Williamson v The State of South Australia in Right of SA Police [2000] SAWCT 195

3 Ms Zivkovic duly informed Mr Hutchison that the worker had selected another rehabilitation provider Ms Trankalis. On 16 September 1998 SAPOL wrote to the worker, the Union and Ms Trankalis. The letter to the worker ("the September letter") relevantly provides as follows:-

I have been advised that Ms Zivkovic of the Public Service Association has requested Ms K Trankalis to prepare a rehabilitation plan for you.

SAPOL employs its own rehabilitation co-ordinator and several private providers of rehabilitation with whom we have an agreement for those services. While section 32 of the Workers Rehabilitation and Compensation Act, 1986 allows you to recover the cost of `approved rehabilitation'; s 32 (8) defines "approved rehabilitation" as programmes or services provided by a person who has an agreement with your employer for the provision of these services. In the circumstances any rehabilitation and return to work plan prepared by Ms Trankalis at the request of Ms Zivkovic will not be used by SAPOL and the department will not meet the costs of its preparation.

If you are concerned about the rehabilitation services provided to you please telephone ... to discuss resolution of your concern."

4 The worker's response to the letter was to issue a Notice of Dispute dated 22 September 1998 citing as the grounds for disputing the contents of the letter in question:-

Kathy Trankalis is an approved rehab provided for section 38 and 32(8)."

5 On 28 September 1998 SAPOL through Mr Hutchison terminated the arrangement it had with Mr Raymond with respect to the workers rehabilitation. On 30 September 1998 Mr Hutchison advised the worker in a telephone conversation to the effect that her rehabilitation could now be co-ordinated by one of two female providers of her choice whose details were provided.

6 By Form 3 Dated 8 October 1998 SAPOL responded to the worker's Notice of Dispute. Its response was to confirm its decision which was said to be "to provide approved rehabilitation service to the worker on 7 May 98 and 30 Sep 98". It stipulated as its reasons for so doing:-

"Ms Williamson's need for a rehabilitation/return to work programme is acknowledged.

The employer has provided a rehabilitation provider for Ms Williamson to provide this service.

Whether Ms Trankalis meets the requirements of section 28 & 32(8) is irrelevant. She has no agreement for the provision of services with the employer."

7 In addition to the above it appears that the worker consulted Ms Trankalis on 15 August 1998 in respect of which on 31 May 2000 Ms Trankalis submitted an account for the provision of rehabilitation services. SAPOL concedes that the account related to expenses reasonably incurred in consequence of the worker's compensable disability but has declined to meet it on the basis that the expense is not the cost of approved rehabilitation within the meaning of s 32(2)(c) of the Act.

8 By consent at the commencement of the proceedings before me I made an order pursuant to s 88DA of the Act enlarging the scope of the dispute between the parties to include a review of the decision by the respondent to reject the claim in respect of Ms Trankalis' account pursuant to s 32(2)(c) of the Act.

9 Mr Blewett of counsel for the worker characterised the September letter as either;

* A determination on the part of SAPOL not to provide rehabilitation services of Ms Trankalis to the worker or

* A determination not to authorise Ms Trankalis to prepare either a rehabilitation programme or a rehabilitation and return-to-work plan.

10 In light of the above and the general factual background the issues for decision on this judicial determination are whether the September letter was a decision by SAPOL which is open to challenge by the worker and if so;

* whether the worker is entitled to be compensated for the costs of her attendance on Ms Trankalis the subject of her claim.

11 The essence of SAPOL's position with respect to the September letter was that the decision contained therein was not reviewable because it did not amount to either a refusal to establish a rehabilitation programme or a rehabilitation and return to work plan.

12 It seems to me however that when considered in the factual context outlined, properly characterised the September letter evidences a decision by SAPOL that despite the request by the worker to have her rehabilitation co-ordinated by Ms Trankalis, SAPOL would not entertain or meet the costs of "any rehabilitation and return to work plan proposed by that person". Any rehabilitation and work programme to be established would have to be co-ordinated by one of the providers nominated by SAPOL. I shall hereafter refer to the decision as the subject decision.

13 The potential sources of jurisdiction for the Tribunal to review the subject decision are s 89A(1)(b) of the Act which provides inter alia that "a decision about the nature of rehabilitation services provided, or to be provided, for a worker;" is reviewable and s 28B which relevantly provides as follows:-

"28B (1) A worker or employer may apply for review of-

(a) a decision to establish or not to establish a rehabilitation and return to work plan; or

(b) a provision of a rehabilitation and return to work plan,

on the ground that the decision or the provision is unreasonable.

(2) On the review of a rehabilitation and return to work plan (or in consequent appellate proceedings), the plan may be modified to the extent necessary to ensure that the plan does not impose unreasonable obligations on the worker or the employer."

