McIntyre v Tumminello Holdings (1)
[2004] NTMC 97
•15 September 2004
PARTIES: JOHNATHON MCINTYRE
v
TUMMINELLO HOLDINGS
TITLE OF COURT: Work Health Court
JURISDICTION: Work Health Act
FILE NO(s): 20312425
DELIVERED ON: 15 September 2004
DELIVERED AT: Darwin
HEARING DATE(s): 5, 6, 7 & 8 April 2004
JUDGMENT OF: Mr Lowndes SM
CATCHWORDS:
WORK HEALTH – SS 75B(2) & (3) - WORK HEALTH ACT - CANCELLATION OF PAYMENT PURSUANT TO S 69 – WORK HEALTH ACT - MEANING OF THE REHABILITATION PROCESS – MUTUAL OBLIGATIONS – CONCEPT OF MORE PROFITABLE EMPLOYMENT – DEEMING PROVISION IN s 75B WORK HEALTH ACT
Interpretation Act
Work Health Act ss 69, 75B(2) & 75B(3)
Morrissey v Conaust Ltd (1991) 1 NTLR 183 - applied
AAT Kings Tours Pty Ltd v Hughs (1994) 4 NTLR 185 - applied
Disability Services of Central Australia v Regan (1998) 8 NTLR 73 - applied
Ju Ju Nominees Pty Ltd v Carmichael (1999) 9 NTLR - applied
Kypreos v Nabalco Pty Ltd 1999 - applied
Horne v Sedco Forex Australia Pty Ltd (1992) 106 FLR 373 - applied
Hunt v Collins Radio Constructions Inc (unreported NTSC 1996) - applied
Dicken v NT Tab Pty Ltd (unreported NTSC 2003) - applied
Normandy NFM Ltd v Turner [2002] NTSC 29 - applied
Schell v Northern Territory Football League (1995) 5 NTLR 1 - applied
Alexander v Gorey & Cole Holdings Pty Ltd (2002) 171 FLR 31 - applied
NT Tab Pty Ltd v Gail Dicken [2004] NTCA 8 - considered
Wacando v Commonwealth (1981) 148 CLR 1 - applied
Knight v Normandy Mining Ltd [2000] NTMC 002 - considered
Tanner v Anthappi Pty Ltd (2000) NTMC 4 - followed
Van dongen v Master Dairy SCWA - applied
REPRESENTATION:
Counsel:
Worker: Mr McDonald QC
Employer: Mr Southwood QC
Solicitors:
Worker: Ward Keller
Employer: Hunt & Hunt
Judgment category classification: A
Judgment ID number: [2004] NTMC 097
Number of paragraphs: 281
IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20312425
BETWEEN:
JOHNATHON MCINTYRE
Plaintiff
AND:
TUMMINELLO HOLDINGS
Defendant
REASONS FOR DECISION
(Delivered 15 September 2004)
Mr LOWNDES SM:
THE NATURE OF THE PROCEEDINGS AND THE ONUS OF PROOF
1. The pleadings are as set out in the consolidated pleadings provided to the Court by the worker on 26 March 2004 as an aide memoire in relation to a preliminary legal argument as to the issue of which party was to be dux litus. This Court determined that issue on 1 April 2004. The Court made the following orders on that date:
1. That the employer bear both the evidentiary and legal onus in respect of its cancellation of payment of weekly benefits to the worker.
2. That the employer bear both the evidentiary and legal onus of establishing the value of any “more profitable employment” within the meaning of section 75B(2) of the Work Health Act.
3. That the employer bear both the evidentiary and legal onus of establishing the value of “the most profitable employment” within the meaning of section 75B(3) of the Work Health Act.
4. That the employer be dux litus for the purposes of the hearing of those proceedings to commence before the Work Health Court on Monday 5 April 2004.
5. That the costs of and incidental to determining the issue of which party is to be dux litus in these proceedings, and associated costs, be costs in the cause certified fit for counsel and to be taxed in default of agreement at 100% of the Supreme Court scale.
2. At the time of determining the issue of dux litus I indicated that I would provide written reasons in due course. Those reasons are as follows.
