Percic v. Broken Hill Pty. Co. Ltd. (1973) 6 S.A.S.R. 1 .

WorkCover v. James (1992) 57 S.A.S.R. 365.

S.A. Mental Health Services Inc. v. John Margush (Unreported) Full Supreme Court JN S5246.

Hahnheuser v. Workers Rehabilitation and Compensation Corporation and The Adelaide Casino (Unreported) Full Supreme Court JN S5799.

Mr. P.J. Gabrynowicz (of counsel) for the Respondent.

This is an appeal by Paula Sue Alexander (`the worker') against a decision of a single Member of the Tribunal who held that the WorkCover Corporation (`the Corporation') was entitled to discontinue weekly payments of income maintenance being made to her.

On 10 November 1996 the worker who was working as a nurse at the Burnside War Memorial Hospital sustained an aggravation to a back injury she had suffered whilst a Registered Nurse at the same hospital some years before. She subsequently sought and obtained compensation pursuant to the Workers Rehabilitation and Compensation Act, 1986 (`the Act') and came to be in receipt of weekly payments of income maintenance. Following some earlier meetings on 18 February 1997 at a meeting with a rehabilitation counsellor and a co-proprietor of the employer an agreement was reached that the worker would return to work on clerical duties at the employer's head office, for 2 hours a day, 2 days a week on Tuesdays and Thursdays between the hours of 8.00 a.m. and 10.00 a.m.. It was contemplated that the worker's hours would be increased at times to be negotiated. The agreement was recorded on a document titled Rehabilitation and Return to Work Plan (`the Plan') and signed by the worker. The document noted inter alia that the worker's treating medical expert Dr. Thomas had cleared her to work two hours per day, two days per week as documented in a current medical certificate (A.B. 21) and that the rehabilitation counsellor was to monitor the program in consultation with the worker, the hospital's co-proprietor and Dr. Thomas (A.B. 22). It was expected that the worker would report to work at 8.00 am the following Thursday, 20 February 1997.

The worker did not present herself for work on the Thursday, or at any time thereafter and by letter dated 27 March 1997, she was advised that her weekly payments of income maintenance were to be discontinued by reason of an alleged breach of mutuality.

In particular, it was alleged that she had breached mutuality by:-

`... failing or refusing to undertake suitable work which has been offered and is capable of performing as certified by your treating medical practitioner,

failing to comply with your obligation under an approved rehabilitation and return to work plan and in particular:-

failing to attend work and perform the duties offered;

failing to notify your employer of any non attendance

The worker filed a notice of dispute, challenging the determination and that challenge resulted in the determination the subject of this appeal.

In approaching the matter the learned single Member noted that the Corporation's determination which relied upon the worker's alleged breach of mutuality, specifically identified breaches by reference to Sections 36(1a)(e) and 36(1a)(f) of the Act.

The primary argument advanced by the worker was that the Plan was unreasonable because she had arranged her life around an expectation that she would only work on weekends and the Plan required her to work between Mondays and Fridays. In response to that submission the learned single Member expressed an inclination to the view that in contesting a determination made pursuant to section 36 (1a)(e) it was not open for a worker to assert that the terms of the Plan were unreasonable and that all that needed to be established was that the worker had failed to comply with an obligation under such a plan. The learned single Member expressed the view that if a worker wished to challenge the reasonableness of the terms of a plan, the appropriate mechanism by which to do so, was through the filing of an application for review in accordance with section 28B. of the Act. He considered it important to note that in such a challenge the worker was not relieved of the obligations imposed by the Plan; section 28B.(3). The learned single Member said that if a worker were able to unilaterally decide that the terms of the Plan were unreasonable and resolved not to participate in it and instead was permitted to challenge the reasonableness of the Plan through a challenge to a determination pursuant to section 36(1a)(e), section 28B.(3) would be of little effect. In the circumstances the learned single Member expressed an inclination to the view that that aspect of the worker's challenge to the Corporation's determination of 27 March 1997 must fail.

In the event that he was wrong in that conclusion the learned single Member went on to consider whether the terms of the Plan were in all of the circumstances reasonable, concluding that they were. In approaching the question from a consideration of what was reasonable in all of the circumstances the learned single Member considered, inter alia, what had been agreed between the worker and the employer in the Plan. He found that the worker was a genuine casual employee who was generally available to work on any day of the week and that her evidence established that she was at times offered work during the week which she accepted. He went on to note that the worker may have genuinely had a problem with a proposal that she work seven hours per day as a clerical officer but considered that that was not an issue. He said that it may have become an issue, if and when she was required to work those hours but given that for the moment, all that she was required to do, was to work 2 hours on Tuesdays and Thursdays that must be the focus of his enquiries. The learned single Member in support of his conclusion on this issue, found that `... the question of reasonableness must necessarily take into account the nature of the work offered, and the qualifications and work experience of the disabled worker (and) a plan is not rendered unreasonable simply because it requires the performance of work duties that the disabled worker does not find stimulating or because it does not accord with his or her career aspirations'.

The learned single Member then went on to consider whether the work on offer to the worker was `suitable work' for the purposes of section 36(1a)(f) of the Act and concluded it was.

