Wardle and Comcare [1999] AATA 959 (15 December 1999)

Last Updated: 20 December 1999

DECISION AND REASONS FOR DECISION [1999] AATA 959

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoV1998/566

GENERAL ADMINISTRATIVE DIVISION )

Re WILLIAM WARDLE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 15 December 1999

Place Melbourne

Decision The decision under review is set aside and the Tribunal finds that the respondent is liable to provide a rehabilitation program to the applicant.

.........Sgd. Mr J. Handley ..........

Senior Member

CATCHWORDS

WORKERS" COMPENSATION - accepted injury arising out of or in the course of employment with the respondent - job placement assistance or rehabilitation services denied by the respondent - decision set aside.

Safety, Rehabilitation and Compensation Act 1988 ss.4, 24, 28 and 37.

Department of Defence v Fox [1997] FCA 3

Re Finch and Telstra Corporation Ltd (AAT 13130, 27 July 1998)

Re Fox and Department of Defence (AAT 10669, 21 December 1995)

Re Oellering and Department of Health (1992) 16 AAR 198

REASONS FOR DECISION

15 December 1999 Mr J. Handley, Senior Member

1. The applicant applies to review a decision of the respondent dated 18 September 1997, which affirmed a determination dated 18 July 1997. In both decisions the respondent decided that it was not liable to provide job placement assistance or other rehabilitation services to the applicant in respect of an accepted injury arising out of or in the course of his employment.

2. The legislative basis for the application arises under s.37(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") which reads as follows-

"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."

3. At the commencement of the hearing on 18 November 1999, Mr McInnis, who appeared on behalf of the respondent, applied to have the hearing adjourned. He did so in anticipation that there would be future proceedings between the applicant and the respondent with respect to the applicant's entitlement to weekly compensation and an impairment lump sum pursuant to s.24 of the Act. To this extent Mr McInnis pointed to the words "has suffered an injury resulting in an incapacity for work or an impairment". He submitted until such time as it was determined that the applicant did have an incapacity for work or did have an impairment the present application with respect to rehabilitation should not proceed. To do so he submitted would be to prejudge or prejudice future proceedings.

4. Mr McInnis gave a history of the applicant's claims with the respondent as follows-

a) An application for weekly payments was the subject of a primary decision on 11 October 1999. Liability was denied. The applicant subsequently sought reconsideration on 11 November 1999. A reviewable decision has not yet been made.

b) An application for permanent impairment with respect to back injury was the subject of a determination on 18 October 1999. The respondent decided that the applicant be paid compensation representing 15% whole person impairment. That decision was also the subject of a request for reconsideration made on 11 November 1999. A reviewable decision has not been made with respect to that application.

5. I decided to refuse the application for an adjournment. I did so upon the basis that the applicant clearly had an "impairment" as defined under s.4 of the Act. It was not in dispute that the applicant suffered injury arising out of his employment. The respondent also admitted whole person impairment by its determination made on 18 October 1999. Even if upon reconsideration it revokes the determination that it made finding 15% whole person impairment, the word "impairment" has a different meaning in context to "permanent impairment" which is the pre-cursor for entitlement under s.24 of the Act or "whole person impairment" as that term appears in "The Guide to the Assessment of the Degree of Permanent Impairment" issued under s.28 of the Act. There can be no doubt upon the medical evidence filed that the applicant does have an impairment. To proceed therefore with the present application - without making any finding of incapacity - could not possibly prejudice any subsequent hearing with respect to challenges the applicant has made to the primary decisions referred to above.

6. An additional reason for refusing the adjournment request was that the legal representatives of both parties consented to the application proceeding with respect to the provision of a rehabilitation program at a telephone Directions Hearing on 15 September 1999. That hearing was convened following a callover earlier in September 1999 where it was proposed to fix the matter for a hearing. Complications emerged at that callover with respect to the availability of witnesses. It was learnt at the Directions Hearing on 15 September 1999 that the parties' representatives intended only to proceed with respect to the decision made concerning rehabilitation and that it had been an error by them to refer to their medical witnesses at the earlier Callover. It was agreed that the matter proceed without calling medical witnesses at the hearing concerning the rehabilitation program. The notice advising of the date of hearing was forwarded to the parties on 6 October 1999. The hearing was convened on 18 November 1999. No indication was given by the respondent prior to the morning of hearing that an adjournment request would be made.

