Personal choice not a reasonable excuse to refuse a return to work at NAB
Date: July 1, 2019
Hogan and National Australia Bank  AATA 780 (1 May 2019).
- The Tribunal was asked to decide whether an employee provided a reasonable excuse for her failure to undertake a rehabilitation program.
- The Tribunal found in favour of the employer.
Ms Kylie Hogan was a lending assistant who submitted a claim for workers’ compensation in relation to a psychological condition she developed in February 2015, when she received an email from an external mortgage broker. Liability was accepted for the injury described as “adjustment disorder with anxiety and depressed mood”.
Ms Hogan was provided with a rehabilitation program to facilitate her return to work with the National Australia Bank (NAB). Ms Hogan indicated that she did not want to return to work at NAB. The applicant relied on medical certificates from her treating psychiatrist, Dr Morris, which stated she would need to return to work in a different company.
By letter dated 18 September 2016, Ms Hogan provided written reasons why she wouldn’t be completing the rehabilitation program. These were considered insufficient reasons by NAB and by letter dated 22 September 2016 they suspended compensation entitlements under s 37(7) of the SRC Act. Ms Hogan appealed this decision to the Administrative Appeals Tribunal.
Ms Hogan argued that the rehabilitation program was not suitable or appropriate for medical reasons and NAB should be required to develop an alternate program that accords with medical advice from her treating psychiatrist. Alternatively, Ms Hogan argued that even if the rehibition program was suitable, she had a reasonable excuse for refusing to undertake the program.
At hearing, Dr Morris gave evidence that if Ms Morris returned to work at NAB she would be triggered and was unlikely to be able to manage working with NAB in a professional manner required.
During cross-examination, Ms Hogan indicated that her reason for not returning to work was that she was under medical advice not to return to NAB and stated if her treating psychiatrist had supported the rehabilitation plan she would have participated in the program. Ms Hogan admitted that she was looking at alternative employment which allowed her more time with her children, including a position at a primary school.
NAB argued that Ms Hogan refused to undertake the program because it was not on her terms and that this cannot be a reasonable excuse. NAB relied on the evidence of Dr Lovell, that Ms Morris had full capacity to undertake the program.
Deputy President Dr P McDermott noted that on a number of occasions, Dr Morris had recommended that Ms Hogan return to work at NAB. It was only after Ms Hogan and her husband attended Dr Morris on 5 April 2016 that he recommended a return to work with a different employer. Dr McDermott therefore made the inference it was Ms Hogan who didn’t want to return to work at NAB and there were no clinical notes which explained why Dr Morris changed his previous recommendation.
Having regard to the totality of evidence, Deputy President McDermott found that Ms Hogan would have refused to undertake the program even if Dr Morris had supported it. He referred to Ms Hogan’s letter dated 6 May 2015 where she was “accepting of and keen to have an employment break and support her children more”. He agreed with Dr Lovell’s conclusion that the decision of Ms Hogan “not to return to work is a personal choice”.
The Tribunal found that Ms Hogan failed to undertake her rehabilitation program, and she did not have a reasonable excuse for that failure. The Tribunal was assisted by the observations of Jagot J in Comcare and Singh  FCA 136 and didn’t consider there was a rational foundation for the applicant not to undertake the program at NAB. He agreed that Dr Lovell provided cogent reasons as to why the program should have been undertaken. The decisions under review were affirmed.
The Tribunal confirmed that an applicant requires cogent reasons, supported by medical evidence to establish a “reasonable excuse” to refuse to undertake a rehabilitation program. A personal preference to work for a different employer will not be considered a sufficient reason.
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