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[2001] SAWCT 78
plaintiff. The Tribunal answered yes to whether the compensating authority should continue to include the university studies in a rehabilitation programme, and yes, in the alternative meaning described in...
The Tribunal found that Nelson's university studies remained part of the rehabilitation approach the insurer had previously supported. The fact that individual proposals covered short periods did not mean the broader qualification objective ended after those periods, and moving from Arts study to an LLB remained within that objective. The Tribunal also found that the authority had authorised the relevant kind of expense, so the costs were treated as recoverable under s 32(2)(i) in the qualified way described in Roberts v Rabbit Photos (No 2).
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Nelson was an electrician and the sole employee of Adelaide Electrical Services. On 28 February 1997, he fell from a ladder and suffered a severe injury to his left knee. The judgment records that his former work required constant use of his left leg and that the compensating authority accepted he was permanently barred from returning to that occupation (2). The practical rehabilitation problem was therefore not simply how to restore him to the same job. It was how to support a different vocational future.
2 cited instruments linked from this judgment.
Nelson was referred to a rehabilitation consultancy in April 1997. His rehabilitation counsellor, Karen Osborne, identified interests including psychology and youth or social work, which required substantial study. The judgment also records that he had no post-school qualifications apart from trade qualifications, and that his incapacity left him without his former occupation while he considered alternatives (3-4).
With the counsellor's assistance, Nelson sat mature-entry examinations and began a Bachelor of Arts at Adelaide University in the first semester of 1998. MMI, acting for the compensating authority, agreed to this course and reimbursed associated costs, including HECS fees (5). Nelson completed the first year despite undergoing osteotomy surgery in June 1998. He was then offered and accepted a place in an LLB course commencing in 1999 (5).
The dispute developed after the rehabilitation provider submitted a sixth programme proposal on 28 October 1998. It recommended that Nelson continue university studies and consider employment options available through the university. MMI marked the proposal not approved and directed that rehabilitation services cease (7-8). The insurer then said it would not pay for further tertiary studies, ended the existing provider's engagement, and arranged for another provider (11-13).
A new return-to-work plan approved on 8 January 1999 did not accommodate the study pathway. The judge described its employment-search approach as poorly considered and said it disregarded the work that had gone before (15). The Tribunal was asked two questions: whether university study should continue to be included in a rehabilitation programme and whether associated costs were costs under s 32(2)(i) of the Workers Rehabilitation and Compensation Act 1986 (SA) (1).
The Tribunal answered yes to both questions, with the costs answer expressly qualified as being in the alternative meaning described in Roberts v Rabbit Photos (No 2) (40).
A key part of the reasoning was the distinction between a rehabilitation “programme” and a rehabilitation and return to work “plan”. The judgment explains that the original programme provisions remained in place when amendments introduced the plan concept in 1995. It also notes that the Act treated programmes and plans separately in provisions about review, standards, and worker cooperation (25-26). The Tribunal therefore treated the dispute primarily as one about the interruption of a programme already underway, not only about the contents of the later plan (38).
The authority argued that the rehabilitation proposals were authorised only for finite periods and that the earlier approval related to Arts study, not the LLB (17). The Tribunal rejected that reading. A proposal might state a period such as three months, but in context it was part of a process aimed at completion of a tertiary qualification expected to take three or four years. The move to an LLB did not abandon the educational pathway: it refined the learning towards a more career-specific qualification (18).
That reasoning was fact-sensitive. The Tribunal relied on the history of support, the programme's stated reference to continuing university studies, Nelson's cooperation and progress, and the continuity between his studies. It did not declare that all university study must be funded as rehabilitation. Its conclusion concerned this worker, this programme, and the authority's prior conduct.
The reviewability point came from Dunstan. The judgment recounts that the Full Tribunal in that case considered whether a worker could challenge a refusal to establish a programme or to add services. The Full Tribunal said a refusal could be reviewable where a programme was clearly needed or additional services were patently required to make an existing programme reasonable (31). McCusker DP treated that reasoning as applicable to the authority's discontinuance of Nelson's programme (38).
The expense issue required a separate analysis. Dunstan had interpreted s 32(2)(i) narrowly, limiting it to “medical or like expenses”, and the judge said he was required to conform with Full Tribunal decisions despite any different personal view of the provision's meaning (28-29). But the judgment also discussed Roberts v Rabbit Photos (No 2), which clarified that where the authority had authorised costs of a type, the costs could be recoverable subject to other relevant criteria, even if the expense did not fit the Tribunal's understanding of the statutory scope of s 32(2)(i) (33).
