Vujic v Workcover/Royal & Sun

A Work Training Agreement dated 12/6/98 placed you in atraining (sic) position with the Migrant Resource Centre as a social worker aid utilizing your English language skills to answer phones, make appointments and see clients.

Professor Robert Fraser in his letter of 9/6/98 has certified you fit to carry out work training placement as a social worker with the Migrant Resource Centre.

The Work Training Agreement was devised having regard to the restrictions imposed by Professor Robert Fraser, namely 4 hours per day, 5 days per week.

We have been informed by your Rehabilitation Counsellor that there was no incident or new injury at work but that you simply assert that you are unfit for the work nominated in the Work Training Agreement.

We regard your conduct as contrary to Section 36(1)(c) of the Workers Rehabilitation & Compensation Act 1986, as amended, with particular reference to Section 36(1A)(d)(c) & (f).

Therefore, we have determined under Section 36(1)(f) and 36(1A)(d) of the Act, that your income maintenace (sic) payments will be discontinued. Section 36(3a) of the Act requires that you be given 21 days notice before the discontinuance takes effect. This letter serves as notice that your income maintenance payments will be discontinued from 21 days after you receive this letter.

An extract of Sections 36(1)(f) and 36(1A)(d) of the Act are attached for your information.

If you have any questions about the information in this letter, or would like to discuss your claim, please contact the undersigned on (08)8202 0723.

If you disagree with the above decision, you may apply for a review under Section 90 of the Act. To apply, a completed Notice of Dispute must be lodged with the Workers Compensation Tribunal, within one month of receiving this letter. More information about the Dispute Resolution Process is attached.

If you apply for a review of this decision, Section 36(4) of the Act provides that your income maintenance payments are not to be discontinued until an Officer has made a decision. If the Officer confirms FAI Workers compensation (SA) Pty Ltd decision, any income maintenance payments made and to which you were not entitled, may be recovered from you as a debt."

3 By Notice of Dispute filed on 6 July 1998 the worker's solicitors gave the following reasons for disputing the compensating authority's determination:-

"1. The worker denies that there is in place a suitable rehabilitation program.

2. The worker denies that he has either failed or refused to participate in an approved rehabilitation program.

3. In the alternative, the rehabilitation program is not suitable in all the circumstances and the worker seeks a review by the tribunal.

4. The worker's conduct is not contrary to s 36(1)(c) of the Workers Rehabilitation and Compensation Act.

5. More particulars will be provided on receipt of the work training agreement dated 12th June 1996 and the letter of Professor Robert Fraser dated 9th June 1998."

4 Mr Stanley, for the respondent, concedes that the notice was "unhappily worded". Firstly, it is acknowledged that the reference in the first paragraph to a refusal or failure to participate in a rehabilitation program is a misdescription. There was no rehabilitation program in place at the time, the last such program having finished on 2 May 1998. There was in place, however, commencing 12 June 1998 and finishing 12 September 1998, a rehabilitation and return to work plan, and also a work training agreement dated 12 June 1998 which agreement was referred to in the next paragraph of the s 36 Notice. The reference to a rehabilitation program in the first paragraph should, Mr Stanley submitted, be understood as a reference to the rehabilitation and return to work plan.

5 Secondly, it is acknowledged that the references to s 36(1)(c) and s 36(1a)(c) in the sixth paragraph of the notice are in error, attributed to typographical error, and should read s 36(1)(f) and s 36(1a)(e) respectively. Mr Stanley submitted that the text of the notice, the fact that clearly the notice is directed to the worker's conduct and the correct reference to s 36(1)(f) in the following paragraph all make it plain enough as to what was intended and as to the provisions the compensating authority was relying on.

6 Thirdly, it is acknowledged that the references to s 36(1a)(d) in the seventh and eighth paragraphs of the notice are mistakes and that the correct reference should be s 36(1a)(e).

7 Mr Rossi acknowledged that s 36(1)(c) did not feature in the determination and that the determination "relies solely on s 36(1)(f) and s 36(1a)(d)".

8 S 36(1a)(d) defines breach of the obligation of mutuality, this being the ground provided under s 36(1)(f) for the discontinuance of weekly payments, to include a worker's refusal or failure to participate in a rehabilitation program or participation in a way that frustrates the objectives of the program. This provision, Mr Rossi submitted, contemplates that a rehabilitation program be in place and operative at the time of the alleged infringement. If there is no such program in place at that time, then the power to discontinue under s 36 cannot be invoked. In this instance, the last rehabilitation program had finished on 2 May 1998. It followed, Mr Rossi submitted, that there could be no reliance on an alleged infringement with respect to this program.

9 With respect to Mr Rossi, this submission misses the point at issue here. The respondent does not seek to rely on any infringement of any rehabilitation program. The respondent says that the determination's indirect references to a rehabilitation program were in error and that what was patently intended was reliance on the worker's failure to comply with an obligation under an existing rehabilitation and return to work plan.

10 On this issue it was Mr Rossi's submission, in effect, that the respondent was stuck with the terms of the notice it had used. It did not matter, he said, that the compensating authority may have intended to rely on the rehabilitation and return to work plan then in place. It was, he said, mandatory to identify the particular plan or program that it was alleged the worker had infringed.

