Hicks and Comcare
[2004] AATA 311
•26 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 311
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/70
GENERAL ADMINISTRATIVE DIVISION )
Re GARTH HICKS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date26 March 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..................(Sgd).......................
J Cowdroy
Member
CATCHWORDS
COMPENSATION – rehabilitation services – cessation of rehabilitation program and subsequent cessation of incapacity payments – reasonable steps were taken to assist in finding employment – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 34, 37
REASONS FOR DECISION
26 March 2004 Ms J Cowdroy, Member Hearing
1. This decision relates to a hearing before the Tribunal on 9 July 2003. It relates to a decision of 7 October 2002 made by a delegate of the Military Compensation and Rehabilitation Service (MCRS) affirming a decision dated 3 May 2002 which determined to cease the applicant’s rehabilitation program.
2. The applicant appeared and gave evidence, as did Ms K Lynch. Mr R Derrington of counsel represented the respondent. The T-documents were entered into evidence pursuant to Section 37 of the Administrative Appeals TribunalAct 1975 as exhibit 1, together with the following material:
Exhibit 2 “Best Fit” case file in respect to the applicant
Exhibit 3 File Note dated 19 June 2001
Exhibit 4 Ms Lynch’s notes
3. The matter was determined on the basis of the exhibits, the oral evidence, the submissions of the parties and relevant case law and legislation.
Background
4. The following is provided by way of background material and is not in dispute. The applicant, who was born on 15 September 1972, served in the Royal Australian Navy from 17 September 1990. He was medically discharged on 10 February 2000.
5. The respondent accepted liability for aggravation of degenerative changes in the lateral patellofemoral compartment of the left knee on 12 November 1988. On 5 June 2000 the respondent accepted liability for dysthymia on the basis that that condition was connected with the applicant’s knee condition. On 9 June 2000 the applicant completed Benefit Election Forms in relation to the knee condition and dysthymia respectively (T13 and T16 refer).
6. On 27 September 2000 and 6 October 2000 the respondent determined the applicant’s entitlement to incapacity benefits (T18 and T19). Ms K Lynch, rehabilitation counsellor/consultant for Best Fit Occupational and Rehabilitation Consultants (Best Fit), carried out a Rehabilitation Assessment on 1 December 2000 (T20). During the period from November 2000 to April 2000 the applicant received incapacity benefits and rehabilitation from Best Fit.
7. By letter dated 3 May 2002, the respondent determined to close the applicant’s rehabilitation program on the basis of information provided by Ms Lynch. The applicant sought review of that decision on 17January 2003.
Evidence
8. Essentially, the applicant contends that the rehabilitation program provided to him was inappropriate and that it was administered in an unprofessional manner without proper regard to his needs. Dissatisfaction was also expressed with the facilitated job search aspect of his rehabilitation program.
9. The applicant also questioned why a work/study site assessment, which had been recommended by an occupational therapist, had not been performed. He considered that his study environment had contributed to a back problem, which may have been avoided if such assessment was carried out and he had been provided with ergonomic furniture. He also pointed out that he has never received medical clearance to return to work.
10. The applicant considered that the decision to approve a course was not in his best interests and that it did not comply with the requirements of sections 34 and 37 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). He had wanted to undertake a Microsoft Certified Systems Engineers (MCSE) course, given his background as a communications technician in the Navy. However, on expressing interest in undertaking that course, he was informed by his rehabilitation co-ordinator at that time that the course had been undertaken by other employees undertaking a rehabilitation program. They were not successful in obtaining employment upon completion of that course. He believed that any failure on the part of those who completed the course was attributable to the fact that they did not have a solid background in computers.
11. There were discussions with Best Fit about the type of training courses available to him and ultimately he was informed by Best Fit that he would receive approval for a course in IT if he could provide assurances that he could obtain employment.
12. The applicant obtained course information in relation to a Diploma of Business Information Services provided by the University of New England, which was given approval. In retrospect, he considered that it was a poor choice, however at the time he was resigned to the fact that he was not going to receive approval for the MCSE. He completed the Diploma course in February of 2002. He has subsequently commenced a Bachelor of Information and Technology at the Queensland University of Technology, which he expects to complete in about 18 months. He had undertaken further study because the approved course did not provide him with a sufficient qualification to obtain employment.
