Lim v Iconic Hotels Group
[2022] VMC 21
•29 July 2022
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION
Case No. M10669614
| JONATHAN LIM | Plaintiff |
| v | |
| ICONIC HOTELS GROUP PTY LTD | Defendant |
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MAGISTRATE: | M A HOARE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 – 17 June 2022 |
DATE OF DECISION: | 29 July 2022 |
CASE MAY BE CITED AS: | Lim v Iconic Hotels Group |
MEDIUM NEUTRAL CITATION: | [2022] VMC 21 |
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WORKERS COMPENSATION – Medical and like expenses – Denial of liability for a bachelor of design course - ‘Occupational rehabilitation service’ – ‘Vocational re-education’ - ‘Reasonable costs’ – ‘Guidelines’ - Objectives of Act – Workplace Injury Rehabilitation and Compensation Act 2013, ss 3, 10, 223(2), 224, 228.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Ms S Bailey | Alessi Legal |
| For the Defendant | Mr B McKenzie | IDP Lawyers |
HER HONOUR:
Introduction and Overview
On 4 February 2018, Mr Jonathan Lim suffered extensive burns to his body as well as psychological injury resulting from a traumatic incident in a hotel kitchen in the course of his employment with Iconic Hotels Group Pty Ltd (Iconic).
At the time of the February 2018 incident, Mr Lim was studying and training as a chef in Melbourne on a student visa having come from his home in Singapore.
Liability for his WorkCover claim was accepted and he received weekly payments of compensation and medical and like expenses.
The sole issue for my determination in this proceeding was whether or not Iconic was liable to fund the fees for a two-year bachelor of design course (the design course) under Division 7 of Part 5 of Workplace Injury Rehabilitation and Compensation Act 2013 (the Act).
By notice dated 25 June 2020, the WorkCover Agent for Iconic denied liability for funding of the design course because: ‘it is not reasonable and/or necessary for your work-related injury or illness; the cost of the course is not reasonable in the circumstances’ (the 25 June 2020 notice).
Mr Lim gave oral evidence as did a WorkCover claims officer. Medical reports and other documents were tendered into evidence.
Mr Lim’s evidence
Mr Lim, now aged 27 years, had completed ‘A’ levels in Singapore. After that, he was offered a tertiary place in a bio-engineering course which he elected not to accept. Following two years of national service, he worked in commercial kitchens for about two years.
In December 2016, Mr Lim came to Melbourne on a student visa to undertake a diploma in ‘cordon bleu’ cookery for which he paid fees of about $36,000. By about August 2017, he had completed the on-campus course component and was working for Iconic on an intern placement.
Immediately after the February 2018 incident, Mr Lim was admitted to hospital for treatment and ultimately, over two in-patient stays, required two surgeries including major skin grafts.
Mr Lim tried unsuccessfully to return to work with Iconic but only lasted about two weeks. This was because of sensitivity to heat and cold of the burns areas on his body, especially his thighs. He was awarded a certificate of completion as he was near the end of the cookery course.
Mr Lim is embarrassed by substantial scarring to his forearms, thighs and torso and keeps these areas covered up with clothing. He saw a psychologist, Ms Baillie, about five times for trauma symptoms before returning to Singapore in May 2018 due to the lapse of his visa.
Back in Singapore, his weekly payments had ceased and he struggled to find work. He worked for about three months as a chef in a hotel kitchen as he was desperate for income. However, he could not continue with that work due to the hot conditions in the kitchen. He also found it terrifying being in a commercial kitchen after the trauma of the February 2018 incident.
Whilst in Singapore, he undertook about nine months of unpaid work for an insurance company as part of a process of obtaining an insurance agent’s licence which he achieved in June 2019.
In cross-examination, Mr Lim agreed that he affirmed an affidavit on 25 November 2019 in support of his common law claim arising out of the February 2018 incident. He agreed he was then planning to return to Singapore in January 2020 to work in insurance sales although he needed to complete further training and was yet to earn any income from that work.
In November 2019, having returned to Melbourne, his weekly payments of compensation resumed. He began treatment with another psychologist, Ms Branchflower, and was treated by a GP for insomnia and panic attacks and was prescribed anti-depressants.
He looked for work in Melbourne other than cheffing-related roles and could only find casual retail work in a market toy stall.
By letter dated 22 May 2020, Mr Lim was offered a place by the Whitehouse Institute of Design (Whitehouse) in Melbourne for a two-year bachelor of design course specialising in fashion design. He had considered design courses at different institutions of two or four years’ duration. He opted for the two-year course as it was less expensive overall. The total tuition fees then quoted by Whitehouse for the two-year design course then amounted to $81,360.
