`1. The applicant submitted a claim for compensation dated 24 May 1993 for lower back pain which she alleged occurred on 18 May 1993 while transferring school books from her car to a colleague's car.

2. The claim was accepted by the respondent by determination dated 20 July 1993.

3. Following acceptance of the applicant's claim for compensation, the Department formulated, in consultation with the applicant and the worker's treating doctor, Dr. Jeffries, a work site return-to-work plan for the period 26 July 1993 to 24 September 1993. The stated long term goal of that plan was to return the applicant to full-time teaching, being the duties she was performing for the respondent as at the date of her injury.

4. In the next work site return-to-work plan for the period 15 September 1993 to 5 November 1993, the stated long term goal of that plan was to return the applicant to work in a non teaching position, in view of the opinion of the applicant's treating doctor, Dr. Jeffries, that the worker was unable to return to full-time teaching duties.

5. As part of the applicant's rehabilitation programme, a position as an ASO-3 Officer in the Department of Environment and Natural Resources, being suitable non-teaching duties was created for the applicant.

6. In the next return-to-work plan for the period 11 October 1993 to 31 December 1993 the stated long term goal was to return the applicant to full time work in non-teaching duties, namely, in the aforesaid position as a ASO-3 officer in the Department of Environment and Natural Resources.

7. The applicant agreed to all the return-to-work plans.

8. In a facsimile to Ro Forgan on 29 October 1993, the applicant advised that she was happy to return to work for the Department of Environment and Natural Resources on the suggested date of 27 January 1994 providing that she had a clearance from her doctor.

9. In her final return-to-work programme for the period 9 May 1994 to 10 June 1994, the stated goal of that plan was that the applicant test her capacity in the ASO-3 position at the Department of Environment and Natural Resources and to seek a review from Dr. Jeffries with an expectation of clearance for full normal duties in that position.

10. In an undated letter to Ms. Annette Schriner, personnel counsellor, Adelaide South TASS Centre, the applicant forwarded a medical certificate from Dr. Jeffries dated 14 June 1994 which cleared her as being fit for normal duties as from 9 May 1994 and noting her capacity for work in the ASO-3 officer position at the Department of Environment and Natural Resources.

11. In a report dated 14 June 1994, Dr. Jeffries advised that he approved the transfer of the applicant to the ASO-3 position in the Department for Environment and Natural Resources.

12. Ms. Schriner wrote to the applicant by letter dated 23 June 1994 advising that on the basis of her redeployment and certificate from Dr. Jeffries, she had closed rehabilitation with the applicant.

13. In a report to the respondent dated 16 January 1995, Dr. Jeffries advised that the applicant was fit to perform full-time clerical duties from 25 July 1994.

14. The applicant commenced full-time duties in the Department of Environment and Natural Resources as from 25 July 1994.

15. On 4 December 1996, the applicant contacted Mr. Whyatt from the Department advising that she was currently on leave without pay and that she had aggravated her back injury. She asked whether the Department would support home assistance as a result of her aggravation because she was unable to attend her normal day-to-day duties.

16. The applicant subsequently wrote to Mr. Schultz of the Department enclosing a letter from her treating doctor, Dr. Jeffries, and advising that on his recommendation she would like to apply for support from the Department in acquiring a firm bed to better suit her ailing back injury. She requested that this issue and that of home help which Dr. Jeffries had twice recommended, should be addressed by the Department under a rehabilitation programme for her.

17. Included with the aforementioned letter was a letter from Dr. Jeffries dated 4 December 1996. In that letter, Dr. Jeffries advised that the applicant had reaggravated a lumbar sacral disc lesion from 1993 and requested the Department to provide some domestic help.

18. In a telephone call to the applicant on or about 19 March 1997, Mr. Schultz rejected her request for home help.

19. By letter dated 10 April 1997, the applicant's solicitors, Lieschke & Weatherill, wrote to Mr. Schultz noting that their client had previously sought assistance for home help. In that letter, the respondent was asked to exercise its discretion under section 26 of the Workers Rehabilitation and Compensation Act to make payments and noted that when the applicant was again in receipt of weekly payments of income maintenance there was the right to review her rehabilitation and return-to-work plan.

20. By letter dated 22 April 1997, Mr. Schultz wrote to the applicant's solicitor acknowledging receipt of their letter and requesting the name of a medical specialist. In that letter, Mr. Schultz advised that he was waiting on advice regarding the possibility of a section 42 redemption and that upon receipt of that advice he would respond to this and the other matters raised in their letter.

21. In May 1997, Dr. Jeffries wrote to the Department advising that the applicant continued to be disabled by her lumbar spine injury and he recommended that she have home help to aid her with her domestic tasks.

22. By letter dated 11 August 1997, Lieschke and Weatherill wrote to Mr. Schultz requesting that the matters raised in their letter dated 10 April 1997 be addressed as a matter of urgency.

23. By letter dated 14 August 1997, Dr. Jeffries wrote to Mr. Schultz to advise that the worker's back injury was deteriorating at night and he recommended that she obtain a very firm mattress and base to reduce the aggravation to her lumbar discs.

