(a) the rehabilitation adviser and the worker consent to the disclosure; or

(b) the statement is relevant to an allegation of fraud or dishonesty in criminal proceedings against the worker.'

It is agreed that Section 28(3)(b) does not feature.

As I understand it, it is conceded that Mr. But-Husaim is a rehabilitation adviser. I also understand it to be conceded that the relevant statements made to Mr. But-Hasaim were in the context of the applicant's rehabilitation. Nevertheless the respondent contends that the statements are not exclude by the provision because, in the first place, they were not made at a time when the applicant was participating in a rehabilitation program and secondly, even if they were, the prohibition provided for by Section 28(3) only applies for the duration of the program and that given that the program has now ceased, the prohibition no longer applies.

It is necessary at this point to refer to the activities that the applicant was undertaking at the time these statements were made. The relevant activities were conducted in accordance with a document titled `Rehabilitation and Return to Work Plan'. The document declares that it will operate for the period from 12 November 1996 to 30 December 1996. Doing the best I can to decipher the handwriting contained in the document it provides as follows:-

(1) Keith will undertake a program of modified duties as per following ongoing -

Other duties that meet medical restrictions i.e. no lifting ^10 kg., no repetitive bending may be included - Keith is to work at his own pace and duties are to be varied as much as possible. - should Keith experience an increase in his symptoms he is to take a break from the activity he is performing and try another activity e.g. clerical work, to see if symptoms settle - if his symptoms do not settle and become unmanageable he is to consult his doctor and advise his rehabilitation consultant. His rehabilitation consultant will then seek advice from his doctor regarding Keith's return to work while Keith is having hydrotherapy and physiotherapy three times per week (Monday Wednesday Friday) he is to have these sessions in the morning and attempt work in the afternoons (12.30 - 3.30) - on Tuesdays and Wednesdays he will work between 7.30 -3.30.

(2) Keith's progress at work will be monitored by his rehabilitation consultant by liaising with him, his doctor and employer.'

Mr. Calligeros contends that this is a rehabilitation and return to work plan for the purposes of Section 28A of the Act which provides:-

`(1) The Corporation may establish a rehabilitation and return to work plan for a worker who is incapacitated for work by 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 three months (but has some prospect of returning to work)

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

It is inherent in Mr. Calligeros' argument that a rehabilitation and return to work plan for the purposes of Section 28A of the Act is different to a rehabilitation program provided for by Section 28(3).

In support of this, Mr. Calligeros refers to Section 26(2) which talks about the Corporation establishing a rehabilitation program for a particular worker and to Section 28C(1) of the Act which provides that:-

`(1) Rehabilitation programs, and rehabilitation and return to work plans, must comply with standards and requirements imposed by regulation.'

He says that these provisions point to rehabilitation programs and rehabilitation and return to work plans being quite separate entities. He took me to the Workers Rehabilitation and Compensation (Rehabilitation Standards and Requirements) Regulations 1996 being the regulations promulgated in accordance with Section 28C of the Act. Whilst they clearly identify separate standards and requirements for rehabilitation programs and for rehabilitation and return to work plans a closer examination of the relevant wording reveals that a plan which complies with the standards and requirements of a rehabilitation and return to work plans also complies with the standards and requirements of a rehabilitation program. But even more importantly I do not think that anything flows from the fact that the might be separate entities, because even if they are it does not follow that they are mutually exclusive.

Moreover, if the submissions put by Mr. Calligeros were correct, a compensating authority could escape the immunity provided for by Section 28(3) by simply labelling a rehabilitation program as a rehabilitation and return to work plan and complying with the relevant regulation.

It seems to me, that Mr. Calligeros' submissions require me to read into the Act a distinction between rehabilitation programs and rehabilitation and return to work plans, that is neither plainly called for by the wording of the relevant provisions nor is it one which one might expect the Act to make.

The clear purpose of the immunity provided for by Section 28(3) is to encourage frank and open communications so as to facilitate a worker's successful rehabilitation. That purpose is just as valid whether the rehabilitation is described as a `rehabilitation program' or as a `rehabilitation and return to work plan' In my view, a rehabilitation and return to work plan is no more than a special form of rehabilitation program that a compensating authority may be obliged to create in particular circumstances and which requires the compensating authority to embark upon a specified regime of consultation and the decision to establish the plan and the provisions of the plan may be the subject of review. But such plans, as indeed any rehabilitation program is subject to the immunity afforded by Section 28(3).

As to Mr Calligeros' second argument, if a worker's communications with a rehabilitation adviser were only privileged for the duration of the plan the worker's position is barely any better than if there were no privilege at all. The immunity can only achieve its obvious objective if it is absolute, subject of course to the provisos contained in Section 28(3)(a) or (b). There is simply no mandate to read into the provision the requirement that the immunity only survive the duration of the program.

In all the circumstances I rule that the statements are inadmissible in these proceedings.

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.