Jamieson and Department of Defence [1999] AATA 101 (18 January 1999)

Last Updated: 24 March 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 101

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A98/214

GENERAL ADMINISTRATIVE DIVISION )

Re ANDREW JAMIESON

Applicant

And DEPARTMENT OF DEFENCE

Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date 18 January 1998

Place Canberra

Decision The tribunal affirms the decision under review.

..............................................

Pamela Burton

Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A98/214

GENERAL ADMINISTRATIVE DIVISION )

Re Andrew Jamieson

Applicant

And Department of Defence

Respondent

CORRIGENDUM TO REASONS FOR DECISION

Tribunal Pamela Burton, Senior Member

Date of Reasons 18 January 1999

Place Canberra

Date of Corrigendum 23 March 1999

Corrigendum: Date on page 1 of the reasons for decision is to be amended as follows:

1. Replace: Date 18 January 1998 with: Date 18 January 1999

...........................................

Pamela Burton

Senior Member

CATCHWORDS

COMPENSATION - Soldier with compensable injury - obtained commercial pilot's licence privately - employed as a clerk at time of incapacity - seeking rehabilitation training for instrument endorsement on Navajo aircraft at a cost of $22,000 - whether appropriate rehabilitation and vocational training - cost a factor.

Legislation

Safety Rehabilitation and Compensation Act 1988 sections 36, 37.

REASONS FOR DECISION

1. This is an application for review of a decision dated 11 March 1998 affirming a determination of 15 July 1997 not to provide financial assistance in respect of the applicant obtaining further aviation qualifications pursuant to section 37 of the Safety Rehabilitation & Compensation Act 1988 ("the Act").

2. Mr Jamieson, the applicant, was unrepresented. The respondent was represented by Mr Wallace of counsel. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the various exhibits tendered by the parties.

Background

3. The applicant is a 40 year old man who enlisted in the Australian Army in 1978. On 18 March 1997, after an engagement of 19 years with the Army, he was discharged on medical grounds. He had attained the rank of Private.

4. On 5 February 1977, while a member of the Army Reserve, the applicant claimed compensation for a knee dislocation which occurred while he was playing volleyball (T6). Comcare's delegate ("the respondent") accepted liability for "recurrent subluxation of patella left knee" (T18).

5. On 11 April 1996 the applicant submitted a claim for compensation under the Act for permanent impairment citing the loss of movement in his left knee from the 1977 injury. The respondent determined that a sum of $8,997.00 was payable to him as a lump sum payment for permanent impairment to the left knee condition (T82).

6. On 4 May 1997 the applicant requested rehabilitation assistance from the respondent for Instrument Endorsement training on the PA 31 Navajo aircraft for an amount of some $22,000 (T83). Pursuant to section 36 of the Act, a vocational assessment report was prepared which examined the applicant's transferable skills, his preferences and identified suitable vocational directions (T90). The assessment questioned the appropriateness of the applicant's stated vocational goal of employment as a commercial pilot. It identified transferable skills in the clerical field (excluding computer work) and motor vehicle and motorcycle work. It also identified transferable flying skills in crop dusting, scenic or charter flights.

7. On 1 July 1997 the respondent determined that it would provide the applicant with job search assistance in one of the following areas:

(a) crop dusting, scenic or charter flights;

(b) upgrading of clerical skills; or

(c) taxi driving or light courier work; and

in addition to one of the above it would provide vocational counselling in adapting from army to civilian life having regard to the disability (T94).

8. The respondent declined to offer financial assistance for the Instrument Endorsement training. Assistance with setting up the airline was offered by way of Small Business training. The delegate noted that as part of his Discharge Resettlement Training, the applicant was granted $2,200 by the Department of Defence for Instrument Endorsement training (T93).

9. While the applicant can work in a limited capacity as a commercial pilot, he wants to upgrade his qualifications to enable him to operate a variety of aircraft, particularly the PA 31 Navajo aircraft, at night and in overcast conditions.

10. The applicant claims that the training he seeks will allow him to take up what he calls a secure job offer as a commercial pilot. He proposes to appoint himself Chief Pilot in a regional commercial airline company. He proposes to establish the business by raising investment capital of $1 million to $1½ million.

11. The applicant tendered market research (Exhibit A), business plans prepared by accountants (Exhibit K), and a business proposal (Exhibit F). Exhibit F envisages a different proposal from that in the business plan. It raises the prospect of the applicant taking over another company in Albury, New South Wales, in which event approximately $1 million investment capital would be required. The business management plan does not provide for the rate of return on the capital investment of $1.5 million required, that the applicant proposes to offer investors. On the evidence I have heard, it appears that the applicant has an incomplete understanding of the business plan, and of the risks and costs of running an airline, and the cash flow and management experience required. He says he does not need to understand the finances as he does not intend to play a role in the management of the business once the company is established (T95).

12. The applicant bases the success of this venture on many assumptions. He is of the belief that there is plenty of community support for it. However, the applicant's planned venture relies on no capital of his own. He depends on Comcare funding his training, and on investor confidence being such that the capital investors would accept the applicant's appointment as chief pilot with no provision for his removal from that position.

13. In evidence, the applicant said that he would need further training to undertake crop dusting work (at a cost of some $160,000) or to fly scenic or charter flights. He also said that without further training, he was not equipped to obtain a clerical position. He had been a filing clerk in the Army but he has no computer or office skills. Further, he said that clerical work and light driving work is not suitable work given his knee condition. He says he can drive for some two hours at a time, but he needs to get out and stretch, walk around and so on. His evidence is that he requires quite heavy medication from time to time. However, despite these limitations, he is confident that he is able to perform the duties of a commercial pilot, including the loading of bags and sitting in the cockpit for substantial periods of time.