24. The applicant lodged a Notice of Dispute dated 20 August 1997 (being Action No. 4895 of 1997). The details of the dispute were stated as "The Department for Education and Children's Services have failed to establish a rehabilitation programme for Wendy Dunstan" and referred to the letter to the Department from Lieschke & Weatherill dated 10 April 1997 to Mr. Schultz.

25. By letter dated 15 October 1997, the Crown Solicitor's Office, acting on behalf of the Department, wrote to Lieschke & Weatherill stating that as there appeared to be no decision from the Department refusing to provide their client with a rehabilitation programme, the applicant's Notice of Dispute was invalid and the Crown was accordingly instructed to request that the applicant withdraw her Notice of Dispute.

26. A conciliation conference with regard to the Notice of Dispute was held before Conciliation Officer Gribble on 20 October 1997. That conference was adjourned to 18 December 1997 pending various issues, including the question of the validity of the Notice of Dispute. The worker's solicitor advised at that conference that the purpose of the Notice of Dispute was to have the Department pay the applicant the costs of home help and a firm bed.

27. On 17 November 1997, in a telephone conversation between the solicitors for the parties, it was agreed that the Department would make a determination with regard to the applicant's request for a rehabilitation programme, home help and a firm bed in response to the letter from the applicant's solicitor of 10 April 1997.

28. By letter dated 5 December 1997, the Crown Solicitor's Office wrote to Lieschke & Weatherill confirming its client's view that the Notice of Dispute was invalid but to expedite the matter, the Department would treat the details set out in the Notice of Dispute and comments that the conciliation conference is amounting to a request for a rehabilitation programme and formally rejecting the applicant's request to be provided with a rehabilitation programme. Enclosed with that letter was a determination from the respondent dated 3 December 1997 rejecting the applicant's claims.

29. On 18 December 1997 a further conciliation conference before Conciliation Officer Gribble took place with regard to the Notice of Dispute previously filed by the applicant. The worker's solicitor advised that a further Notice of Dispute would be filed with regard to the determination of 3 December 1997. The Conciliation Officer referred the matter to arbitration and the matter was listed before Arbitration Officer Duigan for a pre-arbitration conference on 6 March 1998.

30. On or about 14 January 1998, the applicant lodged a Notice of Dispute against the determination of the Department dated 3 December 1997 (being Action No. 389 of 1998N). That matter was referred to conciliation before Conciliation Officer McShane.

31. By letter to the Crown Solicitor's Office dated 16 February 1998, the applicant's solicitor referred to a decision of Deputy President Thompson in the matter of Moore McQuillan -v- WorkCover (JD No. 2/1998) and requested that the respondent reconsider its decision to reject the applicant's claim for home help costs in light of the Learned Deputy President's interpretation of section 32(2)(i) of the Workers Rehabilitation and Compensation Act 1986.

32. At the pre-arbitration conference before Arbitration Officer Duigan on 6 March 1998, the Arbitration Officer was advised that the parties wished to refer both Notices of Dispute to the Full Tribunal.

32A. That the applicant worker incurred expenses in the sum of $36.00 on 11.12.96 and 20.12.96 in respect of home help and these expenses were reasonably incurred in consequence of the compensable disability.

32B That future home help and a purchase of a firm bed would assist the worker to cope with her compensable disability in the home and in the work place.

It was acknowledged by the employer that upon the worker's notice of dispute being referred to it for reconsideration , it filed a Form 3 wherein it stated that it confirmed its decision to reject the worker's claims.

Can a referral for direct judicial determination be made after the matter has already been referred to arbitration?

One of the notices of dispute filed herein has not only been the subject of an unsuccessful conciliation conference, but it has also been referred to an Arbitration Officer to conduct an arbitration in accordance with section 93 and the Rules of the Workers Compensation Tribunal 1996 (`the Rules').

In respect of that notice, it has been contended, that its referral for judicial determination is incompetent. It was submitted that the reasoning and observations of the majority in the decision of WorkCover v. Gerazounis J.D.57/1997, suggests that once a matter has been referred to arbitration, an application for judicial determination of the disputed claim can only be made after the process of arbitration has come to an end.

In our view, that submission reads more in the decision of Gerazounis than it ought. In that case, the learned Deputy President at first instance, considered that the ruling of the Arbitration Officer could either be categorised as `the result of an arbitration' so as to permit referral for judicial determination by reason of section 94(b) or if that were not so, that his ruling was wrong and therefore of no effect, such that the view ought be held, that the proceedings were still pending, such that the matter could be referred for judicial determination, in the exercise of a personal initiative, as provided for by 92D(3) of the Act. The majority concluded that there had not been an arbitration before the Arbitration Officer. They therefore concluded that there was no `arbitrated determination' and accordingly they found that there was no jurisdictional basis by which to conduct a judicial determination pursuant to section 94(b). As to the alternate means of referral, the majority concluded the learned Deputy President was in effect, acting as an appellate tribunal in reviewing the decision that the Arbitration Officer made, namely that it was competent for the worker to withdraw the notice of dispute prior to the commencement of the arbitration hearing, and they concluded that an application for judicial determination was `not ... jurisdictionally open as a vehicle [to do so]'.