11 Mr Rossi acknowledged that he was asking for a strict, literal interpretation of s 36.

12 Mr Rossi said that the compensating authority was put on notice at the outset by the worker's denial that there was in place a rehabilitation program. However, if the worker, or his solicitors, were making this point then, he/they did so in an obscure way. One wonders why it was denied that there was in place a suitable rehabilitation program, if the worker's position was that there was no rehabilitation program at all in place. Moreover, it seems curious that the worker would allege, in the alternative, that the rehabilitation program was not suitable in all the circumstances, and that he would seek review of it by the Tribunal.

13 Mr Rossi referred to the distinctions that have been drawn between rehabilitation programs and rehabilitation and return to work plans in support of his further submission that it was inappropriate in any matter to construe a reference in a s 36 notice to a rehabilitation program as a reference to a rehabilitation and return to work plan.

14 It was the respondent's case that notwithstanding the mistakes in the wording of the s 36 notice the basis upon which the compensating authority was discontinuing payments was made patently clear, and that there had been substantial compliance with the Act's requirements as to notice. In addition, s 85 of the Act was cited as allowing the Tribunal to exercise its powers in accordance with "equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms".

15 In Coca-Amatil v Tony Kartsonis A16/1996 Deputy President Gilchrist noted that procedures laid down by the Act had to be complied with and that the only scope for the Tribunal to contemplate intervention and possibly excuse non-compliance with the notice requirements of s 36 of the Act or reg 17 of the Workers Rehabilitation and Compensation (General) Regulations 1987 was where the infringed requirement was directory as opposed to mandatory. Deputy President Gilchrist then listed the relevant notice requirements of s 36 and reg 17:-

2. It must be given at least 21 days before the discontinuance or reduction is to take effect (s 36(3a))

3. It must inform the worker of his or her right to have the decision reviewed (s 36(3))

4. It must contain a statement of the decision that has been made (reg 17)

5. It must refer to the statutory provisions that are relied upon in effecting the discontinuance or the reduction (reg 17)

6. It must produce the text of such provisions (reg 17)

7. It must explain the general basis upon which the decision has been made (reg 17)."

before considering in each instance whether the Act upon its proper construction evinced an intention for non-compliance or infringement to render the notice bad. It was his view that compliance with the fifth above-mentioned requirement was mandatory.

16 I respectfully adopt Deputy President Gilchrist's aforesaid summation of the notice requirements under s 36 and reg 17.

17 Whilst it is true that the notice before me does not refer to s 36(1a)(e), I do not think this is fatal to the notice. The provision relied on by the compensating authority to discontinue payments was s 36(1)(f). The compensating authority's right to discontinue payments derives from this provision and not from s 36(1a)(e). The compensating authority's reliance on s 36(1)(f) was clearly set out in the notice and acknowledged by Mr Rossi. The text of s 36(1)(f) and the whole of s 36(1a) was enclosed with the notice. The worker was put on notice that weekly payments were to be discontinued because he had allegedly breached the obligation of mutuality and that this related to his refusal or failure to participate in the recently prepared and executed work training agreement. There ought to have been no confusion as to why the discontinuance was being effected. Clearly it did not inhibit the worker, who was represented at the time by solicitors, from making an informed decision to dispute the determination.

18 Nor do I think it was fatal that the notice did not specifically identify the rehabilitation and return to work plan of 12 June 1998. What it did identify was the work training agreement signed by the worker on the same date and the reference to that document was I think likely to have been more meaningful to the worker than any reference to the rehabilitation and return to work plan, for it was this document that directly identified the training position, the duties involved and conditions of employment with the Migrant Resource Centre and it was specifically the worker's refusal or failure to participate in this work training that was the basis of the compensating authority's discontinuance of payments.

19 Mr Rossi submitted that it is not apparent from the documents that the work training agreement was part of the rehabilitation and return to work plan. I disagree. The rehabilitation and return to work plan clearly identifies the position proposed for the worker as a social work aid, notes the need for the worker's accommodation with an appropriate ergonomic chair as stipulated by the orthopaedic surgeon Mr Fraser and notes the arrangement of a worksite assessment to be done by the occupational therapist Mr Nandoskar prior to the commencement of work training on 15 June 1998. I note that this worksite assessment was in fact done on the due date. I note also Mr Nandoskar's subsequent reporting of the worker's "deep concerns" regarding, inter alia, his recent medical clearance to return to the said work training.

20 It is clear from the documents before me that the worker was in the preceding days and weeks made fully aware of the proposed work training placement as a step in his general rehabilitation and return to work: Book of Docs 159, 160, 161. What is also apparent from these materials is that both the worker and his general practitioner were reluctant for the worker to be pursuing any vocational placement. That, however, is another matter for another day.

21 For present purposes, it is sufficient for me to find, as I do, that the compensating authority's s 36 notice, despite its obvious deficiencies, adequately explained the basis upon which the compensating authority was discontinuing payments. In the circumstances of this case, the worker could not possibly have been confused or under any misapprehension as to what the compensating authority was proposing to do or as to why the discontinuance was being effected.

22 I find that the compensating authority's s 36 notice dated 23 June 1998 was a valid notice.

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.