Chambers and Military Rehabilitation and Compensation Commission

[2004] AATA 1405

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1405

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   W2003/27

VETERANS’ APPEALS DIVISION		)
Re		KEVIN CHAMBERS

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal M J Allen, Member

Date24 December 2004

PlacePerth

Decision The decision of a Delegate of the respondent made on 21 December 2002 that the applicant not be offered a rehabilitation program under s37 of the Safety, Rehabilitation and Compensation Act 1988 is set aside.  The matter is remitted to the respondent for further consideration with directions that: (a) the respondent should be offered an appropriate  rehabilitation program; and (b) such a program need not include a course of tertiary level study.  

……(sgd M A Allen)……

Member

CATCHWORDS

COMPENSATION – soldier discharged from Army on medical grounds – selected for, but had not commenced, training at the Royal Military College Duntroon – rehabilitation assessment made after commencing tertiary studies  – decision that applicant would not be offered a rehabilitation program –  consideration of whether a rehabilitation program should have been offered – consideration of whether tertiary studies should have been included in such a program – decision under review set aside – matter remitted to respondent with direction that a rehabilitation program should have been offered, but that such a program need not include a course of tertiary level study. 

Safety Rehabilitation and Compensation Act 1988   ss 36, 37

Comcare v Meng Chang  [1996] 927 FCA 1
Comcare v Sassella [2001] FCA 1514
Department of Defence v Fox [1997] 3 FCA, 24 AAR 171
Re Fox and Department of Defence (1995) 40 ALD 614
Re Smith and Comcare [2004] AATA 932
Slater v Telstra [2001] FCA 1417

REASONS FOR DECISION

24 December 2004 M J Allen, Member  

1. This is an application by Mr Chambers (“the applicant”) for review of a decision made by a delegate of the respondent on 21 November 2002 to affirm a determination made on 12 June 2002 under s 37 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) that no rehabilitation program would be offered to the applicant under that section.

2. At the hearing of the application the applicant represented himself and the respondent was represented by Mr Lenczner of counsel. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) (T1-T62), Exhibit A1 tendered by the applicant and Exhibits R1-R7 tendered by the respondent. Oral evidence was given by the applicant and, on behalf of the respondent, by Ms Alison Reddyhough, who is a rehabilitation consultant employed by the Commonwealth Rehabilitation Service (“CRS”).

Background and Statutory Framework

3.      There was little dispute between the parties regarding the essential facts of the case and the following findings of fact can be made based on the oral and documentary evidence before the Tribunal.

4.      The applicant was born in September 1977 and enlisted in the regular army in October 1994 after completing Year 11 schooling.  During the course of his Army service he qualified as a motor mechanic and worked in that trade.  In approximately October 1998 the applicant was selected to undertake officer training at the Royal Military College, Duntroon, for the entry intake of January 2000 subject to completion of the college entry education course.  For the purpose of undertaking that course the applicant and his family moved to an Army base in Brisbane at the beginning of 1999 and the applicant successfully completed what document T4 describes as “Certificate IV in adult tertiary preparation” in December 1999.  He completed all five subjects of that course at the highest competency level – described as “Distinction/ Very High Achievement” (Tp14).

5.      However, in July 1999 whilst undertaking the course, and whilst participating in organised Army sport, the applicant injured his right knee – which required considerable medical attention over the following months.  As a result of that injury the applicant’s physical/medical status in the Army was downgraded to a level below that required for Duntroon and the applicant was granted approval to defer his entry to Duntroon until the July 2000 intake so as to allow further time to regain the necessary physical level.

6.      The applicant underwent knee surgery in April 2000 that failed to rectify the knee problem and his medical status was downgraded further, with the consequence that he lost his place at Duntroon because he was unable to satisfy the fitness requirements.  The applicant was transferred back to his mechanics position and between August and October 2000 he completed an advanced mechanics course, which he was able to undertake because it did not require a high level of fitness.  Thereafter the applicant worked as a workshop supervisor until he was discharged from the Army as medically unfit in December 2001 because of his knee injury.