The remarks made by the majority concerning the meaning of the word `dispute' in section 94D are limited to the facts of the case and are not applicable here.

The particular observations that were said to indicate that a referral could not be made after the conciliation had concluded are as follows:-

`In further support of our conclusion is the fact that section 92D(3) contemplates the Deputy President dealing with the dispute "at the conclusion of the conciliation proceedings". It is reasonable to assume that a further procedural step or determination is not contemplated, or can be the subject of the judicial determination'.

Section 92D provides:-

`92D. (1) If conciliation proceedings do not result in an agreed settlement of the dispute, the conciliator presiding at the conciliation proceedings must -

(a) refer the dispute into the Tribunal for arbitration; or

(b) refer the dispute into the Tribunal for judicial determination.

(2) A dispute may only be referred into the Tribunal for judicial determination under subsection (1) if -

(a) the conciliator has first informed the parties to the dispute of the intention to do so and has considered any representations made by any of them about the proposed reference; and

(b) the President (or a Deputy President to whom the President has delegated powers under this section) agrees to the proposed reference.

(3) However, the President (or a Deputy President to whom the President has delegated powers under this section) may, on application by a party or in the exercise of a personal initiative, direct that a dispute be referred into the Tribunal for judicial determination at the conclusion of conciliation proceedings.'

The Act contemplates that generally, the time and place to make applications to by-pass arbitration, is at the conclusion of the conciliation conference. But in our view, the text of the provisions does not lead to the conclusion that the referral can only be made at that time. Indeed, if the position were otherwise, apart from conciliation conferences over which a Presidential Member of the Tribunal presided, in practical terms, there would be no scope for the exercise of a personal initiative as contemplated by section 92D(3) because a Presidential Member would be unlikely to know about the case, prior to the conclusion of the conciliation process. Moreover, it seems to us to be inconsistent with the whole notion of an expeditious and efficient dispute resolution process, to force parties to remain within arbitration, when it is patently clear that the matter should be referred to judicial determination. Sometimes that will only become clear after the matter has already been referred to arbitration.

The observations of the majority in Gerazounis to which we have just referred, were clearly obiter. Upon further reflection and with the benefit of argument, it is our opinion the expression `at the conclusion of the conciliation proceedings' means no more than that an order that a dispute be referred into the Tribunal for judicial determination cannot be made until the conciliation process has been completed.

No doubt, a Presidential Member would have to be convinced that there was some very special reason why a party ought to be able to by-pass arbitration, after the matter has been referred to an Arbitration Officer. But in our view, in an appropriate case, particularly if it is reasonably proximate to the conclusion of the conciliation proceedings, if it is warranted, a Presidential Member is empowered to make such an order.

In this case a direction was given that the matter proceed to immediate judicial determination, so as to enable this matter to proceed as a test case. In those circumstances, the facts in this case should not be understood as providing a bench mark by which the prospects of an application to by-pass arbitration, after the matter has already been referred to an Arbitration Officer, ought be determined.

The employer contends that the earlier of the two Notices of Dispute was prematurely lodged, because at the time of its lodgment, the employer had not made a decision to reject the worker's requests. That assertion is the subject of the letter of 15 October 1997, which is referred to in paragraph 25 of the Schedule of Agreed Facts.

The absence of a formal document setting out the decision that has been made, does not necessarily mean that a decision has not been made. Moreover, the absence of a formal decision does not preclude the lodgment of a Notice of Dispute. In the context of a claim for compensation, this is made clear from the wording of section 53(5) which provides:-

`As soon as practicable after determining a claim for compensation the Corporation shall give notice in writing of the determination -

(b) to any employer who may be directly affected.'

The section plainly envisages that the determination of the claim, and its communication in writing, do not necessarily have to occur at the same time.

It is true, that section 53(6) requires the notice to contain certain details, in circumstances where a claim is rejected. But that does not mean that the absence of such a notice, precludes the lodgment of a notice of dispute (see WorkCover v. Martin A.13/1995). As was explained in that case, whether or not a decision has been made, is a question of fact, which will necessarily depend upon the particular circumstances of the case.

And that is the position in respect of other reviewable decisions that are made pursuant to the Act: Francis v. WorkCover (1996) 186 L.S.J.S. 383; Moody v. WorkCover (1996) 186 L.S.J.S. 408.

In this case, the material that has been placed before us sends conflicting messages. On the one hand it was conceded by counsel for the employer, that a Form 3 had been filed, wherein the employer, purportedly confirmed the disputed decision. On the other hand, there is the letter of 15 October 1997 to which we have earlier referred, as well as the letter from the employer's solicitors of 5 December 1997, which is referred to in paragraph 28 of the statement of agreed facts, which maintains the challenge to the validity of the notice of dispute, but says that for expedience it will treat the claim as having been rejected. We pause to observe that the parties cannot confer jurisdiction on the Tribunal by consent: Ex parte Tinghe (1858) Legge 1100 (N.S.W. Sup Ct), per Steven C.J..