14 Putting aside for the moment s 89A of the Act (which on the argument of Mr Rowell of counsel for the WorkCover Corporation intervening was limited to challenges by a worker to rehabilitation initiatives other than rehabilitation and return to work plans) it was the submission of Mr Lines of council for SAPOL that s 28B was of no assistance to the worker in this case. In particular he submitted that s 28B(1)(a) "does not apply as the decision is not a decision to establish or not to establish a rehabilitation and return to work plan". In my respectful view however there is no basis for construing s 28(1)(a) narrowly. The essence of the subject decision was that SAPOL would not agree to the establishment of a rehabilitation and return to work plan co-ordinated by the worker's chosen rehabilitation provider. That is SAPOL refused to establish a rehabilitation and return to work plan of a particular type viz one coordinated by Ms Trankalis. To my mind that amounts to a refusal to establish a rehabilitation and return to work plan on the plain ordinary meaning of s 28B(1)(a) although SAPOL was in general agreement that one should be established.

15 Thus in my view by virtue of the provisions of s 28(1)(a) of the Act (and given s 28A(1) is satisfied) the worker is able to seek a review of the subject decision. Of course in those circumstances the sole ground for the review is that "the decision ... is unreasonable".

16 The question then arises as to whether the worker also has a right of review of the subject decision pursuant to s 89A(1)(b). In my view although there are dicta which might suggest that is so (See eg Dunstan v State of South Australia (Department of Education, Training and Employment JD48/1998 at 21) I am not persuaded that such a right exists. I say this because;

* It is now recognised that, although "there are ... similarities between a rehabilitation programme and a rehabilitation and return to work plan ... the two notions are to be regarded as being different"; Dunstan 19

* S 28A and B inter alia were introduced into the Act by an amendment in 1995 (35/1995). The predecessor to S 89A(1)(b), s 95(2)(b) was in much the same form as the first mentioned provision and pre-existed s 28A and B.

* S 28B is a specific provision dealing only with the right to review rehabilitation and return to work plans.

* It would be a strange result if s 89A(1)(b) afforded a worker a wider opportunity to test decisions in relation to rehabilitation and return to work plans than s 28B which provision as the Tribunal noted in Dunstan (21) is more limited in ambit and effect than the general provision.

17 In the result then in my view given the above and applying the maxim "generalia specialibus non derogant" (see generally the discussion in Pearce DC and Geddes RS Statutory Interpretation in Australia, 4th ed 109 - 111) such rights as the worker may have to review the subject decision are circumscribed by s 28B. Thus in order to succeed in overturning the subject decision she must show that the decision was unreasonable.

18 In essence against the background of what has transpired thus far Mr Blewett would argue that the subject decision was unreasonable on two bases. First that the Act recognises the right of a worker to choose his/her own rehabilitation provider and in this case she was denied that right. Second if that is not so the subject decision was unreasonable having regard to all of the circumstances of the case.

20 In respect of the first argument Mr Blewett contended that rehabilitation is a fundamental plank in the structure of the Act and the compensation system and with this proposition there can be no argument. Mr Blewett's next argument was that the Act endorsed the right of the worker to choose their own rehabilitation provider. In this respect he relied on the terms of s 32 in particular and dicta from a number of cases which he said supported the argument. He relied in particular in this regard on Paglia v Trice [1991] SASC 2861; (1991) 56 SASR 62, Industrial Rehabilitation Services v Workers Rehabilitation and Compensation Corporation unreported Supreme Court of South Australia 16 July 1993 S4012 and Dunstan v State of South Australia supra.

21 In my respectful view however the dicta he cited from these cases and in particular from Paglia and Dunstan does not support his fundamental proposition and insofar as it might be said that dicta in the Industrial Rehabilitation Services Case does, it has been overtaken by events and in particular the amendment to s 32(8) by Act number 52 of 1993 operative from 20 May 1993.

22 Moreover in my respectful view in terms of rehabilitation and return to work plans there are contra-indicators of a worker's choice of rehabilitation providers.

23 S 28A of the Act provides as follows:-

28A. (1) The Corporation may establish a rehabilitation and return to work plan for a worker who is incapacitated for work by a compensable disability.

(a) is receiving compensation by way of income maintenance; and

(b) is (or is likely to be) incapacitated for work by a compensable disability for more than 3 months (but has some prospect of returning to work),

the Corporation must prepare a rehabilitation and return to work plan for the worker.

(a) must consult with the worker and the employer out of whose employment the disability arose; and

(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.

(4) A rehabilitation and return to work plan may impose obligations on the worker and on the employer.

(5) The Corporation must give the worker and the employer a copy of the rehabilitation and return to work plan.

(6) The plan is binding on the worker and the employer."