By letter dated 12 June 2020, Mr Lim’s lawyers requested approval from the Agent for funding of the cost of the design course and enclosed a copy of the Whitehouse letter of offer.
In September 2020, in spite of the 25 June 2020 notice denying liability for the design course, Mr Lim commenced studies having enrolled and funded the first year’s fees himself. He did this from the settlement monies for his common law damages claim for the February 2021 incident. He completed the first year of the course successfully.
As for why he considered design would be a suitable career path for him, it was because, like cookery, it was creative in nature. Also, he would not be in kitchens or exposed to the sort of trauma he suffered in the February 2021 incident. He could not work in a kitchen environment because the sensitivity of his skin grafts to heat and cold. His other purpose in enrolling and resuming studies was to stay in Australia on a student visa.
Mr Lim decided to defer his second year studies due to financial pressures. By letter dated 12 April 2022, Whitehouse informed him of acceptance of his deferral application and advised that fees for his second year in 2023 had increased to $59,904.
Between June 2021 and April 2022, Mr Lim was employed as a casual retail assistant at Coach, a fashion store at Chadstone, until the store closed down.
From April 2022, Mr Lim began casual retail work for another fashion store at Chadstone, ADVL, which he continues to do. He earns around $1000 net per fortnight for around 24 hours per week. He could work more hours but for his studies. He still wears clothing to cover his scarring and the skin-grafts feel ‘tight’ and uncomfortable in certain temperatures.
Currently, he has fortnightly psychological treatment although there was a break in treatment when his psychologist took parental leave. He has been told by doctors there are no further treatment options for his scarring other than wearing compression garments. He generally only wears these at home. He has ongoing symptoms of anxiety and depression including insomnia and flashbacks related to the February 2019 incident.
In re-examination, Mr Lim said that he was motivated to complete, and would complete, the second year of the course but sought funding or even partial funding of the design course fees.
Ms Tran’s evidence
Ms Kathryn Tran was a technical claims manager with the Agent between 2018 to 2022 (excluding a period of parental leave covering June 2020). Currently, she was employed in a comparable role with another WorkCover Agent.
According to Ms Tran, the reference in the 25 June 2020 notice to ‘WorkSafe guidelines’ was to the WorkSafe Claims Manual, specifically Section 5.5.6.3 which was headed ‘Training course approval’. Based on her experience, she had no awareness of any other supporting document entitled ‘guidelines’ relevant to a decision about approval of training courses.
In examination-in-chief, Ms Tran was taken to Section 5.5.6.3 of the Claims Manual and confirmed that she believed that was the Section that was in operation in mid-2020. The Claims Manual was published online via the WorkSafe website. If workers requested to be provided with a hard copy, they were provided with it.
In cross-examination, she conceded that the 25 June 2020 notice made no explicit reference to the Claims Manual. She also agreed that she could not say with 100 per cent certainty that the extract of Section 5.5.6.3 she was shown was identical to that in operation as of 25 June 2020. However, she was unaware of any specific changes.
Ms Tran agreed that ‘fashion designer’ had been listed in the Recovre JSS report of 16 September 2020 as a ‘current suitable employment option’ for Mr Lim.
Other evidence
The Agent’s stated ‘Reasons for this decision’ in the 25 June 2020 notice were as follows:
As per the WorkSafe guidelines;
· Retraining can be provided where the occupational rehabilitation (OR) provider determines this will assist in enhancing suitable employment options and achieve the return to work goal. Retraining can also be used by the OR provider as a means of motivating and engaging the worker in vocational oriented activity to support development of their current work capacity.
· Retraining can be used both to assist a worker be redeployed within the injury employer or to assist the worker to obtain employment with a new employer.
· A training course should not be approved simply because a worker suggests they have a preference for a particular type of employment because they show a reluctance to work in the type of table employment identified by the OR provider.
· [The Agent] can pay the reasonable costs of retraining and the cost of the course you are seeking approval is excessive $81,360.
· Bachelor of design is not classified as retraining but a high-level education/essentially funding a career path which is not what the WorkSafe policy allows.
· However, if you need assistance in return to work, [the Agent] will approve occupational rehabilitation services to identify suitable employment options and what assistance and/or retraining that you require in return to work in these options.