The employer's protestations that it did not reject the worker's claims seem somewhat disingenuous. Upon receipt of the notice of dispute, it could have advised the worker that it had not made a decision and that its enquiries were continuing. It could have filed an application for directions seeking an order that the notice of dispute be struck out on the basis that no decision had been made. It did neither. Instead, it lodged a formal document advising the Registrar and the worker that its decision to reject the claim was confirmed. It seems to us that in those circumstances, and notwithstanding the matters raised in correspondence from the employer's solicitors, the reasonable inference to draw, is that a decision had been made, and we find accordingly.

Section 32(2)(i):Is a decision to authorise costs or classes of costs, one for any compensating authority, and if so, is its decision a reviewable decision?

The provisions which touch upon this issue relevantly provide as follows:-

`32. (1) Subject to this section, a worker is entitled to be compensated for costs of a kind described in subsection (2) reasonably incurred by the worker in consequences of having suffered a compensable disability -

(2) The costs referred to in subsection (1) are as follows:-

(b) the cost of hospitalisation and all associated medical, surgical and nursing services;

(d) the cost of travelling, or being transported, to and from any place for the purpose of receiving medical services, hospitalisation or approved rehabilitation (but not where the worker travels in a private vehicle);

(e) where is necessary for the worker to be accommodated away from home for the purpose of receiving medical services or approved rehabilitation - the cost of such accommodation (but not exceeding limits prescribed by regulation);

(f) the cost of attendance by a registered or enrolled nurse, or by some other person approved by the Corporation or of a class approved by the Corporation, where the disability is such that the worker must have nursing or personal attendance;

(g) the cost of the provision, maintenance, replacement or repair of therapeutic appliances;

(h) the cost of medicines and other material purchased on the prescription or recommendation of a medical expert;

(i) any other costs (or classes of costs) authorised by the Corporation.

(8) A reference in this section to approved rehabilitation is a reference to rehabilitation programmes or services provided by a person who has an agreement with the Corporation for the provision of those programmes or services.

It has been contended, that section 32(2)(i) is a catch-all that permits a worker to seek a ruling by the Tribunal as to whether a particular service or expense, not otherwise listed within section 32(2), can be the subject of a claim for compensation.

That argument was put and rejected by the Workers Compensation Appeal Tribunal in the State of South Australia v. Bush (1992) 4 W.C.A.T.R. 323. In that case, a review officer had concluded that a decision made by a compensating authority not to authorise a particular category of costs otherwise not provided for by section 32, was a reviewable decision. Having reached the view that the compensating authority was in error in not authorising the costs, she concluded that the costs should have been authorised and awarded compensation in favour of the worker. The compensating authority appealed to the Workers Compensation Appeal Tribunal. On appeal, it was held that the review officer had erred. It was concluded, that although section 63 of the Act seemed to delegate the capacity to authorise costs, for the purposes of section 32(2)(i), to an exempt employer, that is not how the Act should be construed. At p.332, of the reported decision it was said:-

`Whilst prima facie the words of section 63(1) suggest that the exempt employer is delegated all of the powers and discretions vested in the exempt employer by section 32, that clearly cannot have been Parliament's intention. It would be absurd for example to construe the legislation as allowing an exempt employer to fix scales of charges as contemplated by sections 32(1a) and 32(9).

In similar vein, it is our view that Parliament would not have intended that its delegation of the power in section 32(2)(i) to authorise `other costs (or classes of costs)' would extend to exempt employers. What is clearly contemplated by section 32(2)(i) is the vesting in the Corporation by way of delegation from the Parliament of a power to add to the general costs and classes of costs already specified and which are of general application to all cases, other costs or classes of costs as deemed appropriate by the Corporation from time to time. As such in our view section 32(2)(i) is not a general `catch-all' provision which facilitates the exercise of a discretion in relation to claims for costs in specific cases which are not costs or within the classes of costs already specified in the section.'

That decision was then followed by the Workers Compensation Appeal Tribunal in WorkCover v. Schultz (1993) 5 W.C.A.T.R. 84.

In Moore-McQuillan v. WorkCover J.D.2/1998, Deputy President Thompson, sitting in the Workers Compensation Tribunal, took a different view. Unfortunately, it would seem that the decisions of Bush and Schultz had not been drawn to his Honour's attention, and he approached the issue on the assumption that there were no relevant authorities. He said at p.14 of his reasons:-

`Is the decision not to authorise "non-reviewable".'

In my view it is not. That would be reading into the Act something that Parliament has not thought fit to put there. It would have been an easy matter for Parliament to have worded section 32(2)(i).

"... as any other costs (or classes of costs) as authorised by the Corporation in its discretion or its absolute discretion".

The fact that throughout the Act various decisions of the Corporation are said to be immune from review, leads one to the conclusion that unless the right of review is explicitly taken away then it is reviewable, providing that the claim can be brought within section 89A.'

