Singh and Australian Postal Corporation
[2011] AATA 370
•31 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 370
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2516 &
GENERAL ADMINISTRATIVE DIVISION ) 2010/3341 Re Kushma Singh Applicant
And
Australian Postal Corporation
Respondent
DECISION
Tribunal M D Allen, Senior Member
Dr T K Austin AM, Member
Date31 May 2011
PlaceSydney
Decision The decisions under review are AFFIRMED. .................[sgd]..................
Presiding Member
CATCHWORDS
WORKERS COMPENSATION: Failure to undertake Rehabilitation Program. Whether Applicant had a "reasonable excuse" for failure. No attempt made to commence program. Had no reasonable excuse for failure. Decision to suspend rights Affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988, Sections 37, 38.
CASES
Pascoe v Australian Postal Corporation (2004) 77 ALD 464.
REASONS FOR DECISION
31 May 2011 M D Allen, Senior Member
Dr T K Austin AM, Member1.By Application made 21 June 2010 the Applicant sought review of a reviewable decision which although undated was received by the Applicant on 23 April 2010, affirming a prior determination of 1 February 2010, made pursuant to subsection 37(1) of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) determining that the Applicant was to undertake a rehabilitation program whilst located at the Strathfield Letter Facility, situated at 2 Weerona Road, Strathfield in the State of New South Wales.
2.It is common ground between the parties that the Applicant did not commence to undertake the said rehabilitation program, claiming that she was incapable of travelling between her home at Casula and the Strathfield Letter Facility.
3.On 6 May 2010 the Applicant’s entitlements to compensation under the SRC Act were suspended pursuant to Ss37(7) of that Act following her failure to undertake the rehabilitation program. That determination was affirmed by a reviewable decision made 7 July 2010.
4.By Application made 6 August 2010 the Applicant sought review of the reviewable decision of 7 July 2010.
5.Section 37 SRC Act reads inter alia:
“(1) A rehabilitation authority 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.
(2) If a rehabilitation authority makes a determination under subsection (1), the authority may:
(a) provide a rehabilitation program for the employee itself; or
(b) make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.
Note: A rehabilitation program that is being provided to a person under this section might cease if the person is also provided with rehabilitation under the MRCA (see section 18 of the CTPA).
(2A) A determination under subsection (1) is not a legislative instrument.
(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36(8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee's opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee's attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
(4) The cost of any rehabilitation program provided for an employee under this section shall be paid by the relevant authority in relation to that employee.
(5) Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:
(a) if the employee is undertaking a full-time program--compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would, but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of the program; or
(b) if the employee is undertaking a part-time program--compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full-time program.
(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.”
6.Whereas the Applicant has sought review of the decision that she was capable of physically undertaking the rehabilitation program, namely the Application lodged on 21 June and given number 2010/2516, the matter before us proceeded predominantly on the basis that she had a reasonable excuse for not undertaking the said rehabilitation program so that her entitlements under the SRC Act should not have been suspended pursuant to Ss37(7) of that Act (Matter No 2010/3341).
7.Although the Full Court of the Federal Court in Pascoe v Australian Postal Corporation (2004) 77 ALD 464 pointed out that the Tribunal in that case had asked the wrong question when it considered in a review of a cancellation determination under Ss37(7) SRC Act whether the rehabilitation program was an appropriate program rather than determining whether the employee had a reasonable excuse for not undertaking it. The Court stated that a reference to a “rehabilitation program provided for the employee” in Ss37(7) SRC Act is one in which a determination under Ss 37(1) SRC Act has been made and for which a program has been provided by an approved program provider. Ss38(2) SRC Act provides for reconsideration of the program.
8.In these proceedings the Applicant in matter number 2010/2516 challenged the appropriateness of the rehabilitation program.
9.We understand the Applicant’s case to be that she had a reasonable excuse for not undertaking the rehabilitation program as she was unable to cope with the travel between her residence and the letter facility at Strathfield where she was to undertake the rehabilitation program. At transcript page 36 the Applicant was asked by the Tribunal:
“Question: If you had been offered the work of five hours a day, five days a week at Ingleburn, would you have done that?
Answer: Yes, I was working there.”
10.At no time has the Applicant attended the Strathfield Letter Facility in order to attempt to carry out the rehabilitation program determined for her.
11.In evidence to the Tribunal the Applicant said that her General Practitioner, Dr Borkar, had placed a limit on the time she could travel, and that the journey from her home at Casula to Strathfield exceeded that limit. The said limit being 20 minutes.
12.At document T226 of the documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, is a medical certificate from Dr Borkar dated 7 July 2009 stating that the Applicant had an ability to travel up to 15 minutes, and that walking was restricted to 20 minutes.