Recovre, an occupational rehabilitation provider, prepared a sequence of vocational reports regarding Mr Lim for the Agent. The initial one was a ‘Transferable Skills Analysis Report’ of 12 August 2020 in which, under ‘Job Interests’, Mr Lim reported wanting to work as a fashion designer and planned on commencing the design course. A ‘Job Seeking Services Report’ dated 16 September 2020 (the JSS Report) identified various suitable occupations for Mr Lim: Sales Assistant – Clothing, Footwear & Accessories; Customer Service Representative; Chef; Sales Representative (Groceries); Fashion Designer. As for re-training, in the JSS Report under the heading ‘Potential Retraining Needs’, it was reported that Mr Lim had commenced and was self-funding the design course so costs were not discussed by the consultant. Subsequent eight-weekly reports recorded that Mr Lim reported the design course was ‘going well and is very full on which is keeping him busy’. The last Recovre report was a ‘Job Seeking Review (8 Weekly)’ dated 8 August 2021.
Medical Evidence
I now turn to the medical evidence in so far as it relates to the limited question before me.
Ms Jenny Baillie, initial treating psychologist, provided a letter of 13 April 2018 to Mr Lim’s GP. She opined that presentation was consistent with an acute phase of post-traumatic stress disorder (PTSD).
Ms Sarah Branchflower, current treating psychologist, completed a practitioner report form dated 17 December 2020. She was asked to consider the employment options identified by Recovre. She opined that trauma from the February 2018 incident was a barrier to working as a chef. She noted that he was not yet qualified to work as a fashion designer. Mr Lim was experienced in and capable of performing roles as a Sales Assistant and in Customer Service Representative and that such roles in a retail setting were most suitable at that stage.
Dr David Roufael, treating general practitioner, completed a practitioner report form dated 25 March 2021. He opined that Mr Lim had the capacity to perform in all the employment options identified by Recovre other than that of chef.
Mr Felix Behan, plastic and reconstructive surgeon, provided a medico-legal report (including scars imaging) dated 3 May 2018 for Mr Lim’s lawyers. The scarring and then still ‘immature’ graft sites were assessed. He noted an unsuccessful attempted return to work due to the effects of heat in an industrial kitchen. He opined there would be disability from an industrial point of view in terms of working as a chef as result of the injuries.
A/Prof Michael Leung, plastic and reconstructive surgeon, provided an impairment assessment report dated 25 July 2019 for the Agent. Mr Lim reported being unable to cope with work as a chef due to the impact of heat. The history was of having completed an insurance course and, at the time of assessment, working as an insurance agent in Singapore.
Dr Richard Prytula, psychiatrist, provided a report of 15 July 2019 for the Agent to assess permanent impairment. The history was of trying unsuccessfully to work as a chef in Singapore. He started re-training and was ultimately certified as a financial planner. There were signs and symptoms of traumatisation from the February 2018 incident. At the time of assessment, he was working in a self-employed capacity in insurance sales about 40 – 60 hours a week and had capacity to continue that. He planned to remain in Singapore and work in the financial planning area.
A/Prof Nick Paoletti, psychiatrist, provided a medico-legal report dated 2 August 2019 at the request of Mr Lim’s lawyers. The history was of deciding to switch careers because of his injuries after three months of working as a chef in Singapore. He went into insurance and obtained his licence, although had not started working yet. He was yet to do a diploma of business and needed a further month’s study for the licence. As for diagnosis, this was opined to be an unspecified anxiety disorder and chronic unspecified adjustment disorder for which he needed psychological support although major further progress was unlikely. From a psychiatric perspective, it was unlikely his anxiety would allow a return to work in a kitchen environment. There was no psychiatric contra-indication to his new career direction, other than frustration of his psychological pursuits.
Dr Peter Wilkins, occupational physician, provided a medico-legal report dated 19 May 2021 for the Agent. Mr Lim reported psychological distress at the thought of returning to work as a chef. He believed he could cope with related tasks such menu-planning and test-cooking in an environment other than a busy restaurant kitchen. He reported having trained as a financial adviser in Singapore. As well as his design course studies, he planned to obtain retail employment in Melbourne. Dr Wilkins opined he could work as a chef from a physical perspective, but had elected not to do so because of the psychological sequelae. He also opined that he could return to work in alternative hours not cooking. There was current work capacity for suitable employment in the following roles: sales assistant; customer services representative; and fashion designer.