The Full Bench of the Workers Compensation Tribunal is not bound by the principle of stare decisis, to necessarily follow decisions made by the Workers Compensation Appeal Tribunal. Obviously however, decisions of that Tribunal are to be treated as persuasive authority and in the ordinary course would be followed. But in an appropriate case, particularly if there has been legislative change, or contrary views have been expressed in other cases, the Full Bench can decline to follow such decisions.

Here there have been amendments to sections 32 and 63. Section 32(9) and (10) have been replaced with provisions, which, to the extent to which they refer to `the Corporation', have made it clear through amendments to section 63, that they are not powers that have been delegated to compensating authorities generally.

It was the absurdity of an exempt employer being delegated the capacity to be involved in the fixing of scales of charges for medical expenses, that led the Workers Compensation Appeal Tribunal to conclude that some of the powers contained within section 32, were not the subject of a delegation under section 63. Accordingly, the Tribunal's interpretation of section 32(2)(i), was based upon the assumption that the power to authorise, was one that rested solely in the Corporation.

The amendments to which we have just referred, suggest that that assumption in light of those amendments, may not now be correct and as a result, the correctness of the decisions of Bush and Schultz might need to be re-evaluated.

There are 4 potential constructions of section 32(2)(i).

(1) The question of authorisation, is a matter solely for the Corporation, and there is no right of review. That is the position adopted in Bush, and Schultz.

(2) The question of authorisation is a matter solely for the Corporation, and there is a right of review.

(3) The question of authorisation is a matter for the relevant compensating authority, and there is no right of review.

(4) The question of authorisation is a matter for the relevant compensating authority and a decision in relation thereto is subject to review.

In determining which construction is correct, we think that one ought to start from the following premises. First, that in the case of a claim by an individual claimant, it is reasonable to assume that the scheme of the Act, contemplates that the relevant compensating authority would be the one to make the decision in respect of that claim. Secondly, that decisions made about claims for compensation ought generally be subject to scrutiny and subject to review by the Workers Compensation Tribunal. Thirdly, since the decisions in Bush and Schultz were delivered, Parliament has not shown any hesitation in respect of other matters relating to compensation, in declaring certain decisions not to be reviewable, and in declaring certain powers not to have been delegated to exempt employers. And fourthly, had it been Parliament's intention to exclude the matter from review or to have declared a power that appears to have been delegated to exempt employers not to be so, it would have made a specific provision to that effect.

Leaving aside `classes of costs', following the legislative changes that have been made since Bush and Schultz were decided, as discussed above, there does not now appear to be any good reason why the Act would vest exclusive power to the Corporation in deciding whether in a particular case, the costs claimed by an employee of an exempt employer pursuant to section 32, that are not costs otherwise provided for by that provision, should or should not be authorised.

If one were to conclude that the decision is one for the relevant compensating authority, there is no apparent reason why an aggrieved worker ought be left with no method by which to challenge the determination of his or her claim.

In all the circumstances, we favour the fourth alternative as set out above. We accept that it might be thought surprising for Parliament to delegate to exempt employers, the capacity to authorise classes of costs, but further reflection reveals that not to be so odd. As we see it, the section contemplates that the relevant compensating authority in an individual case, can authorise particular costs, or in other circumstances, the Corporation or the exempt employer can declare that claims for particular types of costs will be entertained. If an exempt employer has authorised a particular class of costs, and an employee of that employer, in reliance upon that authorisation, has incurred costs of that type, then subject to the other criteria within section 32 having been met, the exempt employer's decision to authorise that class of cost could not be challenged. In other cases, the decision as to whether or not the claim for costs ought to be entertained, would depend upon the merits in each particular case.

That in turn, begs the question as to how the term `other costs or classes of costs' should be interpreted. It seems to have been assumed that it includes anything that may be of therapeutic value to a disabled worker or which might assist him or her in coping with the effects of the compensable disability.

In our view that assumption is wrong. We think that the construction of these words, should be approached by reference to the ejusdem generis rule.

As was stated in R. v. Regos and Morgan [1947] HCA 19; (1947) 74 C.L.R. 613 at 623:-

`The rule is that general rules may be restricted to the same genus as the specific words that precede them (Thames and Mersey Marine Insurance Co. Ltd. v. Hamilton, Fraser and Co. (1887) 12 App. Cas. 484 at p.490. Before the rule can be applied it is obviously necessary to identify some genus which comprehends the specific cases for which provision is made.'

Apart from rehabilitation, in this case all of the other matters to which section 32(2) relates, concern either directly or indirectly, the provision of medical or medical types of services, such as nursing, hospitalisation, or the provision of therapeutic appliances, medicines and the like.

In construing section 32(2)(i) we think it is appropriate to ignore the reference in section 32(a)(ii)(h) to rehabilitation.

We say that, because Parliament seems to have placed rehabilitation expenses within section 32, in a different category to other expenses by limiting a worker's capacity to recover such compensation, to approved rehabilitation, which in turn means rehabilitation provided by a person who has an agreement with the Corporation: section 32(8). It could scarcely have been Parliament's intention for section 32(2)(i), to be used as a means by which a worker could ask the Tribunal, to authorise costs in connection with rehabilitation, in respect of services provided by persons who are unable to deliver approved rehabilitation as provided for by section 32(8).

