Workcover/Royal and Sun Alliance (P and J Hurley (T/as Hotel Royal)) v Miller [2002] SAWCT 5

3 The filing of the relevant Notices of Dispute which were determined by the learned Deputy President followed the expiration of Rehabilitation and Return to Work Plan 12 and the signing of Plans 13 and 14.

4 Plan 12, dated 10 June 1998, was for a period commencing on that date up to 10 September 1998. Pursuant to the Plan, the worker was required to seek work in the areas of motel management and as a recruitment consultant. When that Plan expired, the appellant advised the worker by determination dated 16 September 1998 that "as your return to work plan is currently not able to expedite your return to work, we have determined under Section 28A of the Workers Rehabilitation and Compensation Act as amended (the Act), that the service provided by Ms Policansky is no longer appropriate and will stop." (Ms Policansky was the worker's Rehabilitation Consultant.)

5 The worker filed a Notice of Dispute, number 5960 of 1998, disputing "that there is no appropriately targeted rehabilitation programme which could assist him in obtaining further employment" and foreshadowing his intention to provide the appellant with a detailed rehabilitation programme for its consideration. The determination was confirmed by the appellant which reiterated that the worker "currently has little prospect of a return to work in the near future". It therefore concluded that "it is not cost effective or advantageous to continue rehabilitation".

6 Notwithstanding this decision, a subsequent Rehabilitation and Return to Work Plan was prepared for the worker on 14 January 1999 (Plan 13). The object of this plan was that the worker seek employment in the same areas as before. The period of the Plan was 13 January 1999 to 13 April 1999. The worker filed a Notice of Dispute dated 3 March 1999, number 1243 of 1999, asserting that the Plan imposes unreasonable obligations in that it fails to provide adequately for his rehabilitation, and asserting that a Rehabilitation and Return to Work Plan should be modified to include training as an accountant and in particular that he undertake a Degree in Commerce at the University of South Australia. The appellant confirmed its determination asserting that this was an unreasonable request.

7 On 9 April 1999 the worker signed Plan 14 which also required that he continue to job search in the same areas as before. The duration of the Plan was 9 April 1999 to 9 July 1999. The worker lodged a Notice of Dispute to this Plan on 26 May 1999, number 3125 of 1999, repeating the assertion that the Plan imposes unreasonable obligations and should be modified to include training of the kind previously mentioned. The appellant again confirmed its decision that the Plan was not unreasonable.

8 Although it is clear enough that the second and third Notices of Dispute each sought a review of the provisions of the respective Rehabilitation and Return to Work Plans in question pursuant to s 28B of the Act, the first Notice of Dispute was of a different character. It followed the appellant's determination to withdraw the services of the rehabilitation consultant, and although it was said to be done pursuant to s 28A, being the provision of the Act concerned with Rehabilitation and Return to Work Plans, the substance of the worker's dispute, that an appropriately targeted rehabilitation programme could assist him in obtaining further employment, and the claims agent's statutory reconsideration, which asserted that it was not cost effective or advantageous to continue rehabilitation, suggest that the subject of that dispute was primarily the nature of rehabilitation services provided or to be provided to the worker pursuant to s 26 of the Act. Such a decision is reviewable pursuant to s 89A(1)(b) of the Act.

9 The parties conducted their respective arguments before the learned Deputy President in a manner consistent with the above analysis of the various Notices of Dispute. The worker's position was that his retraining proposal should be the subject of a Rehabilitation Programme pursuant to s 26 of the Act, or alternatively it should form part of a Rehabilitation and Return to Work Plan pursuant to s 28A of the Act.

10 The appellant's position, at first instance, was that in the circumstances that the worker had already been the subject of a number of Rehabilitation and Return to Work Plans, he had no entitlement to the establishment of a Rehabilitation Programme for the purpose of training and no entitlement to agitate for training by way of a review of any of the specific Rehabilitation and Return to Work Plans which had been arranged between the parties.

11 At the request of the parties the learned Deputy President's decision [2000] SAWCT 141 dated 5 September 2000, was confined to the determination of two questions which were as follows:-

* Can a worker require a rehabilitation programme be established once rehabilitation plans have been created

* Can a worker require a rehabilitation programme or plan be established when:-

- there have already been a series of plans, and/or

- previous plans have already identified suitable employment that a worker has a reasonable prospect of obtaining for the purposes of s 35 of the Act.