Dr Dennis Handrinos, psychiatrist, provided a medico-legal report dated 24 May 2021 for the Agent. Mr Lim reported undertaking the design course studies and seeking retail employment. He reported taking a position in finance in Singapore but being unhappy in the role before returning to Australia. Mr Lim felt his psychological condition was gradually resolving and he would be able to manage with a break in treatment whilst his psychologist was on parental leave. Dr Handrinos opined he could not work as a chef but that he could work in any of the options identified in the vocational assessment reports.
Analysis
Legislative framework
The liability to pay the reasonable costs of occupational rehabilitation services to a worker injured in compensable circumstances is established by s 224(1) of the Act.
The Act defines ‘occupational rehabilitation service’[1] to mean (relevant to this dispute) any of the following services provided by a person who is approved by the Authority as a provider of an occupational rehabilitation service—
…
(i)vocational re-education;
[1]s 3 of the Act.
Division 7 of Part 6 of the Act which is headed ‘Compensation for medical and like services’, contains a definition of ‘reasonable costs’ in relation to a service: s 223(2). The definition provides that regard must be had to the following:
i.the service or provision actually rendered; and
ii.the necessity of the service or provision in the circumstances; and
iii.any guidelines made by the Authority and published on its website in respect of services or provisions of this kind.
Section 224(2) provides that the Authority may make guidelines identifying services, or services of a class of services, referred to in s 224(1)(a) or (b), for which approval should be sought from the Authority before the services are provided.
Section 224(3) provides that the Authority must ensure guidelines made under s 224(2) are published and generally available.
Although s 230 is headed ‘Occupational rehabilitation services’, it has no bearing on the present dispute.
Additionally, Counsel for Iconic referred to the relevance of the Act’s objectives in s 10, in particular to—
…
(b) make provision for the effective occupational rehabilitation of injured workers and their early return to work; and
…
(d) ensure appropriate compensation and provisional payments under this Act or the Accident Compensation Act 1985 is paid to injured workers in the most socially and economically appropriate manner, as expeditiously as possible; and
(e) ensure workers compensation costs are contained so as to minimise the burden on Victorian businesses; and
..
(h) maintain a fully-funded scheme; and
(i)in this context, to improve the health and safety of persons at work and reduce the social and economic costs to the Victorian community of accident compensation.
The ‘guidelines’ issue
I turn now to the question of ‘guidelines’, a focus of argument and submissions of both Counsel. That was is in the context of the ‘reasonable costs’ provision in s 223(2) and as to the making of guidelines under s 224(2).
The Act contains no definition of ‘guidelines’.
Although the 25 June 2020 notice stated that the reasons for decision were ‘as per WorkSafe guidelines’, at least the first three bullet-points of those reasons come from Section 5.5.6.3 of the published WorkSafe Claims Manual headed ‘Training Course approval’ (extract tendered into evidence by Iconic).
The question of whether sections of the published WorkSafe Claims Manual do or do not constitute ‘guidelines’ under Division 7 of the Act (and predecessor provisions of the Accident Compensation Act 1985 (the AC Act)) is, at times, a somewhat vexed question when disputes such as the present case arise.
In some disputes that come before this Court arising under Division 7 of the Act (and the AC Act), there are published policies or other guidelines that operate in addition to the Claims Manual. In other disputes, the Claims Manual is the only written guide in operation.
In some sections of the Claims Manual, the term ‘guidelines’ is used (such as Section 4.5.2.1 relating to aids and appliances) which has ‘general guidelines’. Mostly, the term is not used in the Claims Manual.
There was no suggestion in the present case of any existing policy or guidelines document relevant to the dispute other than the Claims Manual.
Counsel for Iconic submitted the training course section should be regarded as ‘guidelines’ for the purposes of s 223(2) and also under s 224(2).
On the other hand, Counsel for Mr Lim contended that a strict view of what constituted ‘guidelines’ was required. On that basis, the relevant sections of the Claims Manual were not ‘guidelines’. That was relying on the approach taken by Magistrate Wright in Taylor v Tehree.[2]
[2][2015] VMC 42 (‘Taylor’).
In Taylor, Magistrate Wright had decided (in a case governed by the AC Act) that the term ‘guidelines’ should be ‘strictly construed’ and that only documents referred to as ‘guidelines’ should be regarded as such for the purposes of the Act.[3]
[3]Ibid [29] – [30].
Counsel for Iconic referred to various cases before this Court in which extracts of the Claims Manual have been found by Magistrate Garnett to be ‘guidelines’. That was in cases such as Reggardo v State of Victoria[4] (a case regarding a training course) and Gillen v Victorian WorkCover Authority[5] (a case regarding personal and household services).
[4][2011] VMC 49.
