Stirling v Local Government Association Workers Compensation Scheme

10

Following a work related motor vehicle accident in August 2005, the appellant returned to modified work duties with the Adelaide City Council ("the employer") in late September 2005. By mid 2007 he had been working four days a week for a considerable period of time under a series of rehabilitation and return to work plans. He was receiving income maintenance payments with respect to the fifth day of each week on which he was unable to work.

11

Following a review of what was then rehabilitation and return to work plan 18, the Local Government Association Workers Compensation Scheme ("the LGA"), which managed workers compensation claims on behalf of the employer, formulated plan 19 ("plan 19"). This plan was varied such that it now required that the appellant work five days a week on modified duties in accordance with a medical opinion recently obtained by the employer. The duration of plan 19 was from 13 June 2007 to 6 July 2007.

12

In July and September 2007, the LGA presented subsequent rehabilitation and return to work plans 20 and 21 which also required that the appellant work on modified duties for five days a week. Plan 20 covered the period from 7 July 2007 to 7 September 2007, and plan 21 was described as "ongoing", commencing on 8 September 2007 and having no specified end date.

13

During the currency of each plan, the LGA took the view that the appellant had not presented for work as required, and issued three successive notices of intention to discontinue income maintenance payments on the basis of an alleged breach of mutuality. Each notice alleged a failure to comply with an obligation under the relevant rehabilitation and return to work plan contrary to s 36(1a)(e) of the Act, and alternatively, a refusal or failure to undertake work that the appellant had been offered and was capable of performing contrary to s 36(1a)(f)(i) of the Act.

14

The appellant filed notices of dispute with respect to the first two s 36 determinations. When they were before a conciliation officer it was agreed that the scope of the proceedings be enlarged to include a dispute with respect to the third s 36 determination. There was also a rejection of a claim for s 32 expenses which was also disputed. The three dispute notices ("the 2007 disputes") were assigned matter numbers which are reproduced in the heading to the reasons issued by the learned Deputy President.[2]

15

On 13 June 2008, shortly before the hearing commenced on 18 June 2008, the appellant lodged three further notices of dispute which challenged the reasonableness of plans 19, 20 and 21 respectively ("the 2008 disputes").[3]

16

In the event, it was not necessary for a further dispute notice to be filed with respect to plan 21, for at the outset of the trial the LGA accepted that the enlargement of the issues arising from the disputes on the first two s 36 notices encompassed not only a challenge to the s 36 notice based on plan 21, but also the question as to the reasonableness of plan 21. This was the only ongoing plan at the time proceedings commenced, the earlier two plans having a short duration as noted above.

17

The appellant had lodged the further notices of dispute because it was anticipated that, on the basis of the Full Tribunal decision of Alexander v WorkCover Corporation/Commercial Union Workers Compensation Pty Ltd,[4] the LGA might contend that the s 36 disputes before the Tribunal could not be used to raise a collateral challenge to the reasonableness of the terms of the plans, and that such a challenge was available only by use of the review mechanism under s 28B of the Act. This concern was well founded, for the LGA maintained such an objection throughout the proceedings with respect to plans 19 and 20, in relation to which there had been no expansion of issues.

18

During the course of the trial there were a number of discussions between the parties and the learned Deputy President during which the learned Deputy President sought to refine the issues to be determined by him. At one stage the appellant made an application for joinder of the 2008 disputes with the 2007 disputes, but this was not pursued and no joinder order was made.

19

The comments of the learned Deputy President during these discussions, and the positions taken by the parties, are to be understood in the context that during the trial the learned Deputy President expressed a provisional view as to the range of issues he could consider in light of Alexander. His view was that, notwithstanding the perceived constraints arising from Alexander, a consideration of the reasons underlying the appellant's failure to comply with a rehabilitation and return to work plan could involve an analysis of the reasonableness of the plan without the need for a collateral challenge to the plan by way of a separate dispute notice invoking the review procedures under s 28B of the Act.[5]

20

Despite notice having been given of this provisional view, it is not clear whether the parties and the learned Deputy President were finally at one with respect to the issues to be determined. During final submissions, the learned Deputy President suggested that his decision be confined to the expanded dispute with respect to the s 36 notice based on plan 21, with it being anticipated that those findings would probably determine the outcome with respect to the disputes relating to plans 19 and 20.[6] The parties appeared to accede to this approach. However the final orders made went beyond the scope of plan 21.

21

After summarising the factual background and the terms of the disputed plans and the circumstances of their presentation, the learned Deputy President set out a review of the disputes under the heading "Summary of the disputes".[7]

22

He described the disputes as to the three s 36 notices of discontinuance and the rejection of certain s 32 expenses as "the primary disputes that are before me".[8]

23

The learned Deputy President noted that in addition there were "three collateral disputes each of which attempt to challenge the reasonableness"[9] of plans 19, 20 and 21. He said he understood their primary purpose was to defuse the argument that the appellant could not, through his disputes on the s 36 notices, challenge the reasonableness of the plans.