24 It is clear from that provision that there is a positive requirement on the part of a compensating authority to establish a rehabilitation and return to work plan for an incapacitated worker if the worker meets the requirements of s 28A(2). In preparing the plan the compensating authority must consult inter alia with the worker and the employer and any plan which is formulated may impose obligations on the worker and employer. Thus, by the operation of the Act it is the compensating authority which has the obligation to prepare a plan and is the driver of it. Further as Mr Rowell submitted, in formulating a plan a balance has to be struck between the interests of the worker and that of the employer. All of these features suggest to me that in respect of rehabilitation and return to work plans the Act does not give the worker an unfettered right of choice of rehabilitation provider.

25 Finally in answer to Mr Blewett's submission to the effect that it would be anomalous given the worker has a choice of medical providers if there was no choice of rehabilitation provider it seems to me that there are fundamental differences between the services. In particular medical services are personal to the worker whereas as noted earlier rehabilitation providers in respect of rehabilitation and return to work plans must strike an accommodation or balance between the interests of workers and employers. Moreover as Mullighan J observed in the Industrial Rehabilitation Services Case (10) such services "are not like other services set out in s 32 eg medical, hospital or nursing services. Those types of services are given by qualified persons who are duly registered pursuant to legislative requirements. Parliament has not provided for the registration or licensing of providers of rehabilitation services in the Act or in any other legislation, perhaps because it is likely that there will be circumstances where the provider can do what is required without being qualified in any particular discipline".

26 Turning then to the wider merits of the subject decision.

27 The reasons the worker gave for wanting her own rehabilitation provider as contained in her written statement tendered on the hearing may be summarised as follows;

(1) She needed help in organising her relationships with each of the people she was consulting for assistance with her disability including, medical, therapeutic massage and chiropractic treatment;

(2) She needed a rehabilitation provider to assist her in drawing up an effective rehabilitation and return to work plan;

(3) That she had lost confidence in SAPOL's commitment to her rehabilitation given that she had to wait until 24 June 1999 for a return to work plan to be established.

(4) She felt uncomfortable with a male provider and desired an independent female provider.

28 On the other hand the position of SAPOL was that it was happy to accommodate the worker's request for a female provider and had offered her the choice of two female providers who had been involved in the rehabilitation of SAPOL workers over a number of years. It was the evidence of Mr Hutchison that the two providers concerned had carried a continuous case load of SAPOL workers for a number of years. It was his evidence that providers who regularly worked with SAPOL know the range of duties within the organisation available to injured workers, know with whom to liaise within management services of the organisation which liaison was necessary to provide duties to workers and also understood SAPOL specific protocols and forms. It was also his evidence that in addition to this, providers who work regularly with SAPOL know of the support mechanisms for injured workers within the organisation including psychology support counselling and a police medical officer. It was the evidence of Mr Hutchison that the use of a limited number of rehabilitation providers experienced in working for SAPOL creates greater ease of co-ordination and that he as the SAPOL rehabilitation co-ordinator was better able to co-ordinate a lesser number of experienced providers than a greater number of providers including those without SAPOL experience. Finally it was his evidence that providers without SAPOL experience required a great deal of time and money to be spent to enable them to understand how best to assist workers within SAPOL.

29 Given all the circumstances I am not persuaded that the subject decision was unreasonable. In particular it seems to me that the worker's concerns numbered 1, 2 and 4 were adequately answered by SAPOL through Mr Hutchison and that while SAPOL's failure to do more in relation to the worker's rehabilitation earlier in the piece is open to criticism in my view the worker's loss of confidence in its commitment to her is, in all of the circumstances misplaced. When these factors are taken into account and SAPOL's reasons for wishing to work with providers experienced with its organisation (which in my view are plausible and reasonable) is weighed in the balance I am not persuaded that the subject decision is unreasonable. The subject decision is confirmed.

The Claim for the Reimbursement of Attendance on Worker by Her Rehabilitation Provider.

30 If the worker is to be compensated for the costs of her attendance on Ms Trankalis it must be on the basis that the consultation was a "cost of approved rehabilitation" pursuant to s 32(2)(c) of the Act. Of course pursuant to s 32(8) a reference in the section "to approved rehabilitation is a reference to rehabilitation programmes or services provided by a person who has an agreement with the Corporation for the provision of those programmes or services".

31 The first question for determination is whether the reference in s 32(8) to "rehabilitation programmes or services provided by a person who has an agreement with the Corporation for the provision of those programmes or services" is a reference to rehabilitation programmes or services specific to a particular worker making the claim or is a reference to a general agreement between the provider and the corporation as to the provision of rehabilitation programmes or services.

32 In my respectful view the reference in the section is to the general agreement referred to above. I say this because it seems to me that if it was Parliament's intention to limit the operation of the section to rehabilitation programmes or services specific to a particular worker it could have said so quite simply. One obvious way would have been to insert after the word "provided" in s 32(8) the words "to the worker". In addition the use of the plural form "rehabilitation programmes or services" and "these programmes or services" rather than the singular form is to my mind supportive of my conclusion.