7. The discretion to refuse the adjournment was not exercised lightly. The refusal to permit an adjournment was made having regard to the nature of the request insofar as the language of s.37 of the Act is concerned, and also having regard to the consent on the part of the parties' representatives some two months before the date of hearing to permit this application to proceed only upon the issue of the respondent's failure to provide a rehabilitation program. The parties' representatives clearly understood from that point in time that the application would proceed with respect to this issue alone. Indeed the application could not have proceeded on any other basis. At the date of hearing the applications outstanding before the respondent with respect to an entitlement to weekly payments and an entitlement to a permanent impairment lump sum had not been reconsidered. The Tribunal was only ever vested with jurisdiction to determine the merits of the decision refusing the provision of a rehabilitation program.

8. To have permitted the application to be adjourned would have been a waste of the resources of the Tribunal and the parties. It would have caused inefficiency and denied other parties the opportunity to have their case listed on this day. It would have also caused delay and defeated the reasonable expectation held by the parties that their respective rights would have been determined following the hearing on 18 November 1999, which was the date reserved for the review. The Tribunal does have responsibility with respect to the conduct of litigation and the listing of hearings. To have permitted the application to be adjourned having regard to the basis for the adjournment would have been inappropriate and wrong.

William Peter Wardle

9. Mr Wardle is 26 years of age, single and without dependents. He was born in the United Kingdom and migrated to Australia in 1976. He was educated to Year 11 but left school and took up labouring and semi-skilled work. In 1988 he resumed school on a part-time basis undertaking a preparatory certificate for civil engineering. Thereafter he has completed subjects yearly which will eventually permit him to qualify as a Bachelor of Civil Engineering.

10. In approximately 1988, Mr Wardle qualified as a member of the Australian Army Reserve and was seconded into a commando regiment. He said the duties in that regiment comprised "activities beyond normal forces". To qualify for that regiment he needed to be selected from the top 0.3% of military personnel. His duties exposed him to diving, amphibious vehicles and parachute work, at all times working independently of other army reserve forces.

11. From 1990 Mr Wardle was employed by the Queensland Department of Transport as a professional officer, engaged in road and bridge construction and design. Between 1995 and 1996 he was employed by Telstra as a communications officer and worked as a design assistant, principally concerned with cable television communication.

12. On 24 March 1996, during a manoeuvre with the Army Reserve, Mr Wardle suffered back injuries during his first night parachute jump over Gippsland in eastern Victoria. Mr Wardle said that his parachute failed to open properly and he struck the ground at great speed. He said that he suffered intense back pain and had no feeling from his waist down. He was admitted to Bairnsdale Hospital and later to the Alfred Hospital in Melbourne. Weekly compensation was claimed and paid. He was incapacitated for 6 to 7 weeks, after which he resumed employment with Visionstream Pty Ltd, a division of Telstra. Mr Wardle described the job as being office bound, seated behind a computer designing cable layout for domestic cable television installation. His contract with Visionstream expired in February 1997 and was not renewed. He said he was not surprised that Visionstream failed to renew his contract because he was struggling with his work.

13. Mr Wardle then sought rehabilitation assistance because he was unable to secure any employment and realised that he was not suited to office type jobs. He was referred to Work Solutions Group Pty Ltd for assessment. On 11 July 1997 following an assessment of the applicant, Work Solutions recommended that Mr Wardle be offered "Job Placement using 13 week work-trial" (T-17 p29 of the documents lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents")).

14. On 18 July 1997 the Department of Defence decided that it was not liable to provide job place assistance or other rehabilitation services (T-18 p34). Mr Wardle then wrote a letter to the Department of Defence with respect to its decision to deny job placement and rehabilitation (T-19 p35). His reaction to the primary determination was that the Department of Defence had made a mistake. He was of the opinion that the Australian Army stood by its members and he believed that he would have been "taken care of".

15. Thereafter Mr Wardle applied for a number of jobs yet continued his part-time study towards his Bachelor of Civil Engineering degree.