24

The learned Deputy President then turned to the perceived restrictions flowing from Alexander. He considered a number of previous decisions of the Tribunal on s 36 disputes. He took the view that in reviewing s 36 determinations based upon alleged non-compliance with the provisions of a plan, the Tribunal had permitted consideration of a collateral challenge to the reasonableness of the terms of a rehabilitation and return to work plan.[10] He concluded:

"I think the focus of this enquiry must be directed towards an objective analysis of the reasons underpinning the worker's decision not to comply with the rehabilitation and return to work plan or one or other of its terms. That exercise may well involve some analysis of the reasonableness of the terms of the plan. However, it seems to me, that the resolution of that issue is not necessarily the critical issue. It follows that there does not necessarily have to be a collateral challenge to the reasonableness of the plan. I do not see this as inconsistent with what was said in Alexander. Under this approach, and in conformity with Alexander it is not the plan that is on trial, it is the reason why Mr Stirling failed to comply with the plan."[11]

25

The remaining issues were addressed in this context, and in the context also that as plans 19 and 20 were of short duration and had long ago expired, the Tribunal could not meaningfully modify them, with the focus primarily being on the ongoing plan 21. Having rejected a submission that plan 21 was invalid due to a failure to specify an end date as required by the regulations, the learned Deputy President proceeded "to deal with all of the disputes" on their merits.[12]

26

The learned Deputy President reviewed the evidence and concluded that the LGA had demonstrated that the appellant was physically able to work on modified duties for five days a week, that the appellant had, during the course of each plan, failed to present for work on the fifth day as contemplated, and that in refusing to attempt that fifth day of work the appellant was unreasonable. The learned Deputy President also took the view that the appellant exaggerated his pain experiences to his doctor, and acted in a calculated way to persuade his doctor that working five days a week was unachievable, and that in the circumstances there was a breach of mutuality.

27

The learned Deputy President concluded his reasons for decision as follows:[13]

"In summary, I dismiss the Mr Stirling's (sic) challenge to the various s 36 determinations. I dismiss Mr Stirling's challenge to the reasonableness of the rehabilitation and return to work plans nineteen and twenty and declare that they do not require modification. I modify plan twenty-one by nominating a review date of six weeks after today's date and nominating an end date one week after that date. I uphold Mr Stirling's challenge to the rejection of his claim for treatment expenses."

28

The learned Deputy President subsequently issued sealed orders to this effect which included an order that the terms of plans 19 and 20 did not require modification and that the challenge to the reasonableness of those plans was dismissed.[14]

29

The appellant contended that the orders made by the learned Deputy President dismissing the challenge to the reasonableness of plans 19 and 20 clearly show that he determined the 2008 disputes when they were not properly before him, no joinder order ever having been made. The appellant contended that it was incumbent on the learned Deputy President to advise the parties of his preliminary view that consideration of the s 36 disputes would include an analysis of the reasonableness of plans 19 and 20, or that the 2008 disputes would effectively be determined by him, so that the parties could fully address issues of the reasonableness in that context.

30

The appellant submitted that he was prejudiced as a result of the approach taken. Whilst the appellant conceded that, as it happened, he did make submissions on the reasonableness of plans 19 and 20, he contended that those submissions were limited, and were made only to provide context for the attack on the reasonableness of plan 21, which undoubtedly was an issue before the learned Deputy President. Had he known that the reasonableness of plans 19 and 20 were to be the subject of final determination, the appellant contended that he would have more fully addressed that issue by way of additional evidence and submissions. Further, he would have strongly contended that there was no evidence of a failure to comply with obligations under the plans or of a failure to perform allegedly suitable work.

31

The appellant also contended that there was relevant prejudice in that, as a consequence of the dismissal of his challenge to the reasonableness of plans 19 and 20, there was a potential for recovery action to be taken by the LGA with respect to the compensation paid to him for the fifth day of each working week covered by plans 19 and 20, a total of some twelve weeks.

32

The appellant sought an order that the disputes concerning plans 19 and 20 should be remitted back to the learned Deputy President for findings as to the reasonableness of the plans.

33

In my view there is some basis for the appellant to feel that the scope of the findings and orders made by the learned Deputy President went beyond what was anticipated given the exchange between the Tribunal and the parties on the final day as noted above.[15]

34

However, I do not consider that the learned Deputy President exceeded his jurisdiction, in that I consider he remained mindful of the fact that the 2008 disputes were not formally joined to the proceedings before him. I do not accept that he intended to make orders finally disposing of the 2008 disputes in themselves, notwithstanding that the sealed orders actually refer in the heading to both the 2007 and the 2008 disputes.[16]

35

Taking into account the course of the trial and the reasons for decision, I think it is clear that in the context of the 2007 disputes over the s 36 notices, and given the view noted above as to the permitted scope of the inquiry notwithstanding Alexander, the learned Deputy President considered it appropriate to make findings as to the reasonableness of all three plans. In so doing, he effectively disposed of the fundamental issue which arose on the 2008 disputes, namely the reasonableness of the plans, but did so in the context of dealing with the 2007 disputes over the s 36 notices.

36

The real question is whether, as a result of this approach, there has been a denial of procedural fairness to the appellant and consequent prejudice.

37

In my view there has not. Even though the 2008 disputes were not formally before the learned Deputy President for determination, the issues to which they gave rise, although not agreed issues at the outset of trial, became issues in the context of the s 36 disputes, and were fully ventilated at trial. An evolution of the range of issues in this way is not an uncommon occurrence given the framework for the conduct of proceedings in this jurisdiction.