3. It is important to bear in mind that the worker’s Statement of Claim is in the nature of an appeal from the decision of the employer to cancel payment of weekly benefits to the worker by reason of its Notice of Decision and Rights of Appeal dated 13 March 2003. The worker has confined his case to an appeal against cancellation of benefits pursuant to s 69 of the Work Health Act. The nature of the present proceedings is pivotal to the determination of the issue of dux litus.
4. It is well established law that where an employer has commenced payment of the weekly benefits under the Work Health Act and subsequently cancels payment of such benefits pursuant to s 69 of the Act, the employer carries the burden of establishing the matters or circumstances relied on in support of the cancellation: see Morrissey v Conaust Ltd (1991) 1NTLR 183; AAT Kings Tours Pty Ltd v Hughs (1994) 4 NTLR 185; Disability Services of Central Australia v Regan (1998) 8 NTLR 73. The employer is also dux litus in such circumstances: see Ju Ju Nominees Pty Ltd v Carmichael (1999) 9 NTLR.
5. The fact that in the present case the employer seeks to rely upon a failure of refusal on the part of the worker to discharge his statutory obligations pursuant to subsections 75B(2) and (3) of the Work Health Act does not alter the position: the employer is still dux litus. That is consistent with the current state of the law. Any argument that the worker should be dux litus because he has peculiar or superior knowledge of the matters in issue – that is, the failure or refusal to discharge his statutory obligations – cannot be sustained. In my view, the employer has as great, or even greater, knowledge of the disputed matters. It is the employer who is asserting that the worker has not met his statutory obligations. The employer is in a better position to begin in relation to that matter. The employer is better positioned to lead evidence in relation to the rehabilitative processes and other relevant circumstances surrounding the alleged breaches of statutory duties by the worker. Finally, subsections 75B(2) and (3) require proof of unreasonable conduct on the part of the worker. It is the employer who asserts that the worker has acted unreasonably. Once again, the employer is in the better position to begin in relation to that issue.
6. In my view, making the employer dux litus in relation to the worker’s appeal is the most effective way of resolving the issues in question: see Kypreos v Nabalco Pty Ltd (NTSC, 10 June 1999 per Kearney J). In my opinion, that is also the fairest method of resolving the issues: see Kypreos v Nablaco Pty Ltd (supra). If the worker were made to begin that would be unfair to the worker as he would be compelled to anticipate the employer’s case, and the evidence it proposed to lead in support of its case. The worker should be forced to anticipate the employer’s evidence in relation to the alleged failure or refusal: in effect, he would be required to make assumptions – worse still guesses. The worker would also be compelled to anticipate the employer’s sane in relation to the “unreasonableness” aspect. Again this would, in my opinion, disadvantage the worker.
7. The employer’s counterclaim gives rise to a similar set of issues, and the same considerations apply to it. In my opinion, the employer should be dux litus in relation to its counterclaim.
THE ISSUES AS DEFINED BY THE PLEADINGS AND THE RELIEF SOUGHT
8. The pleadings disclose the following admissions:
1. The worker was employed by the employer.
2. On June 1 1992 the worker was a victim in an armed hold up in the course of his employment and as a result suffered an injury, namely post-traumatic stress disorder.
3. As a consequence of the injury the worker was initially totally incapacitated for work and subsequently partially incapacitated for work to date and continuing.
4. The worker made a claim under the Work Health Act which was accepted.
5. Following acceptance of the worker’s claim the worker received payments of compensation pursuant to the Act from the date of the injury to 28 March 2003.
6. By notice of decision and rights of appeal dated 13 March 2003 together with a letter from TIO to the worker also dated 13 March 2003 the employer cancelled payment of the worker’s weekly benefits 14 days after service of the notice upon the worker.
7. The worker sought a mediation of that decision which provided an outcome of “no change”.
8. The worker appealed from the decision.
9. After cancellation of weekly benefits the employer again sought to have the worker engaged in rehabilitation which the worker declined to do by letter dated 14 May 2003.