Applying that qualification, McCusker DP found that the authority had authorised this class of costs. It had agreed to the university studies and reimbursed expenses, and the Tribunal rejected the argument that no relevant authorisation had occurred (5, 39). The answer on costs was therefore deliberately framed as “in the alternative meaning” explained by Roberts, rather than as an unrestricted ruling that all tertiary study expenses fall within s 32(2)(i) (40).
The judgment describes the statutory setting as one in which rehabilitation was a strong feature of the 1986 Act. It refers to the legislation as intended to address shortcomings in the earlier scheme (19). It then traces developments affecting rehabilitation programmes and costs.
First, the judgment discusses the Full Supreme Court's decision in Industrial Rehabilitation Services. That case concerned whether WorkCover could control not only the content of programmes but also the provider delivering the services. The Supreme Court held that the Corporation did not have the asserted power to determine who could provide those services, and the judgment quotes reasoning that financial control operated through s 32 (20-23). The judgment then notes the 1993 amendment to s 32(8), which changed the statutory reference to approved rehabilitation so that it concerned services provided by a person with an agreement with the Corporation (24).
Second, the 1995 amendments introduced rehabilitation and return-to-work plans alongside programmes. The Tribunal emphasised that the two concepts remained distinct in the Act's structure (25-26). Miller (Royal Hotel) was cited for the proposition that the existence of a plan did not automatically extinguish the worker's right to have a programme established (35). In the later Miller decision, the Tribunal ordered a programme containing appropriate retraining by way of an accountancy course on the facts of that case (36).
Third, Dunstan addressed the reviewability of programme decisions and the limits of s 32(2)(i). It held that the provision was not a general route for obtaining Tribunal approval of any expense and treated rehabilitation expenses as a distinct category linked to approved rehabilitation (28). It also concluded that rehabilitation review provisions were focused on future arrangements rather than reimbursement of past costs (30). The present decision relied on Dunstan's reviewability reasoning, while separately applying Roberts (No 2) to the authorisation issue (31-33, 38-40).
Accordingly, Nelson did not erase the distinction between programmes and plans, or displace Dunstan's treatment of expenses. Its contribution, as expressed in the judgment, was to apply those authorities to a continuing programme, find that the later study remained within its existing objective, and treat prior approval as significant to the costs question.
The supplied judgment does not report later appellate treatment of Nelson. It therefore does not establish, on this source alone, whether a later court affirmed, limited, or distinguished the decision.
At [18], the judge said the original circumstances supported Nelson's tertiary qualification “so long as he cooperates and succeeds in that objective”. In plain English, the study pathway was not treated as an unconditional commitment regardless of progress. Its continuation was linked to participation and success in the educational objective. The same paragraph says the LLB was within the proposal because it made the learning more career-specific. That is the central factual and interpretive bridge between the original Arts study and the later law course.
At [31], the judgment quotes the Full Tribunal in Dunstan: where a programme is clearly needed, or extra services are patently needed to make an existing programme reasonable, refusal may be reviewable. This passage supplies the review framework, but it is quoted reasoning from Dunstan, not a standalone new test devised in Nelson.
At [38], McCusker DP states that the authority's decision to discontinue the programme was reviewable and that the Tribunal could overturn the interruption of the programme “already ‘in train’”. In ordinary terms, the decision was not insulated from review merely because the authority had stopped the arrangement or created a later plan.
At [39], the judge agreed that the authority had “blown ‘hot and cold’” and rejected the argument that relevant authorisation had not occurred. The point was that prior approval and reimbursement mattered to the characterisation of the costs. The Tribunal did not simply infer authorisation from the fact that Nelson pursued study independently; it found authorisation on the history before it.
At [40], the two answers are short but important. The first is an unqualified “Yes” to continued inclusion in the programme. The second is qualified by the words “in the alternative meaning described in Roberts v Rabbit Photos (No 2)”. That qualification should be retained when summarising the decision.
The reasoning is most relevant where a worker is unable to return to former employment because of a compensable disability and a rehabilitation programme has adopted retraining or education as part of a vocational pathway. Nelson involved an authority that had supported and paid some study costs before withdrawing support, and a worker who had progressed through the studies (2, 5, 9-10).