Thus, the costs or classes of costs that a compensating authority is capable of authorising for the purposes of section 32(2)(i), should in our view, be limited to medical or like expenses. Such an approach, is in our view, in keeping, with the wording of section 32(1), which makes reference to the term `costs of a kind'. Its purpose is to enable the parameters of section 32 expenses to be extended, in recognition of the fact that particular `medical' type services or disciplines, which might have been regarded as on the fringe or beyond, have now come to be recognised as legitimate and desirable forms of treatment. It is not that long ago, that chiropractic expenses were held not to fall within the definition of `medical expenses': Martin v. The State of South Australia (1981) 48 S.A.I.R. (Pt 2) 59. Nowadays, chiropractors are included within the definition of medical experts: section 3.

The claim for compensation sought here is the cost of home help. We would not categorise home help as a medical or like expense. Thus, even though it is our view that the question of authorisation fell within the purview of the employer, and that the worker was entitled to come to the Tribunal to have the employer's decision to reject that authorisation, reviewed, we are of the view that the claim cannot be maintained pursuant to section 32(2)(i), such that the employer's rejection of the claim should be confirmed.

Rehabilitation - What is the extent to which the Tribunal can exercise jurisdiction?

In our view, a worker cannot use sections 26, 28A, 28B or 89A(1)(b) as a means of recovering within the context of a review of a rehabilitation programme or a rehabilitation and return to work plan, costs already incurred. The review provisions which relate to rehabilitation, about which more will be said later, are primarily focussed towards future change rather than redressing alleged wrongs of the past.

If a worker has resolved to be responsible for his or her own rehabilitation, he or she is limited by section 32(2)(c) and (8) to securing that rehabilitation from a party that has an agreement with the Corporation and such a claim must be made pursuant to section 32.

Thus, it is not open for the worker, to seek and recover the costs of home help, already incurred by her, in this way.

That still leaves in issue the question as to whether the worker can seek the provision of a rehabilitation programme or a rehabilitation and return to work plan, that has as part of its initiatives, provision for the supply of a firm bed and the future provision of home help and if so, whether the Tribunal can intervene to ensure that that occurs.

That in turn begs the question as to whether any distinction is to be drawn between `rehabilitation programmes' and `rehabilitation and return to work plans' and as to whether anything turns on whether a review is sought by reference to section 28B or section 89A(1)(b).

An analysis of the relevant statutory provisions suggests that there is a difference.

Section 26(2)(a) enables a compensating authority to establish a rehabilitation programme for a particular worker.

Section 28A enables a compensating authority to establish rehabilitation and return to work plans and in certain prescribed circumstances, it positively requires it to do so.

Section 26 does not impose any particular protocol upon the compensating authority in the formulation of a rehabilitation programme.

Section 28(3) provides an immunity to disclosure of statements between workers and rehabilitation advisers in the context of rehabilitation programmes. It makes no mention of rehabilitation and return to work plans.

Section 28A(3) requires the compensating authority to embark upon a certain consultation and review process in preparing a rehabilitation and return to work plan.

Section 28C speaks of programmes and plans and the regulations promulgated thereunder contain some subtle differences.

Section 36(1a) separately identifies rehabilitation programmes and rehabilitation and return to work plans in declaring what can amount to a breach of mutuality. And, in the case of programmes it refers to `refuses or fails to participate' and `frustrates the objectives of the programme' whereas in respect of plans it refers to `fails to comply with an obligation'.

Section 89A(1)(b) speaks of review of `a decision about the nature of rehabilitation services provided, or to be provided, for a disabled worker' and it makes separate reference to the right of review conferred by section 28B.

Although there are obvious similarities between a rehabilitation programme and a rehabilitation and return to work plan, not the least of which is that one of the dictionary meanings ascribed to the word `programme' is `a plan', we think that Parliament has made it sufficiently clear that the two notions are to be regarded as being different.

Section 26(1) provides as follows:-

`The Corporation shall establish or approve rehabilitation programmes with the object of ensuring that workers suffering from compensable disabilities-

(a) achieve the best practicable levels of physical and mental recovery; and

(b) are, where possible, restored to the workforce and the community.'

In our view, this provision creates a positive obligation upon the relevant compensating authority to establish a rehabilitation programme. That is to say, it creates a positive right in a disabled worker or an employer of a disabled worker to have a rehabilitation programme established.

In WorkCover v. Toohey (1994) 6 W.C.A.T.R. 60, Stanley P. held that the equivalent of section 89A(1)(b) of the Act, could not be used as a means of complaining about the failure to implement a rehabilitation programme. His Honour affirmed that view in WorkCover v. Pfeiffer (1994) 6 W.C.A.T.R. 89.

