Singh and Comcare
[2011] AATA 533
•1 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 533
ADMINISTRATIVE APPEALS TRIBUNAL )
) No.s 2010/1016
GENERAL ADMINISTRATIVE DIVISION ) & 2010/3084 Re Samuel Singh Applicant
And
Comcare
Respondent
DECISION
Tribunal M D Allen, Senior Member Dr M E C Thorpe, Member
Date1 August 2011
PlaceSydney
Decision 1. The decision in matter 2010/1016 is AFFIRMED; and
2. The decision in matter 2010/3084 is SET ASIDE and remitted to the Respondent.
.................[sgd]..................
M D Allen, Presiding Member
CATCHWORDS
WORKERS COMPENSATION: Whether a Return to Work Program was suitable for the Applicant to undertake and was his failure to continue to undertake that program reasonable.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, section 37
CASES
Westgate v Australian Telecommunications Authority (1988) 14 ALD 367
REASONS FOR DECISION
1 August 2011 M D Allen, Senior Member
Dr M E C Thorpe, Member1. Before the Tribunal were two applications for review, namely:
Application 2010/1016 seeking review of a “reviewable decision” of 17 February 2010, which affirmed a prior determination of 2 October 2009 directing the Applicant to participate in a rehabilitation program commencing 7 October 2009; and
Application 2010/3084 seeking review of a “reviewable decision” of 9 July 2010 which affirmed determinations dated 1 and 9 April 2010. The determination of 1 April 2010 ruled that the Applicant had refused or failed to undertake a rehabilitation program, and that the Applicant’s rights to compensation were suspended pursuant to subsection 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”). The determination of 9 April 2010 denied payments of compensation to the Applicant, pursuant to s19 SRC Act for the period 19 October 2009 to 19 February 2010.
2. 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.
…
(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.
…
(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.
(8) Where an employee's right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.”
3. The issues in this matter were therefore:
i.Was the rehabilitation program the Applicant was directed to undertake a suitable program to direct the Applicant to undertake; and
ii.If yes to (i) above, did the Applicant have a reasonable excuse for failing to continue to undertake the said rehabilitation program.
4. The Applicant began employment with the Australian Taxation Office (“ATO”) in March 2005 as a senior internal auditor at the classification of an Australian Public Service Officer Grade 6 (referred to as an APS6). At some stage in 2005 and 2006 the Applicant experienced difficulties with co-workers and made complaints of bullying and harassment.
5. A report on the Applicant’s performance during his probation period is to be found at document T7 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Act 1975. Presciently that report states:
“We have noticed that Samuel has very strong opinions/views and at times he comes across as arrogant, particularly when he compares IA work practices with his experiences in the private sector (at times he struggles with understanding public sector culture). There has been instances where he has been reluctant to take directions from the team leader and instead has taken up issues directly with the Manager. … Samuel needs to understand that he is required to work in a team environment and he is under the direct supervision of his team leader. He needs to understand that the Team leader has authority. Samuel is also at times reluctant to take advice of senior team members on the conduct of Internal audits in the ATO. He appears over-confident at times and reluctant to learn from other’s knowledge and experience.
It is suggested that Samuel be more diplomatic, not only in his interactions with team leaders and other colleagues, but also with clients, whom he is required to maintain a good rapport and working relationship. Otherwise his relationships with fellow team members may be in jeopardy and team disharmony could occur”.
6. After a series of acrimonious emails from the Applicant to his superiors and a meeting held on 18 August 2006, the Applicant was referred to psychiatrist Dr Prior on 9 October 2006. Prior to his appointment with Dr Prior, the Applicant had ceased attending work and on 17 July 2006 had been certified by his General Practitioner, Dr Bartipan, as unfit for work from 17 July 2006. Dr Bartipan’s practice continued to issue certificates of unfitness for work until the Applicant was seen by Dr Stanley, psychiatrist, on 16 October 2006 on referral from Dr Bartipan.
7. In his report of 9 October 2006, Dr Prior diagnosed a major depressive episode. Dr Stewart in a report dated 15 August 2007 diagnosed an “adjustment disorder with depression”.
8. By determination dated 12 September 2007, the Respondent accepted the Applicant’s claim for compensation, the compensable injury being stated as “adjustment reaction with mixed emotional features”.