[5][2011] VMC 56.
Counsel for Iconic also referred to a recent decision of Magistrate Wright of Burton v AMT Industries[6] on the ‘guidelines’ issue. Burton was a case about osteopathic fees in which the worker sought reimbursement for ‘gap’ payments above scheduled fees. In Burton, three lots of published documents were said to be guidelines under the Act.[7]
[6][2021] VMC 11 (‘Burton’).
[7]Ibid [25].
In Burton, Magistrate Wright noted that Taylor had been concerned whether an appliance was a ‘personal and household service’, rather than considering the reasonable costs of the item. Magistrate Wright then specifically stated in Burton that his comment as to the applicability of guidelines in Taylor should be seen in that context.[8]
[8]Ibid [57]. Magistrate Wright further noted that the case of Blaess v Mercantile Mutual [1998] VAR 209 was also a case involving the reasonableness of a specific personal and household service, rather than the reasonable costs of such.
In Burton, Magistrate Wright made a determination regarding ‘reasonable costs’ taking into account agreed guidelines for osteopathy fees. His Honour stated specifically that he did so ‘even without considering whether the cited extracts of the Claims Manual are guidelines for the purposes of s.223(2)(a)(iii)’.[9] Nevertheless, although not needing to do so, Magistrate Wright did also find that the Claims Manual extracts were guidelines for the purposes of s.223(2)(a)(iii).[10]
[9]Ibid [53].
[10]Ibid [54].
In my recent decision of Douglas-Watson v St John of God,[11] I agreed with the view expressed in Taylor that only documents referred to as ‘guidelines’ should be regarded as such. At the time of delivering Douglas-Watson, I was unaware of Burton. In any event, Douglas-Watson, like Taylor, also concerned the reasonableness of a ‘personal and household service’ (an emotional support dog) rather than the ‘reasonable costs’ of the dog.
[11][2022] VMC 13 (‘Douglas-Watson’).
In Douglas-Watson, unlike here, there was, additional to relevant sections of the Claims Manual, a specific policy document that it was agreed had been published as guidelines.[12]
[12]In Douglas-Watson, they were contained in the ‘Non-established, new or emerging treatment and services Policy’.
Although, as various decisions of this Court demonstrate, there is a lack of ideal clarity regarding nomenclature and the term ‘guidelines’ and the Claims Manual. Nevertheless, it is clear enough with respect to disputes regarding ‘reasonable costs’, that the word ‘any’ before the word ‘guidelines’ as it appears in s 223(2)(a)(iii), is intended, on a plain construction, to be read broadly rather than narrowly.
As Magistrate Wright observed in Burton: ‘Although the word “guideline” is not included in the text by way of heading or footnote, they clearly are a guide to agents which workers can utilise “in respect of services or provisions of that kind’’’.[13]
[13]Burton [2021] VMC 11 [54].
The situation may be different in cases such as Douglas-Watson where policies or guides have been published as ‘guidelines’ in relation to whether a service was a personal and household service.
In the present case, Ms Tran’s evidence was that there were no published guides or policies regarding training course approvals other than the extract of the Claims Manual. The Claims Manual, published online, was the document that claims officers were guided by in decision-making on training course requests and to which workers were referred. I formed a favourable impression of Ms Tran and accept she had considerable experience in the area of occupational rehabilitation for pre-130 week claims (as this was).
I find that, on a reading of the Claims Manual extract and accepting Ms Tran’s evidence, that Section 5.5.6.3 of the Claims Manual were ‘guidelines’ for the purposes of s 223(2)(a)(iii) and also s 224. I also find they were the guidelines referred to in the 25 June 2020 notice.
Counsel for Mr Lim submitted that it may mislead and result in unfairness that a notice of a decision to a worker (as in this case) could refer to ‘guidelines’ as a basis for decision-making, yet there be no published document with such a title.
Further, or in the alternative, Mr Lim’s Counsel contended that even if there was a finding that the training course section of the Claims Manual constituted guidelines, then there was non-compliance with the obligation under s 224(3). Counsel submitted for Mr Lim that even accepting the Claims Manual was published online, it was not ‘generally available’.
I do not accept those submissions for these reasons:
·There were no other guidelines or policy document in operation;
·The published Claims Manual section on ‘training course approval’ was what was relied upon in the 25 June 2020 notice (even though it was did not state that the ‘guidelines’ originated from the Claims Manual);
·By reason of being published online, the extract of the Claims Manual was for widely and ‘readily available’ via the WorkSafe website and upon request (on Ms Tran’s evidence).
