – given he had not worked since 2006); whether he has become entrenched in a ‘non-work’ frame of mind and lost motivation to return to work (is he finding ‘fault’ and problems with the workplace to justify not returning to work).
Dr Synnott recorded that Mr Singh had told him he would be able to return to work if provided with an appropriate RTWP. He wrote:
From a strictly psychiatric perspective, I can see no contraindications to Mr Singh participating in the rehabilitation program – but he said he is not happy with it and it has led to a psychological deterioration in him.
Time will tell whether an alternative GRTWP [Graduated Return to Work Program] – which involves a more appropriate GRTWP will prove to be successful. I do not know his specific requirements for the ‘appropriate’ GRTWP.
In subsequent reports (24 February 2010 and 24 March 2010), Dr Synnott wrote that having reviewed further evidence provided by Mr Singh, including reports prepared by Dr Stanley (18 January 2010 and 26 February 2010), he could see “no psychiatric contraindication to proceeding with the plan — and no psychiatric incapacity of Mr Singh to participate in the plan”.
Assessment by Dr Stanley
In answer to an enquiry from Comcare on 18 January 2010 Dr Stanley wrote that Mr Singh was totally unfit for work because:
[W]hen he returned to work on 7.10.2009 he was not given suitable and appropriate duties consistent with his skills.
As a result he felt worse and started to develop symptoms of depression with loss of energy, lowered mood, weight loss and loss of appetite.
In a report dated 26 February 2010, after outlining Mr Singh’s previous unsuccessful attempts to return to work, Dr Stanley wrote:
Once again the position offered was not commensurate with his skills. It was in a totally different area of work involving administration and possibly marketing. He was not trained in these areas and it was not what he had hoped to achieve having waited for years to return to work.
Dr Stanley concluded:
[Mr Singh’s] prognosis is good provided his work situation can be stabilised with a reasonable and sensible approach by work management. He is understandably wary of the work situation given the delays finding him appropriate work roles.
His illness is severely aggravated by the failure of the taxation office to find suitable work. Refusal to pay him is a severe provocation.
In a report dated 23 December 2010, Dr Stanley wrote that Mr Singh was not fit for full-time work at the ATO. He thought he might eventually be able to work full-time provided he “is placed in a position suitable for his skills and managed positively without harassment” and graduates to full hours over a six to 12 month period. In evidence given in these proceedings, Dr Stanley stated that Mr Singh remained unfit for work and, if anything, his psychological condition has deteriorated since early 2010.
Medical opinion about Mr Singh’s fitness for work
For the purpose of these proceedings Mr Singh was assessed by psychiatrists, Drs John Champion and Jonathon Phillips. Each prepared written reports and gave oral evidence.
Dr Champion
In Dr Champion’s opinion, while Mr Singh had initially suffered from a major depression, by October 2009 it had resolved. In his opinion, while the plan was suitable, Mr Singh’s return to work prompted an adjustment disorder largely because of “obsessional features within Mr Singh’s personality structure” and his lack of motivation. In Dr Champion’s opinion the onset of that condition did not make Mr Singh unfit for employment. In reaching that conclusion he thought it “highly relevant” that throughout the corresponding period Mr Singh had achieved distinction averages in a Masters course in Business Studies. He thought these results were inconsistent with significant depression or anxiety and indicated “intact motivation and concentration”.
In oral evidence Dr Champion said that he accepted that on his return to work Mr Singh developed symptoms similar to those he had experienced in the past. He said, had he been Mr Singh’s treating doctor, he would have encouraged him to put up with a bit of anxiety and depression and “have a go”. In his opinion Mr Singh’s academic results indicated that any anxiety and depression was clearly “manageable”.
Dr Phillips
Dr Phillips assessed Mr Singh at the request of Mr Singh’s solicitors, in December 2010. In Dr Phillips’ opinion Mr Singh initially suffered from a major depressive disorder and later an adjustment disorder with depressed mood. He agreed with Dr Champion that Mr Singh had some “obsessional features within his personality constitution”.
Dr Phillips disagreed with Dr Champion’s opinion that Mr Singh was fit for work from 19 October 2009 and believed that Mr Singh remained symptomatic. In his opinion Mr Singh will “never be able to return to the ATO workplace”.
In a report dated 15 June 2011, Dr Phillips wrote that he had obtained a “reasonable and unembellished history” from Mr Singh. In cross-examination he admitted that Mr Singh did not tell him that he was studying towards a Masters degree. On questioning he thought it “entirely possible” that Mr Singh would have been able to undertake academic studies notwithstanding his depressive disorder, pointing out that the studies would be undertaken away from the stressors of the workplace. Dr Phillips agreed with the proposition that a person with an adjustment disorder can maintain a high level of function but thought that their ability to do so “depends to a large degree” on the individual.
