This is an application by the respondent for the worker's notice of dispute lodged herein on 4 June 2002 to be struck out. The respondent's application is based on the fact that the rehabilitation and return to work plan ("the Plan") that is the subject of this dispute expired on 14 March 2002, that the worker's challenge to the reasonableness of the Plan was lodged after the expiry of the Plan and the assumption, based on the authority of Winnall v Department of Education and Children's Services JD7/1997 and JD55/1997, that this leaves the Tribunal with no jurisdiction to entertain complaints about the Plan.
The relevant background facts are as follows.
The worker was employed as a sales assistant in Harris Scarfe's city store. In July 2001 she lodged a claim for compensation in respect of a painful right arm/shoulder that she attributed to her work. Her claim was accepted and she was paid income maintenance.
By letter dated 26 February 2002 the compensating authority gave notice to the worker of its intention to discontinue income maintenance payments on the grounds that she had breached mutuality by refusing or failing to meet her obligations in accordance with a rehabilitation and return to work plan. The Plan covered the period 14 December 2001 to 14 March 2002 and appears to have been signed by the worker on 14 December 2001. Amongst the worker's obligations noted in the Plan were the requirements:-
To participate in all work training placements as scheduled by rehabilitation consultant and approved by your treating doctor, and
To participate in all vocational training as scheduled by your rehabilitation consultant and approved by your case manager.
Pursuant to the Plan the worker was required to participate in a Pharmacy Guild Training Course to take place over a 10 week period. The course comprised three days of study each week between the hours of 9.00 am and 4.00 pm and a two week full-time placement at a pharmacy (worker's notice of dispute par 2).
The worker completed just three days of the course. She alleges that she was unable to continue due to her disabilities (worker's notice of dispute, par 3).
The worker asserts that the course had little rehabilitation value and only caused an increase in her symptoms and a subsequent certification of "total incapacity" (workers notice of dispute, par 6).
It is the respondent's contention that the worker's failure to continue with the course constituted a breach of her obligations under the Plan and hence a breach of mutuality pursuant to s 36(1)(f) and s 36(1a)(e) of the Workers Rehabilitation and Compensation Act 1986 ("the Act").
On 19 March 2002 the worker lodged a notice of dispute denying the breach of obligation of mutuality and asserting that she had not voluntarily agreed to participate in the training course, that medical advisers had not been consulted about and hence had not approved this, and also that she had developed depression and psychological injury that prevented her from carrying out any training or any other form of rehabilitation at that time.
That dispute is the subject matter of Action No 1820 of 2002.
The worker's lodging of her notice of dispute in the matter before me, Action No 3710 of 2002, was prompted, it seems solely, in order to assist her defence of the aforesaid s 36(1)(f) notice. As Mr Black so incisively put it at tr 44: "It was a prophylactic device in defence of her position in the s 36 notice". This course of action was deemed necessary, Mr Black said, because the Full Tribunal in Alexander v WorkCover/Commercial Union Workers Compensation Pty Ltd (Adia Centacom Health Staff Pty Ltd) JD95/1998 had held that the only recourse a worker had to challenge the reasonableness of the terms of a rehabilitation and return to work plan was to seek a review of the plan pursuant to s 28B of the Act.
Mr Black acknowledged that the decisions of the Tribunal in Winnall presented a problem for the worker in so far as they suggested that the Tribunal could do nothing for a worker in relation to the terms of a rehabilitation and return to work plan that had already run its course, indeed had done so in this case before the worker's notice of dispute was lodged on 4 June 2002.
The principal issue between the parties in Winnall concerned the status of weekly payments received by a worker following his return to work on duties undertaken pursuant to a rehabilitation and return to work plan. The worker contended that following his return to work he ceased to be receiving income maintenance and was being paid wages. The compensating authority contended that those payments were payments of income maintenance and therefore subject to reduction to 80 percent after one year.
In the alternative, the worker submitted that if he was not being paid wages, then he should have been, and the relevant rehabilitation and return to work plans should be reviewed and modified to include a provision that he be paid for his work performed.
The learned Deputy President at first instance was of the view that it was not within the scope of a review of a rehabilitation and return to work plan under s 28B to challenge the nature of a payment being made to a worker. He put it in these terms:-
[2]
"As regards to the second notice, the respondent contends that a dispute whether a worker is being paid wages or compensation is not the sort of dispute that falls within the ambit of s 28B. Next it was said that in any event, even if the worker did have a legitimate complaint in respect of this matter, given that under s 28B(3) the obligations complained of are not suspended by the filing of the notice of dispute or subsequent proceedings and moreover given that the rehabilitation and return to work plan is no longer on foot, there is no effective remedy that the Tribunal can now provide.