38

In this case, the parameters of the inquiry were expanded by the view taken by the learned Deputy President upon consideration of the Alexander decision as set out above. It is true that the learned Deputy President did not express his provisional views in this regard until the seventh day of trial,[17] but the course of proceedings shows that from the outset the parties conducted their cases in the context that the inquiry as to whether the LGA had established the facts underpinning the determinations to discontinue Mr Stirling's weekly payments included a consideration of the reasonableness of the terms of all the plans.

39

The reasonableness of the terms of plan 21 was always in issue. Given that it was in virtually identical terms to plans 19 and 20, the appellant chose to ventilate his concerns as to the reasonableness of plans 19 and 20 in order to address the reasonableness of plan 21. Thus he raised detailed concerns as to the manner of the implementation of plan 19, the alleged lack of consultation, and the alleged lack of opportunity for advice and reflection. The extent of the matters ventilated is evidenced by the schedule to the appellant's written submissions which sets out in chronological order a description of events relevant to the implementation of plan 19 and of the various sources of evidence.

40

On the sixth day of trial, out of what he described as an "abundance of caution",[18] the appellant applied for an order for joinder of the 2008 disputes. The learned Deputy President then asked the parties whether, if the disputes were joined, they would call further evidence over and above that already before him. The appellant was unable to specify any evidence that he would have called in addition to that already presented if a joinder order was made. He indicated that whilst there were matters that could probably be taken up, he could not immediately think of anything in this regard.[19] As noted above, no joinder order was made.

41

Nothing was put on appeal which persuaded me that, had the further notices of dispute lodged in 2008 been formally joined, the appellant would have conducted his case on the issue of the reasonableness of the plans in any materially different way.

42

Additionally, the appellant contended that he was prejudiced because he did not have the opportunity to fully contest the issue as to the alleged failure to comply with obligations arising under plans 19 and 20. Had he been aware of the approach to be taken by the learned Deputy President, contended the appellant, he would have challenged whether there was indeed any evidence that he had failed to turn up for work on five days a week after being notified of plans 19 and 20.

43

This submission is misconceived. The question as to whether there had been a failure to comply with an obligation under the plans, or a failure to undertake suitable work for which the appellant was said to be fit, arose from the disputes over the s 36 notices, which were undoubtedly before the learned Deputy President for determination from the outset.

44

The appellant did not put his failure to attend work on the fifth day of each week in issue in this context. His statement of issues[20] implicitly accepted that he did not work five days a week in the week after plan 19 was presented to him on 13 June 2007, or over the period of plan 20. The question was whether he was fit for a fifth day of work.

45

The appellant's position was confirmed by his opening at the commencement of the trial when it was made clear that his case was that he was only fit at all relevant times to work four days a week on modified duties.[21] The contest was over whether that was indeed the position, or whether he was, as the LGA contended, capable of working on modified duties five days a week.[22] Counsel for the appellant expressly stated, in the context of plan 19, that "he [the appellant] didn't turn up on the fifth day".[23]

46

The appellant's position was further confirmed by his evidence as to his attitude upon being advised of the requirements of the plans.[24] It is apparent that the position was that there was "a stand-off" between the appellant and his employer with respect to his ability to work five days a week. Except for a period of time which was probably during the currency of plan 20, when he unsuccessfully attempted to return to work for five days on a reduced number of hours, it was not ever suggested that the appellant had worked five days a week in compliance with any of the plans.

47

Accordingly, the submission that the appellant would have taken a different course had he believed that the 2008 disputes were to be determined must be rejected. It does not gain any weight from the fact that it was a submission also made on the last day of trial.[25] It had no merit then, and has none now. Whether the appellant failed to work a fifth day or not was never the issue. The case was approached on the basis that he did not.

48

Consequently, even if it is the case that the appellant was taken by surprise by the fact that the learned Deputy President made orders extending beyond plan 21, I do not consider that there has been any denial of procedural fairness or prejudice to the appellant in the manner in which the hearing was conducted.

49

The fact that the appellant did not dispute at trial that he did not work on the fifth day as required by the plans undermines a number of his other submissions on the substantive appeal. These included that the learned Deputy President failed to make necessary findings of fact with respect to the nature of the obligations under the plans with which the appellant allegedly failed to comply, and with respect to the dates and circumstances of non-compliance, and with respect to the nature of the duties the appellant allegedly failed to undertake, and the date of those failures.[26] The reality is that these matters were not in issue.

50

Whilst the learned Deputy President went to considerable lengths during the hearing to refine the issues before him as the case progressed, and whilst the parties endeavoured to assist in that regard, it can be said with the benefit of hindsight that some of the problems which arose on appeal may have been avoided or minimised had the statements of issues of the parties been reviewed in detail before the close of proceedings, or had the issues as summarised by the learned Deputy President in his decision been provided to the parties for their comment at that stage.

51

As stated at the outset, I agree for the reasons stated by Deputy President McCouaig that the appellant has failed to make out his other grounds of appeal, and that the appeal should be dismissed.

52

In a decision delivered on 1 December 2008 a Deputy President dismissed the appellant worker's challenge to three s 36 determinations of the compensating authority, dismissed the worker's challenge to the reasonableness of the terms of two rehabilitation and return to work plans (plans 19 and 20) and modified a subsequent rehabilitation and return to work plan (21) by nominating an end review date. The learned Deputy President upheld the worker's challenge to the compensating authority's rejection of his claim for treatment expenses.