`On behalf of the worker it was contended that the approval of the rehabilitation programme was reviewable because it failed to provide him with the rehabilitation services which he desired. It was claimed that provision should have been made in the rehabilitation programme for him to attend school, in order that he might matriculate, and subsequently undertake tertiary studies in Computer Science. On behalf of the worker it was contended that provision for him to attend school was justified, pursuant to placitum (d) of section 26(3), in that such schooling would have assisted in his training or retraining.

I doubt that, in relation to the programme which the Corporation approved, and which formed the basis of the second application for review, it could be said that the Corporation made a decision not to include the provisions which the worker subsequently sought to be included in the programme on the review hearing. The Corporation simply approved the terms of the programme, which had been developed by a rehabilitation provided[sic], as suitable for the worker, which programme did not include those terms which the worker now desires to be inserted therein.

I am of the view that section 95(2)(b) does not entitle the worker to apply to have the approved rehabilitation programme reviewed. The Corporation has not made a decision about the nature of rehabilitation services provided or to be provided, by not including therein provision for this worker to undertake studies at school.

First, even assuming there was a decision made not to include those matters in the programme, such a decision clearly did not relate to the nature of rehabilitation services provided to the worker.

Secondly a decision not to include a particular rehabilitation service does not readily fit within the concept of a decision about the nature of a rehabilitation services[sic] to be provided to a worker. That seems to me to entail a positive action. A decision not to so provide is not susceptible of review because it constitutes a negative action ...'

There is some tension between this and the approach taken by the Workers Compensation Appeal Tribunal in State of South Australia v. Bush (supra). Moreover, and with great respect to His Honour, we do not find his reasoning to be particularly persuasive. Effective rehabilitation is one of the fundamental planks upon which the Act is based. It is no co-incidence that the term `rehabilitation' features prominently in its title. It is now a declared object of the Act: section 2(a)(ii), but even before the insertion of that provision, that object was to be inferred. In those circumstances, we would have thought that if there was any doubt about the scope of section 95(2)(b) of the Act as it then was, it would have called for a liberal interpretation. If the circumstances clearly demonstrate the need for a rehabilitation programme to be established, there would seem to us to be every reason to think that Parliament would have intended that an arbitrary decision made by a compensating authority not to establish such a programme, would be reviewable. Moreover, if it is patently clear that additional rehabilitation services need to be added to an already established programme, to make its terms reasonable, one would expect that a decision not to include such services, would also be reviewable. With respect, we think that the narrow construction applied by Stanley P. in Toohey and Pfeiffer is contrary to the objects of the Act and is not one which the plain meaning of the words used, calls for.

We think that section 95(2)(b) of the Act as it was, and section 89A(1)(b) of the Act as it presently stands, should be construed as permitting reviews in these circumstances. We therefore respectfully disagree with the reasoning and conclusion of Stanley P. in Toohey and Pfeiffer.

Accordingly, we do not think that section 28B created review rights that did not previously exist. We think that the review rights created by that section are complementary to those provided for by section 89A(1)(b), albeit, for the reasons which we explain shortly, we consider that the rights are confined to rehabilitation and return to work plans and are more limited in their ambit and effect than those conferred by the general provision .

Section 28A relevantly provides as follows:-

`(1) The Corporation may establish a rehabilitation and return to work plan for a worker who is incapacitated for work by a compensable disability.

(a) is receiving compensation by way of income maintenance; and

(b) is (or is likely to be) incapacitated for work by a compensable disability for more than 3 months (but has some prospect of returning to work)

the Corporation must prepare a rehabilitation and return to work plan ...'

It can be seen that unlike section 26(1), sections 28A(1) and (2) do not create a positive obligation upon the relevant compensating authority to establish rehabilitation (to use a neutral term) except in the limited circumstances prescribed by section 28A(2). Thus the review rights conferred by section 28B must be read in that light.

If a compensating authority elects to establish a return to work plan, a worker or employer may seek a review of its terms. But if it resolves not to establish such a plan, a review can only be sought, if the worker or employer can establish that the worker's circumstances satisfy the criteria contained within section 28A(2).

Having made this distinction, the differences between rehabilitation programmes and rehabilitation and return to work plans begin to more clearly emerge.

A disabled worker (and presumably the employer of a disabled worker) has a general right to have a rehabilitation programme established. And there is a general right to seek a review of a decision not to establish such a programme as well as the right to complain about its terms or the lack of them. Moreover, and consistent with the observations made by Doyle C.J. in Della-Flora v. WorkCover (unreported, delivered 26 May 1998; S 6691), if a review of the terms of a programme is sought, the obligations created by the programme are suspended pending the outcome of the review.

As to the formulation of the programme, the compensating authority has a free hand, untrammelled by the protocol that must be adhered to, in the case of rehabilitation and return to work plans. And, statements made by a worker who is participating in such a programme, to a rehabilitation adviser, or statements made by the rehabilitation adviser to the worker, do not have to be disclosed, unless the worker and the rehabilitation adviser consent: section 28(3).