7. The applicant claimed compensation under the Act in March 2001 in respect of his right knee and liability was accepted in September 2001. In September 2001 the applicant made a claim for permanent impairment but in October 2001 he was advised by the respondent that, based upon an assessment by a Dr Hilford that the applicant had no permanent impairment as a result of the knee injury, he was not entitled to compensation under either s 24 or s 27 of the Act (T18). That decision was the subject of reconsideration at the applicant’s request and in November 2001 liability was accepted for a ten percent permanent impairment – and in December 2001 the applicant accepted the sum of $24,032 as compensation pursuant to ss 24 and 27 of the Act.

8. In the meantime, in August 2001, the applicant was advised that he would be discharged from the Army as medically unfit and in October 2001 the applicant was informed (T22), following a request by him (Tp79), that a decision had been made under s 36 of the Act to refer him to a CRS office in Brisbane (where the applicant was based at the time) “…so that CRS Australia can assess your rehabilitation needs and recommend a course of action for the Department to follow.”  Although contact was made between the applicant and CRS at the time it was agreed that any assessment of his rehabilitation needs would be deferred until after his discharge and his return to Western Australia (where the applicant intended to live)  in early 2002.

9. Section 36 of the Act relevantly provides that the respondent may (and must if the employee requests it) at any time arrange, in respect of an employee who has suffered an injury resulting in an incapacity for work, for the assessment of “…the employee’s capability of undertaking a rehabilitation program”, such assessment to be made by a medical practitioner or other suitably qualified person. Section 36(8) relevantly provides that the person who carries out an examination for the purpose of an assessment of the employee shall give to the respondent “… 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 [respondent] may require.”

10. Section 37(1) of the Act relevantly provides that the respondent “…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.”  Section 37(3) provides that, in making a determination under s 37 (1), the respondent  “…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.” 

11.     Under sections 37(4) and 37(5) the respondent is to pay the cost of any rehabilitation program and the employee is entitled to weekly payments whilst undertaking the program, the amount of which is to be determined depending on whether it is a full-time or part-time program. 

12. It is apparent from the above that the respondent initiated the obtaining of an assessment under s 36(1) in October 2001, but it was not until March 2002 that the respondent obtained the relevant consent arrangements from the applicant, and it was not until April 2002 that the respondent instructed Ms Reddyhough in the CRS office in Esperance (where the applicant was then living) to undertake the assessment.

13.     In the meantime, in February 2002, the applicant had commenced studying (as an external student) a fulltime course described as a “Bachelor of Arts in Ministry Studies” through the Harvest West Bible College in Perth.

14.     In a rehabilitation assessment report dated 3 May 2002 (T47) Ms Reddyhough noted advice from the applicant’s physiotherapist that the applicant was undergoing a physiotherapy program that would continue for an estimated further two months and had a good prognosis for a return to work with no further intervention required; and that the applicant’s general practitioner, Dr Clingen, had informed Ms Reddyhough that the applicant had a current work capacity of 20 hours per week but that would increase by 2 hours per week to full-time hours.  Ms Reddyhough concluded that the applicant was capable of undertaking a rehabilitation program and such a program would be likely to increase the employee’s capability for work (Tp144).  However, Ms Reddyhough did not recommend a rehabilitation program for the applicant because he had decided to commence full-time studies and because information obtained by her from the respondent indicated that “… long-term tertiary training is not supported through a vocational rehabilitation program…[because the applicant]…has a current work capacity utilising his existing work qualification and experience, and tertiary study is not at a level commensurate with [the applicant’s] employment status at the time of his discharge.”  Ms Reddyhough considered that the applicant could return to “modified duties” and “… may be able to work in a field related to his trade qualification of diesel mechanic.  Examples of this include small engine mechanic, automotive parts interpreter, machinery sales consultant and service station attendant” (Tp145).  Ms Reddyhough commented further (Tp147) that:

“At this stage a Rehabilitation Plan has not been developed with [the applicant] at this stage (sic), due to his current participation in tertiary study.

[The applicant] intends to review his situation regarding ongoing participation in study as an alternative to participation in vocational rehabilitation.  [The applicant] is aware that tertiary retraining is not a rehabilitation option, and I understand that he will be consulting further with the rehabilitation coordinator [of the respondent] regarding his situation.

No further rehabilitation intervention is therefore required at this stage.”

