Durber v Arnott's Biscuits Limited [2012] SAWCT 9

"(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."

1. The employer contended that the worker is not entitled to an order under s 28B of the Act unless she establishes that a provision of Plan 3 is unreasonable and should be modified to the extent necessary to ensure it does not impose unreasonable obligations on her. It submitted that the notice of dispute failed to particularise any provision of Plan 3 which was unreasonable and failed to identify what modifications to the plan were required to ensure that it did not impose an unreasonable obligation on the worker. The employer contended that none of the factual information contained in the relevant documentation filed with the Tribunal was capable of supporting an argument that any provision of Plan 3 was unreasonable.
2. In order to establish a basis for an order for summary dismissal, the employer must clearly demonstrate that the worker has no arguable case for review on either fact or law - that is, to paraphrase the words of Barwick CJ in General Steel Industries v Commissioner for Railways (NSW),[1] that the dispute is so obviously untenable that it cannot possibly succeed, or that it is manifestly groundless. In Webster v Lampard[2] the majority in the High Court observed that the power of summary dismissal should be exercised with "exceptional caution" and "should never be exercised unless it is clear that there is no real question to be tried". Further, it approved of previous judicial statements to the effect that the need for exceptional caution is nowhere more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such circumstances, great care was to be exercised to ensure that under the guise of achieving expeditious finality, a claimant is not improperly deprived of an opportunity for the trial of a case by the appointed Tribunal.[3]
3. This approach has been repeatedly adopted by this Tribunal on applications for summary dismissal seeking the invocation of the Tribunal's powers under r 22(5)(a)(xxii) of the Workers Compensation Tribunal Rules 2009 ("the Rules"). The applicant for such an order must demonstrate that there is no real question of fact or law to be determined: Creek v WorkCover Corporation.[4]
4. I turn briefly to the factual background which is drawn from the content of affidavits and exhibits filed in support of the respective applications.[5]
5. The employer objected to the tender of numerous paragraphs of the worker's affidavit on the ground that they were irrelevant and/or hearsay. I have admitted the affidavit over this objection on the basis that, for the purposes of my limited role on a summary dismissal application, I am entitled to have regard to the factual assertions made by the worker in considering whether or not there is an arguable case for a review of Plan 3. If the application is dismissed, any rulings as to the admissibility of the paragraphs of her affidavit the subject of objection, or any other material which might be objected to at the substantive hearing, will be a matter for the presiding member, as will be the process of making findings of fact.
6. The worker's most recent period of employment with the employer was as a part-time packer from 2005. She became full-time from 2010 working twelve hour shifts. Her duties included quality control, placing biscuits on the line and packaging. Over the period of one year before her injury she was employed on line 4 day shift which involved work varying from standing or seated positions which were rotated during the shift. The physical activity involved repetitive movements of the upper body and arms. The worker described the duties as generally being relatively easy and slow paced.
7. On what she described as rare and random occasions, the worker was also rostered onto the K170 line, which involved flattening packets of biscuits, a fast paced activity requiring repeated use of the arms and shoulders including extended reaching. It was during this activity that the worker commenced suffering shoulder problems in May 2010, after which she was removed from those duties until March 2011, when upon a return to that activity she suffered a further aggravation. Since that time the worker has continued to work on her usual pre-injury duties subject to some physical restrictions including being excluded from the K170 line.
8. The worker was assigned a rehabilitation provider in June 2011 and was assessed by Dr Graham at the request of the employer on 17 August 2011. In his view the worker was fit to continue full duties on line 4 apart from some activities associated with working with a robot machine, loading trays above shoulder height and working on the K170 line.
9. Two rehabilitation and return to work plans were approved before Plan 3. These were disputed and were later set aside by consent. The employer contended that the content of those plans and the circumstances in which they were approved were irrelevant, and that the focus should be solely on the contents of Plan 3 and whether it was arguable that any of its provisions were unreasonable or imposed unreasonable obligations on the worker. I reject this submission, as, for reasons which become apparent below, the context in which the earlier plans were introduced, and their content, are arguably relevant to the dispute which exists with respect to Plan 3.
10. Rehabilitation and Return to Work Plan Number 1 ("Plan 1") was approved for the period from 23 September 2011 to 23 November 2011. The "Return to work objective" of the plan was the return of the worker to suitable employment being "pre-injury employment with the preinjury employer", with "suitable employment" being described as pre-injury duties with the exception of K170 and robot duties. Under a section of Plan 1 headed "Barriers to return to work objectives", it was recorded that the employer had advised that it would only be able to offer an ongoing position for the worker should she be able to undertake work on the K170 line, a notation which on its face seems inconsistent with the nominated return to work objective of the plan.