In contrast to this, there is no general right conferred upon a disabled worker or the employer of a disabled worker to have a rehabilitation and return to work plan established. There is no general right to seek a review of a decision made by a compensating authority not to implement such a plan. The right only exists if the criteria prescribed by section 28A(2) have been met. Whilst there is a right to complain about the terms of the plan, the obligations imposed by it remain in force, notwithstanding the fact that a review of its terms is being undertaken. And statements made by a worker who is participating in such a plan, to a rehabilitation adviser, or statements made by the rehabilitation adviser to the worker, are not covered by the immunity conferred by section 28(3). In respect of that point, we note that a contrary view was expressed in Bradford v. WorkCover J.D. 35/1997. A number of the arguments that have emerged in the course of this appeal were not put in that case and we respectfully resolve not to follow it.

A compensating authority is obviously at a considerable advantage in resolving to establish a rehabilitation and return to work plan as opposed to a rehabilitation programme. For this reason, even though a programme might be requested, the compensating authority might nevertheless, resolve to establish a rehabilitation and return to work plan. One would imagine that in most cases, provided the terms of the plan were reasonable, the Tribunal would not require the establishment of a programme. But in a case such as this, where a programme has been sought, and the compensating authority has resolved to take no action, the Tribunal will, if it thinks it is appropriate, direct that a programme be established.

In this case, the worker has asked for rehabilitation to include provision of a firm bed and some home help. The employer has declined to provide that rehabilitation. Although there is mention in the correspondence to `a rehabilitation and return to work plan', there is also mention of section 26 and the Notice of Dispute talks of a failure to establish a rehabilitation programme. In all the circumstances, we find that what was sought was the establishment of a rehabilitation programme. Pursuant to section 89A(1)(b), the worker has the right to seek a review of the decision not to establish such a programme. The Schedule of Agreed Facts concedes that the provision of a firm bed and home help would assist the worker to cope with her disability in the home and in the workplace. Both of these suggestions are based on medical advice. A firm bed is not a luxury item. Nor, in the case of a genuinely disabled worker, is the supply of modest amounts of home help. The agreed fact 32A suggests that the extent of home help sought is modest.

The employer and the Corporation submit that notwithstanding all of this, the rehabilitation services being sought by the worker cannot be ordered by the Tribunal because the worker has already returned to work. It was submitted that the decision of the Full Bench of the Tribunal of Short v. Bridgestone J.D.24/1998, which stands against that proposition was wrongly decided. In that case, the Full Bench concluded that the right to seek the establishment of a rehabilitation and return to work plan, did not expire upon the worker's return to work.

The employer and the Corporation, urged us to reconsider the decision of Short and, if thought appropriate, to exercise our powers under section 86A(1) to state a case for the consideration of the Full Court of the Supreme Court.

The worker submitted that Short was correctly decided, that it was the decision that was binding on this Tribunal, and that there was no proper basis that had been established that suggested that a referral to the Full Court was warranted.

We have reconsidered the decision of Short in light of the further submissions that have been made before us in the case. In view of our observations about the differences between the rights conferred by section 26 and those conferred by section 28A, it would seem that the Tribunal erred in concluding that section 28B permitted a review by a disabled worker in circumstances where the criteria prescribed by section 28A(2), had not been met. But the Tribunal did correctly declare that the right to seek rehabilitation exists even after a disabled worker has returned to work. We endorse all that was said there on that issue. For the reasons outlined above the worker in that case was unable to seek a rehabilitation and return to work plan. But he was able to seek the establishment of a rehabilitation programme to achieve the same result. And in the circumstances of that case, the failure of the compensating authority to establish such a programme would have been reviewable and would have resulted in the Tribunal issuing a direction that such a programme be established.

Returning to the facts in this case, we think that it is reasonable to infer that the provision of these items will facilitate the worker's rehabilitation. In all the circumstances we are satisfied that the worker's request for the establishment of a rehabilitation programme, which contains provision for the supply to the worker of a firm bed and home help is reasonable and that the employer's failure to establish such a programme is unreasonable. We are therefore disposed to grant the worker relief that she seeks.

For these reasons we arrive at the following conclusions.

(1) Both matters are validly before this level of the Tribunal.

(2) The employer's conduct enables us to find that prior to the lodgement of the first Notice of Dispute it had made a decision to reject the worker's claim for compensation pursuant to section 32 and her request for rehabilitation.

(3) The employer's decision not to entertain the worker's claim to recover the costs incurred by her in relation to home help is reviewable, but in the circumstances of this case, its decision to reject those costs should be upheld.

(4) The worker's request for rehabilitation should be regarded as a request to establish a rehabilitation programme. The employer's conduct thereafter is sufficient to enable a finding that it resolved not to establish such a programme. Its decision not to do so is reviewable and in the circumstances of this case, its decision should be set aside and it be determined that it is appropriate for a rehabilitation programme to be established, which contains provision for the supply to the worker of a firm bed and home help. We therefore direct the employer to formulate a rehabilitation programme in accordance with the standards and requirements imposed by regulation pursuant to section 28C(1) and which contains provision for the supply to the worker of a firm bed and home help. We grant the parties liberty to apply in the event that they cannot reach agreement as to the terms of the programme.