9. On 14 November 2007 Dr Stanley certified that the Applicant was fit to return to work. A report by psychiatrist Dr Walker dated 26 November 2007 stated that at the time the Applicant consulted him, there was no evidence of any psychological condition and that the Applicant was fit to resume a Return To Work Program (RTWP). Significantly, Dr Walker did state that the Applicant’s antidepressant medication would not impair his capacity to undertake a rehabilitation program but that as Dr Stanley supported Mr Singh in not returning to Internal Audit, this was a potential barrier to the proposed rehabilitation program succeeding.
10. In fact the proposed RTWP did not succeed. Although Dr Stanley had certified that the Applicant was able to return to work, albeit starting at four hours daily and not having contact with staff with whom he had formally worked, the Applicant did not attend for work on 14 January 2008 as required by the RTWP.
11. On 6 February 2008 Dr Standley certified the Applicant as unfit to attend work.
12. The Applicant did attend for work on 28 April 2008 but then did not attend on any subsequent days. On 6 May 2008 the Applicant’s employment was terminated.
13. Following proceedings in the Tribunal, now known as Fair Work Australia, the Applicant was reinstated as an employee of the ATO.
14. On 7 July 2009 the Applicant was examined by psychiatrist Dr Synnott with particular references to his capability to undertake a rehabilitation/return to work plan.
15. In the history obtained by him, Dr Synnott noted that the Applicant had commenced studying for a Masters Degree in Accounting and Finance at the University of Technology Sydney in August 2008. Following examination and the taking of the Applicant’s history, Dr Synnott diagnosed a major depressive disorder currently in remission.
16. In answer to specific questions, Dr Synnott opined that the Applicant currently had the psychological capacity to undertake the generic APS6 duty statement as part of the RTWP. Dr Synnott also noted that he had discussed the proposed RTWP with Dr Stanley, the Applicant’s treating psychiatrist. Both he and Dr Stanley agreed that the Applicant was fit to return to the workplace but with the restriction that there be no contact with the people with whom the Applicant had previously worked. Later this restriction was broadened to include the whole of the Parramatta office of the ATO.
17. Ms Damar of the ATO set about attempting to find a position for the Applicant in the ATO and to formulate a RTWP. Originally she engaged a rehabilitation provider from the firm “Workplace Solutions” but the Applicant objected to the involvement of that firm. Ms Damar therefore engaged Pronto Health (Ms Green) to assist.
18. On 21 May 2009 the Applicant forwarded an email to Ms Damar stating inter alia:
“Please request Fiona Green of Pronto Health to contact me or my treating doctor via email or in writing. I have major trust issues given what has been going on recently and my past experiences from the previous rehabilitation provider. I am just not prepared to be discussing things with anyone. I prefer email.”
A copy of that email was also sent to Mr Strazzeri, the ATO’s senior legal adviser and to the Applicant’s treating psychiatrist.
19. Dr Synnott had expressed the opinion that the Applicant was capable psychologically of performing the duties of an officer at APS6 level. The duties previously performed by the Applicant as a senior auditor at the APS 6 level are set out at document ST6 at page 864, namely:
“Activities undertaken by the internal audit function include assessing:
·the extent of Tax Office’s compliance with its legal obligations;
·the effectiveness of the design, implementation and operation of internal controls;
·the efficiency and effectiveness of business, service and program delivery processes; and
·the completeness, accuracy and reliability of internal financial, operating and governance reporting.
Work at the Senior Auditor (APS6) level is characterised by:
·a degree of autonomy and responsibility;
·tasks that have a medium level of complexity;
·a supervisory component;
·representation at middle management levels within the Tax Office;
·professional relationships with Tax Office management and other stakeholders;
·decision making within legislative frameworks and consistent with Tax Office operating policies and procedures;
·a staff mentoring component.”
20. Evidence was given to this Tribunal by Ms Damar as to efforts to find a suitable position for the Applicant. Constraining factors included: few positions were available which involved pure auditing at the APS6 level; that level also included supervisory duties; as well as other ATO departments which might have had a position for the Applicant, such as the GST division, had been directed to decrease staff. (For example the GST division had been directed to reduce staff levels by 200).