15. By letter dated 12 June 2002 (T48) the applicant was advised that a determination had been made that no rehabilitation program would be offered under s 37 of the Act. The reasons stated for that decision were consistent with the views expressed by Ms Reddyhough referred to above. After referring to the four possible types of employment nominated by Ms Reddyhough, the letter concluded that:

“given that there are suitable employment options for you, [the respondent] can offer you a rehabilitation program aimed at assisting you to return to work in any of the above occupations.  However, from discussion with yourself and from Ms Reddyhough’s assessment report, I understand that you wish to continue with full-time external studies towards a Bachelor of Arts in Ministry Studies, through Harvest West Bible College.  Therefore, no rehabilitation intervention is required at this stage.”

16.     By letter dated 2 July 2002 (T49) the applicant sought reconsideration of that decision.  He submitted that the reference to tertiary study not being at a level commensurate with his employment status at the time of his discharge was incorrect because he had been selected to attend Duntroon and it was only his injury that prevented that attendance.  Further, the four areas of possible employment identified by Ms Reddyhough failed to take into consideration the leadership potential seen by the Army when accepting him to undertake the Duntroon course.  The applicant submitted that the four possible areas of work were inappropriate for various reasons (lack of promotional opportunity or intellectual stimulation, and his physical limitations) or, in the case of service station attendant, was insulting.  He requested that the respondent consider his tertiary studies as rehabilitation because they would allow him to gain employment in a number of areas, the course did not attract HECS fees but was Austudy-approved, and the cost of the course was $10,800 plus books – but he had already completed and paid for the first semester.

17.     In September 2002 the respondent sought further information from the applicant regarding his Army service and tertiary studies and the applicant provided that information in October 2002 (T59).  The applicant’s response concluded with the statement that he had “…in no way intended to demand that my current study be accepted as rehabilitation; I presented only what I believe is a viable option when one takes into account the length of training required for me to realistically gain employment in any of the fields listed in the original rehabilitation proposal.”  I pause at this point to note that in March 2004 in a letter to the respondent’s solicitor (exhibit A1) the applicant stated that “it is still my request that Comcare accept this course as rehabilitation”.

18.     By letters dated 31 October 2002 (T60) and 4 November 2002 (T61) the applicant was informed by the respondent that he had been overpaid weekly payments of compensation because his ability to work some hours each week in fields related to his mechanics qualification had not been properly assessed and that he had been overpaid by approximately $8,099 and repayment of $5,925 was requested.  No issues concerning that correspondence arise for determination in the present proceedings.

19.     By letter dated 21 November 2002 (T62) the applicant was advised that the original decision to not offer a rehabilitation program was affirmed because suitable employment opportunities were available that utilised his prior qualifications and which were not dependent upon the completion of a Bachelor of Arts in Ministry.   Although tertiary studies “… may constitute a suitable rehabilitation program for an injury suffered while attending [Duntroon] …” the applicant’s situation could be distinguished from that of the claimant in Department of Defence v Fox [1997] 3 FCA in that Ms Fox had already commenced studying at Duntroon at the time of her injury whereas the applicant had not completed his secondary-equivalent qualifications at the time of his injury, and also because the applicant had commenced his tertiary studies prior to the assessment of his capacity to undertake a rehabilitation program – and that there could not be a “… retrospective metamorphosis of a privately undertaken activity into an officially-mandated rehabilitation program”, that being a quotation from Comcare v Meng Cheng  [1996] 927 FCA 1 per Finn J.  Accordingly, the decision-maker considered that a Bachelor of Arts in Ministry was unnecessary for the applicant to find employment, and that undertaking such a degree “… is aimed at career enhancement, a voluntary decision, rather than being properly seen as a form of rehabilitation necessary to gain employment.  Given that you wish to continue with your current studies, I am satisfied that no rehabilitation intervention is required at this stage.”

Issues

20.     It would seem from the terms of T48 (see para 15 above) that the respondent may have been prepared to provide the applicant with a rehabilitation program directed to the types of employment identified by Ms Reddyhough – but in fact determined that no rehabilitation program would be offered because of the view taken that the only program that would be of interest to the applicant was one that involved his tertiary studies in Ministry.  The case raises for resolution questions of whether the respondent was required, or should have, provided some form of rehabilitation program for the applicant, and whether tertiary studies (in the form of a Bachelor of Arts in Ministry or some other tertiary course) would be an appropriate program.