53

The worker appeals the learned Deputy President's judgment and orders, save the last-mentioned order upholding his challenge to the compensating authority's rejection of his claim for treatment expenses, on a number of grounds.

54

The learned Deputy President identified the primary disputes before him as being the worker's challenge to three s 36 determinations of the compensating authority and also the worker's challenge to the compensating authority's rejection of his claim for reimbursement of costs relating to massage.[27]

55

The discontinuances of weekly payments had been founded on two bases; firstly, that the worker had failed to comply with an obligation pursuant to a rehabilitation and return to work plan, thereby invoking s 36(1a)(e), and secondly, that the worker had failed or refused to perform suitable work that had been offered to him, thereby invoking s 36(1a)(f)(i). Each of these alleged failures by the worker derived from his non-presentation at work for a full five days per week to perform light, self-regulated duties as stipulated in the rehabilitation and return to work plans. It was the worker's contention that he could manage only four days per week, using Wednesday as a rest day, but that widespread pain prevented him from working a fifth day.

56

The learned Deputy President also identified three collateral disputes relating to the worker's attempt to challenge the reasonableness of the terms of the rehabilitation and return to work plans. Noting that the worker's challenges to plans 19 and 20 had been filed after the plans had expired and that this begged the question as to whether the Tribunal could meaningfully modify those plans, the learned Deputy President observed that the primary purpose of the worker pursuing challenges to the reasonableness of the terms of the plans was to defuse any argument (by the compensating authority) that the worker could not, through his challenges to the s 36 determinations, challenge the reasonableness of the terms of the plans.[28]

57

The learned Deputy President considered the applicable law having regard to perceived difficulties arising from what was said by a Full Bench of the Tribunal in Alexander v WorkCover Corporation/Commercial Union Workers Compensation Pty Ltd (ADIA Centacom Health Staff Pty Ltd).[29]

58

He noted that in past matters where the Tribunal has been reviewing a determination to discontinue weekly payments based upon an alleged failure by the worker to comply with the terms of a rehabilitation and return to work plan, the Tribunal has not been prepared to find that mere proof of a failure to comply with the terms of the plan will, as a matter of course, entitle the compensating authority to discontinue weekly payments.[30]

59

In para 63 of his judgment, the learned Deputy President noted:

"Generally, in reviewing such determinations it [the Tribunal] has permitted a consideration of the reasonableness of the terms of the plan by considering a collateral challenge to the reasonableness of the terms of a rehabilitation and return to work plan and holding that the fate of a s 36 notice based upon an alleged failure to comply with the terms of the plan is contingent upon the outcome of that collateral challenge."

60

After referring to some of these Tribunal decisions the learned Deputy President expressed concern that focus on the reasonableness or otherwise of the terms of a rehabilitation and return to work plan might not be sufficient to determine the fate of a s 36 notice in some circumstances.

61

There might be circumstances, he postulated, where a term of a rehabilitation and return to work plan is unreasonable and requires modification and yet, viewed objectively, the worker's refusal to participate in the plan could not be considered reasonable. On the other hand, there might be circumstances where a worker's failure to participate in a rehabilitation and return to work plan, when viewed objectively, might be reasonable, notwithstanding that the terms of the plan were reasonable and did not require modification.[31]

62

Such considerations led the learned Deputy President to conclude that "the focus of this enquiry must be directed towards an objective analysis of the reasons underpinning the worker's decision not to comply with the rehabilitation and return to work plan or one or other of its terms".[32]

63

It followed from that, he said, that there did not necessarily have to be a collateral challenge to the reasonableness of the plan. This approach, he said, was not inconsistent with what the Full Bench had said in Alexander, and meant that it was not the plan that was on trial, but rather the reason why the worker had failed to comply with the plan.[33]

64

The learned Deputy President thereafter proceeded to undertake his objective analysis of the reasons underpinning the worker's decision not to work a fifth day per week as required by the three rehabilitation and return to work plans.

65

Prefacing that analysis, he firstly dealt with two complaints by the worker. The first was that because rehabilitation and return to work plan 21 did not comply with the requirements imposed by regulation 5 of the Workers Rehabilitation and Compensation (Rehabilitation Standards and Requirements) Regulations 1996 in that it did not stipulate a completion date or date of review, the plan was invalid and could not be relied on by the respondent in its s 36 determination. The learned Deputy President concluded that notwithstanding the fact that the plan did not comply with the relevant regulations it was still a valid plan.

66

The worker's second complaint was against the admissibility of surveillance film. The learned Deputy President ruled that the film was admissible.

67

The learned Deputy President then addressed the worker's evidence, including his explanation for being unable to work on the fifth day and his responses to questioning about the surveillance film. He then addressed the medical evidence.

68

The learned Deputy President then made a number of findings based on his analysis of the reasons given by the worker for not attempting to work on the fifth day as required by the plans.

69

He found that the worker had decided not to do the work provided by plan 19 because he had unilaterally formed the view that its terms were not appropriate.[34]

70

He found that the worker was not suffering from a psychiatric condition that might have impacted on his ability to work a fifth day or on his decision not to do so.[35]

71

He found that the worker was angry and annoyed at the LGA, and unimpressed by its decision to rely upon a medical opinion that he did not agree with. He found that the worker was also unimpressed by the LGA's decision to take a more robust approach to his rehabilitation.