Mr Singh told Dr Phillips that on return from a two week holiday to India in early 2007, he felt no improvement in his condition. [In a report dated 5 March 2007, psychiatrist, Dr Michael Prior, recorded that Mr Singh reported that he enjoyed the trip and while in India felt motivated and functioned relatively well for the first time.]
Reliability of Dr Stanley’s opinion
Comcare contends that Dr Stanley’s opinion is unreliable because he lacked professional detachment and in effect sided with Mr Singh against the ATO. In support it points to Dr Stanley’s statement that his patient was “absolutely truthful to a fault” (Transcript of Proceedings, Singh and Comcare (AAT, 2010/1016, Senior Member Allen, Member Thorpe, 11 July 2011) p 72) and his disparaging comments about the ATO (for example, his remark to Ms Green in a meeting on 1 September 2009 that Mr Singh had been “buggerised around [by the ATO]”). In addition, Comcare points to a number of emails sent by Mr Singh in the early part of 2010 in which he urged Dr Stanley to address various matters in the report he had been requested to prepare by Comcare. In an email to Dr Stanley, dated 17 February 2010, Mr Singh listed 18 alleged examples of “continued psychological abuse by the officers of the ATO” and asserted that he had solid evidence for each. Dr Stanley replicated that list in a report to Comcare, 26 February 2010, under the heading “Mr Singh’s statement … His perceptions of his work situation”.
When questioned in these proceedings about Mr Singh’s presentation on 19 October 2009, Dr Stanley stated that he could not remember Mr Singh’s exact report of symptoms, but recalled that Mr Singh reported feeling depressed, very anxious and unable to continue. Dr Stanley’s clinical notes were produced in these proceedings. The entries are brief and mostly illegible. The entry for 19 October 2009 sheds no light on what Mr Singh told Dr Stanley on that day.
In Dr Stanley’s opinion, the explanation for the apparent discrepancy between Mr Singh’s proven ability to perform to a high standard in his academic studies and his purported incapacity for employment was his familiarity with, and comfort in, dealing with the former and his perception of the uncertainties surrounding his proposed role at the ATO. According to Dr Stanley, Mr Singh “does not like blurred lines” and “felt very uncomfortable doing something for which he is not qualified”. (Transcript of Proceedings, Singh and Comcare (AAT, 2010/1016, Senior Member Allen, Member Thorpe, 11 July 2011) p 74).
Despite having initially endorsed the RTWP, by early 2010, if not before, Dr Stanley had concluded that it was unsuitable for Mr Singh to undertake. His reservations about the plan broadly accorded with those expressed by his patient: principally, Mr Singh’s purported lack of qualifications and the inadequate job description provided, particularly as the RTWP progressed.
It is more probable than not that Mr Singh provided Dr Stanley with a somewhat coloured picture of the plan and his treatment by the ATO. That is consistent with Dr Stanley’s comment in his report dated 26 February 2010 that the proposed role involved “administration and possibly marketing” and his remark to Dr Synott, that his patient had been “pushed beyond the point regarding trusting people at the ATO” (report of Dr Synott, 20 November 2009). On the material before us, it is not possible to say whether, as we understand Comcare to suggest, Mr Singh sought to deliberately mislead Dr Stanley, or whether his coloured perception of events was genuinely held.
Whatever the explanation, taken as a whole we do not think that the history available to Dr Stanley was so materially inaccurate as to render his opinion about his patient’s fitness for work unreliable. As a treating psychiatrist he would be accustomed to taking histories from patients where their accounts are coloured by their perception of, and reactions to events. Dr Stanley was aware that his patient, who had then been out of work for close to three years, had reservations about the program. Like the other experts he thought his patient to be rigid and inflexible and found dealing with what he considered to be uncertainties and intangibles to be challenging. He concluded that this personality trait, coupled with Mr Singh’s disquiet over the absence of a formal job description, caused his patient a degree of distress.
It may be that when confronted with Mr Singh’s reported symptoms in October 2009 the better approach would have been, as Dr Champion advocated, to encourage Mr Singh to push on. It does not follow however, that the only plausible explanation for Dr Stanley concluding that his patient was unfit for work was that he was consciously or otherwise biased towards Mr Singh.
In any event, the argument that Dr Stanley’s evidence is unreliable is effectively circular. Comcare, to all intents and purposes, submits that because he, the doctor who knows Mr Singh best, supports Mr Singh’s own self-assessment (which Comcare disputes) he must therefore be biased and unreliable. Dr Stanley completed a clinical assessment of his patient, came to a conclusion and formulated an opinion, which he provided to the employer. His opinion was in keeping with that of Dr Phillips, but differed from that of other psychiatrists. Based on the material before us, there is no reason to dismiss Dr Stanley’s opinion as unreliable.