13.On 11 February 2010 the Applicant’s treating neurosurgeon, Dr Abraszko, certified that she was able to travel for 20 minutes only due to “significant increase of her lumbar pain.”
14.The opinions of Drs Borkar and Abraszko are in contrast to that of rheumatologist Dr McGill who examined the Applicant on 16 November 2009. In his report of that day he opined:
“Although one would normally expect the aggravation produced by her work activities in January 2008 to have now resolved, on the basis that she did not have previous back symptoms and has continued to report symptoms ever since that episode, I think it should be accepted that she has an ongoing aggravation . Assessment of the quantity of that aggravation is very difficult because of the psychological factors influencing her presentation.”
He added in his report that there was inconsistency with respect to her behaviour. Cross examined he explained that there were aspects of the Applicant’s presentation that were not purely physical. Dr McGill had previously expanded upon his remarks in his report of 16 November 2009 in a report dated 18 December 2009, where he stated:
“I think the complaint she has expressed in writing fit with the pattern of symptom reporting and behaviour that she demonstrated when I saw her. The imaging studies of her low back have demonstrated degenerative changes in the lower 3 lumbar discs but no finding that one would expect to produce the pattern of symptoms that she has reported and the behaviour that she has demonstrated.”
Adding:
“The hostility she has expressed to Australia Post will continue to hamper her management. I confirm my views in regard to her physical capacity to engage in work. She would be able to travel 60 minutes between her home and her workplace”.
15.Discussing the Applicant’s ability to undertake the rehabilitation program, Dr McGill stated:
“She does have a capacity to engage in work.
I think she would be fit to perform her full normal hours. Although her genuine physical capacity may be greater, I think to avoid any possibility of her work duties aggravating her back, it would be sensible for her to have a 7kg lifting restriction and not to be asked to perform work that requires repeated bending…
It would be reasonable for her work hours and activities to be progressively upgraded to the restrictions mentioned above. I doubt there is any benefit to be gained by extending the return to work programme for longer than a 6 week period.”
16.In contrast to Dr McGill, Dr Abraszko in a report dated 17 July 2009 stated that in her opinion the Applicant was not voluntarily exaggerating her symptoms but had a different (sic) tolerance to pain.
17.Whereas the Applicant said that she had been recommended by her GP not to travel for more than 20 minutes, during cross examination of Dr Borkas the following passages occurred:
Question: “And the reason you say she can’t manage is because sitting in a car for more than 20 minutes gives her back pain, doesn’t it?”
Answer: “Well, if a patient says that they do get the pain, then you have got to take on their word, according to what they can do.”
Question: “And it’s fair to say isn’t it, that Mrs Singh has told you consistently since she had gone back to work that travelling in excess of 20 minutes is something she cannot do because it causes her pain?”
Answer: “That’s correct.”
Question: “And you have accepted that, haven’t you?”
Answer: “Yes.”
18.Later in cross examination, Dr Borkas was asked:
Question: “And when she says to you ‘I can’t travel for more than 20 minutes by car or by train because it hurts my back’ you similarly accepted Mrs Singh’s assertions haven’t you?”.
Answer: “That’s correct”.
19.In our view the above passages show that Dr Borkas is basing his opinions that the Applicant is restricted in her travelling times to 20 minutes upon what he has been told by the Applicant and not upon any objective tests or findings.
20.Apart from the actual travelling time from Casula to Strathfield the Applicant also said that steps at railway stations were a major issue for her. There are no lifts at Casula railway station and although there are lifts at Liverpool Station there is no readily available parking there, although she does have a disabled parking sticker for her motor vehicle.
21.So far as driving from her home at Casula to Strathfield is concerned, the Applicant said it would take 45 minutes to 1 hour and she had not attempted the journey.
22.Dr Borkar was further cross examined regarding the ability of the Applicant to undertake a return to work program at Strathfield. After stating:
“It’s a question of can you get people to go back to work; that is my principle, and I think if we can help, and cooperate, I think that’s the way, I think, we deal with it.”
He was then asked:
Question: Do you agree that by January 2010 it was reasonable for Mrs Singh to be encouraged to travel for more than 20 minutes to return to work?
Answer: I think before that, way before that, I think the whole thing – the communication had broken down. I think the one thing I think you will see is, from the employer and employee, if the communication breaks down I think… you are not going to do it.”
Question: Well it’s fair to say that the communication broke down, isn’t it, because Mrs Singh refused to countenance working where she had to travel more than 20 minutes?
