On 16 January 1997 the respondent established for the applicant a rehabilitation and return to work plan for the period from 28 January 1997 to 21 April 1997.

The applicant filed a Notice of Dispute in relation thereto wherein he asserts:-

`1. The rehabilitation and return to work plan fails to take into account the opinion of the worker's treating doctors.

2. The surgical procedure which has been recommended by Professor Fraser should be included in the rehabilitation and return to work plan in order to facilitate rehabilitation and return to work.'

It is clear that the purpose of the Notice is to raise the issue for the purposed surgery. The respondent contends that the applicant is unable to use a Notice of Dispute to ventilate this issue. That is the basis of this application. Mr. Walsh, counsel for the respondent, put it in this way. He said:-

`The worker can say "I want you to establish a rehabilitation and return to work plan", Section 28B(1)(a) allows him to do that, but once the rehabilitation and return to work plan has been established the worker can say, "I don't like that provision. It's unreasonable for me to work 4 hours a day, or it's unreasonable for me to work light clerical duties; it's unreasonable for me to commence work at 8.00 a.m.; it's unreasonable for me to work the night shift." But the worker cannot say, "I want included in my rehabilitation and return to work plan surgery in March."'

In dealing with these submissions, I think consideration needs to be given to the provision of the Act which allows a worker to express complaint about a rehabilitation and return to work plan, namely Section 28B. This provision provide as follows:-

`28B(1) A worker or employer may apply for review of -

(a) a decision to establish or not to establish a rehabilitation and return to work plan; or

(b) a provision of a rehabilitation and return to work plan,

on the ground that the decision or the provision is unreasonable.

(2) On review of a rehabilitation and return to work plan (or in consequent appellate proceedings), the plan may be modified to the extent necessary to ensure that the plan does not impose unreasonable obligations on the worker or the employer.

(3) Proceedings on a review under this Section (or consequent appellate proceedings) do not suspend obligations imposed by a rehabilitation and return to work plan. ...'

Prior to the enactment of Section 28B, the question as to whether or not a worker ought be placed on a rehabilitation program was a matter solely for the Corporation. Neither a worker nor employer could complain about the implementation of failure to implement such a program: WorkCover v. Toohey (1994) 6 W.C.A.T.R. 60 at p.70 per Stanley P. and WorkCover v. Pfeiffer (1994) 6 W.C.A.T.R. 89 at p.97 per Stanley P. Nor could a worker or employer seek a review of the terms of such a program: Toohey (supra) at p.72; Pfeiffer (supra) at p.97.

I think that in enacting Section 28B, it is reasonable to infer that Parliament was acting upon the statement by Stanley P. in Toohey where he said:-

`I think further that if Parliament had intended that the failure to establish or approve a particular rehabilitation program should be reviewable, pursuant to Section 95, it would have said so in explicit terms.' (supra p.70).

In my opinion, Section 28B responds to the restriction alluded to in Toohey. I think that in enacting this provision, Parliament intended to give workers and employers the right to complain about the implementation of or failure to implement a rehabilitation and return to work plan, and in cases where such a plan had been established, the right to complain about its terms.

In many cases, a rehabilitation and return to work plan can be defective not because of what it contains, but because of what it lacks. It would seem to me to be a strange result that Parliament would go to the trouble of enabling workers and employers to complain about a rehabilitation and return to work plan and yet limit the scope of that complaint to what was in it, and not was not.

On a review of such a plan, under Section 28B, the Tribunal has the power to modify the plan `to the extent necessary to ensure that the plan does not impose unreasonable obligations on the worker or employer'.

I think the use of the word `modified' as it appears in the subsection, is of some significance.

Although the word `modify' has a number of different meanings, I think the following definition as contained in the Shorter Oxford Dictionary most aptly reflects its meaning for present purposes:-

A thing can be altered by taking something away from it. But it can also be altered by adding something to it. In other words, a rehabilitation and return to work plan can be modified, by adding something to it. If the Tribunal has the power to add something to a plan which I think it does, why should the Tribunal only be able to do so in the context of a complaint about what is already in the plan? To put it another way, why should a worker or employer be unable to ask the Tribunal to exercise its power to modify a plan by the insertion of a provision that is necessary "to ensure that the plan does not impose unreasonable obligations on the worker or the employer"? I can think of no good reason why they should be.

In all the circumstances I think that Section 28B(1)(b) means no more than to say that a worker or employer can apply for a review of the provisions of a rehabilitation and return to work plan, including a complaint that a provision have not been included that should have been.

This application has been founded solely on the basis that a worker has no right to seek a review of rehabilitation and return to work plan in circumstances where it is asserted that further provision needs to be added to. For the foregoing reasons I reject that submission. The application for directions will therefore be dismissed. I therefore direct the respondent to reconsider its decision as required by the Act.

Parties are advised that if a party wishes to appeal against any part of this decision which raises a question of law such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.