Miller v Workcover/Royal & Sun Alliance

5 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, the objective of which was to return him to work in motel management or as a recruitment consultant. That return to work plan noted that:-

"... worker continues to apply for jobs as recruitment consultant/trainer but is finding competition is great and difficult to get to interviews. However, continues to apply ... Worker and rehabilitation consultant to discuss or be involved in applications for work, interviews and counselling to deal with return to work.".

6 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 dated 16 September 1998 the claims 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 Policanski 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 ..."

7 Ms Policanski, a qualified social worker and arbitrator, was employed by CRS Rehabilitation ("CRS") and was the worker's appointed rehabilitation provider.

8 The worker disputed this decision, contending that it was wrong to say that there was no appropriately targeted rehabilitation program that could assist him in obtaining further employment, and undertaking to provide "a detailed rehabilitation program" for the consideration of the claims agent.

9 On 26 November 1998 the claims agent confirmed its decision to cease a formal rehabilitation program, 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.

10 In December 1998 the claims agent notified the worker of the Corporation's intention to reduce his weekly income maintenance by $700 following a s 38 review that suggested he could work as a recruitment consultant or hospitality trainer. The worker disputed this decision. I am informed that this determination was subsequently set aside.

11 On 13 January 1999 a further three month rehabilitation and return to work plan (no 13) 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 Policanski dated 11 December 1998.

12 Ms Policanski's said report referred, inter alia, to a proposal whereby the worker would be retrained as an accountant. Preliminary inquiries made by her then 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 Policanski estimated training costs of approximately $5365 per annum plus the costs of books, over and above the worker's income maintenance of approximately $55000 per annum.

13 On 18 March 1999 the claims agent confirmed its rehabilitation and return to work plan, 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 therefore had not been included in the plan. This dispute is Action No 1243 of 1999.

14 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 Policanski in her report of 11 December 1998 and subsequently pursued 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 Policanski's report dated 11 December 1998.

15 On 9 June 1999 the claims agent confirmed its rehabilitation and return to work plan (no 13). This dispute is Action No 3125 of 1999.

16 During this period when rehabilitation services were reinstated the worker continued to apply, without success, for work as a recruiting consultant.

17 In July 1999 Ms Policanski presented to the claims agent an alternative retraining proposal whereby the worker would undertake an Advanced Diploma of Accounting at Torrens Valley TAFE. It was considered that the worker would have no difficulties undertaking such training intellectually and that it would be within his physical capacity. As to the benefits to the worker of having such qualification, Ms Policanski noted:-

"Although the senior lecturer at the Institute stated that the possibility of gaining employment is not guaranteed after the completion of the Diploma, it is likely he will be gainfully employed due to his past skills. Mr Miller may be competing against persons much younger than himself with the same qualifications. It has been suggested that Mr Miller concentrate on a particular area such as office manager for a group of hotels or motels (specialising in the bookkeeping and accountancy for this group). It may be possible that if a position becomes available to work one day per week with such an organisation while studying to complete the Advanced Diploma, Mr Miller is very willing to be able to undertake this opportunity."

18 In October 2000 at the request of the worker's solicitors, Ms Policanski provided further information and revised costings for the worker to undertake the aforesaid course. Her report (Exhibit A4) notes that this was a new course and that the knowledge and skills acquired in it would allow the worker to work in a number of accounting and financial areas. It was, she said, anticipated that the worker could be employed as an accountant in the hospitality industry. Ms Policanski estimated the cost of such a further education program, over the two and a half years, inclusive of income maintenance, to be in the vicinity of $172000.

19 The worker seeks to have Ms Policanski's proposal that he be retrained as an accountant incorporated into a rehabilitation program or rehabilitation and return to work plan. The issues to be determined are:-

1. Whether the Tribunal should direct the inclusion of such a provision in the worker's rehabilitation and return to work plans on the basis that its exclusion is unreasonable.

2. Whether a rehabilitation program should be established including such a provision, specifically for the worker to be allowed to pursue an Advanced Diploma of Accounting at a TAFE institution.

20 In a decision delivered on 5 September 2000 (Miller v WorkCover/Royal and Sun Alliance Workers Compensation (SA) Ltd [2000] SAWCT 141) I determined that there was no legal impediment to the worker seeking to have such a provision incorporated into either a rehabilitation program or rehabilitation and return to work plan. Mr Crawley, for the Corporation, does not contest this and agrees that the ultimate issue here, as identified by Mr Blewett, is as to what, if any, further retraining of the worker should be included as a matter of reasonableness.

