Cook and Telstra Corporation Limited

[2003] AATA 786

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 786

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/617

GENERAL ADMINISTRATIVE DIVISION		)
Re		WALLACE GEORGE COOK

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date12 August 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) B J McCabe
  Member

CATCHWORDS

WORKERS’ COMPENSATION – benefits and entitlements – rehabilitation program – whether respondent obliged to provide applicant with a rehabilitation program where the applicant has taken a redundancy package – respondent’s obligations under section 37 of the Safety, Rehabilitation and Compensation Act 1988

Safety, Rehabilitation and Compensation Act 1988

Commonwealth v Holland (1991) 24 NSWLR 198
Re Finch and Telstra Corporation Ltd [1998] AATA 557

REASONS FOR DECISION

12 August 2003 Mr B J McCabe, Member  

Introduction

1.      The applicant, Mr Wallace George Cook, suffers from hearing loss and tinnitus. Telstra, the respondent, has accepted those claims but denies it is required to provide Mr Cook with a rehabilitation program. Mr Cook is no longer an employee of Telstra, having taken a redundancy package. Telstra says the provisions of the Safety, Rehabilitation and Compensation Act 1988 providing for rehabilitation programs do not apply to situations like this. In any event, the respondent says it has advice that a rehabilitation program would not serve any purpose because it was able to accommodate Mr Cook’s condition so he was able to continue working full time for Telstra. Mr Cook disagrees, and has brought his claim before the Tribunal.

Material Before the Tribunal

2. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. It also received into evidence a report from Work Solutions Group dated 20 November 2002, a report from Dr Bruce Black dated 4 December 2002 and a report from Bell Hearing dated 2 October 2002.

3.      The applicant represented himself, and gave evidence. Mr Clark represented the respondent.

The Facts

4.      Mr Cook was born on 9 January 1943. He commenced employment with the Post Master General’s department (PMG) in 1957. He continued to work for Telecom after it was separated from the PMG. Telecom later became Telstra Corporation Ltd. He worked in a variety of roles within the organisation, based most recently on the Gold Coast. In his early days, he worked in noisy telephone exchanges. From time to time he would be exposed to very high noise levels - screeches down the phone line while he was conducting tests, for example.

5.      The applicant said he noticed evidence of damage to his hearing in the 1970s. He had increasing difficulty hearing the television. He also developed tinnitus. His hearing progressively deteriorated, and he said it began to impact on his work. He was involved in supervisory jobs and his deteriorating hearing caused him to miss things and make mistakes, he said. He was also having more difficulty at home: he said his wife was irritated by the volume of the television, for example.

6.      Mr Cook decided to take a voluntary redundancy from Telstra in 1997. He had purchased a home on the Gold Coast and wanted to remain there. He was 54 years of age at the time.

7.      Life after Telstra proved difficult. Mr Cook said he soon grew bored. He began looking for a job, but had no success. He said he was not an attractive employee because of his age and his hearing impairment. He was in receipt of Newstart allowance for a period. In the meantime, the applicant said his hearing continued to deteriorate. He could not hear his grandchildren. He had difficulties wearing hearing aids.

8.      The applicant sought compensation from Telstra for his hearing loss in October 2001. The respondent’s insurer accepted liability for the applicant’s hearing loss in its letter to the applicant of 22 February 2002. In due course, the respondent paid Mr Cook an amount of money by way of compensation. It also agreed to meet the reasonable costs of his treatment.

9.      Mr Cook wrote to National Compensation Solutions (who were acting on behalf of Telstra) on 11 April 2002 explaining that he wished “to pursue a return to work program as defined by Comcare under the provisions of the SRC Act 1988”. Telstra refused the request in its letter to the applicant dated 29 May 2002.

10.     Mr Cook is continuing to undergo treatment in respect of his hearing loss. He says it is being disrupted because he is constantly worrying about his appeal. He is not taking medication.

The Law

11.     In order for Mr Cook to succeed in his claim, it must be established that he is eligible to be considered for a rehabilitation program under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). The respondent says he is not. If the applicant is entitled to be considered for a program, the Tribunal must be satisfied the respondent was wrong in refusing to provide the applicant with the rehabilitation program. The respondent says a rehabilitation program was inappropriate in this case, even if it were required to consider the option.

(i)Is the applicant eligible to be considered for a rehabilitation program?