16. Mr Wardle said that he desperately seeks rehabilitation assistance. He continues to suffer back pain daily and is incontinent. His emotional state is fragile. Presently he is completing work experience as part of his civil engineering degree with Texas Utilities in Melbourne. This involves a three month placement and he is not receiving salary. He has been told that he will not be given employment with Texas Utilities at the conclusion of the work experience. He is presently in the eleventh year of his study and by reason of him not completing the degree within ten years, he has been told that a degree will probably not be conferred. He is presently studying the last remaining subject to qualify him for a civil engineering degree at five hours per week. The study is undertaken off campus by correspondence.

17. Mr Wardle produced a large bundle of letters at the hearing that he had received from recruitment agencies and other corporations to whom he had applied for employment. He said the bundle comprised only about a third of the job applications that he has made. Many applications, he said, were made orally. He also produced a "job seeker diary" which he said he was given by the Department of Social Security (now Department of Family and Community Services) when he applied for Job Search Allowance some years ago. He said the Department of Defence had been of no assistance to him in providing vocational or rehabilitation assistance and he found this upsetting. He understood that the philosophy within the Department was that soldiers were trained to be self-reliant. He said he felt let down because he had supported the Australian Army and had been promised help but it had been denied. He said he had tried "everything" to obtain employment and that "there must be something that I am doing wrong or that I don't know about" with respect to his inability to secure employment.

18. In cross-examination Mr Wardle said that his condition deteriorated for approximately 12 months after he ceased employment with Visionstream in 1997, but his condition has since "plateaued out".

19. Mr Wardle said that he claimed "spinal injury" following the fall when in the Army Reserve, but that his predominant pain existed between his shoulders. He said the first pain that he could recall upon regaining consciousness after the fall was between his shoulders. He has radiological evidence of low back injury and he therefore claimed "spinal injury". Mr Wardle said he had previous lower back pain from time to time but had not ever had low back injury. He previously had had pain in his coccyx for which he had been referred to a Mr Goldwasser who described the condition as being congenital. Whilst he still suffers coccygeal pain from time to time he said it was insignificant compared to the back pain he suffered following the fall when in the Army Reserve.

20. Mr Wardle also said that he suffers from "mental trauma". He acknowledged that he received a letter of referral to a psychiatrist by his general practitioner following a break up with his girlfriend, but having discussed the episode with his doctor he did not seek psychiatric care. He said that he expected his emotional discomfort to be "better by now" and he has occasional flashbacks to the time when he fell with the parachute. It was his belief that the enormity of the event was not as apparent to him in August 1997 when he was assessed by Work Solutions as it is now. Earlier this year, Mr Wardle attended Dr Valent, a psychiatrist. Mr Wardle continues to attend Dr Habib, his general practitioner. Mr Wardle said there are days when he is "disabled" by his psychiatric state. He says it affects his ability to work and study but has not affected his ability to apply for jobs.

21. In 1997, being the year of the assessment by Work Solutions, Mr Wardle was undertaking 15 hours study per week as an off campus student with Monash University. He said he would not be able to sit in a lecture theatre and has pain associated with long periods of sitting. He said he has pain when at home watching television and was in pain whilst he was giving his evidence. He disputed an opinion expressed by Mr Morris, an orthopaedic surgeon, who associated pain when sitting with his injured coccyx. Mr Wardle said that his coccygeal pain was totally different to the lower back pain and upper back pain which he has suffered since his fall.

22. With respect to his many job applications Mr Wardle said that he has always disclosed at interview or in applications that he suffers injury and is restricted. He agreed that there were a number of jobs for which he has made application and for which he apparently is not qualified because it gives him an indication of what employers expect. He has applied for positions where graduate students are sought because in his experience employers are often seeking final year students. Mr Wardle did find employment as a laboratory technician with Boral Quarries, yet suffered a temporary aggravation of his back injury when a motor vehicle backed into a motorcycle that he was driving. He said the effects were temporary and he subsequently returned to his pre-accident state. In any event he was sure that he would not have been able to complete the work with Boral because it would have required him to lift bags of gravel and complete soil testing. He said the motorcycle he was riding was a 1300CC Kawasaki bike that he had had since 1984. The accident at Boral Quarries occurred on the first day he had ridden the motorcycle since his fall when in the Army Reserve.