9. The areas of dispute in this case are of fairly narrow compass.
10. The employer alleges that the worker unreasonably failed or refused to comply with his obligations under subsections 75B(2) and/or (3) of the Work Health Act. The employer seeks the following rulings from the Work Health Court:
1. That the worker’s payments of compensation be cancelled or reduced in accordance with s 75B(2) of the Act.
2. That the worker’s payments of compensation be cancelled or reduced in accordance with s 75B(3) of the Act.
3. In the alternative, a ruling as to the extend of the worker’s incapacity for work from 13 March 2003 ongoing and continuing and consequential orders as to the cancellation or reduction of payments of compensation to the worker.
11. The employer seeks the following orders:
1. In accordance with subsection 75B(2) the worker is deemed to be able to undertake more profitable employment than his employment at the time of the injury.
2. The worker’s payments of compensation are cancelled pursuant to Subsection 75B(2) of the Act from 27 March 2003.
3. In accordance with subsection 75B(3) the worker is deemed to be able to undertake the most profitable employment that would be reasonably possible for a willing worker with his or her experience and skill and who has sustained a similar injury and who is in similar circumstances and such employment is more profitable than the worker’s employment at the time of the injury.
4. The worker’s payments of compensation are cancelled in accordance with subsection 75B(3) of the Act from 27 March 2003.
5. On 27 March 2003 the worker ceased to have a loss of earning capacity.
12. Further, the employer seeks consequential orders, including an order as to costs.
13. The worker denies the alleged breaches of s 75B (2) and/or (3), and in lieu of the rulings sought by the employer seeks the following findings and orders:
1. That the notice of Decision and Rights of Appeal dated 13 March 2003 cancelling payment of benefits to the worker was invalid.
2. That the employer pay arrears of weekly benefits to the worker from and including 29 March 2003 to and including (date of judgement) and thereafter in accordance with the Work Health Act.
3. That the employer pay interest on arrears of weekly benefits in accordance with s 89 of the Act at the rate of 20% per anum from and including 3 April 2003 (one week after cessation of weekly benefits) to and including the date of payment on arrears at the rate of 20% per anum.
4. That the employer’s decision to cancel payments of benefits to the worker in the circumstances as found by this Court was unreasonable and/or the failure to pay compensation to the worker after 28 March 2003 was unreasonable.
5. That the employer pay interest on arrears of weekly benefits pursuant to s 109(1) of the Work Health Act at the rate of 20% per anum or such other rate as this Court sees fit.
6. That the employer pay any medical and like expenses pursuant to s 73 of the Act in such amount as this Court deems fit in the absence of agreement between the parties.
14. In addition, the worker seeks consequential orders in relation to costs.
THE HEARING AND THE WRITTEN SUBMISSIONS
15. These proceedings were heard in the Work Health Court over four days, 5 April to 8 April 2004.
16. At the conclusion of the hearing the Court received written submissions from the parties in accordance with a timetable which was subsequently revised with the consent of the parties and the Court. The Court received the worker’s dated 17 May 2004. Those submissions were followed by the employer’s submissions dated 23 June 2004. Subsequently the Court received submissions on behalf of the employer in reply dated 26 July 2004 and worker’s submissions in response dated 29 July 2004.
THE WORKER’S SUBMISSION THAT THE SECTION 69 NOTICE WAS INVALID DUE TO NON-COMPLIANCE WITH SECTION 69(4) OF THE WORK HEALTH ACT
17. It was submitted on behalf of the worker that the Notice of Decision and Rights of Appeal was invalid because it did not comply with s69(4), that is to say, the notice did not provide sufficient information to enable the worker to fully understand why the amount of compensation was being cancelled. The Court received very extensive submissions from the worker in relation to that aspect. The employer made submissions in reply which, inter alia, asserted that as the worker had not pleaded that the employer’s notice cancelling payments did not comply with subsection 69(4) of the Work Health Act the point cannot be taken on his behalf.
18. In my opinion, the worker is precluded from arguing that the employer’s notice was invalid on the ground of non-compliance with the provisions of subsection 69(4) of the Act. That conclusion flows from an established line of authority in the Northern Territory to the effect that the Work Health Court is a court of pleading and from the operation of the Work Health Court Rules.