The decision may be relevant where individual programme documents have short stated periods, but the surrounding documents and conduct indicate a longer rehabilitation objective. In Nelson, the judge read the proposals as parts of a process aimed at a qualification expected to take several years, rather than as isolated short-term approvals (18).
It may also be relevant where an authority ends an existing programme or refuses to add services said to be necessary to make it reasonable. The reviewability analysis came from Dunstan and was applied to the programme being interrupted in Nelson (31, 38).
The costs reasoning is narrower. It is most pertinent where the authority has authorised the type of cost and a dispute then arises about whether it falls within s 32(2)(i). Nelson relied on the authorisation qualification in Roberts (No 2), and should not be read as holding that any self-selected education expense is covered, or that approval is irrelevant (33, 39-40).
By contrast, the judgment does not set out a universal standard for how long a study programme may run, what level of academic progress is sufficient, or how every alternative course should be assessed. The reasoning turns on the particular history and the evidence of an ongoing objective.
The supplied text is the 5 July 2001 decision itself and does not identify any later court or tribunal treatment of Nelson. There is therefore no source-grounded basis here to state that it was subsequently followed, distinguished, affirmed, or overruled.
The judgment does describe how earlier authorities related to one another. It says the Full Tribunal's decision in Dunstan overruled the earlier authorities in Toohey and Pfeiffer on the relevant issue (32). It also explains that Roberts (No 2) clarified the effect of authorisation for costs, including costs incurred in the past (33). Nelson then applied Dunstan to reviewability and Roberts (No 2) to the costs issue (38-40).
Other decisions were used as contextual guidance rather than as later treatment of Nelson. Miller (Royal Hotel) supported the view that a plan did not automatically extinguish a right to a programme (35). Miller (No 2) involved a programme with an accountancy course, and Williamson was cited for a balancing approach to reasonableness (36-37). These are authorities considered by Nelson, not subsequent treatment of Nelson itself.
The judgment leaves open how far its reasoning extends beyond a course of study that was already supported and funded. It records that the authority had agreed to the Arts degree and reimbursed fees before the dispute, and found the LLB to be a refinement of the same objective (5, 18, 39). The decision does not determine how a Tribunal should approach a course that is materially unrelated to the prior programme or has not previously been authorised.
The decision also does not specify a detailed measure of acceptable cooperation or success. Paragraph 18 links continuing support to those matters, but the judgment does not set out a threshold for academic results, attendance, course completion time, or other evidence of progress.
A further question is how to distinguish a continuing programme from a sequence of expired proposals when the documentary record is less consistent. In Nelson, the judge relied on the proposals, reports, approvals, and wider educational objective (9-10, 18). The decision does not formulate a universal rule for the effect of a stated programme period.
Finally, the costs answer is expressly qualified. Nelson follows the authorised-costs reasoning attributed to Roberts (No 2), while also acknowledging Dunstan's narrower interpretation of s 32(2)(i) (28-33, 40). The judgment does not resolve every possible statutory boundary for education-related expenses, especially where there was no prior authorisation or where other statutory criteria are contested.
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1 The statement filed in these proceedings describes the issues as follows, (AB 15):-
"1 Should the compensating authority (the Respondent) be required to continue to include as part of a rehabilitation programme a provision that the Applicant continue with his University studies and the Respondent pay the costs of the Applicant associated with such studies.
2 Are the costs associated with University studies, costs pursuant to s 32(2)(i) of the Act."
2 The context is as follows. The worker was an electrician and the sole employee of the respondent, Adelaide Electrical Services (24). On 28 February 1997, he suffered severe injury to his left knee in a fall from a ladder (12). I understand the Corporation accepts he is permanently barred from pursuing his former occupation by this injury (46). That is because his former work involved the constant use of his left leg (19).
3 Clearly he had to explore alternative ways to earn a living. He was referred by the Corporation, (in the guise of MMI), to Kathryn Hourigan Consultancy Services Pty Ltd on 22 April 1997. This resulted in the first of six WorkCover rehabilitation programmes being designed by that company (AB 93).