21.     However, in its written submissions filed after the hearing the respondent, relying on comments of the Full Federal Court in Slater v Telstra [2001] FCA 1417 at [21] and [22], contended that the Tribunal need only consider exercising the discretion available to the respondent under s 37 if the maker of the decision under review failed to turn his/her mind to the exercise of the discretion. Because the officers who made the original decision on 12 June 2002 and the reconsideration decision of 21 November 2002 specifically considered whether a rehabilitation program was necessary (and decided it was not) the Tribunal “… should affirm the reviewable decision and need proceed no further with the review”.  I will consider that issue first.

22.     In Slater v Telstra the employer determined what was considered to be suitable employment for the employee for the purpose of calculating the amount of periodic compensation payments pursuant to s 19 of the Act. On review, this Tribunal determined what it considered to be suitable employment and remitted the matter to the employer for calculation of payments in accordance with s 19. However, the Tribunal also directed that the employer provide a rehabilitation program pursuant to s 37 of the Act for the employee with a view to retraining the employee. The Full Federal Court concluded that the employer had failed to undertake the exercise required by ss 14 and 19 of the Act and the Tribunal erred by not either making an appropriate determination under these sections itself, or by remitting the matter to the employer to make a correct determination.

23.     In relation to the direction made by the Tribunal regarding a rehabilitation program, the Full Court said at paras. 21 and 22:

“21.  In so far as the Tribunal directed Telstra to provide vocational counselling and to provide a rehabilitation program, the Tribunal appears to have misconceived the operation of s 37 of the Act. Section 37 confers a discretion on Telstra to make a determination that an employee should undertake a rehabilitation program and, where it so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee. It is not obliged to do so. Mere failure to do so was not a neglect by Telstra of its statutory obligation.

22. On the other hand, there is no indication that the decision-maker turned her mind to the exercise of the discretion conferred by s 37 of the Act. The appropriate course for the Tribunal was to give consideration to that question and to decide whether to exercise the discretion vested in Telstra or to remit the matters to Telstra to consider whether the discretion should be exercised. The Tribunal erred in so far as it found Telstra had an obligation to provide a program.”

24.     It is clear from the passage quoted above that an employer has discretion under s 37 to determine that a rehabilitation program is to be provided to an employee but that there is no obligation on the employer to provide a program.  There may be an obligation on the employer to consider whether or not a program is to be provided: see Comcare v Sassella [2001] FCA 1514 at [29] and [30] per Finn J. However, in my opinion the passage from Slater v Telstra quoted above does not support the contention by the respondent in the present case that it would only be appropriate for the Tribunal to consider and perhaps exercise the discretion available under s 37(1) of the Act where the decision makers had failed to turn his/her mind to the exercise of that discretion. Indeed, para 22 of the decision in Slater v Telstra explicitly supports the Tribunal’s ability to consider whether to exercise the s 37(1) discretion or to remit the matter to the employer even where the employer has failed to consider the exercise of the discretion – assuming the issue is properly before the Tribunal.

25.     An example of a case where the s 37 discretion was not properly before this Tribunal is Comcare v Meng Chang [supra], in which the employer refused a request to arrange an assessment under s 36. The Tribunal set aside that decision and remitted the matter to the employer for reconsideration with a direction that a particular course of tertiary study that the employee had been undertaking for some time be treated as part of a rehabilitation program. Finn J stated (at p5 of the unreported decision) that it was “… clear … that the decision of the Tribunal could only properly relate to [the employer’s] refusal of the s 36 request.  There was … no basis for the Tribunal concerning itself with the question whether a rehabilitation program should be undertaken, let alone with whether a particular university course was an appropriate one for [the employee] to undertake.  These were not matters before it as no s 37 determination was before it …”.

26. In the present case the decision maker made a positive decision that no rehabilitation program would be offered to the applicant, and that constitutes a decision for the purposes of the Act and the AAT Act that is reviewable by this Tribunal. Accordingly, it is necessary for me to review that decision and determine whether it was the correct and preferable one on all the material before me having regard, in particular, to the factors identified in s 37(3) of the Act. Before examining the factors referred to in s 37(3) I set out some further evidence by way of background given by the applicant.