23. Mr Wardle is presently completing a three-month working placement with Texas Utilities as part of the course requirements for the Bachelor of Civil Engineering degree. He works 75 hours per fortnight and is completing work on a computer based spreadsheet. He said he is able to sit and stand at will, yet he has become a "nuisance" in the office. He presently lives in Coburg and the office where he works is located in Flinders Street, Melbourne. He travels to work by tram.

24. Mr Wardle said that he does not regard his work with Texas Utilities as being "rehabilitation", nor does it amount to retraining. He said he wanted to undertake rehabilitation so that he could assess his capacity for work and receive professional guidance as to what he is able to do in industry. He said his contract with Visionstream was not renewed because of poor performance associated with his injuries. He said he was unable to "keep up with the work". He agreed that he has poor spelling skills, however he was able to complete the work without difficulty prior to the fall. He said his strength was with numerical skills. He recalled that he worked in the presence of persisting pain and was consuming a great deal of pain killing medication.

25. At the present time Mr Wardle is waiting for placement into a pain management program at St. Vincent's Hospital.

Submissions

26. Mr McInnis submitted that the applicant demonstrated a capacity to seek employment and his inability to obtain work was unrelated to his injuries. Indeed Mr McInnis pointed to the applicant's current placement with Texas Utilities. He submitted that it was superficial to expect that any rehabilitation would improve the applicant's circumstances or his chances of obtaining employment. It was his submission that the applicant is intelligent, capable of further education and demonstrated the ability to seek employment and promote himself at interview. Rehabilitation, he said, in the circumstances would be superfluous.

27. Mr Coisch on behalf of the applicant submitted that the decision under review should be set aside. He argued that the applicant's current placement with Texas Utilities could not be regarded as the applicant having demonstrated his ability to secure employment. He submitted that the applicant would benefit from professional assistance in identifying his professional skills and giving him assistance in securing employment.

28. He submitted that in the context of the legislation it was regrettable that the decision-maker chose to reject the opinion specifically recommended by an expert rehabilitation provider.

The Legislation

29. The entitlement of an injured worker to undertake rehabilitation is found at s.37(1) of the Act (refer earlier). The criteria to be taken into account in determining whether an injured worker should undertake a rehabilitation program, is found at s.37(3) of the Act. It reads as follows-

"s.37(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."

Conclusion & Reasons For Decision

30. The term "rehabilitation program" as appears at s.37(1) of the Act is defined at s.4 of the Act as including-

"..... medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training."

31. In Re Fox and Department of Defence (AAT 10669, 21 December 1995) the Tribunal considered the Commonwealth Occupational Health & Safety Manual where it was recorded that the "aim of rehabilitation is to restore an injured individual to their fullest physical, psychological, social and vocational capabilities". This decision was approved by O'Loughlin J in Department of Defence v Fox [1997] FCA 3.

32. In Re Finch and Telstra Corporation Ltd (AAT 13130, 27 July 1998) the Tribunal considered whether a rehabilitation program amounted to a "return to work program". In so doing the Tribunal considered a decision in Re Oellering and Department of Health (1992) 16 AAR 198. In the latter decision, the Tribunal considered the meaning of "rehabilitation program" as appeared at s.21 of the Disability Services Act 1986. Under that legislation a rehabilitation program could be approved if the program was likely to result in a substantially increased capacity of the person to obtain or retain paid employment (whether or not that employment would be unsupported) or to live independently.

33. The Tribunal in Re Finch approved the decision in Re Ollering and stated further at paragraph 200 that "one of the purposes of the Act is to rehabilitate employees of the Commonwealth. That cannot be construed in a narrow sense for there are many ways in which a person may be assisted to achieve his or her greatest potential in the context of employment".

34. Having regard to the above decisions and having also observed and heard the applicant give his evidence, I am satisfied having regard to the factors provided in s.37(3) of the Act, that the respondent is liable to provide job placement assistance and other rehabilitation services to the applicant.

