Miller v Workcover/Royal & Sun Alliance

4 He has, with the Corporation's assistance, undertaken retraining in the form of TAFE computer courses and hospitality training courses. He has participated in various rehabilitation and return to work plans. As at September 1998 he was participating in rehabilitation and return to work plan number 12.

5 In September 1998 the worker was advised that his disability was considered permanent and that his prospects of returning to work were minimal. By formal determination of 16 September 1998 the Claim's Agent withdrew vocational rehabilitation services:-

"Further to our telephone conversation this letter is to advise you that as your return to work plan is currently not able to expedite your return to work, we have determined under s 28A of the Workers Rehabilitation and Compensation Act 1986, as amended ("the Act"), that the service provided by Ms Policansky is no longer appropriate and will stop.

Rehabilitation assistance from an experienced counsellor has been provided to you for a considerable time and you have gained job seeking skills as well as work training opportunities.

Your potential to return to work will be kept under review and as soon as it becomes clear that further assistance from a contracted rehabilitation provider will expedite a return to work, it will be arranged ..."

6 The worker disputed this decision, contending that it was wrong to say that there was no appropriately targeted rehabilitation programme that could assist him in obtaining further employment, and undertaking to provide "a detailed rehabilitation programme" for the consideration of the Claim's Agent.

7 On 26 November 1998 the Claim's Agent confirmed its decision to cease a formal rehabilitation programme, noting that "the applicant currently has little prospect of a return to work in the near future. Therefore, it is not cost effective or advantageous to continue rehabilitation." This dispute is Action No 5960 of 1998.

8 The Corporation appears to have then reconsidered its attitude towards continuing rehabilitation. On 13 January 1999 a further (13th) three month rehabilitation and return to work plan was signed by the parties. The stated objective was again for the worker to find employment as a recruitment consultant or in hotel management. By notice of dispute filed on 8 March 1999 the worker sought review of this rehabilitation and return to work plan asserting that it had failed to provide adequately for his rehabilitation and seeking the establishment of a plan in accordance with a report of Ms S Policansky dated 11 December 1998.

9 Ms Policansky was the worker's rehabilitation adviser. Her report of 11 December 1998 referred, inter alia, to a proposal whereby the worker would be retrained as an accountant. Preliminary enquiries made then had revealed that the worker would have no difficulties entering a commerce course at the University of South Australia as a mature aged student. Such a course would involve either three years full-time or six years part-time study. Ms Policansky estimated training costs of approximately $5365 per annum plus the cost of books, over and above the worker's income maintenance of approximately $55000 per annum.

10 On 18 March 1999 the Claim's Agent "confirmed" its rehabilitation and return to work plan (no 13), noting that the worker's request for approval to undertake three years full-time studies to complete a degree in commerce was an unreasonable request and thus had not been included in the plan. This dispute is Action No 1243 of 1999.

11 A further three-month rehabilitation and return to work plan (no 14) was signed by the parties on 9 April 1999. This plan again made no reference to the accountancy retraining identified by Ms Policansky in her report of 11 December 1998 and subsequently promoted by the worker. What it did provide was for a rehabilitation consultant to "provide ongoing support and counselling regarding job seeking, liaison as appropriate with insurer and DRCS and to provide monthly reports". By notice of dispute filed on 28 May 1999 the worker restated his objection to the plan in that it had not been established in accordance with Ms Policansky's report dated 11 December 1998.

12 On 9 June 1999 the Claim's Agent "confirmed" its rehabilitation and return to work plan (no 13). This dispute is Action No 3125 of 1999.

13 The worker seeks to have his retraining proposal incorporated into a rehabilitation programme or rehabilitation and return to work plan. The Corporation's position is that he has no entitlement to the establishment of a rehabilitation programme, and no entitlement to agitate this issue by way of review of any of the Corporation's rehabilitation and return to work plans. The parties have identified two preliminary questions of law in respect of which they have sought judicial determination:-

1.1 Can a worker require a rehabilitation programme be established once rehabilitation plans have been created.

1.2 Can a worker require a rehabilitation programme or plan be established when:

(a) There have already been a series of plans, and/or

(b) Previous plans have already identified suitable employment that a worker has a reasonable prospect of obtaining for the purposes of s 35 of the Act.