12 The learned Deputy President answered both questions in the affirmative and then relisted the proceedings for the purpose of deciding whether, as a matter of reasonableness, retraining, as proposed by the worker, should be included in a Rehabilitation Programme, or whether the failure to establish a Rehabilitation and Return to Work Plan for such a purpose, or the continuation of job search without the modification of the Plan to include retraining, was unreasonable. In this respect, by the time the matter was relisted the specific retraining proposal sought by the worker was a TAFE Diploma in Accountancy in lieu of a Degree course in Commerce.

13 By decision [2001] SAWCT 57 dated 14 May 2001 the learned Deputy President determined that the worker's request for the establishment of a Rehabilitation Programme containing provisions for his retraining to gain accountancy qualifications for employment in the hospitality/hotel industry was reasonable, and the appellant's failure to have established such a programme and its failure to have included such provision in its Rehabilitation and Return to Work Plans since early 1999, was unreasonable. He therefore directed that within 28 days the appellant establish a Rehabilitation Programme providing for the worker's retraining by way of an appropriate accountancy course that can be applied in the hospitality/hotel industry.

14 On appeal, the first plank of the appellant's submission concerned the relationship between s 26 of the Act which provides for the establishment of Rehabilitation Programmes, and s 28A which provides for the establishment of Rehabilitation and Return to Work Plans, the effect being that access to the former is precluded by the latter, particularly in circumstances where the subject worker has been a participant in a series of such plans with one specific continuing goal, namely to job seek in specifically identified areas of suitable employment. Support for this proposition was said to be established by the wording of s 28A, and the Regulations proclaimed pursuant to s 28C of the Act. In putting this argument, Mr Crawley, counsel for the appellant, submitted that the Full Tribunal should reconsider the decision of Dunstan v State of South Australia (Department of Education Training and Employment) JD48/1998, which it was submitted was clearly wrong.

15 The second plank of the appellant's submission turned on the nature of the Corporation's obligations pursuant to s 28A of the Act. It was submitted that the establishment of a series of Rehabilitation and Return to Work Plans with one continuing identifiable goal such as existed here, satisfies the Corporation's obligations pursuant to s 28A, and that it cannot be required to establish a further single or series of plans or to modify provisions to accommodate an entirely different goal such as retraining, particularly where existing plans have identified suitable employment.

16 The third plank of the appeal concerned the determination of the issue of the reasonableness of including the retraining proposal in a Rehabilitation Programme or the unreasonableness of the subject Rehabilitation and Return to Work Plans. Mr Crawley submitted that consideration of this issue miscarried because the learned Deputy President started with an assumption that the worker was entitled to retraining, and then placed an impermissible onus upon the Corporation to disprove that entitlement.

17 The relationship between s 26 and s 28A of the Act will be resolved by a consideration of the wording of the particular sections and their place in the context of the Act as a whole. In support of the argument of a sequential use of Rehabilitation Programmes followed by Rehabilitation and Return to Work Plans, Mr Crawley relied on the mandatory requirements set out in the Workers Rehabilitation and Compensation (Rehabilitation Standards and Requirements) Regulations 1996, and in particular cl 4(i) which provides that a programme for an injured worker "must specify that the progamme will come to an end when the Corporation establishes a plan for the worker".

18 It is well accepted that delegated legislation is not an appropriate aid in the interpretation of a Statute. This caution is well illustrated in Webster and Another v McIntosh, a decision of the Full Court of the Federal Court of Australia [1980] FCA 128; (1980) 32 ALR 603 at 606:-

"The starting point is the meaning and operation of the Act. Upon that matter the Ordinance sheds no light, for the intention of Parliament in enacting the Act is not ascertained by reference to the terms in which a delegated power to legislate has been exercised."

If it transpires that cl 4(i) is inconsistent with the Act then to that extent it should be read down.

19 The effective rehabilitation of injured workers and their early return to work are important objects of this Act (s 2(1)(ii)). S 26 and s 28A are found in Pt 3 of the Act entitled Rehabilitation and Accident Prevention Programmes. S 26 provides for the establishment of Rehabilitation Programmes in relation to particular workers or workers of a particular class. The object of such programmes is to ensure that workers suffering from compensable disabilities achieve the best practicable level of physical and mental recovery, and where possible, are restored to the workforce and the community. (s 26(1)(a) and s 26(1)(b)). Training or retraining of workers is a recognised purpose of a Rehabilitation Programme. (See s 26(3)(d).)