21 Mr Blewett submitted that the reasonableness of the worker's proposed retraining should be considered in the context of a compensation scheme that places significant emphasis on the effective rehabilitation of injured workers. He noted that the second mentioned objective of the Act was to establish a rehabilitation and compensation scheme "that provides for the effective rehabilitation of disabled workers and their early return to work": s 2(1)(a)(ii), and submitted that s 26 of the Act fleshed out that objective by requiring that:-

"(1) The Corporation shall establish or approve rehabilitation programs 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."

22 Mr Blewett noted the extremely broad range of services that could be included in a rehabilitation program pursuant to s 26(3) including, relevantly to the case at hand, assistance in the training or retraining of workers: s 26(3)(d). He noted the specific focus of s 28A rehabilitation and return to work plans on returning the injured worker to work.

23 With respect to the facts of this matter, Mr Blewett noted the failure of earlier attempts by the worker to find work in hotel administration (notwithstanding the worker's undertaking of computer courses to assist that endeavour), in hospitality training (again notwithstanding his undertaking of further courses relevant to that pursuit) and as a recruitment consultant.

24 The worker's lack of success appears to have led to the Corporation's decision in September 1998 to withdraw rehabilitation assistance, and its confirmation in November 1998 of this decision on the basis that the worker "... currently has little prospect of a return to work in the near future".

25 Mr Blewett submitted that the Corporation's decision in September 1998 followed then by its confirmation of its decision, demonstrated the failure of rehabilitation efforts to that point of time. It was appropriate, he submitted, for the focus to have then turned to retraining.

26 This was the background to Ms Policanski's recommendation for the worker's retraining in the accountancy field.

27 Mr Blewett acknowledged that the worker's gaining of accountancy qualifications would not ensure him work as an accountant, or indeed any job. He acknowledged that human resource management training might well provide equally as good employment prospects for the worker. That, however, in his submission, was not the issue:-

"The question in respect of a rehabilitation program at least is whether accountancy training is reasonably adapted to achievement of the object of return to work in the context of this worker who up to that point hadn't been able to. Not that it is the most reasonable or the most definite of success, any of those things; simply whether its reasonably adapted to that end. Put in reverse in relation to a plan, the question is whether it's unreasonable to deny the applicant training.

I put it in that context in the sense that there is no other training option which has been put forward by the Corporation. He has been offered no other training and so the question is, is it unreasonable to deny him retraining, again in this context where all the steps to that point have been unsuccessful.

McCOUAIG DP: The question of reasonableness invites comparison with alternatives, doesn't it, but you say that there's no alternatives on the table to ...

MR BLEWETT: There are no alternatives on the table, and it is not for - I mean, the applicant needs to show reasonableness of the proposal. His task will be easier, I guess, in the absence of any other proposals, but it's not a question of identifying which is the best of all possible proposals even in the context where other proposals are there, but in my submission the absence of any other proposal is significant in this case because what you see when you look to the return to work plans which were then subsequently restarted, if you like, by the Corporation, they still provide this job seeking - or they still confine rehabilitation to job seeking essentially.

Enforcing obligations such as sending out ten applications per week to employers; this is something that has been ongoing now for two or three years. That is all the rehabilitation assistance which is currently being provided by the Corporation. It is that context of more of the same being offered which the applicant's proposal is in the context of. There are obviously reasonableness imports, notions, of affordability. We say that's not the major issue in this case."

28 Whilst the evidence did not show that accounting training would necessarily lead to a job, it would, Mr Blewett submitted, increase the worker's basket of skills and thus improve his employment prospects.

29 Mr Crawley agreed that the issue was one of reasonableness and had to be determined by reference to the scheme of the Act and the facts of the matter at hand. He submitted that the evidence showed that the worker was capable of working as a recruitment consultant - for four months from the beginning of November 1997 until the end of February 1998 he had been employed, 20 hours per week, by Five Star Quality Training and Recruitment Co; although he felt "very positive" about ongoing employment there, the company was not successful in securing expected government contracts and the recruitment side of its business was wound down, putting the worker out of work.

30 Mr Crawley submitted that whilst the worker had been unable to secure ongoing employment in this field his failure to do so had not been shown to be due to any lack of training.

31 In making this submission, Mr Crawley acknowledged Ms Policanski's contrary assertion in her report of 1 March 2000:-

"Although he has excellent transferable skills in the areas which have been pursued for Mr Miller, and he has an excellent work history, he has been unsuccessful in applying for large number of positions. This is due to his lack of experience or training in the area of hotel recruitment."

32 Mr Crawley's disputation of this bald assertion is not without merit. There is little, if any, evidence before me to support the assertion.