21. A position was found for the Applicant as a Learning and Development Coordinator at the Compliance sub plan section of the Large Business & International division of the ATO and a RTWP was drafted.
22. The proposed duties were discussed with the Applicant by Ms Green of Pronto Health on 16 September 2009. On 17 September 2009 the Applicant emailed Ms Damar stating inter alia:
“I am an Accountant by profession. A qualified CPA. Consequently my technical proficiency lies within the scope of an accountant including audits, tax, accounting, finance, systems analysis, risk assessment etc. Furthermore, my general skills that lie within the scope of my qualifications and experiences comprise of wide ranging features such as communication, results orientation, stakeholder management, personal drive and responsibility, autonomy, decision making, self-development, etc. I am also undertaking a Masters program majoring in Accounting and Finance. Given my skills and qualifications, I don’t think it matched the role that was discussed with me yesterday”.
23. On 23 September 2009 Ms Damar replied to the Applicant enclosing information which had been provided by Mr Nadazdy, who was to be the Applicant’s Manager at the Large Business & International division of the ATO. Ms Damar pointed out to the Applicant that “essentially this role will be using your accounting skills and technical leadership experience.”
24. The particular duties as adverted to by Mr Nadazdy and forwarded to the Applicant on 17 September 2009 stated:
“Our intention is to progress him into assisting with and developing two curricula in particular – Accounting, and Leadership. With the accounting curriculum, we require his accounting expertise to assist in identifying, developing and sourcing the appropriate workshops that will enable us to most effectively develop our staff from the foundational to advanced…. Mr Singh will not have to design the workshops, but will provide feedback from a technical perspective and ensure the information being provided is accurate.”
25. The Applicant communicated again with Ms Damar on 29 September 2009. In this communication he raised doubts as to his ability to undertake the duties proposed but concluded by stating:
“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.”
26. Later, on 6 October 2009, the Applicant emailed Ms Damar stating:
“I still do not understand how I am qualified for the position of Learning & Development Coordinator. Especially being an Accountant by profession. …I will give it a go as you are enforcing a determination under S37 of the SRC Act…”
27. Apparently the Applicant did present for duty on 7 October 2009. At document T92 is an email from Ms Damar to Ms Green which reads inter alia, “Samuel just phoned and said today has exceeded his expectations…”
28. In evidence the Applicant said that he had found his superior, Mr Nadazdy, to be a pleasant person and that he was impressed when he found out that Mr Nadazdy had a Master of Business Administration. Initially his duties were to read the induction manual and he also sent some emails regarding leave and alleged overpayments of salary.
29. The Applicant did have some discussions with Mr Nadazdy on 7 October 2009 regarding his duties. On 8 October he forwarded an email to Mr Nadazdy requesting “a full job description for my current role…” He also added:
·“I do not understand how I am qualified for this role.
·I would like to know where I am really heading, that is, how I am advancing with reference to the formal job description,
·The role has been identified as one that would enable successful completion of my rehabilitation,
·It is good for me psychologically to have certainty regarding my rehabilitation and future employment, and
·I have concerns as to my suitability of the role and need to make the decision whether it is appropriate for me.”
30. Mr Nadazdy replied to that email the same day. In his reply Mr Nadazdy stated inter alia:
“Whilst I provided Natasha a copy of an APS6 Job Description for an L&D Coordinator, this was not intended to represent the job you are performing, or will perform.
…It is important you understand that the role you will actually be undertaking does not exist. There is no job description. Our Team is accommodating you in line with your rehabilitation needs, on the basis of the feedback provided by your case manager and doctor. It is being developed as we go along so I am unable to provide you with anything more than the generic L&D Coordinator job description at this point. As we intend to introduce you to more complex tasks, this will be vetted by your case manager and doctor and that will dictate whether we can proceed or not. At this point I will not be drawn into providing you a list of functions I can confidently declare you will be performing because that is not within my control and I fear that it may be subject to appeal by you before the functions have even been approved. Nor will I be drawn into a situation where it appears you are not being consulted with regard to the kind of work you will be undertaking.”