14 S 26(1) of the Act is expressed in mandatory terms and imposes an obligation on a compensating authority to establish a rehabilitation programme for a worker suffering from a compensable disability. The provision creates a positive right in a disabled worker to have a rehabilitation programme established: Full Bench of the Workers Compensation Tribunal, Wendy Dunstan v State of South Australia (Department of Education, Training and Employment) and WorkCover Corporation JD48/1998.

15 A decision of a compensating authority not to establish a rehabilitation programme, or not to include additional rehabilitation services in an existing programme so as to make the programme reasonable, is reviewable pursuant to s 89A(1)(b) of the Act: Dunstan's Case (supra).

16 Before the decision in Dunstan's Case, Stanley P had in two WCAT decisions, WorkCover v Toohey (1994) 6 WCATR 60 and WorkCover v Pfeiffer (1994) 6 WCATR 89, held that the former equivalent of s 89A(1)(b) (viz s 95(2)(b)) did not entitle a worker to review an approved rehabilitation programme. It is clear from a perusal of the second reading speeches in the Legislative Council that s 28B was enacted in 1995 to overcome the perceived absence of any right of review of rehabilitation programmes consequent on the aforesaid decisions. Unfortunately, at the same time there was introduced the notion of rehabilitation and return to work plans under s 28A and the right of review was specifically related to such plans and not rehabilitation programmes.

17 The Full Bench of the Tribunal in Dunstan's Case disagreed with the reasoning and conclusions of Stanley P in Toohey and Pfeiffer and determined that a worker was entitled to seek review of a rehabilitation programme under s 89A(1)(b). Thus, it held that s 28B had not created review rights where none had existed previously, but rather complementary rights to those already provided by s 89A(1)(b). The review rights provided by s 28B, however, were confined to rehabilitation and return to work plans.

18 The Act's strong emphasis on the rehabilitation of injured workers was seen by the Full Bench in Dunstan's Case as compelling:-

"Effective rehabilitation is one of the fundamental planks upon which the Act is based. It is no coincidence that the term `rehabilitation' features prominently in its title. It is now a declared object of the Act: s 2(2)(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 s 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."

19 In Dunstan's Case the worker had requested rehabilitation including the provision of a firm bed and home help. The employer's conduct was interpreted by the Tribunal as a decision not to provide that rehabilitation. The Tribunal considered that the worker was seeking the establishment of a rehabilitation programme and that pursuant to s 89A(1)(b) of the Act she had the right to seek a review of the employer's decision not to establish such a programme. The Tribunal found that the items requested by the worker would facilitate her rehabilitation. It concluded that the worker's request for a rehabilitation programme, including provision for the supply of these items, was reasonable and that the employer's failure to establish such a programme was unreasonable. The Tribunal thereupon directed the employer to formulate a rehabilitation programme containing provision for the supply to the worker of a firm bed and home help.

20 The Full Bench of the Tribunal in Dunstan's Case was hearing the matter on a direct referral pursuant to s 94A of the Act because it raised important questions concerning the dispute resolution process and concerning the interpretation of s 26, s 28A, s 32 and s 89A(1)(b).

21 After noting the differences between rehabilitation programmes and rehabilitation and return to work plans, the Full Bench in Dunstan observed:-

"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."

22 In the case at hand, the compensating authority has established a series of rehabilitation and return to work plans, extending both before and after the worker's identification of his retraining proposal.

23 Mr Crawley, for the respondent, submitted that the implementation of such plans precluded the establishment of a rehabilitation programme. It was said that Parliament envisaged a two stage process, a rehabilitation programme initially, superseded or replaced by a rehabilitation and return to work plan. Mr Crawley sought to rely on reg 4(i) of the Workers Rehabilitation and Compensation (Rehabilitation Standards and Requirements) Regulations 1996. These Regulations were brought into existence to complement the new provisions of s 28A, 28B and 28C. Amongst its "standards and requirements" for rehabilitation programmes, reg 4(i) provides:-

"It must specify that the programme will come to an end when the Corporation establishes a plan for the worker:"

24 The implication of reg 4(i) is that a rehabilitation programme is meant to end when a rehabilitation and return to work plan is established.