19. It was held in Horne v Sedco Forex Australia Pty Ltd (1992) 106 FLR 373 that the Work Health Court is a court of pleading and that the primary purpose of pleadings in that jurisdiction is to define the issues between the parties. The second function of pleadings is to control the admission of evidence during the course of a trial.
20. With reference to the first function of pleadings, Williams, Supreme Court Practice in Victoria, 1987 observes (at p 85):
“Recording the issues which the court decides is a function of pleadings. It would seem to follow, therefore, that the court should decide only the issues that the pleadings disclose and further, that if an issue arises for the first time at trial, the court ought not to decide the issue unless it is incorporated in the pleadings”.
21. The importance of pleadings in the Work Health Court was elaborated upon by Mildren J in Hunt v Collins Radio Constructions Inc (unreported NTSC, 3 December 1996, at 15):
“The pleadings are not just scraps of paper which the parties and the court are free to ignore. Their purpose is to define the issues between the parties and to control the admission of evidence at the hearing. If it is desired to raise new issues, the pleadings must be amended, and the court ought not to decide new issues unless they are incorporated into the pleadings: see Horne v Sedco Forex Australia Pty Ltd (1992) 106 FLR 373 at 379-80. Magistrates would be well advised to insist upon any necessary amendments to the pleadings, if new issues are to be raised, and if necessary, to refuse to entertain new issues without the appropriate amendments”.
22. The governing and controlling function of pleadings in the Work Health Court was further discussed in Ju Ju Nominees Pty Ltd v Carmichael (1999) 9 NTLR 1 where the Court of Appeal observed that for the benefit of the trial court and appellate courts, pleadings need to be in proper form such that they define the limits of the contest.
23. The Work Health Rules specify what constitutes adequate pleadings: the pleadings must be in accordance with the relevant rules.
24. The present proceedings are in the nature of an appeal – an appeal against an employer’s decision to cancel or reduce weekly compensation pursuant to s69 of the Act. Such an appeal is brought pursuant to s104(1) of the Work Health Act which provides:
“For the purposes of the Court exercising its powers under section 94(1)(a), a person may, subject to this Act, commence proceedings before the Court for the recovery of compensation under Part V or for an order or ruling in respect of a matter or question incidental to or arising out of a claim for compensation under this Part”.
Subsection 104(2) provides:
“Proceedings under this Division may be commenced before the Court by application in the prescribed manner and form or, where there is no manner or form prescribed, in such manner or form as the Court approves”.
25. Rule 5.02 of the Work Health Court Rules prescribes the form and contend of applications commencing a proceeding, which includes appeals like the present.
26. Rule 8.01(1), inter alia, provides that a pleading is to contain, in summary form, a statement of all the material facts on which the party relies but not the evidence by which those facts are to be proved and if (the) claim of defence of a party arises by or under an Act the pleading is to identify the specific provision relied on.
27. An examination of the worker’s Statement of Claim reveals that although service of the employer’s Notice of Decision and Rights of Appeal is pleaded there is no allegation whatsoever in the Statement of Claim that the notice was invalid due to non-compliance with the provisions of subsection 69(4) of the Work Health Act. It is accepted that the worker, in his Statement of Claim, seeks a ruling that the cancellation of benefits was invalid, but the remedy sought is not supported by any allegation, either general of specific, as to the invalidity of the employer’s notice. The material facts supporting the invalidity of the notice are not pleaded. Furthermore, the Statement of Claim fails to identify the specific provision of the Work Health Act, that is to say, s69(4) which the worker submits was not complied with, and therefore renders the notice invalid.
28. It was submitted on behalf of the worker that it was not necessary for the worker to plead that the employer’s notice did not comply with subsection 69(4) of the Act:
“In paragraph 7 of the Worker’s Statement of Claim dated 17 September 2003, the worker pleaded the cancellation of benefits to the worker 14 days after service of a Notice of Decision and Rights of Appeal dated 13 March 2003. The employer admitted that in paragraph 7 of its Defence dated 13 October 2003. The worker went on in paragraph 10 of his said Statement of Claim to appeal from the employer’s said decision. Subsequently, this Honourable Court ordered that the employer bore the onus of justifying the Notice of Decision to cancel payments of benefits.
