The Administrative Appeals Tribunal (AAT) recently found that an employee’s failure to complete the final element of his then existing rehabilitation program was unreasonable.
Although the AAT was considering the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Comcare Act), given the similarly worded provisions of the Seafarers Rehabilitation and Compensation Act 1992 (the Seacare Act) regarding compliance with rehabilitation programs, the decision provides useful guidance for employers operating under either of the Comcare and Seacare schemes in relation to compliance with rehabilitation plans.
Rehabilitation programs are a crucial element of claims management as unreasonable non-compliance provides a basis for suspension of an employee’s entitlement to compensation.
Facts
The employee had an accepted claim for compensation for Post Traumatic Stress Disorder due to a collision in September 2020 in the course of his employment as a driver.
At the time of the incident, the employee’s usual driving run involved a return trip from the Respondent’s Geelong depot to a regional Victorian town.
He completed a number of rehabilitation programs and in November 2021, the Respondent determined he should undertake a further program. The employee commenced work under that program (the November program) and took leave in December 2021.
The November program accommodated the employee’s need to avoid driving past the scene of the accident.
The employee was due to return to work from leave after 7 February 2022 and at this time, one week of the program was left to be completed.
The Respondent issued a further draft rehabilitation program in January 2022 (the January program). The employee then refused to return to work, asserting that the January program had caused a deterioration in his mental health because it required him to drive past the scene of the accident and return to his original regional run, despite his anxiety about driving long distances.
The employee then sought reconsideration of the November program and the decision suspending his right to compensation.
The AAT decision
The primary issue before the AAT was whether the employee’s failure to complete the final week of the November program was a refusal to complete the program ‘without reasonable excuse’.
The employee gave evidence that:
- his work hours had increased to almost full-time during the November program;
- the process of approving programs involved preparation of a draft plan based on medical evidence and input from him; and
- he could not recall when in February 2022 he saw either his general practitioner or treating psychiatrist.
The following evidence was given in the course of the hearing:
- the employee’s treating psychiatrist gave evidence that in late 2021 the employee had reported being in a positive mood and looking forward to a graduated return to driving and being bored with his present duties;
- the psychiatrist confirmed that the employee was fit to return to his pre-leave duties despite being in ‘extreme distress’ on 1 February 2022;
- the psychiatrist also agreed that returning to complete the November program was in the employee’s best interests;
- the rehabilitation consultant gave evidence that the rate of return to pre-injury duties in the January program was increased because the employee wanted to achieve this earlier than the previously recommended rate. Further, the January program was dependent upon medical advice;
- the Respondent’s return to work coordinator gave evidence that in November 2021 the employee had expressed a desire to return to truck driving as soon as possible; and
- the return to work coordinator also gave evidence that the regional run had been included in the January program in error and not corrected before it was sent to the employee.
In reaching its decision to affirm the decisions the AAT noted the following relevant matters:
- the error in the January program was a simple error to fix and the employee knew that the regional run had been transferred to a sub-contractor;
- the employee had directly expressed a return to truck driving; and
- the treating psychiatrist’s view that the employee was fit to complete the final week of the November program (despite being distressed) was particularly significant. There was no evidence that there had been any further deterioration in his condition.
The AAT preferred the Respondent’s submission that ‘undertake’ included an obligation to perform the program and engage with the employer about any actual or anticipated difficulties.
Accordingly, the AAT was not satisfied that the employee had a reasonable excuse to not to return to work from annual leave to complete the November program. The employee may have been in distress, however, the available evidence indicated that he was fit to return to work and his fears were either unreasonable or capable of being addressed in a manner other than that which occurred.
Commentary
The decision reminds employers and claims managers in the Comcare and Seacare schemes that:
- rehabilitation is an important part of the of the Comcare and Seacare scheme and this is reflected in the serious consequences for unreasonable non-compliance with a rehabilitation program, namely possible suspension of compensation entitlements;
- rehabilitation programs need to be prepared with input from the employee and medical professionals. If non-compliance issues arise in relation to such plans, there will be a greater likelihood of demonstrating that the non-compliance was unreasonable; and
- employer and rehabilitation consultants should keep contemporaneous and detailed notes of their discussions with the employee regarding the progress of existing plans and preparation of future plans. These records may become critical evidence as to whether an employee’s non-compliance with the plan is unreasonable, particularly if the reasons raised by the employee for non-compliance are inconsistent with matters they have related during the preparation of the plans.
This article was written by Anthony Highfield, Partner and James McIntyre, Special Counsel.