27.     In his oral evidence the applicant said that when he was selected to attend Duntroon he expected that he would graduate as a Lieutenant and that thereafter he would seek approval from the Army to undertake an engineering degree at a university.  If approved, he would be released from the Army for the dates of each semester of study subject to satisfactory progress.  On that basis the applicant saw his career as being with the Army as an officer in an engineering capacity.  However, towards the end of his time in the Army, and after the opportunity of going to Duntroon had been lost, the applicant said that he had started to examine possible courses in religious studies.  He was particularly interested in being able to study externally and he wished to avoid paying HECS fees.  In the end he selected the Harvest Bible College because they provided video tapes of lectures, which made external study a better proposition.

28.     The applicant said that, consistent with the decision he had made whilst still in the Army to undertake bible study education, he had enrolled as an external student at the beginning of Semester 1 in 2002 and had studied full time during 2002 and 2003.  However, he was not able to afford the course fees for Semester 1 of 2004 and had deferred his studies for that semester, but expected to resume the studies in Semester 2 of 2004.  He has two further semesters of study to complete his Bachelor degree.

29.     At the time of the hearing of the matter the applicant had moved from Esperance to Albany in order to take up a position as a volunteer youth worker for the church in which he hoped to become an ordained pastor.  He did this because both the college at which he is studying and the particular church require a certain level of pastoral work in order to complete the degree and to gain ordination.

30. I turn now to consider the factors set out in s 37(3) of the Act.

The s 36(8) assessment

31.     The contents of the assessment report prepared by Ms Reddyhough in May 2002 are summarised in para 14 above. 

32.     In a written statement made in June 2004 and tendered in the proceedings as Exhibit R2, Ms Reddyhough said that she had gained, as part of her work with CRS, a knowledge of the labour market and work availability that might have been appropriate for the applicant in May 2002.  This had been gained from daily contact with employers, employment agencies and a review of advertised job vacancies in the Esperance area.  Based on that knowledge she was able to say that in May 2002 the applicant was well qualified to obtain a job as a small engine mechanic, automotive parts interpreter and machinery sales consultant in Esperance.  That statement had originally contained the additional words that the applicant “would have been able” to obtain a job in those fields at that time but Ms Reddyhough had deleted those words when she signed the statement in June 2004. 

33.       In her oral evidence Ms Reddyhough confirmed her knowledge of the job market in those areas in the Esperance area at that time and that the applicant’s qualifications would have been appropriate for that type of position.  However she had deleted the words referred to because, although vacancies did occur from time to time, she could not say with certainty what the position regarding availability might have been at May 2002.

34.     Ms Reddyhough confirmed that it was her understanding, from discussions with staff of the respondent, that the respondent’s position was that no form of tertiary study would be considered appropriate for the applicant – whether it was a tertiary course in Bible studies or in any other discipline.

35.     Ms Reddyhough said that she had been aware of the assessment made by Dr Hilford (see para 7 above) that the applicant had no permanent impairment as a result of his knee injury – but she was not aware that the respondent had subsequently accepted the applicant had a 10% permanent impairment.  However, Ms Reddyhough said that both the applicant’s general practitioner and physiotherapist had informed her that the applicant’s knee would improve to normal limits for general living requirements.  Although the jobs that she had identified required a degree of physical activity, in particular the position of machinery sales consultant would probably require the ability to drive a motor car for some distances, she believed that the applicant’s physical condition would be sufficient to enable him to undertake that form of employment, albeit, perhaps, with some modifications.

36.     Ms Reddyhough agreed that she had not specifically discussed with the applicant the types of employment that she included in her report, nor did she attempt to devise a rehabilitation program suitable for the applicant in relation to those types of employment, because of her understanding that the applicant’s intention was to continue with his Bible studies and because of her understanding of the respondent’s attitude towards tertiary studies as a rehabilitation option.   She said that she had not undertaken a full vocational assessment of the applicant – which might look at things such as on the job training, relevant short courses etc.  The applicant’s existing qualifications were sufficient for entry to the types of employment she had identified.  Ms Reddyhough said that she believed that the applicant understood at the time that if he was prepared to stop his tertiary studies then the respondent would refer him for a rehabilitation program. 