The worker’s pleading by way of appeal from the employer’s Notice of Decision was sufficient to challenge all legal requirements of that decision. The onus is then on the employer to justify the validity of that decision – see Martin CJ in NT Court of Appeal in Ju Ju Nominees Pty Ltd v Carmichael (1999) 9 NTLR 1”.
29. In my opinion, that submission cannot be sustained and must be rejected.
30. An appeal against an employer’s notice issued pursuant to s69 of the Act may proceed on two bases. First, the appeal may concern compliance with the procedural requirements of s69: the worker may challenge the validity of the decision reducing or cancelling payments on the basis that the notice of decision fails to comply with the requirements of subsections 69(1), (3) and (4). Many cases coming before the Work Health Court have involved an appeal of that species. Secondly, the appeal may relate to the actual grounds or reasons given in the notice for reducing or cancelling the benefits: the worker may challenge the validity of the notice of decision on the basis that the grounds said to justify the reduction or cancellation did not exist. Many cases coming before the Work Health Court have also involved an appeal of this type. In some cases the appeal has proceeded on both bases.
31. The present appeal challenged the existence of the grounds for cancelling the worker’s payments, that is, the unreasonable failure of the worker to participate in the rehabilitation process and his unreasonable refusal to present for assessment of employment prospects. It is clear from the Statement of Claim that the appeal was not being prosecuted on the basis that the notice was invalid due to non-compliance with the requirements of subsection 69(4). There was no indication during the preliminary argument as to dux litus that issue would be taken with the notice being invalid on the grounds of non-compliance with subsection 69(4). The argument was confined to the circumstances relied upon as justifying the cancellation of the worker's benefits. Most telling was the absence of any reference whatsoever to non-compliance with subsection 69(4) during this hearing.
32. The Court approached and heard this appeal on the basis that there had been compliance with the procedural requirements of s69: the appeal was confined to a consideration of the grounds for cancelling the worker’s benefits.
33. I do not consider that Ju Ju Nominees Pty Ltd v Carmichael (supra) stands as authority for the proposition that a pleading by way of appeal from an employer’s Notice of Decision is sufficient to challenge all legal requirements – including procedural requirements – of that decision and consequently imposes a burden on the employer to justify the validity of the decision, both in procedural and substantive terms.
34. Ju Ju Nominees Pty Ltd v Carmichael (supra) involved an appeal from a s69 notice of decision on substantive grounds. As disclosed by the Statement of Claim filed in that case, the worker disputed the employer’s decision to cancel his payments for the reason that any incapacity from which he presently suffered is due to his underlying degenerative condition and further denied that he had ceased to suffer from the effects of his injury. The worker did not seek to attack the notice on procedural grounds.
35. Although the case under consideration makes it clear that the worker’s case may be confined to an appeal against the cancellation or reduction of benefits, that the onus of proof is on the employer to justify the reasons for the reduction of cancellation of payments and that the employer is dux litus in an appeal against an employer’s decision to cancel benefits under s69 of the Act, there is nothing in the decision of the Court of Appeal that obviates the need for a worker to specifically pleas the relevant parts of s69 – for example s69(4) – where the validity of a s69 notice is being challenged on procedural or formal grounds. It remains incumbent upon a worker to define the internal parameters of the appeal against the reduction or cancellation. In that regard the observations made by Bailey J in Ju Ju Nominees Pty Ltd v Carmichael (supra at 28) are very much to the point:
“I would only add that I particularly endorse the remarks of the Chief Justice as to the need for both counsel and the Work Health Court to pay close attention to the nature of any appeal against an employer’s decision to cancel or reduce weekly compensation pursuant to s699 of the Work Health Act and the need for the pleadings to be in proper form before the proceeding with the hearing”.