72

He nevertheless found that the worker's anger and annoyance did not provide reasonable grounds upon which to refuse to perform all of the duties provided for by plan 19.[36]

73

Paragraph 144 of the learned Deputy President's judgment specifically refers to plan 19 but it is common ground that the same duties were required of the worker by all three plans under consideration.

74

The learned Deputy President found that the LGA's decision to place limits on the amount of massage treatment the worker could have was reasonable and did not of itself justify the worker not even attempting to undertake work on the fifth day.[37]

75

He found that viewed objectively the worker had no reason to believe that his undertaking the duties on the fifth day would compromise his health.[38]

76

The learned Deputy President found that the duties provided by plans 19, 20 and 21 were suitable duties for the worker.

77

He found that the terms of plan 19 and 20 did not require any modifications, but that the terms of plan 21 did require modification by way of the nomination of a review date and end date.

78

The learned Deputy President said that he accepted that there might be occasions in the course of a full working week when the worker might have needed to rest. However, he considered that the terms of the plans were sufficiently flexible to allow that to occur.

79

In all the circumstances, the learned Deputy President concluded that the worker's refusal to attempt to work on the fifth day during the term of plan 19 was unreasonable. He found that the alleged breach of mutuality based upon this failure had been made out. He also found that the worker's alleged failure to undertake suitable work that was on offer had also been made out.[39]

80

The learned Deputy President rejected the worker's contention that LGA's presentation of plan 20 remedied any breach of mutuality occasioned by the worker's failure to comply with plan 19. He disagreed with that contention, noting:

"I disagree. Mutuality is by its very definition a two way street. That the LGA was prepared to pursue another plan merely demonstrated its willingness to forgive the breach. However for mutuality to be restored Mr Stirling needed to fulfil his obligations. He had not done so at the time of the issue of the second s 36 determination."[40]

81

The learned Deputy President said that whilst he accepted that the worker attempted to work on the fifth day on one or more occasions between 2 and 23 August 2007, ie during the currency of plan 20, he was not persuaded that this was a genuine attempt by him to undertake those duties. He found that the worker had exaggerated his pain experiences to Dr Bowler generally,and in particular when he saw him on 16 and 23 August 2007, and that he had "acted in a calculated way to persuade Dr Bowler that working five days a week was unachievable".[41]

82

In light of these findings, the learned Deputy President concluded that the worker's participation in work in those weeks had not restored the breach of mutuality resulting from his failure to attempt the fifth days work on being presented with plans 19 and 20.

83

For the same reasons, the learned Deputy President found that the worker had not acted reasonably in declining to attempt the work for five days as provided for by plan 21.

84

The learned Deputy President's findings, as recorded above, were all findings of fact open on the evidence led.

85

The appellant contends that the learned Deputy President misdirected himself as to the applicable law.[42] Referring to para 79 of the learned Deputy President's judgment, Mr Saies submitted that the learned Deputy President had postulated an objective test, a test that did not take into account any consideration of the worker's subjective state of mind.

86

With respect, this submission is misconceived and ignores or misconstrues the learned Deputy President's reasons that deal at length with precisely that subject matter as set out in paras 114 - 128 and 142 - 155 inclusive.

87

It is plain from these paragraphs that the learned Deputy President did take into account the worker's subjective state of mind. Without again repeating his findings, it is clear that the learned Deputy President also found it to be of significance:

1. that the worker's decision not to work a fifth day was not a reasoned one founded on medical advice;[43]

2. that had he sought advice from either his general practitioner Dr Bowler or treating surgeon Mr Potter following the meeting of 13 June 2007 he would have been told that there was no serious risk to his health by attempting to work a fifth day;[44]

3. that viewed objectively the worker had no reason to believe that working a fifth day would compromise his health;[45]

4. that he was angry and annoyed with the LGA, but that this did not provide reasonable grounds upon which to refuse to work a fifth day;[46]

5. that his couple of attempts to work a fifth day in August 2007 were not genuine attempts;[47]

6. that in general, and in particular on 16 and 23 August 2007,he exaggerated his pain experiences to Dr Bowler and acted in a calculated way to persuade him that working five days a week was unachievable;[48]

7. that in his evidence to the Tribunal, including his responses to the surveillance film, he demonstrated a tendency to exaggerate his pain experiences.[49]

88

The learned Deputy President's pursuit of an "objective" analysis of the reasons underpinning the worker's decision not to comply with the rehabilitation and return to work plans does not mean that he precluded consideration of the worker's evidence as to his subjective beliefs. It is clear that he did take into account the worker's subjective beliefs. His call for an "objective" analysis only emphasises the need for there to be a balanced consideration of all the relevant evidence in order to determine the reasonableness or otherwise of the worker's actions.

89

Mr Saies took the Tribunal to the learned Deputy President's decision on costs,[50] and in particular para 11 thereof where he said:

"The adverse findings that I made as to Mr Stirling's credit were not based upon a conclusion that he was acting dishonestly or that he was deliberately fabricating evidence about the extent of his capacity for work. I think he genuinely believed that he was incapable of working that fifth day of work that underpinned the various s 36 determinations. An occupational physician, Dr Cullum, supported that view. Although I concluded that Mr Stirling's assessment of his capacity for work was misguided I am not persuaded that in putting the LGA to proof in respect of the matters contained in the various determinations and in challenging the reasonableness of its rehabilitation and return to work plans Mr Stirling can be said to be have acted unreasonably in bringing or in the conduct of the proceedings."