4 The counsellor charged with the worker's rehabilitation was Karen Osborne. Apart from trade qualifications, the worker had no other post school training or qualifications. In discussions with Ms Osborne, areas of relevant interest were identified. These included psychology and youth or social work. Each of these required qualification after extensive studies. Moreover as the disability prevented the worker from resumption in his trade (19) and he would therefore not be actively occupied, this might act as a constructive way to use the period of incapacity he now faced (AB 129).
5 With the help of Ms Osborne the worker sat the SATAC mature entry exams and began a Bachelor of Arts at Adelaide University in the first semester of 1998. This was agreed to by MMI and the costs were reimbursed including the HECS fees (15). Notwithstanding the osteotomy surgery performed in June 1998 the worker successfully completed his first year (Exhibit A2). That led to him being offered and accepting a position in the LLB Degree course commencing 1999.
6 The course of events from the insurer's point of view commences with Ms Osborne's letter to MMI of 30 July 1997. Inter alia it describes the crisis the worker was in regarding his future financial sustainability. It records that he had been extremely industrious in seeking to overcome those challenges and had obtained the SATAC Guide with a view to undergoing tertiary qualification.
7 The sixth rehabilitation programme proposal designed by Ms Osborne and dated 28 October 1998 continued the approach of the previous programmes. Inter alia it stated (AB 106):-
"(d) Continue with university studies and consider employment options available through services provided by the University."
8 This sixth rehabilitation programme proposal led to an unexpected reaction from MMI and its supervisor Shelley Edmonds. She writes the following at the foot of it:-
"Programme not approved. No costs to date on programme, no outcome to date and costs as of 10/11/98 are $5,754.00.
9 The monthly reports indicate the insurer was kept fully informed and went along with the direction of the worker's endeavours, (see Supplementary Book of Documents, 38). Clearly the insurer had not rushed into this and had endorsed the action only after the advantages then seen by the insurer overcame any reluctance to support the worker's university studies. This is borne out by the following comment of Ms Osborne (Supplementary Book of Documents 38):-
"Regular monthly reports have been provided to MMI Workers Compensation throughout this process and regular contact to the case managers have always met with approval for the strategy in place. Our concerns with the university studies were raised at the time of approval with the case manager and in the end we accepted the decision made. Following this, rehabilitation services supported this decision although we believed the objective of return to paid employment to be compromised as a result. We supported the case manager's decision in order to maintain a positive working relationship."
10 However the insurer then appears to have had second thoughts as the same report relates in the following passage (Supplementary Book of Documents 38 - 39):-
"On Rehabilitation Programme #5, Kylie Ost approved funding to the limit of $6415. For a rehabilitation case of nineteen months duration, rehabilitation has been inexpensive given the severity and medical complexity of the case. I note that despite this approval, you have elected to reduce this limit on the subsequent programme. I have perused the agreement you have forwarded to rehabilitation providers for your company, and I cannot see where previously approved limits can be reduced retrospectively.
We value the close working relationship that we have with you, and I urge you to reassess the rehabilitation aspects of this case. It would be helpful to us if you could raise any concerns that you may have directly with me or the Rehabilitation Counsellor assigned to the case rather than change programmes or plans without consultation. The decision is finally MMI's and we happily accept this. However, there have now been two situations where decisions taken by MMI have compromised our rehabilitation initiatives."
11 At about the same time the worker received a letter from MMI saying no further tertiary studies would be included in any rehabilitation programme (20). Moreover his referral to Kathryn Hourigan Consultancy Services Pty Ltd was terminated and henceforth he was to attend Beckman and Associates. No adequate explanation was given for the change.
12 As a result, on 10 January 1999 the worker wrote to MMI (AB 7). He sought an explanation of MMI's position in respect to his rehabilitation. He also sought an explanation as to why his rehabilitation consultant had been withdrawn.
13 He received a reply dated 15 January 1999 and I quote it verbatim (AB 8):-
Please note, it is my intention to disallow payment for full time or part time university studies on your WorkCover claim.
It is my intention to return you to suitable alternative duties on a full time, casual or part time basis.
In relation to the change of your rehabilitation provider. I have advised you in writing on the 23/11/98 the reasons behind the cessation of the service provided by Katherine (sic) Hourigan. The provider was not able to expedite your return to work and therefore her services were ceased.
Please note, it is the Corporation's (or agent - acting on behalf of the Corporation), decision as to whom the rehabilitation provider may be.