36. The workings of the Work Health Act are, as was observed by Martin CJ in Ju Ju Nominees Pty Ltd v Carmichael (supra at 2), complex. Although the present proceedings are in the nature of an appeal, they are required to be commenced by the filing of an application followed by the lodgment of a Statement of Claim. As a consequence, the process initiating the appeal – the originating process – must comply with the rules of pleading prescribed by the Work Health Court Rules. The fact that the proceedings are characterised as an appeal, does not mean that all conceivable issues arising out of an appeal against reduction or cancellation of benefits fall for consideration by the Court: all material issues must be pleaded as they must be pleaded in relation to any originating process that assumes the form of a Statement of Claim.
37. I note that counsel for the employer did not complain of being taken by surprise or prejudiced by the worker stepping outside the bounds of his pleadings; but, to my mind, that is immaterial, for it is the Court which has a vested interest in the pleadings being precise. The Work Health Court is not only a court of pleading: it is a court of principle. The Court is only required to decide those issues which are disclosed by the pleadings: it need not concern itself with matters that fall beyond the pale of the pleadings – not matter how interesting and no matter how helpful the resolution of those issues may be in acquiring a better understanding of the workings of the Work Health Act.
38. As the worker is, in my opinion, precluded from challenging the employer’s notice on procedural grounds, it is not necessary for the Court to deal with the worker’s and employer’s submissions as to the formal validity of the employer’s notice of decision. However, my tentative view is that the notice does not comply with the requirements of s69(4) due to lack of particularity, due to imprecision and on account of occasioning ambiguity and confusion.
39. Having said that, I consider that there is one aspect of the formal matters raised by the worker in relation to the s69 notice that is deserving of judicial consideration and should be the subject of obiter remarks. That aspect relates to the need for an employer, in a case like the present, to include in its notice an arithmetical comparison for the purposes of justifying the proposed cancellation on the basis of the worker unreasonably failing or refusing to comply with the statutory obligations referred to in subsections 75B(2) and (3).
40. It is useful to reproduce those submission in full:
“The notice of cancellation also fails to identify any arithmetical or comparative basis pursuant to which a reduction let alone a cancellation of benefits, could take place. A failure or refusal to comply under subsections 75B(2) or (3) of the Act does not result in a penalty of cancellation of benefits, - rather any such failure or refusal sets in train a process of comparison and calculation involving:
(i) the worker’s indexed normal weekly earnings; and
(ii) a ‘more profitable employment’ which the rehabilitation treatment or rehabilitation training or workplace based return to work program could have enabled the worker to undertake, specifying the weekly dollar value of that; or
(iii) the ‘most profitable employment’ in terms of subsection 75B(3) also specifying a weekly dollar value.
The mere cancellation of weekly benefits without any explanation to the worker of these points of comparison and calculations, clearly fails to explain to the worker, fully or at all how the employer has got from the payment of weekly benefits to payment of nothing per week”.
41. In support of this argument the worker relies upon the observations of Angel J in Dicken v NT Tab Pty Ltd (unreported decision of the Supreme Court of the Northern Territory delivered 5 December 2003, par 17, pp 8 and 0 of the decision):
“As in Normandy NFM Ltd v Turner [2002] NTSC 29, this notice is its terms purports to assert a state of affairs. It asserts nothing ‘to enable the worker to whom the statement is given to understand fully why she was paid compensation in full before the notice and is to be paid no compensation 14 days after the notice. If I may be pardoned for saying so, section 69(4) Work Health Act means what it says. A notice must unambiguously spell out why a current payment regime should change in clear terms that a lay reader can fully and readily understand”.
42. Counsel for the worker expanded the submissions thus:
“The letter accompanying the Notice of Decision dated 13 March 2003 makes it clear no comparison of dollar values was undertaken by the employer in arriving at the decision to cancel benefits.
The reference to ‘deeming’ in the letter dated 13 March 2003 (Exhibit E9, p 233) indicates that what the writer of the letter is deeming is not what might be deemed pursuant to section 75B(2) and/or (3) of the Act. There is serious ambiguity here, and it is impossible for a reader fully to understand ‘why the amount of compensation is being cancelled or reduced’: see Ansett Australia v Van Nieuwmans NT Court of Appeal decision delivered 9 December 1999 per Mildren J at paragraphs 12 and 14; Dickin (supre)”.