13. Mr Hicks acknowledged that he expressed his satisfaction with the approval of this course to his rehabilitation providers, but he considered he had no other option but to acquiesce, as it was made clear that his preferred course would not be funded. He believed the reasons why he was not granted the preferred course were unsustainable. He was critical of those who made the decisions as to which course he should undertake, given that the persons involved had no expertise in the IT field.
14. One of his concerns was that Ms Lynch, who was involved in providing assistance to obtain appropriate employment, failed to keep him advised of the names of prospective employers to which application had been made and details of the positions applied for. That information only became available to him when he was provided with material in preparation for this hearing. He considered the facilitated job search efforts were inadequate, in that they were not sufficiently comprehensive, that the respondent had not taken all reasonable steps to provide him with suitable employment or to assist him in obtaining such employment, and in so doing it had breached its duty pursuant to section 40 of the Act.
15. The applicant acknowledged that he was aware that at the end of the course that he would he provided with an eight week facilitated job search, at the completion of which he would he “deemed”. He did not understand that the term “deemed” meant that he would be considered capable of obtaining suitable employment at a remuneration level where he would no longer receive incapacity payments. Although he indicated he was satisfied with the course that was chosen and that he was confident he could obtain a job, he did so on the basis that he had been told by his rehabilitation providers that this was necessary for the course to be approved.
16. He professed a complete lack of understanding of the rehabilitation process. A major concern was that he was never made aware of his rights to challenge the decisions being made. The absence of that knowledge accounts for the lack of any action in seeking a review of the decision until after rehabilitation had ceased.
17. He was aware that if deeming occurred, then his rehabilitation ceased. however he was not aware of the effect of deeming on his incapacity payments. He agreed that he had discussions with Ms Lynch, and he recalled mention being made of top-up payments if he was working part time. The information he was given did not lead him to think that his payments would cease in their entirety.
18. He was not seeking reimbursement for the cost of his current course of study. His only concern was in relation to the restoration of his pension until such time as he was in full time employment.
19. Ms K Lynch, a rehabilitation counsellor/provider for Best Fit was involved in the applicant’s rehabilitation program, including facilitated job search efforts. She had spoken to the applicant about the deeming provisions in the Act and was of the view that he understood that he would be deemed to be able to earn $28,000, which was a basic wage for a person with the applicant’s qualifications. She completed job search activities on the Internet, which she recorded in the applicant’s file. She also had phone conversations with prospective employers.
20. She conceded that her file notes did not contain the names of all the employers she had contacted. Additionally, she had not identified in her notes the specific job for which she had made application. Ms Lynch acknowledged that the omissions in the content of her case notes had been brought to her attention by a supervisor, after which she had endeavoured to make her notes more comprehensive.
Submissions
21. For the respondent, it was contended that if the applicant was dissatisfied with the course that was being proposed, then the appropriate time to raise those concerns was when a decision was being made about that aspect. It was acknowledged that there might have been difficulties for the applicant in determining at what point in time it was appropriate for him to raise his concerns.
22. The only issue presently before the Tribunal relates to the decision to cease liability. The respondent contends that there is no jurisdiction to challenge the appropriateness of the course chosen and undertaken, nor other aspects such as the provision of ergonomically designed furniture. The rehabilitation program that was provided, including medical and psychological rehabilitation and retraining, has placed the applicant in the position where he is deemed to be able to earn $28,000 per annum. By reference to the provisions of section 19 of the Act, his incapacity payments reduce to nil. There is no evidence that the deeming calculation is not accurate or that it was inappropriate to cease liability for rehabilitation and incapacity payments.
23. The respondent acknowledges the difficulties involved in assessing the applicant’s position, given that he has partly completed a degree course at his own cost, which, when completed, will render him more qualified than he was in his pre-injury state. The relief that Mr Hicks seeks is not available to him and there is no evidence which should persuade the Tribunal to change the decision under review.