11. Plan 1 then detailed a number of strategies to achieve suitable employment goals and return to work objectives. One such strategy was that, if the worker was unable to return to her pre-injury duties, the rehabilitation consultant would commence job seeking activities with the worker as required and draw up a new RRTW Plan to support a change in vocational direction.
12. I observe that, according to the proposed evidence of the worker, the aspects of Plan 1 indicating that the worker's employment future was at risk if she did not recover her capacity for full duties was reinforced by direct verbal advice given to her on behalf of the employer to the effect that she would have no long term future with the employer unless she recovered her full work capacity, including for K170 duties.[6]
13. The worker lodged a notice of dispute in relation to Plan 1. I was not provided with a copy of that notice, but the confirmation of disputed decision[7] recorded that the plan was appropriate as the employer had obtained a medical opinion suggesting that the worker could not return to her pre-injury duties and that there was no medical information to the contrary. The confirmation document observed that the plan indicated that the external redeployment process would commence only if all attempts to return the worker to her unrestricted pre-injury duties had been exhausted.
14. Before the end of the specified term of Plan 1, RRTW Plan Number 2 ("Plan 2") was approved on 3 November 2011 with respect to the period from 31 October 2011 to 31 January 2012.
15. Whilst noting the same medical restrictions, the "Return to work objective" changed from suitable employment including a return to preinjury employment with the pre-injury employer to suitable employment including the worker's return to "different employment with a different employer". That different employment was specified by reference to the comments of various medical and occupational health professionals who had examined the worker and expressed the view either that aspects of her pre-injury duties (in particular work on the K170 line) were unsuitable and were likely to aggravate her current condition, or alternatively would not be suitable unless modifications were made.
16. The worker lodged a notice of dispute with respect to Plan 2 and complained of the requirement that she return to different employment with a different employer if she was unable to undertake full pre-injury hours in suitable duties with the employer. By consent orders of 16 January 2012, Plans 1 and 2 were revoked.
17. In the meantime, Plan 3 was approved. This plan, whilst noting the same level of work restrictions as in previous plans, now nominated the "Return to work objective" to be a return to suitable employment including a return to "different employment by the pre-injury employer". That suitable employment was not particularised but was simply identified by reference to "suitable duties as arranged by management".
18. The strategies to achieve the suitable employment goal and return to work objective included that the worker and the employer agree to amend Plan 3 or develop a plan number 4 in the event that medical circumstances changed such that Plan 3 did not reflect the changed circumstances.
19. As with the earlier plans, Plan 3 referred to a number of reports of medical and occupational health experts who assessed the worker and her work duties. These reports are contained as annexures to the affidavits of Ms Vendy and Ms Chambers. It is not necessary to say more about them except to note that they were virtually unanimous in expressing the view that certain of the duties carried out by the worker before her injuries, in particular those on the K170 line, involved a degree of repetitive activity likely to aggravate her shoulder conditions, and that she would probably not be fit for that sort of work in the future despite any modifications which could be made to the work duties and despite any further treatment or recuperation. One partial exception to this was the opinion of the occupational therapist Ms Norsworthy[8] which allowed for the possibility that K170 work duties might be suitable if certain modifications to the physical activities required were able to be devised.[9] A subsequent report of the physiotherapist Mr Anaf appeared to take the different view, being that even with such modifications the frequency of reaching on the K170 line may risk further injury.[10]
20. In October 2011 the solicitors for the worker arranged for her to be assessed by Dr Cook, who recommended a three month course of platelet rich plasma treatment involving injections into each shoulder once a month. He noted that the worker was keen to continue performing her duties with the employer and considered that after the recommended treatment her work capacity was likely to increase, "optimistically back to normal", so as to allow performance of full normal duties. At the same time however, he stated that it would be beneficial for him to attend the worksite to determine the suitability of each aspect of her normal duties.[11]
21. It is partly on the basis of this opinion that the worker disputed Plan 3, in that, to use the words of the worker in her affidavit, "I consider the provision in the plan which aims at returning me to alternative duties at Arnott's is unreasonable".[12] In this regard her solicitors have requested that Dr Cook be given access to the worksite to advise on the suitability of the work she is now doing, and as to other duties apparently proposed,[13] and as to any modifications which might be made to avoid further injury, a request that the employer has denied.
22. In completion of the factual summary, I note that Dr Champion, rheumatologist, to whom the worker was referred by the employer, observed that the plasma treatment recommended by Dr Cook was not standard treatment for rotator cuff disease or sub-acromial bursitis, and that there was no clinical evidence to support its use. He disagreed with Dr Cook's prognosis and did not share his optimism that the worker could possibly return to full-time pre-injury duties.[14]