[3]
In my opinion, the respondent's contentions are essentially correct. The worker might well be right when he says that he should have been paid wages not compensation, but I think he would have to go elsewhere to argue that that was so."
[4]
On appeal, the Full Bench of the Tribunal confirmed the learned Deputy President's findings and conclusions.
What the Tribunal decided in Winnall was that a s 28B review was not the appropriate forum to debate the appropriate level of payment for a worker on a rehabilitation and return to work plan. I am not persuaded that the Tribunal's further ruling that because the rehabilitation and return to work plans were no longer on foot there was no effective remedy the Tribunal could provide should be taken as establishing an immutable principle that the Tribunal's jurisdiction in relation to s 28B disputes ends with the passing of the expiry date of the plan.
It seems to me to be inconsistent for the respondent to contend, as it does here, that the Plan "ceases to exist and the jurisdiction to entertain complaints about it no longer exists" (tr 14), yet at the same time urge the Tribunal to entertain complaints about alleged breaches of the Plan by the worker in support of its s 36 Notice.
Citing the Full Bench's decision in Winnall, Mr Rydon submitted:-
[5]
"... What I think, in essence, the Full Court is saying, is there is no scope to review something which has ceased to exist. It becomes an exercise in judicial futility for an assessment to be made of something which has no longer any operative effect."
[6]
"In my submission, if it is still open to the worker through counsel to argue, in the context of a s 36 issue, whether the plan was reasonable or not, that is the time when that argument will be run. But for the purpose of the application that is before your Honour currently, in my submission the only issue is whether or not, on the authority of Winnall's Case, this notice of dispute that has been filed by the worker can stand.
[7]
There is, in my submission, no issue before the Tribunal currently as to whether or not the ability of the worker to argue reasonableness is forever lost. All that is before the Tribunal this afternoon is whether, on the authority of Winnall's Case, this notice of dispute can stand. In my submission it can't."
[8]
However, if Alexander's Case is authority for the proposition that a worker's only recourse to challenge the reasonableness of the terms of a rehabilitation and return to work plan is to seek a review of the plan under s 28B of the Act, it is clear that the granting of the respondent's application would preclude the worker from thereafter disputing the reasonableness of the terms of the Plan.
Moreover, argument over the reasonableness or otherwise of a term in the Plan could hardly be described as "futile" when the outcome may determine whether or not the worker remains in receipt of income maintenance. The difference is, of course, that the worker is not here seeking to modify a provision of a plan for reasons relating to the operation or functioning of the plan.
If the respondent's argument is right, even a patently unreasonable requirement of a worker in a rehabilitation and return to work plan would suffice to found a discontinuance of the worker's weekly payments pursuant to s 36(1)(f) and s 36(1a)(e) unless the worker had not only sought a review of the relevant provision pursuant to s 28B but had also obtained a decision of the Tribunal setting aside or modifying that provision before the expiry date of the plan. From a practical viewpoint, in many if not most instances there is insufficient time for this to be done before the plan expires.
I do not think Parliament intended by the enactment of s 36(1a)(e) to sanction the discontinuance of weekly payments when a worker fails to comply with an obligation under a plan that is unreasonable, as for example, requiring him to perform work beyond his capacity.
A worker's medical condition and capacity for work may deteriorate in the course of a plan. What might have been a reasonable requirement of him when the plan was implemented might not be so later when he is unable or less able to cope. Can it be said that the Act nevertheless sanctions the discontinuance of the weekly payments of such a worker on the basis of his failure to comply with an obligation under the plan?
In many cases, as here, the situation is complicated by the fact that the provisions of a plan are expressed in general terms that may not be unreasonable per se, and that it is only in the implementation of a general provision that problems arise. There is no mention in the Plan here of any Pharmacy Guild Training Course, much less any reference to the requirements and obligations of the worker in relation to that course. When the worker signed the Plan her training was still "to be determined".
Whether what the worker has done here in belatedly seeking a review of the Plan pursuant to s 28B is sufficient to accommodate the requirements of the Act as discussed by the Tribunal in Alexander is something that will need to be determined at another time.
For the respondent to succeed on this application for summary relief I need to be satisfied that the Act and/or the Tribunal's decisions in Winnall require that the worker's notice of dispute be struck out. I am not thus satisfied.
The respondent's application is refused.
[9]
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 the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.