This conclusion, which in our opinion is correct, is consistent with the comments of Bray C.J. in Percic v. Broken Hill Pty. Co. Ltd. (1973) 6 S.A.S.R. p.4, where he said:-

`"Suitable" for this purpose means suitable having regard to the physical condition of the man, the nature and character of his occupation before the injury, and the nature of the work available after the injury. ... personal preference, geographical convenience or family circumstances are irrelevant (Eyre v. Houghton Main Colliery Co. Ltd, per Cozens-Hardy M.R. at pp. 697-698; Broughton v. London and North Eastern Railway Co.)'.

Whilst it may be that in terms of the modern law it is not correct to say that geographical convenience and family circumstances are irrelevant in considering whether work on offer is suitable (WorkCover v. James (1992) 57 S.A.S.R. 365 per Zelling A.J. at p.393) those issues do not arise this case. In any event the work in question satisfies the definition of suitable work proposed by Zelling A.J. in that case at p.395 in that in our view for reasons which will emerge later it was work the worker could do and which in her total circumstances would promote her rehabilitation and re-integration into the workforce.

He also considered the other grounds contained in the determination of 27 March 1997 which alleged a breach of mutuality based upon the worker's alleged failure to advise the employer that she did not intend to present herself for work and her alleged abandonment of employment; although the conclusions he had reached concerning the worker's failure to comply with the Plan were sufficient to dispose of the issue of mutuality.

However given that our views and conclusions in relation to the first two findings which are the subject of challenge are sufficient to dispose of the appeal, we do not propose to deal with the balance of the appellant's arguments, it is best that they be left for another day.

Appellant's Submissions / Full Tribunal's Findings

Pursuant to section 86(1) of the Act for the appeal to be competent it must identify a Question of Law and at the commencement of the proceedings before the Full Tribunal, Mr. Kernot, of counsel for the worker, was asked to identify the Question of Law. In response thereto he referred first to the following passage from the decision of the learned single Member:-

`I am inclined to view that in contesting a determination made pursuant to 36(1)(ae) it is not open for a worker to assert that the terms of the rehabilitation and return-to-work plan were unreasonable. I am inclined to the view that all that needs to be established is that the worker has failed to comply with an obligation under such a plan.

In my view, if a worker wishes to challenge the reasonableness of the terms of the plan, the appropriate mechanism by which to do so is through the filing of an application for review in accordance with section 28B of the act.'

He referred in particular to the second sentence of that passage as being a finding giving rise to a Question of Law. He went on to submit:-

`So the question of law is really whether or not section 36 gives rise to any discretion, ... gives an opportunity for the worker to assert that the terms of the rehabilitation and return-to-work plan were unreasonable.'

The primary challenge mounted on behalf of the worker on the appeal thus was to assert an error of law on the part of the learned single Member in concluding that it was not open to the worker in the subject proceedings to assert that the terms of the Plan were unreasonable and that all that needed to be established was that the worker had failed to comply with an obligation under such a plan. In broad terms it was the submission of Mr. Kernot that the approach adopted by the learned single Member was an unduly limited and restricted interpretation of section 36(1a) of the Act; that section 36 and section 28B are separate and distinct provisions, section 36 dealing with the issue of the discontinuance of weekly payments and section 28B with rehabilitation and return to work plans. He also submitted that the more appropriate mechanism for determining the reasonableness of the Plan and whether the conduct of the appellant constituted a breach of mutuality that warranted the discontinuance of weekly payments was a notice of dispute responding to a section 36 notice.

In our respectful view however the learned single Member was correct in concluding that it was not open to the appellant in the subject proceedings to challenge the reasonableness of the Plan at that late stage and that all that needed to be established was that the worker had failed to comply with an obligation under such a plan. Pursuant to section 28A there is an obligation on the part of the Corporation to establish a rehabilitation and return to work plan for a worker who is receiving compensation by way of income maintenance and 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. In other cases the establishment of such a plan is discretionary. The section provides that in preparing the plan the Corporation must consult with the worker and the relevant employer and if practicable review medical records relevant to the worker's condition or consult with the worker's treating medical expert. Pursuant to section 28B it is open to a worker or employer to apply for review of a decision to establish or not to establish a plan or a provision of a plan on the ground that the decision or the provision is unreasonable. Pursuant to section 28B(2) on a review of a plan the plan may be modified to the extent necessary to ensure that the plan does not impose unreasonable obligations on the worker or employer. Significantly proceedings on a review do not suspend obligations imposed by a plan (section 28B(3)).