20 S 26 has been in the Act since its inception, as has a right of review of a decision in relation to the nature of rehabilitation services provided or to be provided for a worker. (See s 95(2)(b) of the 1986 Act, and s 89A(1)(b) of the amended Act.)

21 By Act No 35 of 1995, the Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1995, s 28A, s 28B and s 28C were added to the Act to provide for the establishment of Rehabilitation and Return to Work Plans for incapacitated workers, to provide a right of review of such plans, and to require compliance of such plans with standards and requirements imposed by regulation.

22 Without setting out those provisions in full it is sufficient to note that the Corporation is obliged to establish plans for workers in receipt of income maintenance who are likely to be incapacitated for more than three months and have some prospect of returning to work (s 28A(1) and s 28A(2)). In preparation of the plan, consultation with the worker and the employer is required, and if practicable, review of the worker's medical records or consultation with the worker's treating medical team is also required (s 28A(3)). The plan is binding on the worker and the employer (s 28A(6)) and may place obligations upon both of them (s 28A(4)). Failure to comply with such an obligation may result in the discontinuance of weekly payments (s 36(1)(f)).

23 The worker and the employer are given a right of review of a decision to establish or not establish a plan or a provision of the plan on the ground that the decision in question or the particular provision is unreasonable. On review, the plan may be modified to the extent necessary to ensure that the plan does not impose unreasonable obligations (s 28B(2)), however the taking of proceedings for review does not suspend obligations imposed by the plan (s 28B(3)).

24 S 28C contemplates that there will be regulations proclaimed as to the standards and requirements applying to Rehabilitation Programmes and Rehabilitation and Return to Work Plans and requires compliance with such regulations. Those regulations are referred to above.

25 There is nothing in the words of the Act which suggest that access to a Rehabilitation Programme pursuant to s 26 is preliminary to access to a Rehabilitation and Return to Work Plan pursuant to s 28A. Indeed, the ongoing relevance of rehabilitation services is supported by the very broad and expansive purposes outlined in s 26. Subject to the test of reasonableness contained in the review provisions, a Rehabilitation Programme can relate to any of the specific matters set out in sub par (3)(a) - (k), and can be established to "do anything else that may assist in the rehabilitation of workers" ((3)(i)). This is an indication of the flexibility intended by Parliament and the significance placed upon rehabilitation in the scheme of the Act.

26 The adding of s 28A, s 28B and s 28C to the Act in 1995 focussed specifically upon plans to return to work, recognised the importance of a return to work in the overall rehabilitation of a worker, and introduced the concept of obligation to maximise the chances of a return to work. It did not, however, in any way limit the application or operation of s 26 of the Act. For the reason that rehabilitation contemplates more than just a return to work, certain rehabilitation services provided by a rehabilitation programme might need to be ongoing, even though a worker is in the process of, or has returned to work. (See the decision of the Full Tribunal in Short v Bridgestone Australia Ltd JD24/1998, which to this extent was confirmed by Dunstan supra.)

27 The construction which we place on the relevant sections is that plans pursuant to s 28A are additional to and complementary with relevant rehabilitation services provided pursuant to a s 26 programme. Therefore, if a worker qualifies for both, there is no reason why a Rehabilitation Programme may not operate concurrently with a Rehabilitation and Return to Work Plan. Similarly, if a worker qualifies for both, the parties may resolve to incorporate a particular rehabilitation service, which might otherwise be capable of being the subject of a Rehabilitation Programme, into the Rehabilitation and Return to Work Plan.

28 The interaction of these sections is intended to be flexible thus catering for the myriad of circumstances which might prevail during the course of an individual worker's rehabilitation following a compensable disability. The role of the Regulations is not to constrain that flexibility but to ensure that a particular Rehabilitation Programme or Rehabilitation and Return to Work Plan complies with common standards and requirements. The purpose of such specificity is to ensure that the nature and duration of particular obligations pursuant to such initiatives are clearly stated. This is necessary because a failure to comply with a Rehabilitation Programme or Rehabilitation and Return to Work Plan may be deemed to be a breach of mutuality and may be relied upon to discontinue the workers weekly payments (see s 36(1)(f) and s 36(1a)(d) and s 36(1(a)(e)).