Answer: Yes. So I think it’s that sort of thing is they take up that position. I mean no doctor in the world can, I think, make any difference.
23.Dr Borkar’s evidence in this regard is corroborated by psychologist Mr O’Neill who interviewed the Applicant on 13 March 2009. In his report of 16 March 2009, Mr O’Neill states:
“There is indication of abnormal illness behaviour, and this was evidenced throughout the assessment interview. I found no evidence of hypochondriasis or malingering.
You questioned as to whether Mrs Singh presented with any barriers impacting on rehabilitation. I do not believe she presented with any of the injury-related barriers you identified. In terms of employer-related barriers, she did present with aggressive attitude, high pain focus, perception of restrictions to travel and work satisfaction issues. There was also much anger tied up with the previous Workers Compensation Claim, in which she fought for three years Australia Post through the Administrative Appeals Tribunal. The anger regarding this is still unresolved. Since the workplace barriers, she also has a perception that her management is not supportive, and is trying to coerce her to work beyond her restrictions.”
24.Central to the resolution of this matter is a realistic assessment of what the Applicant can undertake, as opposed to what the Applicant claims to be capable of undertaking.
25.During the course of her cross examination the Applicant was challenged regarding previous evidence that around the home she got her husband to perform jobs so that she did not have to bend. She denied exaggeration. The following piece of cross examination then took place:
“Question: You see, I want to suggest that you are, for example, able to undertake gardening at home.
Answer: No, I don’t do garden.
Question: You don’t do gardening?
Answer: I can’t do garden – do gardening. I can’t do the gardening… I don’t do gardening. I don’t do anything bending and lifting and all those things. I can’t do it because it aggravates my pain.”
26.Exhibit R2 in these proceedings is a DVD containing visual material showing the Applicant engaging with her husband in a gardening activity and bending (referred to in evidence as a “video”).
27.The Applicant recalled Dr Borkar and he gave evidence that he had inspected the Applicant’s residence and the visual images of the Applicant’s activity, as contained on the DVD, did not accurately show the motions apparently engaged in by her. We accept that the Applicant is seen to be guarding her back, however, we do not accept Dr Borkar’s evidence as to the Applicant supporting herself on a raised garden bed. This was supposition on his part. At no time in her explanation of what she was observed to be doing did the Applicant claim to be supporting herself by having one hand on a raised garden bed. In fact in cross examination she agreed that the video showed her “gardening” and that was in complete contradistinction to what she had earlier told the Tribunal. In any event the video, as we perceive it, showed the Applicant kneeling, projecting her upper body forward and parallel to the ground and engaging in activities which can only be sensibly described as “gardening”. Even Dr Borkar stated that she was bending.
28.The video was also viewed by Dr McGill. In a report (Exhibit R4) he states:
“The work was not vigorous nor heavy. There was no suggestion however that she was limited in her activities by her back.
The function demonstrated on the DVD was consistent with the objective physical findings and the mild radiological abnormalities that were recorded in my report of 16 November 2009. The DVD footage was not consistent with the pain behaviour and very restricted thoracolumbar movements which she demonstrated when I saw her.”
29.The Applicant’s denial of ability to bend or garden when compared to the DVD vision of her activities satisfies us that the Applicant has capacity beyond that claimed by her. It supports not only the evidence of Dr McGill that she is capable of travelling 60 minutes between her home and her place of work, but also the opinions of Mr O’Neill and Dr Borkar that her behaviour is influenced by anger towards her employer.
30.As stated above the Applicant has never attempted to travel from her home to her place of designated employment at Strathfield and on the material before us she is capable of undertaking that journey or at the very least making a positive attempt.
31.It follows therefore that in our opinion the Applicant did not have a reasonable excuse for not complying with the rehabilitation program or at the very least making a realistic attempt to comply, therefore the decision under review in matter 2010/3341 is affirmed.
32.Although the decision to suspend the Applicant’s benefits has been affirmed we are of the opinion and so find that the rehabilitation program determined for the Applicant was appropriate. The Applicant in answer to questions by the Tribunal stated that she could work five days a week, five hours a day at Ingleburn and the whole of her case was predicated upon the assertion that she was incapable of travelling to Strathfield rather than being incapable of performing the designated work once she was there. The decision in matter 2010/2516 is therefore also affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr T M Austin AM, Member.
Signed: ...............[sgd]........................
K. Lynch, AssociateDate/s of Hearing 15 and 16 March and 2 May 2011
Date of Decision 31 May 2011
Counsel for the Applicant Mr C Jackson
Solicitor for the Applicant Gajic Lawyers
Counsel for the Respondent Mr M Best
Solicitor for the Respondent Australian Postal Corporation
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