It is plain enough that the 25 June 2020 notice relied on ‘guidelines’. That these are derived from the Claims Manual (as I have found) cannot sensibly mean they were not ‘guidelines’ or could not be relied upon.
Having made that finding, I turn to the balance of submissions.
Counsel for Iconic submitted that it was plain from the Claims Manual extract that a training course should not be approved simply ‘because a worker suggests they have a preference for particular type of employment or because they show a reluctance to work in the type of suitable employment identified by the OR (occupational rehabilitation) provider’.
It was submitted for Iconic, that under the guidelines in the Claims Manual extract, Mr Lim’s expressed ‘preference for a particular type of employment’ in design - because of it being creative and therefore in the same vein as working as a chef - was not an appropriate basis for approval.
The Claims Manual extract, additionally, refers to a cap of $3,000 and/or 12 weeks’ course duration, beyond which: (i) the VWA’s Agent’s approval is required; and, (ii) if the retraining is suggested by an occupational rehabilitation provider, the rehabilitation provider must complete a Vocational Retraining Funding request form to receive approval.
Counsel for Iconic submitted, contrary to the guidelines, there had been no involvement of an occupational rehabilitation provider completing a vocational retraining funding request form. In that regard, the most that Recovre had done was to acknowledge ‘fashion designer’ as a form of suitable employment in its reports of 12 Aug 2020 and 16 September 2020. However, by that time, Mr Lim had expressed already to Recovre his intention to commence, or had commenced, the Whitehouse design course.
Counsel for Iconic submitted also there were other suitable employment options for Mr Lim nominated by Recovre which required no re-training, namely the roles of sales assistant and customer service assistant. The suitability of these roles and Mr Lim’s capacity for work in those roles was endorsed by his treating practitioners, Ms Branchflower and Dr Roufael. That also accorded with the opinions of Dr Wilkins and Dr Handrinos.
Finally, it was submitted for Iconic that the course fees claimed by Mr Lim were far beyond what is contemplated in the Claims Manual extract which refers to a figure of $3,000 in the context of whether pre-approval is or is not required.
On the other hand, Counsel for Mr Lim submitted that the design course ought to be approved under the guidelines in the Claims Manual extract. That was because Recovre had identified ‘fashion designer’ as a suitable employment option for Mr Lim. Accordingly, it followed that vocational re-education to qualify him to pursue that type of work ought to be approved.
As for the fees, it was submitted for Mr Lim that the figure of $3,000 contained in the Claims Manual extract did not operate as a cap – rather, that was the threshold for courses not requiring pre-approval.
Furthermore, it was submitted that Mr Lim’s retail and sales roles ought not, in his situation, be properly considered suitable employment. That was because retail employment was not suitable employment for him in a real sense. He was working in retail roles merely to support himself financially whilst engaged in studies.
As for other career pathways, it was contended for Mr Lim that the prior history of having been offered a place in a bio-engineering course ought not be taken into account. That was because he had never taken that up.
Moreover, the insurance career path was not a suitable employment option for Mr Lim in Victoria as he was not qualified to work in that field here. Also, it was significant that none of the Recovre reports referred to the insurance work as being a suitable employment option for Mr Lim.
That completes the ‘guidelines’ issue and an outline of submissions regarding their operation in this case.
Reasonableness and Further Findings
Mr Lim had the burden of proof in this case.
Counsel were in agreement that an objective test is to be applied in relation to an entitlement to compensation for an occupational rehabilitation service with respect to reasonableness and ‘necessity’.
Ultimately, the central question was the reasonableness and necessity of the design course as ‘vocational re-education’ for Mr Lim as an occupational rehabilitation service.
In Goodson v Echuca Regional Health,[14] a decision about funding of ‘vocational re-training’ as an occupational rehabilitation service under the AC Act,[15] Magistrate Wright had this to say: ‘The requirement of “reasonableness” is always paramount in all cases, including this case’.[16]
[14][2006] VMC 8 (‘Goodson’).
[15]ss 5(1), 99(1), 99(2).
[16]Goodson [2006] VMC 8, 11.
In Goodson, the Court found that a former nurse’s claim for fees for a counselling course was a reasonable occupational rehabilitation service having regard to all the circumstances of the worker’s situation.
In Reggardo v State of Victoria,[17] Magistrate Garnett also considered the issue of ‘vocational re-education’ as an occupational rehabilitation service under the AC Act.[18] His Honour decided that the Agent was not liable for the costs claimed by a former police officer for a diploma of life coaching in circumstances where Mr Reggardo had not sought assistance of an approved rehabilitation provider.