If you have any queries regarding this claim, please contact the undersigned on (08)8394 8127, in the first instance, or write to us at the above address.
Please ensure that the Case Manager's name and claim number is written on all correspondence forwarded to this office."
14 The worker lodged his Notice of Dispute and the matter was referred for reconsideration. That resulted in the following decision (AB 11):-
The cost of tertiary studies could only be a cost within section 32 of the Act if it was within sections 32(2)(i) or 32(2)(c). The costs of tertiary studies have not been authorised by the Corporation and the cost has not been approved as part of the Rehabilitation and Return to Work Plan dated 8 January 1999."
15 A Rehabilitation and Return to Work Plan, (as distinct from the rehabilitation programme that had been in place for a year), was compiled by Beckman and Associates. It accommodated MMI's wishes entirely. The action segment show a complete disregard to anything that had gone before and proposed essentially an amorphous doorknocking campaign to find any form of employment. I have seen a number of rehabilitation proposals but none as poorly considered as this. Yet it received the endorsement and approval of MMI on 8 January 1999.
16 I record the worker has, despite all this, pressed on with his combined Arts Law Degree which he currently hopes to complete at the end of year 2002 (21). This is in circumstances where he has elected to "overload" his units.
17 Mr Beazley, of counsel for the respondent, contends those facts do not show a programme "in train". Firstly the programmes, that is those developed by Ms Osborne had been authorised for a finite period only. Secondly the approval had been in respect to an Arts degree and not an LLB.
18 To say these programmes dealt with a given period of say 3 months (i.e. 6 November 1998 to 6 February 1999 at AB 106) is not correct. In one sense they deal with that time frame but in reality, the context is of a person completing a tertiary qualification which is known to involve 3 or 4 years. I agree with Mr Amey, of counsel for the worker, who contends that the original circumstances indicate support for the worker's tertiary qualification so long as he cooperates and succeeds in that objective. The enrolment in the LLB course was within the scope of that proposal as it refined the learning to a more career specific qualification. I reject Mr Beazley's contentions in this regard (62, 63). The issue of reasonableness must go, on these facts, in the worker's favour.
19 The 1986 Act placed a strong emphasis on rehabilitation of injured workers. This was meant to be innovative and to fill the shortcomings of the 1971 Act in this regard: see Siopoulos Investments Pty Ltd (t/as Kastoria Fur Products) v Harlaftis, Full Industrial Court, (unreported), W16/1991.
20 The scheme provided for in Pt 3 Div 1 and Div 2 of the 1986 Act prior to the enactment of the revised form of s 32(8), (Workers Rehabilitation and Compensation (Review Authorities) Amendment Act 1993), and s 28A and s 28B (Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act No 35 of 1995, were considered by the Full Supreme Court in Industrial Rehabilitation Services Pty Ltd v Workers Rehabilitation and Compensation Corporation and Others (1993) SASC 4012. The issue there was whether the Corporation had power not only to approve the nature and content of rehabilitation programs but also to determine who might provide them, (per Legoe J at par 7, Mullighan J at par 11).
21 The context was as follows. Industrial Rehabilitation Services had an agreement with WorkCover to provide rehabilitation services for disabled workers. After some five years of that agreement, WorkCover gave notice it would not be renewed. Moreover it advised arrangement would be made to transfer the files of the workers in receipt of services from Industrial Rehabilitation Services to a new rehabilitation service. A significant number of Industrial Rehabilitation Services' customers under workers compensation expressed a desire for that company to continue their rehabilitation programmes. So the issue was whether the Corporation had power not only to approve the nature and content of the rehabilitation programmes but also to determine who may provide them. The Full Supreme Court unanimously answered that in the negative.
"I agree with my brother Mullighan J that the means of financial control over the provision of rehabilitation services is in s 32 itself. Sub-s (2) identifies the costs which are referrable to approved rehabilitation. This is a reference to rehabilitation programmes or services of a kind approved by the Corporation as referred to in sub-s (8) of s 32. I further agree with Mullighan J that where the worker has been charged for rehabilitation services then that worker is entitled to claim for the service and the Corporation, if it considers the amount charged is unreasonable, may reduce the charge by the amount of the excess pursuant to sub-s (4) as mentioned above. Further, such charges may be totally disallowed if the Corporation considers they are unnecessary: see sub-s (5)."