12.     The applicant wishes to return to work at Telstra, even though he took a voluntary redundancy in 1997. He originally requested a ‘return to work’ program, but the appeal has been conducted on the basis he is seeking rehabilitation.

13. Rehabilitation programs are dealt with under Part III of the Act. Section 36(1) provides that an employee who has suffered an injury resulting in an incapacity for work or an impairment may at any time request that the employer “arrange for the assessment of the employee’s capability of undertaking a rehabilitation program”. Telstra arranged for assessments by Dr Black and the Work Solutions Group.

14. Once an assessment was made, Telstra considered whether it should offer a rehabilitation program. In the course of making that decision under s 37(1), Telstra was required to have regard to the matters set out in s 37(3).

15.     Telstra conceded in its letter of 11 July 2002 to the applicant that references in ss 36 and 37 to “an employee” could extend to former employees, like Mr Cook. The author of the letter apparently relied on s 5(9) of the Act, which says that references to an employee in the Act should be taken as references “to a person who has ceased to be an employee” unless it appears from the provisions that a contrary meaning is intended.

16. The drafting of s 5(9) was criticised by Samuels JA in the New South Wales Court of Appeal in Commonwealth v Holland (1991) 24 NSWLR 198. His Honour noted that a former employee is not considered to be an employee within the meaning of the Act in every case. As a result, a former employee was able to bring a claim for common law damages even though s 44 of the Act said that employees were barred from making those claims.

17.     At the hearing, Mr Clark on behalf of the respondent suggested Mr Cook was not an employee for the purposes of ss 36 and 37. He had taken a voluntary redundancy, after all. After examining the wording of the relevant provisions and the whole scheme of Part III, I agree. Sections 36 and 37 are plainly intended to provide injured employees with the opportunity to remain working at their full potential: see Re Finch and Telstra Corporation Ltd [1998] AATA 557 at para 200. I do not think the use of the expression “employee” in those sections extends to former employees. While the liability to compensate the applicant persists, the respondent’s obligation to provide rehabilitation under s 37 effectively ends if the applicant elects to accept a redundancy package and leave the respondent’s employment of his own volition. He may regret the choice, but it was his choice.

(ii)If the applicant is eligible to be considered for rehabilitation, has Telstra discharged its obligations under s 37?

18. If I am wrong about the applicant’s entitlement to be considered for a rehabilitation program, it becomes necessary to consider whether Telstra discharged its obligations under s 37 when it refused to provide Mr Cook with rehabilitation services.

19. Telstra was required to have regard to a range of factors set out in s 37(3). In particular, it had regard to the reports of Dr Black and the Work Solutions Group. Dr Black said in his report of 4 December 2002 that Mr Cook might require ongoing medical treatment, including tinnitus retraining therapy. In his earlier report of 15 May 2002, he said Mr Cook should “be given employment away from noisy circumstances” but added “[a]part from that, he is fully fit for all other duties from an otological aspect”.

20.     Dr Cook’s views were echoed by the Work Solutions Group report of 11 December 2002. The consultant added:

“…I have been unable to identify any further rehabilitation programmes or services which would improve Mr Cook’s function or his capacity to gain and/or maintain employment.”

The author added:

“I am therefore unable to recommend Mr Cook for rehabilitation.”

21.     Telstra referred to these reports in its letter of 29 May 2002. It also noted there would not be any reduction in its liability to pay compensation in the future, and that the hearing loss would not be halted or improved by the rehabilitation program. Mr Clark, in his oral submissions, pointed out the applicant was fit to return to work, albeit not in a noisy environment. He said that Telstra had done all it could and should have done to address the problems arising out of the workplace. It had accepted liability to fund medical treatment but Mr Clark said a rehabilitation program did not offer any benefits in the circumstances. He said Telstra was not obliged to give Mr Cook his job back, or to provide him with any other employment or rehabilitation.

22.     I am unable to fault Telstra’s reasoning or conclusion. Particularly in light of the assessments provided by Dr Black and the Work Solutions Group, it is impossible to justify arranging a rehabilitation program.

Conclusion

23.     The decision under review is affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  19 February 2003 (at Southport)
Date of Decision  12 August 2003

The Applicant appeared in person
Counsel for the Respondent     Mr Clark
Solicitor for the Respondent     Sparke Helmore