14. I do not know what capacity the applicant has to do clerical work. There is no medical material before me about this. Many clerical positions involve a variety of tasks which would allow a person to sit, stand and stretch from time to time when required. This type of work is likely to be more suitable to the applicant than the work he proposes to do as a pilot.

15. Section 37(1) of the Act empowers me to approve a rehabilitation program. In exercising my discretion, I am to have regard to factors set out in subsection 37(3). I set out those sections of the legislation:

36.(1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program.

(2) An assessment shall be made by:

(a) a legally qualified medical practitioner nominated by the rehabilitation authority;

(b) a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or

(c) a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.

(3) The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.

(4) Where an employee refuses or fails, without reasonable excuse, to undergo an examination in accordance with a requirement, or in any way obstructs such an examination, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.

(5) The relevant authority shall pay the cost of conducting any examination of an employee and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.

(6) In deciding questions arising under subsection (5), a relevant authority shall have regard to:

(a) the means of transport available to the employee for the journey;

(b) the route or routes by which the employee could have travelled; and

(c) the accommodation available to the employee.

(7) Where an employee's right to compensation is suspended under subsection (4), compensation is not payable in respect of the period of the suspension.

(8) Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee's capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require.

Section 37 states:

37.(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.

(2) A rehabilitation authority shall not make arrangements with an approved program provider who is not approved by Comcare under section 34.

(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:

(a) any written assessment given under subsection 36 (8);

(b) any reduction in the future liability to pay compensation if the program is undertaken;

(c) the cost of the program;

(d) any improvement in the employee's opportunity to be employed after completing the program;

(e) the likely psychological effect on the employee of not providing the program;

(f) the employee's attitude to the program;

(g) the relative merits of any alternative and appropriate rehabilitation program; and

(h) any other relevant matter.

(4) The cost of any rehabilitation program provided for an employee under this section shall be paid by the relevant authority in relation to that employee.

...

16. I have taken into account the written assessment undertaken pursuant to section 36 of the Act (T90) and the client profile notes prepared by Ms Thomas (Exhibit 1). I note that it is accepted that the applicant is capable of performing work as a pilot and that the type of vocational training he seeks would be suitable for him, as would other vocational work and training, such as clerical and light driving work. The training the applicant seeks is to improve his chances of competing in a vocational field of his choice. While I accept that his skills as a pilot were used while he was a member of the services, he was not employed as a pilot. The evidence is that he was employed in a clerical capacity for the last nine years or so of his employment.

17. I find it unlikely that the training the applicant seeks will reduce Comcare's liability, if any, to pay compensation. The applicant urges that the airline service he wishes to establish is a benefit to the community. That is, however, not a relevant matter to which I should have regard.

18. The real issue in this case is the cost of providing the training the applicant wants to undertake. The cost of the program is excessive for the additional qualifications that he would achieve when viewed with the alternative proposals for employment training that have been put. He has no "secure offer" of employment, only a hope that he can appoint himself as a pilot in an airline company, yet to be established. The capital has not yet been secured for the establishment of what can only be described as a speculative, expensive and uncertain business proposal.

19. Jobs are available in the aviation industry for a commercial pilot with the applicant's current qualifications and training. I accept that they are limited and I note that they are limited because of very heavy competition. I am unable to say whether the position would be different, so far as the competition for jobs is concerned, if the applicant had additional training.

20. The applicant referred to the psychological effect on him if he does not undergo the Instrument Endorsement training he seeks. It boils down to the disappointment he would feel in not achieving his dream. I do not think this is the type of effect envisaged by the legislation. What is more important is the psychological effect of being unemployed. I do not think the evidence supports the finding that the applicant is unemployable because he does not have this particular instrument rating. With suitable training in another field, the applicant is likely to have better employment prospects than he has in the airline industry.

21. The applicant's attitude to the rehabilitation program, as counsel for the respondent Mr Wallace pointed out, is very good. He is very keen indeed to undergo the Instrument Endorsement training and, no doubt, he would complete it successfully. However, his attitude to other types of suitable training is poor. So long as he continues to have an unrealistic ambition of setting up an airline, I think his attitude to other programs will not improve. Yet there are alternative and more appropriate rehabilitative programs offered and available to the applicant if he needs further qualifications. It seems to me that other rehabilitation training programs have more merit than the one he proposes, and at a substantially lower cost.

22. The applicant's mind is set on becoming a pilot or the chief pilot for a new air service that he proposes to establish. His claim to have the costs of this additional training funded through Comcare is in my opinion, an excessive burden on the public purse given the purpose for which it is intended to be put and the alternative retraining programs available to him. It is not appropriate training to be undertaken in his situation bearing in mind his employment history.

23. The cost of the training sought by the applicant is a very relevant factor. It is excessive. Weighed against the other factors to which I have referred, I find that it is an inappropriate rehabilitation program for the applicant to undertake.

Decision

24. The tribunal affirms the decision under review.

I certify that this and the 24 preceding paragraphs are a true copy of the decision and reasons for decision herein of Senior Member Pamela Burton

Signed: .....................................................................................

Associate

Date of Hearing 18 January 1999

Date of Decision 18 January 1999

Solicitor for Applicant Self-Represented

Counsel for the Respondent Mr John Wallace

Solicitor for the Respondent Sparke Helmore