23 Mullighan J took the view WorkCover did not have power to decline to pay for rehabilitation services where it had not approved of the provider. It was the approval of the rehabilitation programme that determined the matter (at par 19 and par 20). He stated:-
"... What the Act provides is that the rehabilitation programme must be approved by the Corporation, the incurring of the cost of the programme must be reasonable and the cost must be reasonable.
A power in the Corporation not to approve of the rehabilitation provider would be a substantial interference with the freedom of choice of the worker. It could lead to a very unsatisfactory situation. The respondent might decide to approve of providers for reasons unassociated with their expertise or the quality of their services but purely upon financial considerations. It is not difficult to imagine a situation where a provider has rendered services which were entirely appropriate and found to be so subsequently upon review of the respondent's decision to disallow the cost. In the meantime the respondent has withdrawn approval for all services rendered by that provider. The end result of giving such a power to the respondent would be to permit it to create a small coterie of providers compliant with its wishes. I do not suggest that the respondent would permit such a situation to occur, but it is a useful example against which to consider the true meaning of the Act. If the Legislature intended that the respondent must have such a power, it could very easily have said so and it did not."
"(8) A reference in this section to approved rehabilitation is a reference to rehabilitation programmes or services of a kind approved by the Corporation for the purposes of this section."
"(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."
25 The 1995 Amendments (No 35 of 1995) introduced the extra notion of the, "rehabilitation and return to work plan". I will henceforth refer to the original provisions under s 26 as "programme" and the provision introduced in 1995 as "plan". The 1995 amendments introduced s 28A, s 28B and s 28C. That was the source of the "plan" concept. For its part, the "programme" concept was kept intact.
26 A "plan" was subject to specific review both as to whether or not one should exist and also as to the provisions it should contain. S 28C required both "programmes" and "plans" to comply with standards and requirements imposed by regulation. The new s 36(1A)(d) and (e) perpetuated the distinction, providing failure to cooperate under a programme or under a plan could amount to a breach of the obligation of mutuality. The distinction was ignored by the provisions of s 67(5) which describes a "rehabilitation and return to work programme" when discussing entitlements or a reduction of the levy. Lastly "reviewable decision" in s 3 has "plans" included in decisions subject to review.
27 In Dunstan v State of South Australia (Department of Education, Training and Employment) JD48/1998, the worker requested home help and a firm bed under a "rehabilitation programme" see Agreed Facts 16. That was rejected. The worker gave notice of dispute, being the failure of the exempt employer to establish a rehabilitation programme for the worker, (Agreed Fact 24).
28 The Full Tribunal focused on s 32. It concluded that ss (2)(i) was not a catch all that permits a worker to seek a ruling by the Tribunal as to whether a particular service could be subject to a claim for compensation though not otherwise listed in ss (2). Rather it was confined to "medical or like expenses". The Full Tribunal stated (17):-
"... 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. ..."
29 I note that analysis was subjected to close scrutiny in WorkCover Corporation/HIH Winterthur Workers Compensation (SA) Ltd (Rabbit Photos (SA) Pty Ltd) v Roberts Print A34/1998. That involved a claim for expenses already incurred in the nature of house help. The expenses were admitted as reasonable. WorkCover defended saying s 32(2)(i) was limited to a species of costs of "medical and like expenses". It relied on Dunstan. The Tribunal rejected that and attributed to the words their ordinary and natural meaning. The Deputy President did not feel constrained by Dunstan's Case, (8). However, in the proceedings before me, I am required to conform with decisions of the Full Tribunal, irrespective of any divergence of view I may have as to the meaning to be attributed to those words.
30 The Full Tribunal in Dunstan concluded that the worker could not use s 26, s 28A, s 28B or s 89A(1)(b) as a means of recovery upon review of a "programme" or a "plan", costs already incurred. Review provisions relating to rehabilitation focus on the future rather than the past (17). If a worker took the initiative him or herself regarding rehabilitation then the only source of remedy was found in s 32(2)(c) or s 32(8).
31 On the other hand and importantly for this case, the Full Tribunal ruled as follows (20-21):-
"... 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. ..."
32 The Tribunal went on to overrule the previous authority to the contrary found in The Corporation (Transway Freight Services Pty Ltd v Toohey (1994) 6 WCATR 60 and Workers Rehabilitation and Compensation Corporation v. Pfeiffer (1994) 6 WCATR 89.