33 The next issue that arises then is whether the reference in s 32(8) to "the Corporation" can also be read as a reference to an exempt employer in appropriate cases.

34 S 63 of the Act provides as follows insofar as relevant:-

"63. (1) Subject to this Act, the following powers and discretions of the Corporation, insofar as they are exercisable in relation to workers of an exempt employer, are delegated to the exempt employer -

(a) the powers and discretions under the following sections:

Section 26

Section 28A

Section 32 (but not section 32(11) and (13))

Section 35

Section 36

Section 38

Section 39

Section 41

Section 42

Section 43

Section 44

Section 45

Section 53 (but not the power to approved recognised medical experts for the purposes of section 53(2))

Section 106

Section 106A;

(2) Delegated powers and discretions referred to in subsection (1) shall not be exercised by the Corporation in relation to the workers of the exempt employer.

(3) Subject to this section, the Corporation shall not overrule or interfere with a decision of an exempt employer made in the exercise of delegated powers or discretions.

(5) A reference to the Corporation in the provisions of this Act referred to in subsection (1) shall, in relation to any matter over which an exempt employer has delegated powers or discretions, be construed as a reference to that exempt employer.

(6) If an exempt employer exercises a power or discretion delegated under subsection (1) unreasonably, the Corporation may withdraw (in whole or in part) the delegation effected by subsection (1).

35 It was the submission of Mr Blewett inter alia, that s 32(8) did not confer any power or discretion on the Corporation to enter into agreements with respect to the provision of rehabilitation programmes or services, that power residing elsewhere in the Act. Given that was so he submitted, s 63 could not be called in aid by the respondent to argue that s 32(8) vested SAPOL with power to enter into agreements with persons for the provision of rehabilitation programmes or services with the result that because SAPOL had no agreement with Ms Trankalis the cost in issue was not a cost of approved rehabilitation.

36 Whilst I think Mr Blewett is correct in his submission that s 32(8) does not confer a power or discretion on the Corporation to enter into agreements with rehabilitation providers in my view s 26 of the Act (the powers and discretions thereunder being delegated to exempt employers pursuant to s 63) does. I consider this follows by necessary implication from the general requirements of the section itself "to establish or approve rehabilitation programmes" (s 26(1)), the discretion to establish rehabilitation programmes for particular workers, workers of a particular class and workers suffering from disabilities of a particular class (s 26(2)(a)(b) and (c)) and specifically from the power in s 26(3)(1) to "do anything else which may assist in the rehabilitation of workers".

37 To my mind it would be a strange if not ludicrous result if an exempt employer as a compensating authority with power to enter into agreements with persons for the provision of rehabilitation services was obliged to utilise only those who had entered into agreements with the Corporation for the provision of such services to its employees. After all there is an obligation on such an employer to drive (and meet the costs of) rehabilitation initiatives in relation to workers injured whilst in its employ. In particular, it will be recalled, under s 26 of the Act there is an obligation to, inter alia, "establish or approve rehabilitation programmes". There is also the obligation to prepare a rehabilitation and return to work plan in the circumstances postulated in s 28A(2).

38 My view is also reinforced by the fact that before exempt status is afforded to an employer it must satisfy the provisions of s 60 and in particular satisfy the Corporation that it has reached an acceptable standard and in all the circumstances an exemption is appropriate (s 60 3b). It is to be noted also that registration as an exempt employer is conditional on it not exercising any delegated power or discretion unreasonably (s 60(4)(a)(i)) and is subject to "such other terms and conditions as the Corporation determines from time to time or as prescribed by the regulations (s 60(4)(a)(ii)). Finally the Corporation is empowered to revoke the registration of an exempt employer or reduce its period of registration if it breaches or fails to comply with the Act or a term or condition of registration; s 60(5). Thus exemption is not had for the asking, it must be earned and on the exemption being granted the employer is subject to monitoring by the Corporation and the exemption being revoked if its performance does not meet the requirements of s 60(5).

39 Given all of the above it is my view that it is not straining the language of s 32(8) unduly to substitute for "the Corporation" referred to therein "exempt employer" where appropriate.

40 In the result then given that SAPOL does not have an agreement with Ms Trankalis for the provision of rehabilitation programmes or services the subject claim is not one for the cost of approved rehabilitation pursuant to s 32(2)(c) of the Act and SAPOL is not obliged to meet it. Its decision to reject the claim is confirmed.

41 Thus for the reasons advanced the orders of the Tribunal will be;

1. That the decision of SAPOL of 16 September 1998 is confirmed.

2. The decision of SAPOL rejecting the claim made by the worker in respect of the costs of rehabilitation services provided by Ms Trankalis on 15 August 1998 is confirmed.

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.