[17][2011] VMC 49.
[18]ss 5(1), 99(1), 99(2).
Of course, reasonableness and necessity in each case will turn on its own facts and the individual circumstances of the worker, objectively considered, including:
a. the suitable employment options available;
b.the capacity or otherwise of the worker to achieve a return to work in suitable employment;
c.the type, cost, and length of the re-training course sought; and
d.an assessment of how the re-training would assist the worker to return to work.
Counsel for Mr Lim submitted that the cost of the course was reasonable having regard to the necessity of the design course in all the circumstances of Mr Lim’s own situation. Also, the claim approval of the design course was entirely within the spirit and objectives of the Act given his situation.
First, Mr Lim’s evidence was that he was only permitted to remain in Australia on his student visa if he were studying. There were no suggestions by Iconic as to what other studies he could undertake allowing him to remain in Australia and maintain his visa status (as at the time of the February 2018 incident).
Second, Mr Lim, who had an accepted claim for compensable injuries whilst working in Victoria on a student visa, needed to be studying to remain in Victoria to undergo treatment with his psychologist.
Third, as a result of significant injuries, Mr Lim had lost the capacity to pursue his chosen career. There was unanimity amongst the medical opinions that Mr Lim’s injuries precluded him from working in his pre-injury occupation of chef. Mr Lim had already outlaid $37,000 in fees to purse that career by undertaking cookery training in Australia.
Fourth, the unchallenged evidence was that Mr Lim was highly committed and motivated regarding his design course studies. There were various references to his dedication in the Recovre reports.
Fifth, it was reasonable for Mr Lim to pursue a career in a field considered creative and analogous to his work as a chef.
It is convenient to observe at this point that Mr Lim impressed me as an honest and cooperative witness who answered questions directly and without embellishment. For example, he conceded his symptoms had abated with time. I accept as genuine his evidence of some ongoing symptoms of trauma, of ongoing self-consciousness and sensitivity to temperature of the areas of scarring.
Certainly, my impression is that Mr Lim has responded to relatively traumatic injuries with admirable stoicism and resilience.
However, as I have said, my task is to make an objective assessment of the whole of the evidence as to reasonableness and necessity of the design course.
Ultimately, I conclude that Mr Lim’s claim must fail and I so conclude for the reasons that follow.
Firstly, contrary to the guidelines within the training course approvals section, I find there was no vocational re-training report and funding request by an occupational provider. That is a stated requirement for courses over $3,000 and/or more than twelve weeks’ duration.
In relation to a timeline and the involvement of the occupational provider, I make the following factual findings:
a.In around May 2020, Mr Lim was offered a place in the design course following his application.
b.On 12 June 2020, Mr Lim’s solicitors sought approval from the Agent for funding of the course.
c.The 25 June 2020 notice denied liability for the course.
d.In or around August 2020, according to the Transferable Skills Analysis Report of 12 August 2020, Mr Lim reported to Recovre that he would be commencing the full-time two-year course as ‘the long term goal for his career is to work as fashion designer…’
e.In September 2020, Mr Lim commenced the course.
f.The Recovre JSS report of 16 September 2019 recorded with respect to ‘Potential Retraining Needs’ that: re-training had been identified; that he had commenced the Whitehouse design course and that he would be funding it himself.
g.Recovre made no vocational re-training report and funding request.
I must reject the submission by Mr Lim’s Counsel that the absence of such report and funding request is somehow remedied by reason of Recovre including ‘fashion designer as a suitable employment option for Mr Lim in reports.
Secondly, contrary to the ‘guidelines’ and based on those factual findings, I conclude there has also been no determination by the occupational provider that the design course would ‘assist in enhancing suitable employment options and achieve the [return to work] goal’.
I find that Mr Lim had, and continued to have, capacity for work in other identified suitable employment options including sales and retail roles. The unchallenged evidence was of Mr Lim actively working more or less continuously in retail sales positions since his return to Melbourne in around November 2020. In other words, the return to work goal was achieved.
Thirdly, I find, on Mr Lim’s evidence, that he had a strong preference over the long-term to pursue work in a field of a more creative endeavour rather than the suitable employment options of retail sales or customer service. On his own evidence, he had worked this out with his psychologist.
It may well be that the design course would enhance Mr Lim’s options to pursue his desired career in fashion design. However, that is not a basis for approval under the guidelines.