31. The Applicant attended for work the next day, namely 9 October 2009, and forwarded an email to Mr Nadazdy in which he stated:
“Thank you for your email and also for the meeting earlier today. …
As you are aware, I consider that I am not qualified for the job in the RTWP. This my understanding on the qualifications is keeping my mind preoccupied pretty much all the time. Today, I was unable to concentrate when reading the materials you gave me. The way it is, it has potential to take a toll on my health.
As requested, would like to inform you that I will appeal the RTWP. I don’t think this role is suitable to rehabilitate me. I should be able to do this in next few working days”.
32. On 12 October 2009 the Applicant was informed that an appointment had been made for him to attend Dr Synnott on 20 October 2009, to ensure his ongoing rehabilitation was informed by current independent medical opinion.
33. The Applicant’s evidence was that he attended for work during the second week, namely the week commencing 12 October 2009 and was distressed to find that Mr Nadazdy was not there to support him and he began to have negative thoughts regarding his position and felt stressed. He lost his appetite, would wake up at 2:00am and could not go back to sleep. He saw Dr Stanley on 19 October 2009 who provided the Applicant with a certificate stating he was totally incapacitated for work. The Applicant has continued to receive certificates from Dr Stanley certifying his incapacity for work.
34. Questioned regarding the work he did perform whilst attending at the ATO under his RTWP, the Applicant stated that he had read the induction manual and attended to his personal administration. As noted above on 9 October 2009 the Applicant claimed to be unable to concentrate.
35. Before attending his appointment with Dr Synnott, the Applicant wrote to him on 12 November 2009 a three and a quarter page letter setting out in detail his version of the dealings between himself and the ATO. See document ST10 at page 879.
36. Dr Synnott interviewed the Applicant on 17 November 2009 and his report is at document T112. In that report Dr Synnott stated:
“In my opinion, at the consultation of 17 November 2009 Mr Singh described sufficient psychological symptoms to meet the diagnostic criteria of an adjustment disorder, and his presentation was consistent with the presence of an adjustment disorder.
37. Dr Synnott also stated in that report:
“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…
The fact he went off work after participating in a GRTWP for only a brief period (7 to 14 October 2009) suggests that other factors apart from his dissatisfaction with the GRWTP could be contributing to his presentation – negative mindset/inflexibility (to the point where it may be difficult to make a GRTWP that suits him and guarantees his return to work), degree of motivation to return to work and his ‘frame of mind’ (having not been at work for three years).”
38. Subsequently, Dr Synnott discussed the Applicant with Dr Stanley and stated in his report:
“Dr Stanley thought Mr Singh had been “pushed into a corner” and there would be no successful return to work in that specific department – and it was problematic regarding any successful return to work with the ATO. It was his opinion that Mr Singh had developed a negative and distrusting attitude of the ATO – and this was impacting on his response to the ATO, and his perception of how they were dealing with him.”
39. Dr Synnott was again asked to consider the Applicant’s suitability to undertake the RTWP in February 2010. In a report dated 24 February 2010 he opined:
“On the information available, I do not need to review Mr Singh to determine if he is fit to undertake a rehabilitation program – I saw no evidence that his condition has significantly changed since the consultation of 17 November 2009.
In my opinion, the RTWP dated 2 October 2009 is appropriate for upgrading Mr Singh. I see no psychiatric contraindication to proceeding with the plan – and no psychiatric incapacity of Mr Singh to participate in the plan.
I have seen no medical evidence to alter my opinion in relation to the medical perspective – whilst I appreciate that there maybe issues of personal choice and possibly relating to his training, in my opinion from a strictly psychiatric perspective there is no psychiatric contraindication or incapacity for Mr Singh to return to work on the GRTWP as described to me.”
40. The most recent report of Dr Synnott is that of 28 October 2010. This report relates to a proposed APS6 level position at the Hurstville Tax Office. In his report Dr Synnott states:
“In my opinion, from a psychiatric perspective, the duties are suitable – and there is no contraindication or incapacity to undertake these duties. He should be able to undertake all of the duties.
The draft of suitable duties plan accurately reflects my recommendations – I have no disagreement with this.”
41. That the Applicant was capable of undertaking a RTWP was also the opinion of Dr Champion who examined the Applicant on 23 March 2011. Under the heading of OPINION, in his report of 1 April 2011 Dr Champion stated:
“When I examined Mr Singh he presented in a manner which did not suggest the presence of any current depression, anxiety or other psychiatric disorder.