Any reduction in future compensation if program undertaken   

37.     Because no program was identified or offered to the applicant, there is no direct evidence as to what might have been the possible impact upon the respondent’s future liability to pay compensation to the applicant.  At the relevant time (May 2002) the applicant was still receiving periodic payments of compensation but, as noted above, his general practitioner considered that he had a capacity to work part time and that capacity was increasing each week – so that within a relatively short period of time the applicant would have been physically fit to undertake suitable employment on a fulltime basis.

38.     However, in September 2002 the respondent sought information from the applicant concerning what he believed where his prospects of finding fulltime employment after he completed his tertiary studies (T55) and in his response (T59) the applicant advised that examples of the type of employment that might be possible after completing his course were counselling, chaplaincy, family and social services, teaching, and church-related employment and leadership.  At that time the applicant’s college wrote to the respondent (T58) advising that the applicant had been studying at a distinction or high distinction level in his course and that graduates of that course had gained full and part-time employment in a variety of positions in church and para-church situations – in fields such as pastors, assistant pastors, youth pastors, chaplaincy in schools, hospitals, prisons, and lecturing in other Bible colleges.  Employment in such positions are competitive and the College’s graduates are sought after.     

39.         In his oral evidence the applicant said that he expected to end up in some kind of  religious vocational work at the end of his course and expected to be ordained as a pastor in one of the charismatic denominations.  He said that there were at least 7 bible colleges in the Perth area but he did not know how many graduates completed courses each year.   He said that he expected that he would offer to establish a new chapel in a town or area where there was not presently one    and he expected that the church would assist financially until the chapel became self sufficient.  He did not know what was the normal salary for a pastor undertaking that kind of work but thought that it might be approximately $30,000 p.a..  He also thought that a job such as a school chaplain or social worker/counsellor may be possible, but he had not investigated the availability of employment in that area or what the possible salary might be.

The cost of the program 

40. Once again, because no program was identified there is no evidence of what the cost of such a program might be. However, the applicant’s evidence was that the fees for his Bible studies course were $10,800, to which must be added the cost of any books or periodic payments that may be appropriate under s 37(5) of the Act.

Improvement in opportunity to be employed

41.     Ms Reddyhough’s evidence regarding the availability of certain types of work in May 2002 is summarised above and the applicant’s evidence regarding possibilities of work after he completes his Ministry studies course is also referred to above.  The applicant also gave oral evidence that he had applied for about 20 jobs around Albany but had made no attempt to find employment whilst living in Esperance.  These had been administrative or clerical in nature, apart from one position that he had applied for at a TAFE college as a part-time lecturer in automotive studies.  He had not applied for any jobs of the four types identified by Ms Reddyhough.  Apart from the work as a service station attendant, the applicant said that he thought he would need to undertake further courses to qualify to do the other types of work.   

Psychological effect on the employee and employee’s attitude

42.     The applicant’s evidence was that he was not impressed with the types of work suggested by Ms Reddyhough and he saw little future or stimulation for him in that type of work.  He had decided to undertake Ministry studies even before he left the Army and he chose to commence those studies, and to continue them, prior to his interviews with Ms Reddyhough and after he became aware that the respondent did not consider tertiary studies to be an appropriate form of rehabilitation.

Relative merits of alternative, appropriate programs

43.     There is no direct evidence of any alternative programs that may be appropriate for the applicant.  The respondent’s position is that tertiary studies of any kind would not be appropriate for the applicant and there is no evidence as to what form a program aimed at assisting the applicant find employment in the areas identified by Ms Reddyhough might take.  The applicant said that it was not his position that only tertiary studies in Ministry was appropriate for him and that he would consider any form of tertiary study – but because he had already started the tertiary studies in Ministry he thought it was sensible to finish those studies by way of a rehabilitation program.

Other relevant matters

44.     Neither party identified any other relevant matters.  However, it seems to me that it is relevant that the applicant was discharged from the Army on medical grounds after seven years of service, having enlisted at the age of 17 and having had little or no work experience outside the Army.

consideration

45.     It has been said that the aim of rehabilitation is “to restore an injured individual to their fullest physical, psychological, social and vocational capabilities” (see Re Foxand Department of Defence (1995) 40 ALD 614 at 620). Likewise, it has been said that when considering the subject of rehabilitation regard should be had to the circumstances of the injured worker at the time of the injury and that it would not normally be appropriate to look at secondary or future goals (see Department of Defence v Fox (1997) 24 AAR 171 at 177. The respondent contends that although a course of tertiary studies may sometimes be an appropriate rehabilitation program, in the circumstances of the applicant a Bachelor of Arts in Ministry was not an appropriate program (see para 14 of respondent’s written submissions).