35. Mr Wardle impressed me as being a person who is highly motivated and anxious to return to the workforce. I was impressed by him returning to education later in life having left secondary schooling at a relatively young age. I am impressed also that he is anxious to obtain rehabilitation and vocational assistance to permit him to return to the workforce. Indeed it would appear that the rehabilitation provider from Workplace Solutions was also impressed by reason of the recommendation that was made to the respondent. That the respondent rejected the report then made by Workplace Solutions was, in the circumstances, astonishing.

36. Workplace Solutions made a "written assessment" under s.36(8) of the Act. Clearly, successful rehabilitation and restoration of Mr Wardle into the workforce would reduce the future liability of the respondent to weekly compensation. I am satisfied that Mr Wardle could be successfully rehabilitated and would be thereafter capable of securing employment and earning an income. The cost of the rehabilitation program is unknown but I would have thought that by reason of the likelihood of the respondent's future liability to weekly compensation - if any - being reduced by the restoration of Mr Wardle into the workforce, that the cost of the rehabilitation program should be regarded as being minimal, indeed it should be looked at as an investment.

37. I was impressed by the number of job applications that Mr Wardle had made. Some of them were beyond his capacity by reason of his injury and his academic qualifications, nonetheless he has demonstrated a long history of a preparedness to seek employment. Some of the responses given to him by employers from whom he sought employment were that his absence of work experience was a determining factor in the rejection of his applications. By reason of him being successfully rehabilitated it is likely that he will obtain employment and therefore obtain necessary work experience to permit him to secure employment in the future.

38. I was moved by the applicant's commitment to be rehabilitated and his frustration in not securing employment. In evidence he said when asked to comment on the frequency of the rejection of his job applications that "there must be something that I'm doing wrong or that I don't know about". I understood this to mean - reinforced by later evidence - that he was frustrated by an inability to obtain work and he was anxious to obtain skills which would permit him to secure and then maintain employment. Those skills could only be provided by other persons, notably those with rehabilitation and/or vocational experience. It is clear from the medical evidence available that part of Mr Wardle's emotional discomfort is his inability to secure employment. Rehabilitation would therefore, in my opinion, place him in a much more robust position than he presently stands in terms of securing employment and if that were to occur his emotional state must necessarily improve.

39. It is clear from the evidence heard and read that Mr Wardle is willing to undertake rehabilitation and would maintain a positive attitude to the program.

40. I believe that it is harsh and wrong for the respondent to submit that rehabilitation would not, in the circumstances, be of any benefit to Mr Wardle. To hold that opinion is to ignore the conclusions reached by Workplace Solutions and involves an element of crystal ball gazing of which, so far as I'm aware, the Department of Defence has no expertise.

41. I also reject the submission that the placement presently with Texas Utilities as part of the applicant's Bachelor of Civil Engineering Degree amounts to capacity on his part to secure employment, therefore demonstrating the absence of any need of rehabilitation. The current work experience placement can in no way be equated with a capacity to secure employment. It is a placement provided by Texas Utilities for Mr Wardle in his capacity as a final year student in a Civil Engineering Degree. It is intended to be limited to three months only and is without salary. Mr Wardle is confident that he will not be offered employment by Texas Utilities. In fact it is his view that he is incapable of presently undertaking the work by reason of his injuries and is merely "serving the hours" required to satisfy the university requirements of minimum number of workplace hours to complete that component of his degree.

42. There have been many applications issued in this Tribunal where an injured worker seeks to review a decision of an employer alleging that there has been an unreasonable refusal to attend rehabilitation. I have never heard of an application where an injured worker seeks rehabilitation but has been denied it by the relevant employer. Whilst this application might therefore be unusual there are compelling reasons - having regard to the foregoing - where the decision under review should be set aside and that rehabilitation be provided to Mr Wardle.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

Signed: ...Carolyn Irons ...........................................

Secretary

Date/s of Hearing 18 November 1999

Date of Decision 15 December 1999

Counsel for the Applicant Mr P. Coish

Solicitor for the Applicant Slater & Gordon

Counsel for the Respondent Mr M. McInnis

Solicitor for the Respondent Australian Government Solicitor