Samuel Singh and Comcare - [2012] AATA 652

[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-Mukhtar

Date 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 533
SECONDARY 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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Samuel Singh and Comcare

Details

AGLC: Samuel Singh and Comcare [2012] AATA 652
Case: [2012] AATA 652
Decision Date: 26 September 2012

CaseChat Overview and Summary

Samuel Singh and Comcare involved a dispute regarding Mr Singh's failure to undertake a return to work program (RTWP) after he was certified fit for work by a psychiatrist, Dr Inglis Synnott, who was appointed by Comcare. The case was heard by the Federal Circuit Court of Australia. The primary issue before the court was whether Mr Singh had a reasonable excuse for failing to undertake the RTWP as directed by Comcare, and if his treating psychiatrist's opinion that he was unfit for work constituted a reasonable excuse. The court had to determine if the excuse proffered by Mr Singh was reasonable in the context of all relevant circumstances, and whether the decision to deny compensation should be set aside.

The court assessed the reasonableness of Mr Singh's excuse for not undertaking the RTWP, focusing on the expertise and objectivity of the opinions presented. The court noted that Mr Singh's treating psychiatrist, Dr Thomas Stanley, had been treating him since October 2006 and had certified him unfit for work on multiple occasions. The court recognised that Mr Singh was not in a position to objectively assess the validity of Dr Stanley's opinion over that of Dr Synnott, appointed by Comcare. The court found that Mr Singh's preference for his own treating doctor's opinion, which aligned with his subjective experience, constituted a reasonable excuse for not undertaking the RTWP. The court set aside the decision denying compensation, finding that Mr Singh had a reasonable excuse for failing to undertake the rehabilitation program.

In conclusion, the Federal Circuit Court of Australia found that Mr Singh had a reasonable excuse for not undertaking the RTWP as directed by Comcare. The court set aside the decision denying compensation and determined that Mr Singh's failure to undertake the rehabilitation program was justified under the circumstances. This decision underscores the importance of considering the reasonableness of the excuse provided by the employee, based on their subjective experience and the opinions of their treating medical professionals, rather than the appropriateness of the rehabilitation program itself.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/3084
Re	Samuel Singh
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member A K Britton Dr Hadia Haikal-Mukhtar
Date	26 September 2012
Place	Sydney