46.     In Comcare v Meng Chang supra the issue before the Federal Court was principally the interpretation of s 36, but Finn J referred to the interrelationship of sections 34, 36, 37 and 38 of the Act and expressed the view that such provisions are to have prospective rather than retrospective operation – and that it would be anachronistic to use sections 36 and 37 in a way that permitted “…the retrospective metamorphosis of a privately undertaken activity into an officially mandated rehabilitation program.” In that case the employee sought a s 36 assessment some years later of what his capability of undertaking a rehabilitation program in 1992 would have been.

47.     However, I agree with the view of Member Webb in Re Smith and Comcare  [2004] AATA 932 at [43] that the reasoning of Finn J in Comcare v Meng Chang does not preclude a decision of this Tribunal from operation on the date on which the primary determination under review was made.  Accordingly, it is appropriate to look at the position of the applicant as at May/June of 2002 in the light of all the material before the Tribunal in the present proceedings.

48.     I have noted above that Ms Reddyhough concluded that the applicant was capable of undertaking a rehabilitation program and that such a program would be likely to increase his capability for work.  She did not, however, undertake a full vocational assessment of the applicant nor did she discuss with him the types of alternative employment that she believed were appropriate and available for him.

49.     Similarly, the respondent would have provided the applicant with a rehabilitation program aimed at assisting him to find employment in the areas that Ms Reddyhough identified (and, presumably, related or comparable areas) but did not do so because of its belief that the applicant was not interested in such a program and would only consider a program that involved his existing tertiary studies.

50. I have no doubt that the applicant was capable of undertaking tertiary studies and had a real desire to do so with the aim of gaining employment in a field that was connected with his Ministry studies. However, I do not consider that it is necessary for any rehabilitation program that may have been devised for the applicant in the middle of 2002 to have embodied tertiary studies or Ministry studies in particular. At the time of his injury the applicant intended to undertake the Duntroon course and hoped to thereafter embark upon tertiary studies relevant to his Army career. That capacity, intention and desire to undertake future tertiary studies does not, however, require a conclusion having regard to the matters set out in s 37(3) of the Act that any rehabilitation program should include tertiary studies.

51. Although I conclude that it was not appropriate or necessary for the respondent to devise a rehabilitation program for the applicant that included tertiary studies, it is my conclusion that the respondent failed to consider adequately the matters set out in s 37(3) at the time of the decision under review. When the respondent engaged Ms Reddyhough to interview and report on the applicant the view had already been formed that tertiary studies would not be appropriate and this view influenced Ms Reddyhough’s dealings with the applicant. Consequently, there was no meaningful discussion between the applicant and Ms Reddyhough, or between the applicant and the respondent, concerning what might have been other appropriate forms of rehabilitation that would have assisted the applicant find employment. Although the applicant wished to continue with his tertiary studies, I accept his evidence that he would have looked at other alternatives had they been presented to him, particularly if they involved employment that enabled him to study part-time.

52.     In all the circumstances and on the evidence before me I do not consider that the respondent’s decision to offer no form of rehabilitation program to the applicant was the correct or preferable decision.  In my opinion a rehabilitation program aimed at assisting the applicant find employment in an appropriate area (not necessarily restricted to the types of employment identified by Ms Reddyhough) was justified and should have been considered by the respondent.  Such a program would not have necessarily included tertiary studies.

53.     It is not appropriate for me to attempt to specify what the content of such a program should have been.  It is for the respondent, with the advice of organisations such as CRS, to consider what the appropriate program should be.  I consider that the appropriate decision for me to make is to set aside the decision under review and remit the matter to the respondent for further  consideration with directions that:

(a) the applicant should be offered an appropriate rehabilitation program pursuant to s 37 of the Act; and

(b)      such a program need not incorporate a course of tertiary studies.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Allen, Member.

Signed:
…..(sgd N H Wee)……

Associate

Date/s of Hearing  17 and 23 June 2004
Date of Decision  24 December 2004
Counsel for the Applicant         In Person 
Counsel for the Respondent     Mr Lenczner
Solicitor for the Respondent     Phillips Fox