Excuse for not joining rehab program rejected
An employee must have a reasonable excuse for refusing to participate in a workplace rehabilitation program – merely being dissatisfied with it is not an acceptable reason for non-compliance.
The Administrative Appeals Tribunal of Australia (AATA) found that it appeared that an employee’s main reason for refusing to participate was her preference to work four days per week instead of five.
Her case was also undermined by surveillance footage that indicated that she had exaggerated her symptoms, and some credibility issues with the evidence of other witnesses.
Facts of case
Catrina Oliver was employed as an executive assistant by the Department of Social Services (DSS). She was awarded workers’ compensation for inflammatory and sprain-type injuries, including carpal tunnel syndrome, to her left wrist. Over three years, she had surgery and several attempts to return to work, before taking maternity leave. Several different rehabilitation providers were used during this time.
The DSS referred her to an occupational physician, who reported that her condition was unlikely to resolve in the foreseeable future, but there were no objective medical reasons why she could not return to full-time work. The physician prepared a return-to-work plan that included graduated return to full-time work hours over three months, plus ergonomic adjustments to her workplace, limits placed on lifting weights and keyboard use, and use of voice-activated software.
Ms Oliver claimed that the program was unsuitable because it caused her “unbearable pain and constant stress and anxiety”. She requested a new program that included the alternative of working four days per week instead of five, but the DSS refused. She requested that Comcare’s decision be reviewed, but it found in the employer’s favour, so she appealed to the AATA.
She claimed that the pain amounted to a reasonable excuse for refusing the program and that the voice-activated software was of limited help to her because of workplace background noise and its limited task capability.
However, surveillance footage of the employee performing activities outside work, such as putting her children into her car with both arms, indicated that she was not suffering severe pain and had exaggerated her symptoms. The nature of her complaints about the program suggested that her real motive was a preference to work four days per week, which would also assist her childcare arrangements.
Comcare claimed that the medical evidence showed that its proposed rehabilitation program would not increase the level of pain when combined with the other proposed support measures.
The AATA questioned the credibility of some of Ms Oliver’s evidence and that of her witnesses.
Decision
The AATA found that the employer’s rehabilitation program was reasonable, based on a suitable assessment of Ms Oliver, appropriate and compliant with legislation. This finding took into account each of the following: potential to reduce future compensation payable, cost of the program, benefits to Ms Oliver’s employment, the potential psychological cost of not providing the program, the relative merits of alternative actions, and her attitude towards the program. Therefore, she was obligated to undertake the program.
The AATA’s decision was based mainly on the evidence in relation to her ongoing level of pain, as there was limited evidence available in relation to the “stress” claim.
The AATA upheld a previous decision to suspend her entitlement to workers’ compensation payments until she took part in the employer-provided rehabilitation program.
The bottom line: A tribunal does not have to establish the reason why an employee chooses not to participate in an employer-provided rehabilitation program. Therefore, the employer’s claim in this case that the employee wanted a four-day week to suit her childcare responsibilities did not have to be considered. The tribunal has to decide whether the employee had a reasonable excuse for refusing to participate. The employee’s excuse has to be objective, not just rational. In this case, there was strong evidence that the employee had no reasonable reason for refusing the employer’s program, she just preferred her alternative of working fewer days per week.
Decision
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