23. Having set out this factual overview, I now return to the question which arises on the summary relief application, that is, whether there is no real question of law or fact arising on the worker's application for a review of the disputed plan.
24. In support of its argument for summary dismissal, the employer first pointed to the limited grounds available for a review under s 28B. It was observed that, in this case, the only relevant ground for an application for review was that a provision of Plan 3 was unreasonable, and further, that the only remedy was an order for modification of any such provision if it imposed an unreasonable obligation on the worker. It contended that the worker could not identify any provision of Plan 3 which was arguably unreasonable, conceding that unreasonableness could arise by omission of a provision from the plan as well as by the inclusion of an unreasonable provision. It further contended that the worker had no arguable basis for contending that the plan imposed unreasonable obligations on her which ought to be modified.
25. As to the content of Plan 3, the employer contended that it was prepared in compliance with the consultation provisions of s 28A(3) of the Act, and that the duties proposed were clearly suitable for the worker having regard to the expert evidence before it, and that it had acted consistently with its duty not to subject the worker to activities which might yet again aggravate her condition. It contended that the fact that there was a return to work objective contemplating "different" rather than "pre-injury" employment with the employer could not give rise to any basis for an argument that any provision of the plan was unreasonable or that the plan imposed any unreasonable obligations on the worker, particularly given that the worker was carrying out her pre-injury duties for the most part.
26. Against this background the employer addressed each of the specific grounds set out in the worker's notice of dispute. It contended that none of the grounds, when analysed individually, could be taken to complain that any provision of Plan 3 was unreasonable or imposed an unreasonable obligation on the worker, and that individually and collectively, the grounds of dispute did not raise an arguable case for review under s 28B of the Act.
27. In essence, the case which I understand the worker intends to present includes the proposition that Plan 3, in nominating as its "Return to work objective" the return of the worker to different employment with the employer, involving a restricted range of duties compared to her preinjury employment, contains an objective which prematurely and unreasonably forecloses the possibility of the worker returning to her pre-injury employment. Thus, as I understand the worker's case, the unqualified obligation of the worker to continue indefinitely for the term of the plan in "suitable employment" within current restrictions is said to be unreasonable because it requires, implicitly, an acceptance on her part that this is all the future holds, notwithstanding that the plan is capable of revision in changed medical circumstances. That is, whilst there is no complaint that a particular provision of Plan 3 is of itself unreasonable by requiring, for example, that the worker engage in activity for which she is not fit, there is a complaint that the provisions of Plan 3, and in particular the limited over arching "Return to work objective", are unreasonable in implicitly obliging the worker to accept that she cannot and should not be rehabilitated to the full range of her normal duties.
28. In this context, counsel for the worker indicated that evidence as to various exchanges and communications before and since the approval of Plan 3,[15] which the worker will contend were to the effect that she will have no long term work future with the employer if she cannot return to the full range of her pre-injury duties, will be relied upon to fortify the contention that Plan 3 imposes unreasonable obligations on the worker by requiring her acceptance of that limited work future. In this regard it was submitted that the proposed evidence of Dr Cook to the effect that the worker may yet be able to return to unrestricted pre-injury work, which may or may not be strengthened if Dr Cook has the benefit of an inspection of the work premises and the particular duties involved, and the opinion of Ms Norsworthy, provided an arguable case that the plan was also unreasonable because it does not impose an obligation on the employer to take specific steps to further explore full rehabilitation, including by making appropriate modifications to the physical activities required in carrying out those pre-injury duties presently considered unsuitable. Such an omission, the worker contended, was a breach of reg 23(3)(ii) of the Workers Rehabilitation and Compensation Regulations 2010.
29. A case presented in broad terms of this nature is arguably encapsulated in grounds 2.1 and 2.2 of the notice of dispute. Ground 2.1 complains that Plan 3 was defective in "...returning the worker to work in different employment in circumstances where the worker has capacity to return to pre-injury employment with minimal restrictions where work is suitable and available." Ground 2.2 complains of the failure to allow Dr Cook to visit the workplace and assess the duties with a view to making recommendations as to work activities.[16]
30. In the matter of Multiserv Australasia Pty Ltd v Stephens[17] I was required to consider issues relating to the extent of an employer's obligation to continue to participate in rehabilitation and return to work plans with the aim of returning a worker to pre-injury employment in the face of expert opinion accepted by the employer that such a return was not possible or likely. Having commented on the objects of the Act with respect to the effective rehabilitation of disabled workers, I wrote:

"The overriding obligation is to provide suitable employment, and in circumstances where it is reasonably practicable to do so, this may involve the provision of employment in the pre-injury position for which the worker was employed with duties appropriately modified. The obligations which might be imposed by rehabilitation programmes or plans must be understood in this light."[18]

1. What is apparent on a consideration of Multiserv is that the answer to the question as to what it may be reasonable or unreasonable for an employer to do or not do in order to facilitate a return to pre-injury employment, which in turn bears upon whether the return to work objective of a plan may implicitly impose unreasonable obligations on a worker, in the sense contended by the worker and described above, is dependent upon the facts of the particular case including the history of the rehabilitation process as a whole. A challenge to the reasonableness of a plan is arguably not confined to a narrow consideration provision by provision of the plan, each of which on its own may seem reasonable. The wider context, including competing views as to the possibility of the attainment of the objective of a return to pre-injury employment, with or without modifications, is a matter which arguably must be considered, particularly given the allegations of the worker that she has been told she has no work future with the employer if she is unable to return to duties on the K170 line.
2. In my view the worker has an arguable case at law that wider considerations of the nature outlined above arise on an application for review under s 28B of the Act. That is, it is arguable that the question as to whether a provision of Plan 3 is unreasonable, and whether Plan 3 imposes "unreasonable obligations" on the worker, should be considered from a broad perspective having regard to the circumstances in which the objectives in Plan 3 came into existence, as well as or in the alternative to having regard to the individual provisions of the plan itself.
3. Having so concluded, I do not need to consider the alternative contention of the worker that there is an unfettered right to review of an RRTW Plan under the general review provisions of s 89A(b) of the Act, which it was contended would not present the apparent barrier arising in a review under s 28B of having to identify an unreasonable provision in order to invoke the review jurisdiction. The worker contended she had the option of pursuing the matter under s 89A, despite the observations of the Full Tribunal in Dunstan v State of South Australia[19] to the effect that, whilst s 89A allowed for a review of a failure to establish a rehabilitation programme under s 26 of the Act, or of the contents of such a programme, the only review available with respect to an RRTW Plan was the more confined process under s 28B. Whilst the observations of the Full Tribunal in Dunstan as to the limited scope of the s 28B process were not necessary for its decision, I doubt that a full consideration of the interaction between s 28B and s 89A by reference to the principles of statutory interpretation would produce a different outcome, although I would not go so far as to state that the proposition is not arguable.
4. More importantly, in my view, despite the preponderance of expert evidence to the effect that the worker will not or should not return to unrestricted pre-injury duties, the worker may have an arguable case at the hearing by reference to expert opinion on the possibility of further recovery or modifications to pre-injury duties, that a return to unrestricted duties may be achievable; further that Plan 3, in not retaining a return to work objective and other provisions which recognise and encompass this possibility, is unreasonable, and thereby indirectly imposes unreasonable obligations on the worker by requiring that she continue to work under restrictions which ultimately may not be necessary. The strength of that case is arguably enhanced by the implications with respect to the security of the worker's employment in the event of an inability to return to unrestricted pre-injury employment.
5. I conclude that the employer has not clearly demonstrated that the worker has no arguable case for review or that her case is so obviously untenable that it cannot possibly succeed, or that it is manifestly groundless. This is particularly so as factual findings may be made which further clarify the extent of the worker's capacity and what, if any, modifications could be made to duties presently considered unsuitable. Accordingly I dismiss the application for summary dismissal.
6. Obviously the fact that I have dismissed the application for summary judgment can have no bearing on the ultimate outcome of the application for review, which will be determined on its merits on the facts as ultimately found and after full consideration of the arguments ultimately presented by the parties.
7. Turning to the worker's application for inspection, I consider there is no basis for resistance by the employer to an order that it permit an attendance at the workplace by Dr Cook and the worker's legal representatives. In so stating, I do not imply that I have formed any conclusion on the question of whether the employer acted unreasonably in not taking into account the views expressed by Dr Cook at the time it prepared Plan 3, assuming they were known to it at the time. That is a matter which may have to be decided later if the worker pursues that point at a hearing of the dispute proceedings. The inspection should take place for the simple reason that a better understanding of the nature of the relevant duties will assist Dr Cook in his consideration of the worker's present and future work capacity and whether she may be able to return to full pre-injury employment with or without modifications, a matter which in turn is relevant to whether any provisions of Plan 3 are unreasonable in not retaining such an overall objective.
8. In accordance with the powers of the Tribunal under r 22(5)(a)(iii) of the Rules, I order that within 30 days of the date of delivery of this decision the employer make its premises available to Dr Cook and the worker's legal representatives in order that they may inspect the nature of the preinjury duties performed by the worker and the duties currently being performed by her.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