90

Mr Saies submitted that this paragraph demonstrates that the learned Deputy President could not have had regard to the worker's subjective state of mind because for him to find that the worker genuinely believed he was incapable of working a fifth day would, he said, be inconsistent with a finding that he had breached mutuality.

91

However, a finding that the worker genuinely believed he was incapable of working a fifth day does not foreclose all consideration of the worker's credibility, nor foreclose an objective analysis of all the circumstances in order to determine if he had breached mutuality. Here the learned Deputy President's adverse findings against the worker's credit remain in tact, as does his finding that the worker's own assessment of his capacity for work was "misguided". Neither s 36(1a)(e) nor s 36(1a)(f) requires that a worker's genuinely held belief about his capacity for work, however misguided or irrational, must prevail over an objective consideration of all the relevant evidence.

92

The learned Deputy President was entitled, indeed obliged, to measure the worker's subjective claims and beliefs against all of the available evidence, particularly the medical evidence, in order to determine whether or not the worker had breached mutuality.

93

Mr Stanley submitted that there was to be implied an underlying test of reasonableness in the statutory concept of breach of mutuality. I agree.

94

Section 36(1a)(f) and s 36(1b)(a) make specific reference to the reasonableness or unreasonableness of a worker's conduct, it can be assumed with the implicit intention of protecting workers who conduct themselves reasonably from the discontinuance of their weekly payments.

95

Some anomalies may arise under s 36(1a) if the provisions are applied in their absolute terms without qualification. For example, a worker's obligation to undertake work that he has been offered is qualified by the requirement in s 36(1a)(f)(i) that he be capable of performing the work. It would be odd if a compensating authority could avoid that reasonable qualifying requirement by incorporating an offer of unsuitable work in a rehabilitation and return to work plan and then relying solely on the worker's failure to comply with that obligation under the plan pursuant to s 36(1a)(e).

96

It is not unlikely that those drafting the legislation thought that s 28B would be available to safeguard workers against the potentially harsh consequences of the unqualified application of s 36(1a)(e).

97

Reliance on s 28B, however, has proved problematic, not only on account of what was said by the Full Bench of the Tribunal in Alexander.

98

There is also a practical problem by reason of the fact that as often as not a rehabilitation and return to work plan will have expired before a worker can secure a decision in the Tribunal setting aside or modifying a harsh provision of the plan that has then been used to found a discontinuance of the worker's weekly payments pursuant to s 36(1a)(e). Often the real point of contention between the parties is buried in an argument over issues of form and procedure.

99

Consistent with the unity of the Act, and with the well-established principles of statutory construction, I repeat what I said in Smith v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Harris Scarfe Ltd),[51] namely, that I do not think that 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.

100

In this case, the work was the same light, self-directed duties that the worker was successfully managing four days per week. It was work that the learned Deputy President found was work within his capacity. In my view, any fair judgment on the worker's alleged breach of s 36(1a)(e) required an objective analysis of the reasons he gave for not attempting work on the fifth day and for failing to cope on the couple of days when he did so work in August. The reasonableness, or otherwise, of the worker's conduct and decision making was necessarily a part of this process.

101

The learned Deputy President's critical conclusions as to the worker's conduct are implicitly, if not expressly, founded on a benchmark of reasonableness. Thus, in para 150 he concluded that the worker's refusal to attempt work on the fifth day during the term of plan 19 was unreasonable, and that the allegation of a breach of mutuality based upon this failure had been made out.

102

In para 153 he found that the worker had exaggerated his pain experiences to Dr Bowler in August 2007 "in a calculated way", and that his attempts to work a fifth day on a couple of occasions then was not a genuine attempt by him to undertake those duties. Accordingly, those attempts did not restore a mutuality that had been breached by his (implicitly unreasonable) failure to work a fifth day upon being presented with plans 19 and 20.

103

In para 155 he concluded that the worker had not acted reasonably in declining to attempt to undertake the work provided for by plan 21.

104

In my view, no error has been demonstrated in either the learned Deputy President's statement of the applicable law in relation to s 36(1a)(e) or in his application of that law to the found facts.

105

The appellant contends that the learned Deputy President erred in law in a number of other respects and I now turn to these.

106

The appellant contends that the learned Deputy President fell into jurisdictional error by determining whether plans 19 and 20 (the subjects of action nos 3734 of 2008 and 3735 of 2008) were reasonable or not and says that the appellant has thereby been denied procedural fairness in the presentation of his case.[52]

107

The denial of procedural fairness, Mr Saies contended, derives from the fact that he did not completely exhaust the submissions he would have made to the learned Deputy President in respect of plans 19 and 20 "had I anticipated His Honour would actually formally deal with the notices of dispute challenging plans 19 and 20".[53]

108

It was not contended that the worker had been deprived of the opportunity of adducing any evidence.[54]

109

Mr Saies took us to various exchanges in the trial transcript and submitted that it was clear that the respondent's counsel at trial also "didn't expect the learned deputy president to decide action nos 3735 of 2008 and 3734 of 2008".[55]

110

The reality is that the learned Deputy President did not decide actions 3734 of 2008 and 3735 of 2008, nor did he formally deal with the notices of dispute that gave rise to those proceedings. He did not formally deal with those actions, or the jurisdictional and extension of time issues that they raised, because he considered that the issue the worker sought to raise by his belated issuing of those notices of dispute - the reasonableness or otherwise of the plans' requirement that the worker work a fifth day - could be dealt with as a collateral issue in his determination of the primary disputes before him, being the worker's challenge to the three s 36 determinations.