Fourthly, in considering the reasonable costs of the course, I must have regard to the ‘necessity of the service … in the circumstances’ as per s 224(3)(ii) of the Act. I find there was no such ‘necessity’.
The evidence was, as I have already found, that Mr Lim had capacity for suitable employment options and then achieved a return to work. On that basis, the design course was not a necessity in the ordinary meaning of the word of being required or indispensable.
I reject the submissions of Mr Lim’s Counsel that approval of the course should follow because he needed to be studying to remain in Australia on a student visa which was his pre-injury visa status. That is not a necessity, that is a preference of Mr Lim.
To my mind, my finding in this regard is also supported by Mr Lim’s affidavit on 25 November 2019 in which he deposed to his plans to return to Singapore in January 2020 to work in insurance sales (after completing) further training. As Mr Lim reported to Dr Handrinos, psychiatrist, he had been ‘unhappy’ in the insurance field in Singapore before returning to Australia.
Whilst Mr Lim’s Counsel submitted that the evidence regarding insurance work ought to be disregarded because it was not identified as a suitable employment option by Recovre, I consider that evidence is a relevant aspect of Mr Lim’s overall circumstances for me to take into account in relation to necessity and reasonableness.
For completeness, I also do not accept the submission that I should have regard to a need for Mr Lim to be in Australia to have treatment. As Counsel for the Defendant submitted correctly, s 228(1) of the Act provides that the costs of medical and like services outside Australia may be approved in appropriate circumstances.
In any event, there was no evidence of Mr Lim either seeking approval for psychological treatment in Singapore nor for tele-health type consultations from Singapore with a Melbourne-based psychologist sessions.
Fifthly, in assessing necessity and reasonableness, I must take into account medical or vocational support for the training course as an occupational rehabilitation service under the Act. I find there was limited or no such support.
The high point of the evidence for Mr Lim was his treating GP, Dr Roufael, stating that there was capacity to perform the identified suitable employment options including fashion designer and sales assistant or customer services. Dr Roufael also noted a current capacity for retraining as a fashion designer.
Ms Branchflower, the treating psychologist, noted he was not yet qualified to work as a fashion designer, and observed that Mr Lim was experienced in, and capable of, working in sales and customer service. She opined that such roles in a retail setting were most suitable at that stage.
The history taken by Dr Handrinos, psychiatrist, supports my finding in relation to Mr Lim’s preference regarding his career goals as I have noted already.
The only occupational physician to provide an opinion in the case was Dr Wilkins. Dr Wilkins confirmed the capacity for the Recovre suitable employment options including fashion designer as well as the retail roles. Interestingly, he also considered there was scope to return to the field of cookery in a modified way such as a menu-planning and test-cooking in a controlled environment.
To my mind, the quite outdated mid-2019 medico-legal opinions of Dr Richard Prytula, A/Prof Nick Paoletti, and A/Prof Michael Leung, are of little assistance. Certainly, however, all three obtain histories of Mr Lim’s plans in 2019, subsequently abandoned, in relation to the insurance and finance field in Singapore.
I otherwise refer to and repeat my previous findings in relation to Recovre reports.
Sixthly, I find that the course fees of more than $100,000 claimed by Mr Lim were excessive and could not be considered ‘reasonable costs’ as contemplated by the Act for an occupational rehabilitation service. That is particularly in a situation where, as I have found, the return to work goals had been achieved. On any view, re-training or education fees of that order are excessively high in a general sense and not only by comparison to the figure of $3,000 in the Claims Manual extract (which I accept was not a cap).
It seems to me, finally, there is no question that the objectives of the Act are of relevance in questions involving reasonableness and necessity. It is entirely appropriate for a balance to be struck between a worker’s effective occupational rehabilitation and the payment of compensation in the most socially and economically appropriate manner. Other relevant considerations are minimising the burden on business and maintaining a fully-funded scheme.
To my mind, those matters relating to Mr Lim’s particular circumstances of needing to be studying to maintain his visa status do fall outside the objectives of the Act and the scheme.
The purpose of statutory compensation is for occupational rehabilitation and vocational re-education to be effective in enabling injured workers’ early return to work, but it cannot be to accommodate preferences or to put injured workers back in the precisely equivalent position as before they injured.
Finally, for completeness, for the same reasons, I do not consider appropriate to order partial funding of the balance of the design course as indeed Mr Lim himself had indicated he would be willing to accept.
Conclusion
For these reasons, I would dismiss the proceeding.
MAGISTRATE HOARE
29 JULY 2022
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