29 There is no statutory impediment to the establishment of a Rehabilitation Programme where a series of Rehabilitation and Return to Work Plans have been, and continue to be, prepared and agreed upon with the worker. Our interpretation of the relevant sections and their relationship is consistent with the views expressed in Dunstan's Case (supra). Nothing put to us in these proceedings convinces us that Dunstan was clearly wrong such that we would interfere with that decision.

30 Mr Crawley argued that the Act only contemplates one s 28A plan for a worker which will remain in place until the stated objective or time frame is complete. He said the objective here was a return to work in motel management or hospitality recruitment and submitted that employment of this kind would be suitable employment for the purposes of a two year review pursuant to s 35 of the Act. He submitted that Parliament could not have intended rehabilitation to undermine the two year review process which he said would result if the worker is able to avail himself of a further s 28A Rehabilitation and Return to Work Plan with the objective of retraining at this late stage.

31 We agree with Mr Crawley that the overall objective of a s 28A Plan is the worker's return to work. Sometimes that might be achieved by one single Plan. In other cases there may be a number of stages required along the way to achieving that goal. This may result in a series of Plans being made, each specifying a number of identified objectives and actions and the period within which those objectives will apply. Each Plan may place particular obligations upon the worker. At the expiration of any such Plan the relevance and progress of that Plan can be assessed by the rehabilitation consultant in conjunction with the worker and, if relevant, the employer, to see whether the approach decided upon should continue or be modified in some way. A particular Plan should meet the needs of the worker and any relevant employer at the particular time that it is made, and any reasonable initiative which will assist in the worker's return to work may be incorporated in the next Plan. In this instance the worker has been the subject of numerous Plans over a significant period of time, however that fact does not suggest, of itself, that a new initiative cannot be added or that a further Plan cannot be established taking a different direction towards the ultimate goal of a return to work. It all depends on reasonableness in the prevailing circumstances.

32 Assuming that efforts to return a worker to work take some time, it may well be that the compensating authority's obligations in relation to the provision of a Return to Work Plan will coincide with the operation of s 35 and s 38 of the Act. The Act provides a means for such issues to be resolved. If a determination is made not to establish a s 28A Plan at such time then the worker may dispute that decision pursuant to s 28B, and the issue will be whether the failure to establish a further Plan at that time is reasonable. In addition a worker may dispute a s 38 review.

33 The actual or potential operation of s 38 does not present a statutory bar to the establishment of a s 28A Plan although either the actual or potential operation of s 38 might be relevant considerations in determining the reasonableness of a decision not to establish a Plan at a particular point in time.

34 Ultimately, the learned Deputy President concluded that it was reasonable to provide for accountancy retraining as part of a s 26 Rehabilitation Programme. What has been suggested is that the learned Deputy President reversed the onus, requiring the appellant to disprove the reasonableness of the retraining proposal. On a careful consideration of the reasons for decision, we respectfully disagree that this was the learned Deputy President's approach.

35 The learned Deputy President viewed the retraining proposal in the context of the job search obligations placed upon the worker by the various s 28A Plans in question and his limited success in finding such employment. He acknowledged that there was little, if any, evidence that the worker's failure in applying for a large number of positions was due to lack of experience or training in the area of hotel recruitment. He acknowledged that the responses to the worker's job applications did not disclose lack of training as a reason for his failure. He acknowledged that the job specification for recruitment consultant, one of the worker's chosen areas of employment, does not suggest the need for more training or qualifications. He made reference to the lack of evidence that the worker's job prospects would be enhanced by the proposed course, however, importantly he noted that there was evidence that an accounting qualification would broaden the scope of potential jobs for the worker in the hotel/hospitality industry.

36 In the context of those findings the learned Deputy President turned to the topic of the worker's inability to secure the appellant's acknowledgment of that fact in late 1998. He identified that period as the relevant time when a change of strategy was warranted with a greater emphasis on retraining of the kind proposed by the worker. On taking an overview of the return to work initiatives since 1996, he concluded that the appellant had paid too little attention to the rehabilitation of the worker in this respect and that this was reflected in the unreasonable failure to include retraining in a s 26 Programme or s 28A Plan. In considering the specific proposal suggested by the worker he took into account the likely cost which he did not consider to be prohibitive or unreasonable. In summary, the learned Deputy President considered the issue of reasonableness in the historical context in which the retraining proposal was put forward, the nature and purpose of the retraining, and the cost. These were all relevant matters which were weighed in the balance in determining the objective test of reasonableness.