Dr Stanley had to treat his patient as he found him, not as others might wish him to be (less rigid, more resilient). The degree to which Mr Singh was affected or incapacitated by his disorders is not amenable to empirical measurement. Adjustment disorders and depression affect different patients to different degrees and sometimes in different ways. Some aspects of such disorders are or may be subtle and take time for a clinician to discern accurately, especially if the patient him or herself is complex. This is a problem about which competent, honest and reasonable psychiatrists might disagree. In such cases, and this appears to be one, the opinion of the treating doctor may, all other things being equal, be preferred over those of clinicians less familiar with the patient. For these reasons, we consider that Dr Stanley’s opinion ought be accepted on the balance of probabilities.
It is likely that factors unrelated to the original injury, including Mr Singh’s negative views about the RTWP together with inflexible features of his personality, contributed to the development of symptoms within a relatively short period after his return to work. The issue however is not what caused any alleged symptoms but whether Mr Singh in fact experienced such symptoms and, if so, whether there was a reasonable foundation for Dr Stanley’s opinion that they rendered him unfit for work. There is no debate between the experts that after returning to work in 2009 Mr Singh experienced heightened symptomology. The disagreement centres on its cause and the extent to which it impaired Mr Singh’s functional capacity. Having regard to all the circumstances we conclude that there was a proper foundation for Dr Stanley’s conclusion that his patient was unfit for work.
Did Mr Singh without reasonable excuse fail to continue the RTWP?
We must decide whether Mr Singh failed to continue to undertake the RTWP “without reasonable excuse”. That task requires us to objectively assess the reasonableness of the proffered excuse — being certified unfit to work by his treating psychiatrist.
It is unarguable that the ATO made a genuine and concerted effort to facilitate Mr Singh’s return to work. Not only was a program designed which incorporated the restrictions recommended by Dr Synott and endorsed by Dr Stanley, the ATO managers responsible for its implementation, particularly Mr Nadazdy, made a genuine and concerted effort to facilitate Mr Singh’s return to the ATO. While relevant, the question posed by s 37(7) is not whether the ATO took all reasonable steps to facilitate Mr Singh’s return but whether, in failing to undertake the program, he acted without reasonable excuse.
We accept that a treating doctor’s opinion is not determinative of the question of the reasonableness of the excuse (see for example, McGuinness v Comcare [2007] FMCA 1486, [119]). We also accept that Mr Singh was not a simple man who might be expected to automatically defer to his treating doctor. Nonetheless, within two weeks of starting work, he had developed symptoms which his treating doctor believed were severe enough to make him unfit for work. It does not follow that, because Dr Stanley essentially confirmed Mr Singh’s “prophecy”, in relying on his treating doctor’s opinion, Mr Singh acted without reasonable excuse. Had Dr Stanley been of the opinion that Mr Singh was fit for work and Mr Singh rejected this, he could reasonably have been criticised. If, however, his own doctor confirmed his own opinion that he was unfit to work and his doctor, to Mr Singh’s belief, was acting honestly and reasonably in coming to that assessment, it is difficult to see why Mr Singh should be criticised for relying on it. On balance we are satisfied that when he was first certified unfit for work, Mr Singh did not act “without reasonable excuse”.
The more difficult question is whether when presented with Dr Synott’s alternative opinion some months later, Mr Singh acted “without reasonable excuse”. As detailed above Dr Synott outlined in his reports his opinion that despite suffering from an adjustment disorder, Mr Singh was fit to continue on the RTWP developed by the ATO. At that point Mr Singh had been presented with a well-reasoned opinion that challenged the opinion provided by Dr Stanley.
Mr Singh, however, was hardly in a position to make a judgment that his own treating doctor was wrong and Dr Synott was right. He lacked both the requisite expertise and the objectivity to make that distinction. This is the kind of problem that courts and tribunals find difficult to solve with the aid of independent experts and the application of judicial technique. We therefore do not think that Mr Singh, in preferring his own treating doctor’s opinion and advice, which coincided with his own subjective experience, acted without reasonable excuse.
Decision
We find that Mr Singh had a reasonable excuse for failing to undertake the RTWP. It follows that the preferable decision is to set aside the decision under review. In substitution we decide that Mr Singh had a reasonable excuse for failing to undertake the rehabilitation program provided by the ATO.
I certify that the preceding 56 (fifty six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr Hadia Haikal-Mukhtar.
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Associate to Senior Member Britton
Dated 26 September 2012
Date(s) of hearing 26 July 2012 Counsel for the Applicant Leo Grey Solicitors for the Applicant Sarika Sud
CARROLL & O'DEA LAWYERSCounsel for the Respondent
Rhonda Henderson
Solicitors for the Respondent
Anella Bortone
SPARKE HELMORE
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