111

That issue, however described, was patently a relevant trial issue, as evidenced by Mr Saies' extensive submissions about it before the learned Deputy President, including his concerns about alleged unfairness in the way the plans were devised and implemented without consultation with the worker's treating doctors.

112

The "additional" submissions articulated by Mr Saies before us, moreover, focussed not on any unreasonableness of the plans' requirement that the worker work a fifth day, but on an asserted absence of evidence that the worker had failed to attend work on the fifth day (a fact not disputed at trial) and on the asserted reasonableness of the worker's response to the plans' requirement that he work a fifth day (a matter that was unarguably an issue at trial).

113

No jurisdictional error or denial of procedural fairness has been demonstrated.

114

The appellant next contended that in the context of considering whether the plans were reasonable or not, the learned Deputy President erred in law by failing to take into account the circumstances in which the plans were implemented.[56]

115

That the learned Deputy President's reasons did not specifically refer to all of the evidence that Mr Saies now contends was important on this issue is not good reason to conclude that he ignored or overlooked that evidence. The evidence referred to by Mr Saies was not contentious and there is no reason to infer that the learned Deputy President misunderstood, overlooked or disregarded that evidence.

116

The learned Deputy President should be taken to have considered the whole of the evidence and there was no requirement for him to mention every fact or argument relied on by the appellant as being relevant to an issue.[57]

117

In my view, the learned Deputy President's reasons provide a clear explanation as to how he reached the conclusions of fact that he did regarding the suitability of the duties for the worker and regarding the reasonableness of the request that the worker also work a fifth day. No error of law is demonstrated.

118

The appellant next contended that in the context of considering whether the plans were reasonable and/or valid or not, the learned Deputy President erred in law by failing to take into account the compensating authority's non-compliance with s 28A(3) of the Act and/or erred in law by failing to provide any reasons as to why such non-compliance should be disregarded.[58]

119

Section 28A(3)(b) of the Act provides that in preparing a rehabilitation and return to work plan the Corporation:

"(b) should if practicable -

(i) review medical records relevant to the worker's condition; or

(ii) consult with any medical expert who is treating the worker for the compensable disability."

120

The respondent acknowledges that the compensating authority did not consult with the worker's treating doctors in preparing the relevant plans. It does not contend that it was not practicable to consult with either Dr Bowler or Dr Potter.

121

Rather, the respondent submits that the obligation imposed on the Corporation by s 28A(3) is not a mandatory obligation, rather an obligation "subject to the discretionary touchstone of practicability".[59]

122

The learned Deputy President did not specifically determine whether or not there had been compliance with s 28A(3)(b). The point had not been raised in the worker's Statement of Issues, but only in the course of the hearing.

123

As has been noted, the learned Deputy President did not determine the disputes comprising action nos 3734 of 2008 and 3735 of 2008.

124

That said, I think it can be inferred from the learned Deputy President's reasons that he was satisfied that all three plans were valid plans. He specifically said as much only in respect of plan 21. The finding that he made regarding the reasonableness of the plans' requirement that the worker work a fifth day assumes his acceptance that all plans were valid plans.

125

It would have been preferable had the learned Deputy President specifically dealt in his reasons with the worker's late challenge to the validity of the plans founded on s 28A(3)(b). However, in the circumstances and on the found facts, it was a challenge destined to fail, irrespective of whether or not it was found that the respondent had technically breached s 28A(3)(b).

126

It is sufficient to refer to what the Tribunal said in Hines v WorkCover Corporation/HIH Workers Compensation (SA) Ltd,[60] a passage cited by the learned Deputy President in his reasons at para 82:

"It is true, that s 28C(1) provides: 'rehabilitation programs, and rehabilitation and return to work plans, must comply with standards and requirements imposed by regulations.' But it does not follow that the standards and requirements imposed by regulations must in every case be complied with or that a failure to comply with such standards and requirements renders a rehabilitation program or rehabilitation and return to work plan invalid. In the end, what is required is a consideration of the relative importance of the standards and requirements and the consequence of treating their non-observance as invalidatory. As Stephen J observed in Victoria v The Commonwealth and Connor [1975] HCA 39; (1975) 134 CLR 81 at 179:-

'Sometimes the stipulation which has not been complied with is, in its context, so relatively unimportant to the attainment of that general object that, although there has been total non-compliance, a directory construction may be appropriate. In such cases it may not matter that the non-compliance is complete, not partial. Indeed the stipulation in question may be of a kind which is incapable of partial compliance; to give to such a stipulation a directory interpretation recognizes that it may be wholly disregarded without prejudice to validity because of its relative unimportance in the attainment of the general statutory object and also, perhaps, because of the far reaching and undesirable consequences of treating its non-observance as invalidatory.

Where, on the contrary, a stipulation may be seen to be of importance in attaining the general object of the statute its total non-observance cannot be sought to be excused, and its intended effect circumvented, by the adoption of a directory construction.'"