33 In Roberts v WorkCover Corporation/HIH Winterthur Workers Compensation (SA) Ltd (Rabbit Photos) (No 2) JD2/1999, further understanding was given to the authority of Dunstan. That is the Corporation might refuse to "authorise" on the ground that the costs were not of a "medical or like expense". However if they "authorised", the type of expense became no longer relevant and became a recoverable costs. The Tribunal stated (3):-
"Contrary to what was submitted on behalf of the Corporation, I do not read the decision in Dunstan as standing for the proposition that it is unlawful for a compensating authority to authorise a claim for costs or a class of costs for the purposes of section 32(2)(i) that cannot be characterised as medical or medical types of services.
... But subject to that qualification, the Full Bench seems to be saying that if a worker incurs costs of a type authorised by the relevant compensating authority irrespective of whether that authorisation conforms with the Tribunal's understanding of the scope of section 32(2)(i), subject to the other relevant criteria being met, the worker is entitled to recover those costs. ..."
The other interesting aspect of this case was that these were costs in the past not for the future (5).
34 In Miller v WorkCover/Royal and Sun Alliance Workers Compensation (SA) Ltd (Royal Hotel) [2000] SAWCT 141 the worker suffered injury and commenced a TAFE computer course with the Corporation's endorsement. Then the worker's rehabilitation adviser supplied by the Corporation proposed the worker undertake studies to qualify as an accountant. The worker sought that included in his then current "plan". The Corporation refused to include it saying the completion of a degree in commerce was an unreasonable request. The worker took the matter to the Tribunal on the basis that his wish should be incorporated within either a "programme" or the "plan".
35 The Tribunal ruled that as s 26(1) created a positive and unqualified right to a rehabilitation programme there was no cause to regard the right as suspended during the life of any "plan". The Deputy President said (8):-
"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 than 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."
36 Moreover in Miller v. WorkCover/Royal and Sun Alliance Workers Compensation (SA) Ltd (P and J Hurley Pty Ltd T/as Hotel Royal) (No 2) [2001] SAWCT 57, the Tribunal dealt with the question of reasonableness in circumstances similar to those before me, (paras 19 and 29). It referred to s 26(3)(d) as an appropriate description for the worker's proposal. Concluding in the worker's favour, the Tribunal ordered that within 28 days the Corporation establish a rehabilitation programme 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 accountancy course applicable for the hospitality and hotel industry.
37 Finally in Williamson v. The State of South Australia in right of SA Police [2000] SAWCT 195 the Tribunal dealt with the issue of whether a worker can have the rehabilitation services coordinated by a person of that worker's choice. The case is decided on the refusal to agree to the establishment of a "plan" coordinated by the worker's chosen rehabilitation provider (14) and further where that right exists, a complimentary right of review under s 89A(1)(b) is not afforded (17). But the case is helpful in the approach to what is "reasonable" namely a balancing of the fair interests of the employer or insurer as well as those of the employee (24). In that case the Tribunal concluded the employer's action was not proven to be unreasonable.
38 On the basis of the review of these authorities what is primarily involved before me is a consideration of a "programme". I say that because as a matter of fact the worker was in the midstream of a "programme" when it was interrupted. Secondly it was a "programme" because that is what it was called (AB 106). In cross-examination the worker clearly identified the refusal to carry on the programme by Ms Edmonds as the dispute he was relying on (33). Dunstan's Case is authority for the consideration of the Corporation's discontinuance of that "programme" as well as the refusal to establish one. On either ground I can review that conclusion. I can overturn the attempt to interrupt the programme already "in train".
39 Moreover the facts in this case justify the same approach as taken in Roberts v. Rabbit Photos (No. 2). That is this was a class of costs authorised by the Corporation. Mr Amey, for the worker, says that the Corporation has blown "hot and cold" on this matter (8, 51, 59). I agree. I reject the argument that authorisation in the relevant sense had not occurred, (see respondent's argument at 66).
2. Yes, in the alternative meaning described in Roberts v Rabbit Photos (No 2).
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.
Nelson
Workcover/Allianz
The Tribunal answered yes to whether the compensating authority should continue to include the university studies in a rehabilitation programme, and yes, in the alternative meaning described in Roberts v Rabbit Photos (No 2), to whether the associated costs were costs pursuant to s 32(2)(i) (40).