Recent academic efforts are consistent with the view that Mr Singh currently does not suffer from any form of psychiatric disorder which would prevent a return to work should he be motivated toward that end.
In my opinion Mr Singh had initially been diagnosed with Major Depression which had been effectively treated and which had resolved. His return to work in 2009 prompted an Adjustment disorder which, in my view, reflected a combination of personality factors and motivation as reported above. That Adjustment Disorder has now resolved and there is no impediment to Mr Singh undertaking a GRTWP should he be motivated to do so. I would point out however that Mr Singh is currently involved in full time university studies and has been receiving a wage without the need to attend the workplace for four years and has developed conflict with his employers, which is based on distrust. Despite Mr Singh’s claimed intention of wishing to pursue a career with the ATO, I have significant doubts as to whether any GRTWP offered to Mr Singh would be successful in the long term on the basis of his fixed attitudes toward the ATO and the likelihood he would develop similar perceptions to those which previously caused him some distress and a greatly extended absence from the workplace.
I consider that Mr Singh’s prognosis must be somewhat guarded as he has demonstrated tendencies to perceive stressors in the workplace. On balance it seems likely that his perceptions are based upon obsessional factors in his personality structure which will tend to be permanent...”
42. Dr Champion concluded his report by opining that the Applicant had no permanent incapacity from the events of 2006 and had no current incapacity. Dr Champion stated:
“The current situation, in which Mr Singh has been absent from the workplace for four years and has, in that time, become a successful full time university student, together with the lack of motivation to alter a situation in which he has little incentive to return to work on the basis of the need to produce an income, is in my view likely to render any GRTWP offered to Mr Singh unsustainable.”
43. In a later report dated 9 May 2011, Dr Champion stated:
“Mr Singh reported that he had redeveloped symptoms similar to those that he had previously. This was in my view a reaction to being asked to undertake work which was not in his view appropriate.
Any restrictions Mr Singh had at that time due to the redevelopment of anxiety/depressive symptoms would not have been sufficient to provide cause for him not to be able to continue with the return to work program. Adjustment Disorders may be of variable severity and in my view any Adjustment Disorder at that time would have been mild and based upon Mr Singh’s strong motivation to avoid the program offered by the ATO.
I consider the program commenced on the 7th October 2009 to be appropriate in regard to any medical or other restrictions.
…Mr Singh had been declared fit for GRTW in 2008 and at that time incapacity and impairment had ceased but due to Mr Singh’s rigid demands concerning the nature of the GRTW offered him and his unhappiness with the program offered to him in October 2009, he became upset. That emotional upset in my view could be characterised as a mild Adjustment Disorder with anxious depressed mood. In my view that condition would have resolved when Mr Singh ceased attending work and since that date he has, in my view, remained fit to return to work from a psychiatric viewpoint but poorly motivated to cooperate with any return to work program that did not meet his particular conditions.
44. In evidence, Dr Champion expanded upon his report of 9 May 2011. He regarded the RTWP as a reasonable attempt to reintegrate the Applicant back into the ATO. In particular he noted that at the time of the RTWP the Applicant was achieving at University and had an intact Global Assessment Function. The Applicant had told him he did not want to be involved in anything that was not straight accounting. The Applicant was not interested in succeeding with the RTWP and any symptoms he did develop should have been treated whilst retaining him in his position. That is to say the perceived difficulties should have been “worked through” in the workplace rather than permitting the Applicant to cease work.
45. That the Applicant was permitted to cease work in October 2009 was the decision of his treating psychiatrist Dr Stanley. We were unimpressed with Dr Stanley’s evidence as it became clear that Dr Stanley had become an advocate for his patient. Furthermore, particularly given the contents of the documents that became Exhibit R6, we are satisfied that Dr Stanley has permitted his professional judgement to be influenced by what the Applicant perceives to be in his own interests.
46. The Applicant was also examined for the purpose of these proceedings by psychiatrist Dr Phillips. In evidence, Dr Phillips revealed that he was not aware that the Applicant had been engaged in tertiary studies. This is contrary to his report of 13 December 2010 where he states that:
“He was not working at the time of my consultation but was studying a Masters program (Accounting/Finance) at the University of Technology Sydney.”