25 It is not permissible, however, for the Tribunal to rely on delegated legislation to assist in construing head legislation, as was noted by the Full Bench of the Tribunal in Short v Bridgestone JD24/1998:-

"We are also of the view that the learned Deputy President was in error in relying on the regulations for assistance in construing Section 28 A(1). To adopt the words of the Full Court of the Federal Court of Australia in Webster and Another v. McIntosh [1980] FCA 128; (1980) 32 A.L.R. 603 at 606;

`The starting point is the meaning and operation of the Act. Upon that matter the Ordinance sheds no light, for the intention of Parliament in enacting an Act is not to be ascertained by reference to the terms in which a delegated power to legislate has been exercised.'"

26 There is otherwise nothing in the Act to suggest that the establishment of a rehabilitation and return to work plan should automatically preclude a worker's right to have a rehabilitation programme established. Given the focus of the current scheme on rehabilitation, it seems to me that an intention to extinguish an injured worker's right to a rehabilitation programme ought not be inferred in the manner suggested by Mr Crawley. Had this been Parliament's intention, it could easily have said so.

27 Whilst there are obvious similarities between a rehabilitation programme and a rehabilitation and return to work plan Parliament has, as noted by the Full Bench in Dunstan's Case, made it abundantly clear that the two notions are different.

28 Any concerns of duplication ought not be a problem in practice. As was noted in Dunstan's Case, the Tribunal would not likely require the establishment of a programme where there is in place a rehabilitation and return to work plan with reasonable provisions. Nor would a Tribunal likely require the establishment of a programme where the same ends can be achieved by review of an existing rehabilitation and return to work plan.

29 A worker's right to the establishment of a rehabilitation programme is of more relevance where he has no right of review under s 28B or, as here, where his right of review is disputed. Mr Crawley contends that s 28A(2) obligates the compensating authority to prepare a rehabilitation and return to work plan for the worker. He says that once it has done this, the compensating authority's obligation has been met. By implication, this happens upon the expiry of the first such plan.

30 In the alternative, Mr Crawley says that any entitlement to a further rehabilitation programme or rehabilitation and return to work plan must be discretionary and governed, in effect, by a criterion of reasonableness with reference to the particular circumstances. I do not, however, understand Mr Weatherill to be saying anything different:-

"The only question that really should occur that needs to trouble the Tribunal in terms of his [the worker's] request is its reasonableness. Not reasonable, as limited in an arbitrary fashion by these criteria [ie the suggested disentitling criteria of there having already been a series of rehabilitation and return to work plans and/or there having been identified in such plans suitable employment that the worker has a reasonable prospect of obtaining] that have been put forward by the Corporation, but reasonable in terms of costs, scope, relevance of the training. The Tribunal could be satisfied that that test of reasonableness is met on the basis of the opinion of Ms Policansky." (tr 25 - 26)

31 I am not persuaded that a compensating authority's obligation under s 28A(2) is met by the preparation of a single rehabilitation and return to work plan. Such a narrow interpretation of s 28A(2) could potentially reduce this important right that the legislation gives to injured workers to something virtually worthless. Parliament could hardly have intended, for example, that an initial, short-term rehabilitation and return to work plan that barely sets the wheels of rehabilitation in motion after a serious injury, would exhaust the compensating authority's obligation under s 28A(2).

32 Consistent with the scheme's focus on rehabilitation, I rather think that s 28A(2) requires a compensating authority to prepare rehabilitation and return to work plans if and whenever the prerequisites set out in the provision are established. If that means ongoing plans over an extended period of time, so be it.

1. A worker can seek review of a refusal to establish a rehabilitation programme notwithstanding the creation of past or present rehabilitation and return to work plans.

2. A worker can seek review of a refusal to establish a rehabilitation programme or rehabilitation and return to work plan notwithstanding

(a) that there has already been a series of rehabilitation and return to work plans, and/or

(b) that previous rehabilitation and return to work plans have already identified suitable employment that a worker has a reasonable prospect of obtaining for the purposes of s 35 of the Act.

34 The parties sought initial rulings on these questions of law. I adjourn the judicial determination pending advice from the parties as to how and when they wish to have the outstanding questions of fact determined.

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 Form 11 within 14 days of the delivery of this decision and must be served on all parties.