24. The applicant reiterated the difficulties he encountered throughout his rehabilitation program in ascertaining what entitlements he should be receiving. He received contradictory advice from Ms Lynch about this aspect. He also referred to his concerns about the quality of job seeking efforts undertaken on his behalf.
The Legislative Framework
25. The provision of rehabilitation services is governed by section 37 of the Act. It states:
“(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.”
26. Section 40 of the Act, in effect, directs that the employer shall take all relevant steps to provide the employee with suitable employment or to assist the employee to find such employment.
Findings and Conclusion
27. The Tribunal’s understanding of the applicant's source of dissatisfaction does not extend to an argument that the decision to provide a rehabilitation program was not warranted. Rather, the applicant contends that the respondent did not have regard to the factors in section 37 of the Act when determining he should undertake a Diploma course. The applicant reached this conclusion on the basis that the completion of the course did not create an improvement in his opportunities for employment and that the respondent failed to have regard to the merits of other rehabilitation programs.
28. However, the issue which falls before this Tribunal in the present matter relates to the determination to cease the rehabilitation program and the consequent cessation of incapacity payments.
29. The Tribunal accepts that the applicant considered that he was not able to challenge the decisions being made in regard to his rehabilitation program, and that at times he felt frustrated and confused. This is not the forum in which those other issues can be canvassed. Quite simply the time has passed for such considerations.
30. Similarly, whilst the applicant’s concerns that he was not kept informed about the job seeking efforts being made on his behalf may have some validity, that is not an issue that is encompassed in the decision which this Tribunal has to review. The same may be said about the failure of the respondent to organise a study place assessment. It was open to the applicant to pursue this aspect and the fact that he was not previously aware that he may be entitled to the cost of modifications or alterations or aids is not a matter which is properly before this Tribunal.
31. The decision to cease liability was based on advice provided by the applicant’s rehabilitation provider, Best Fit. At T39, Best Fit’s closure report outlines the activities encompassed in the applicant’s rehabilitation program. They indicate an extensive and comprehensive range of activities. The report concluded that Mr Hicks was considered to have the necessary skills required for seeking and obtaining employment. It was considered that he would be capable of earning income at $28,000 per annum.
32. The applicant did not challenge the veracity of that information to any extent. The thrust of his submission was that employment opportunities were limited and that in retrospect a finding that he could earn $28,000 was probably unrealistic. The Tribunal does not consider that the requirements of the rehabilitation program encompass any assurances about the likelihood of obtaining employment. The rehabilitation provider has a responsibility to ensure that as far as practicable, a rehabilitation program is tailored to the injured worker’s individual needs and capacities, but with an eye to practical realities, the desired outcome, that is, that the injured worker will be successful in obtaining the type of employment he seeks, is not always achieved.
33. Even if it was the case that the MCSE course would have better met the applicant’s needs and may have increased his employment opportunities, such an issue is not one which the Tribunal can now determine. The Tribunal accepts that the rehabilitation program did not achieve what the applicant had hoped. It notes the applicant’s contention that a lack of communication occurred in advising him what was meant by “deeming” him to be able to earn $28,000. However, all those issues, while the cause of frustration for the applicant, can not be resolved by this Tribunal.
34. The Tribunal also had regard to the applicant’s evidence that the respondent did not provide all reasonable steps to assist him to find suitable employment. What are “reasonable steps” must be referrable to the level of resources available to the employer, the state of the labour market, the applicant’s particular capabilities and a range of other matters. Whilst the applicant perceives that more could have been done to assist him in this regard, the Tribunal considers that the job search efforts which were provided fell within the description of “reasonable”.
35. On the basis of all the evidence, the Tribunal is satisfied that the determination made to close the applicant’s rehabilitation program on 31 May 2002 was correct. The decision under review is affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: Nicca Grant
AssociateDate/s of Hearing 9 July 2003
Date of Decision 26 March 2004The Applicant appeared in person
Counsel for the Respondent Mr R Derrington
Solicitor for the Respondent Dibbs Barker Gosling
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