It seems to us that given the specific provisions of section 28B appearing as they do in Part 3 of the Act which deals exclusively with rehabilitation and accident prevention programmes and is clearly a code dealing with that subject matter, if a worker is dissatisfied with a rehabilitation and return to work plan or any part thereof then the appropriate and only course of action is to seek a review by the Tribunal pursuant to section 28B. In our view (and the learned single Member adverted to this in his reasons) it would be an anomalous result if a worker in the face of a specific statutory entitlement to seek a review of a plan which would require work to continue pursuant to the Plan pending resolution of the dispute (and indeed allow for an appropriate modification of the plan in appropriate circumstances) were able to ignore the requirements of the plan and effectively by a `back door' method challenge the reasonableness of its terms in proceedings pursuant to section 36 in circumstances where there was no obligation on the worker to continue to abide by the terms of the plan pending the resolution of the matter and no apparent power vested in the reviewing authority to modify the plan if appropriate. We are fortified in this view by the provisions of section 36(1)(f) and (1a)(e). Those provisions are quite unambiguous: it is the failure to comply with the obligation that constitutes the breach of mutuality. There is nothing on the face of the relevant provision to indicate that the legal consequences of a failure to comply with an obligation under a plan is open to a defence that the plan is in some respects unreasonable. Had such been intended we consider that Parliament would have made it clear that that option was open.

The question of the reasonableness or otherwise of the Plan is a factual matter.

Doyle C.J. in S.A. Mental Health Services Inc v. John Margush (unreported) (Full Supreme Court JN S5246) a case which involved an appeal on a Question of Law pursuant to section 100(3) of the Act (in the penultimate paragraph of his decision) found:-

`The question of whether, in the particular circumstances, the conduct of the employer was reasonable action taken in a reasonable manner is a question of fact. No appeal lies on that question and it is therefore unnecessary for me to express any view on the issue of whether or not the Tribunal was right in deciding in the circumstances of the case that the conduct of the employer was not reasonable action taken in a reasonable manner.'

Bollen J in Hahnheuser v. Workers Rehabilitation and Compensation Corporation and The Adelaide Casino (Full Supreme Court JN S5799), in hearing an appeal from the Workers Compensation Appeal Tribunal (where appeals are by leave, on a question or questions of law) which involved a `stress' case arising out of a change of roster by the respondent employer; said:-

`There was no doubt in the end that "reasonable administrative action" (had been) taken. The dispute lay in the manner in which it had been taken. Was that manner reasonable? I think that this is a plain question of fact.'

Thus the finding of the learned single Member that the terms of the Plan were in all of the circumstances reasonable is not open to challenge before us. However even if we are wrong in that conclusion and it is open to us to consider a challenge to such a finding for reasons which we will give later we are not persuaded that the learned single Member was in error.

Although that is sufficient to dispose of the appeal, in the abundance of caution we propose to deal with the second main argument of the appellant which was to the effect that the learned single Member erred as a matter of law in concluding that the focus of his enquiries as to the reasonableness of the Plan should be limited to the first phase of the plan viz. that the worker work two hours on Tuesdays and Thursdays. In this respect it was the submission of Mr. Kernot that the plan was not limited to two hours' work on two days of the week but specifically provided for the hours to increase. He drew our attention inter alia to a certificate of a Dr. Hall of 5 March 1997 (A.B. 65) which attested to the fact that from 5 March 1997 to 25 March 1997 the worker would be fit to work seven hours per week with certain limitations.

The learned single Member was entitled, in our view, to focus his attention as he did on what the initial requirement on the worker was, because although the Plan envisaged an increase in hours to be worked, the only absolute requirement on the worker was to work 2 hours on 2 days of each week. A fair reading of the Plan given that it was predicated on the opinion of Dr. Thomas that the worker was fit for that limited work and that the program was to be monitored in consultation with Dr. Thomas amongst others, was that there would be no increase in the hours, or the type of work to be performed without the approval of the medical expert charged with her care. Given those circumstances it may well have been the case that over the short life of the Plan (18 February to 2 April 1997) no change would be made to the obligations cast on the worker. In the result it is our view that an appropriate course for the learned single Member was to focus on the initial requirement on the worker.

In our view no error of law has been demonstrated on the part of the learned single Member in limiting his consideration of the Plan to its first phase.

In any event even ignoring that conclusion and the failure of the learned single Member to consider the Plan as a whole in determining whether it was reasonable or on the section 36(1a)(f) question whether it was suitable work, amounted to an error of law, we would nevertheless be disinclined to allow the appeal. Given the findings made by the learned single Member we are in as good a position as he was to determine whether the terms of the Plan were in all of the circumstances reasonable or the work on offer suitable. We are in agreement with the learned single Member for the reasons given by him that the fact that the Plan required the worker to work during the week, of itself, did not make the terms of the Plan unreasonable. We also agree with the conclusions of the learned single Member (A.B. 273/4) that given all of the circumstances the Corporation's selected option of clerical work was reasonable; work which she was clearly fit to perform; which she was mentally capable of undertaking and was work that might have led to further options and which provided her with an opportunity to become re-established in the workforce. We are also in agreement with the learned single Member that the fact that the worker considered clerical work `insulting' given inter alia that she was pursuing a career in photography, was not determinative of the reasonableness of the Plan and that in general terms a plan is not rendered unreasonable simply because it requires the performance of work duties that the disabled worker does not find stimulating or because it does not accord with her career aspirations. When one adds to those considerations the fact that the Plan which was agreed to by the worker, was formulated in co-operation with the worker's treating medical expert Dr. Thomas and was to be monitored in consultation with the doctor amongst others, it is difficult to see how it could be found to be unreasonable.

For the above reasons the appeal herein is dismissed.