127

In this instance, the learned Deputy President found that the worker's decision not to attempt to work on the fifth day was not a reasoned one founded on medical advice but one that he made unilaterally. He said that in light of the evidence of the worker's treating doctors, Dr Bowler and Dr Potter, he strongly suspected that had the worker sought advice from them about working the fifth day as required by plan 19 he would have been told that there was no serious risk to his health by attempting this.

128

In the circumstances, it is difficult to see how any breach of s 28A(3)(b), even if established, could assume such importance as to require that it be treated as invalidatory.

129

No appealable error of law has been demonstrated.

130

The appellant next contended that in the context of considering whether plan 19 was reasonable or not, the learned Deputy President erred in law by failing to take into account the worker's study commitments.[61]

131

Whilst it is true that the learned Deputy President's reasons do not deal with the worker's evidence about his study commitments, in the context of the issue at hand it is difficult to see its relevance. It was not the worker's case that his study commitments prevented him from working the fifth day. His evidence was that it was pain that stopped him from working a fifth day. He did not contend that study added to his pain levels and thereby contributed to his inability to work a fifth day. To the contrary, it was his evidence that giving up the studies made "negligible" difference to his working capacity.[62]

132

Given the way the worker's case was presented, it is understandable why the learned Deputy President would not have seen it necessary to make any specific reference to the worker's study commitments in the context of dealing with the issue before him. Moreover, it does not follow from his failure to specifically refer to this matter in his reasons that he did not have regard to the worker's evidence on that topic. He should be taken to have done so.

133

No error of law has been identified.

134

The appellant next contended that in the context of considering whether plan 21 was valid or not, the learned Deputy President erred in law by failing to take into account the prejudice to the worker that arose from an open-ended plan and/or erred in law by failing to provide any reasons as to why such prejudice should be disregarded.

135

The learned Deputy President made no finding of any prejudice to the worker by reason of the absence of either a review date or a completion date for plan no 21 and this ground of appeal is accordingly founded on a false premise. Moreover, it has not been shown and it is difficult to see how the worker was prejudiced by reason of plan 21 being an open-ended plan.

136

The learned Deputy President's finding that plan 21 was a valid plan has not been shown to have been infected by any error of law.

137

The appellant next contended that the learned Deputy President erred in law in finding that the worker had "exaggerated his pain experiences to Dr Bowler generally".

138

This finding was a finding of fact. There was evidence before the learned Deputy President to support the finding that he made. No procedural unfairness has been demonstrated and no error of law has been identified.

139

The learned Deputy President also found that the respondent's alternative allegation, that the worker had failed to undertake suitable work that was on offer, had also been made out.[63] That is to say, the respondent's alternative reliance on s 36(1a)(f)(i) had also been made out.

140

As Mr Stanley rightly pointed out, that finding, and the findings of fact underpinning it, cannot be impugned on appeal, and that disposes of the appeal independently of any consideration of s 36(1a)(e).

141

On this issue, the appellant contended that the learned Deputy President erred in law because "there was no evidence before the learned Deputy President that the City of Adelaide offered the appellant modified duties on five days per week",[64] or because he failed to make requisite findings identifying the work duties offered to the worker, the dates and methods by which such offers were conveyed to the worker and the dates and manner in which the worker had failed to take up the offers of work.[65]

142

The assertion that there was no evidence before the Tribunal to support a finding that the worker was offered modified duties on five days per week is plainly wrong.

143

Having regard to how the trial was conducted and argued, there was in my view no need for the learned Deputy President to make the more detailed findings as suggested by Mr Saies. The proceedings were conducted on the assumption that the light, self-regulated duties that the worker was performing four days a week were also available on the fifth day, but that the worker was refusing to work the fifth day. At no stage was it an issue as to whether this work was in fact on offer on the fifth day. Nor was it in issue, leaving aside the worker's couple of attempts in August 2007, that the worker was refusing to work a fifth day. The contest, put simply, was about whether the worker's stand on this could be justified.

144

No error of law has been demonstrated by reason of the suggested deficiencies in the learned Deputy President's fact finding.

145

I would dismiss the appeal.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] [2008] SAWCT 48 at para 1.

[2] Dispute number 3509/2007 with respect to plan 19, 4640/2007 with respect to plan 20. The s 32 expense dispute was 5826 of 2007, the decision to uphold this dispute not being the subject of this appeal.

[3] The three collateral dispute notices were filed out of time. They were dispute numbers 3733/2008 (plan 21), 3734/2008 (plan 20) and 3735/2008 (plan 19).

[4] [1998] SAWCT 95.

[5] Appeal book 3 p 643-644 (AB3/643-644).

[7] Paras [55] - [57] of the decision.

[10] Paras [62] and [63] of the decision.

[22] AB2/292.15-21, AB2/293.3-26, AB2/295.32-40.

[24] AB2/317.23-36; AB2/318.9-30; AB2/322-323.

[29] [1998] SAWCT 95.

[50] Stirling v Local Government Association Workers Compensation Scheme (Adelaide City Council) [2009] SAWCT 3.

[51] [2002] SAWCT 93.

[53] Appeal Transcript pg 10 at lines 26-27 (Tr 10.26-27).

[57] Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 at 464.

[60] [2000] SAWCT 171.

[65] Notice of appeal, ground 2; outline of submissions para 2.2.