[1] [1964] HCA 69; (1964) 112 CLR 125 at 129.

[2] [1993] HCA 57; (1993) 177 CLR 598 at 602.

[3] Mason CJ, Deane and Dawson JJ at 602 - 603.

[4] [2011] SAWCT 3 paras 22- 26.

[5] Affidavits of Mr Parisi sworn 31 January 2012 (Exhibit E1) and 27 February 2012 (Exhibit E2); affidavit of Ms Vendy sworn 15 February 2012 (E3); affidavit of Ms Chambers sworn 19 January 2012 (Exhibit W1); and affidavit of the worker sworn 14 February 2012 (Exhibit W2).

[6] Affidavit of the worker as to statement of Ms Vendy on 15 September 2011 - para 47.

[8] Report 21 October 2011 at pp 3-4 - Annexure KAC8 to Affidavit of Ms Chambers.

[9] In particular, the plan contained an extract of a report of Ms Norsworthy, occupational therapist, dated 21 October 2011, stating that "if Ms Durber was not able to reduce the forward reaching required with the use of a platform or step, then I consider positions 1 and 2 on the K170 line would not be suitable for Ms Durber based on the current state of injury" - p 3 of Plan 2.

[10] Report 25 October 2011 - Annexure KAC8 to affidavit of Ms Chambers.

[11] Paras 6and 7 on p 8 of report 17 October 2011 - Exhibit KAC 7 to Exhibit W1.

[13] Work on the "wafer line" - affidavit of worker para 72.

[14] Report 23 January 2012 - annexure JV3 to affidavit of Ms Vendy.

[15] See footnote 6 above - the worker also will allege that on 6 February 2012 Ms Vendy, when advising that the employer would not allow Dr Cook to inspect the worksite, said that once the dispute was resolved the employer would not have a role for her in the business - para 79 of the worker's affidavit.

[16] Notice of Dispute Exhibit JP2 to affidavit of Mr Parisi dated 31 January 2012.

[17] [2009] SAWCT 30.