47. Dr Phillips was of the opinion that the Applicant had some obsessional features within his personality constitution, and that as the proposed RTWP lacked structure it would have been disturbing to him. In particular Dr Phillips noted:
“…I can state firmly that Mr Singh will never be able to return to work with the ATO, in any capacity.”
48. In a report dated 20 June 2011, Dr Phillips discussed Dr Champion’s reports and stated that both he had Dr Champion agreed that the Applicant had obsessional features.
49. Dr Phillips stated that the ATO offered the Applicant a RTWP in September 2009 but without consultation. This is not the case. The Applicant and his treating psychiatrist were consulted. Although the Applicant initially agreed to “give it a go” he was quite determined that he would not accept any position with the ATO except upon his own terms. As he stated to Dr Champion he did not want to be involved with anything that wasn’t straight accounting.
50. Compounding the Applicant’s perception of events at the time of his RTWP was a dispute regarding the implementation of the terms of settlement of his action against the ATO before the Fair Work Australia Tribunal and disputes as to alleged overpayments of salary. The details of these events are set out in details at documents ST8 and ST10 being comprehensive documents authored by the Applicant.
51. As stated above we do not accept Dr Stanley’s evidence as objective opinion and Dr Phillips’ understanding seems flawed. In particular, his misunderstanding of the Applicant’s tertiary studies and the history of the formulation of the RTWP. In cross examination Dr Phillips stated “I think his depression would impede his Masters program…”. Exhibit R5 makes it clear that in 2009 the Applicant obtained a Distinction and in 2010 a High Distinction and Distinction together with a Pass in the one semester. These results do not indicate any impediment in ability to study.
52. We are satisfied given the duties performed by the Applicant as an officer at APS6 level prior to 2006 and his own self-assessment as having wide ranging features such as communication, results orientation, stakeholder management, personal drive and responsibility, autonomy, decision making, self-development etc (see Applicant’s email of 17 September 2009 to Ms Damar), that the RTWP dated 2 October 2009 was entirely suitable for the Applicant to undertake.
53. Both Dr Champion and Dr Phillips assessed the Applicant as having obsessional character traits. What is abundantly clear is that the Applicant was only prepared to return to work at the ATO on his terms. When he was unable to do this that fact combined with the other difficulties he was experiencing with the ATO induced in him an anxiety state.
54. As pointed out by Dr Champion, the correct treatment would have been to have given support to the Applicant to work through the perceived difficulties whilst remaining in the workforce, but instead the Applicant attended upon Dr Stanley and Dr Stanley certified him as unfit for work.
55. This matter has some similarity to the matters referred to in Westgate v Australian Telecommunications Commission (1988) 14 ALD 367. In that case the Federal Court pointed out that it is sufficient if the employment contributes in a material way to the recurrence of an employee’s disease. It is not necessary that there be any fault on the part of an employer or any unusual stress or factor or special circumstance in the employment itself.
56. Here the Applicant developed an anxiety state (albeit mild) because he was not prepared to undertake a reasonable RTWP. His failure to continue to undertake the program was aided and abetted by his treating psychiatrist Dr Stanley who was prepared to certify his unfitness for work.
57. All medical professionals who have given opinions in this matter do not doubt that the Applicant did develop an anxiety state; they differ in their views as to its mode of treatment and duration. As the Applicant did develop an anxiety state and that his treating psychiatrist certified as to his unfitness for work, we cannot find that the Applicant did not have a reasonable excuse for not continuing with his RTWP, even though that excuse was one manufactured by him.
58. The net result of our findings is that the decision in matter 2010/1016 is affirmed and the decision in matter 2010/3084 is set aside and remitted to the Respondent.
59. Although the Applicant has been successful in matter 2010/3084 it does not follow that he is entitled to an award of costs. The evidence led was applicable to both matters and unless the parties can agree, these matters must be relisted in order that the question of costs can be argued.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe.
Signed: .........[sgd]......................
K. Lynch, AssociateDates of Hearing 11 & 12 July 2011
Date of Decision 1 August 2011
Counsel for the Applicant Mr L Grey
Solicitor for the Applicant Carroll & O’Dea Lawyers
Counsel for the Respondent Miss R Henderson
Solicitor for the Respondent Sparke Helmore
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