33 Ms Policanski had herself previously targeted this sort of recruitment work for the worker based on his existing skills and experience. In an earlier report to the worker's solicitors dated 11 December 1998 she had explained the worker's lack of success in securing work in this area to the fact that he was "competing in a market where others may have had more vocational counselling skills".

34 There is nothing in the responses to the worker's job applications that were put before me to indicate that his failure to secure a recruitment position was due to any lack of experience or training.

35 Nor is there anything in the job specifications for a recruitment consultant (TB 141) or employment officer (TB 135 and 144) to suggest the need for the worker to have more training or qualifications than he has.

36 Mr Crawley submitted that there was no evidence to suggest that the worker's employment prospects would be enhanced by him doing the course proposed, and submitted that such extensive and expensive retraining was not justified merely by virtue of the fact that the worker had been unable to find a job to which he was best suited.

37 Ms Policanski's initial recommendation that the worker undertake a Degree in Commerce seems to have been made with the intention of the worker moving into a new vocational area:-

"Previous vocational rehabilitation concentrated on transferring Mr Miller's existing skills without consideration for retraining Mr Miller in a new area.

Discussion has been held with Mr Miller regarding alternative options to retrain and build on Mr Miller's early direction of moving into the accountancy field."

38 Ms Policanski's later recommendation - that the worker undertake an Advanced Diploma of Accountancy at a TAFE College - was linked with the notion of the worker finding employment as an accountant in the hospitality field, thereby drawing on his existing store of experience and knowledge in the hotel industry.

39 A report of Mr Eric Priebe of Clements HR Consultants (TB 143) notes that "the pursuit of an accountancy career via a TAFE course is likely to be somewhat difficult. There are many individuals with similar qualifications and more experience struggling to secure suitable employment opportunities".

40 We do not know what qualifications Mr Priebe has. Ms Policanski had herself noted that even after completion of the Advanced Diploma course the worker would not be guaranteed employment and might find himself competing against persons much younger than himself with the same qualifications.

41 Mr Priebe concluded that if the worker was to pursue a TAFE accountancy course, he "would be best served to specialise in accounting for hotels to gain entry into the job market". His report lends weight to the assumption that an accounting qualification would broaden the scope of potential job opportunities for him in the hotel/hospitality industry.

42 The worker's inability over a very long period to secure work on the basis of his existing qualifications and experience and the Corporation's acceptance in late 1998 of his dim prospects of doing so, clearly warranted a change of strategy with greater emphasis on retraining. In the absence of evidence of any other initiatives by the Corporation, I am satisfied that the proposed accounting qualification of the worker was reasonable and appropriate. The evidence suggests that such qualification should be directed to the area of the worker's existing experience and knowledge in the hospitality/hotel industry. It may well be that there are specialised courses available that have application in this industry.

43 It is unfortunate that the Corporation has not previously followed up on these possibilities. My impression is that too little attention has been paid by the Corporation to its responsibilities with respect to the rehabilitation of the worker as per s 26(1) of the Act, or to the objects overall of the current scheme of compensation as per s 2(1)(a)(ii) and s 2(1)(a)(iv).

44 In all the circumstances I am satisfied that the worker's request for the establishment of a rehabilitation program containing provision for his retraining to gain accounting qualifications for employment in the hospitality/hotel industry was reasonable. The Corporation's failure to have established such a program and its failure to have included such provision in its rehabilitation and return to work plans since early 1999 was, in my view, unreasonable.

45 Mr Crawley submitted that regard should be had to the high costs associated with such retraining of the worker. Costs are a factor to be taken into account. In her report of 11 October 2000 Ms Policanski roughly estimated the costs associated with a two and a half year full time TAFE course for the Advanced Diploma in Accountancy as follows:

46 I am not in a position to comment on the need for or reasonableness of the suggested travel and child care expenses, but I do not think there is anything about the costs overall that make the retraining proposal prohibitive or unreasonable.

47 I do not think it follows that the establishment of a program such as that proposed by the worker necessarily means that the worker will be assured of continuing income maintenance, much less continuing income maintenance at the same rate as he currently enjoys, for the duration of his retraining. I envisage a program being drawn in stages so as to enable, for example, periodic reviews of the worker's progress and/or consideration of any other developments.

48 In all the circumstances I am of the view that it is appropriate for a rehabilitation program to be established providing for the worker's retraining. I direct that within 28 days the Corporation establish a rehabilitation program in accordance with the standards and requirements imposed by regulation pursuant to s 28C(1) of the Act and containing provision for the retraining of the worker by way of an appropriate accounting course that can be applied in the hospitality/hotel industry.

49 I grant the parties liberty to apply in the event that they cannot reach agreement as to the terms of the program.

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.