43. Although the two cases mentioned above – Dickin v NT Tab Pty Ltd (supre) and Normandy NFM Ltd v Turner (supra) – dealt with the need for sufficient particularity in s 69 notices, neither case dealt with an alleged breach by the worker of his or her obligations under s 75B of the Work Health Act. Therefore, neither case gives direct support to the worker’s argument in present case that the s 69 notice was deficient on the grounds that the notice lacked arithmetical comparison. The question is whether the cancellation of benefits without any explanation to the worker of points of comparison and
calculations rendered the employer’s notice invalid for want of sufficient particularity.
44. The starting point is the wording of s 69(4). As noted earlier, the reasons set out in the notice must provide a worker with sufficient detail to enable the worker to understand fully why the amount of compensation of being cancelled or reduced. The subsection only requires that a worker by provided with “sufficient detail” to achieve the required level of understanding. In my opinion, it is not necessary for the reasons provided in a s 69 notice to embark upon and undertake the type of arithmetic comparison that the worker says is required to ensure compliance with the requirements of the s 69(4) of the Act. Section 69(4) requires only that the notice state the reasons thereof the worker is deemed to undertake “more profitable employment’ (in terms of s 75B(2)) of the most profitable employment” (in terms of s 75B(3)). Those assertions lay the foundation for reducing or cancelling the amount of compensation, and constitute the “reasons for the proposed cancellation or reduction” contemplated by s 69(1)(b)(i). On this construction, it is not necessary for an employer to include in its notice the calculations or points of comparison leading to the cancellation or reduction of benefits. Such an exercise in arithmetical comparison goes beyond the “reasons” – the substantive requirements – which are mandated by s 69(1)(b)(i). Computations of that kind, which are ultimately a matter for evidence at the hearing of an appeal against cancellation or reduction, flow from the fact of cancellation or reduction which must, in accordance with s 69(1)(b)(l) and (4), be supported by sufficiently particularised reasons. The requirements of s 69(4) in relation to a proposed cancellation or reduction pursuant to s 75B are best understood by drawing and relying upon the time-honoured “why/how” distinction. Section 69(4) merely requires that a worker be provided with sufficient detail to understand fully why the amount of compensation has been cancelled or reduced. The subsection does not require sufficient detail – or indeed any detail at all – as to the actual process by which the amount of compensation has been cancelled or reduced, that is to say, how the amount of compensation was cancelled or reduced. In my opinion, the submission made by the worker’s counsel overlooks the subtleties of the “why/how” dichotomy.
45. It is clear from the provisions of s 69(1)(a) of the Act that an amount of compensation shall not be cancelled or reduced unless the worker has been given 14 days notice of the intention to cancel or reduce the compensation, and, where the compensation is to be reduced, the amount to which is to be reduced (emphasis added). This takes up the earlier point, that is to say, the reasons or grounds for reduction or cancellation – the “why” aspect – need not address the process by which the compensation is to be reduced. Section 69(1)(a) looks after the arithmetical aspect of a reduction in payments.
46. Significantly, there is no requirement in s 69(1)(a) that in the case of a cancellation of benefits the notice specify in arithmetic terms, the consequence of the cancellation. That is perfectly understandable, as it is self evident that where payments are to be cancelled the amount of compensation payable to the worker will be nil.
47. Given that the worker failed to raise the s 69(4) point on the pleadings, the Court must proceed to determine the worker’s appeal on the basis that the notice was valid in all formal respects.
THE EMPLOYER’S BURDEN OF ESTABLISHING THE GROUNDS FOR CANCELLATION OF BENEFITS AND ITS COUNTERCLAIM
48. As the present proceedings involve an appeal by the worker against the cancellation of benefits the employer carries the onus of establishing or justifying the reasons for cancelling the worker’s payments. The first reason given by the employer for cancelling payments was that the worker had unreasonably failed to comply with s 75B of the Work Health Act by failing to undertake reasonable rehabilitation treatment or to participate in rehabilitation or job search requirements that would enable him to undertake paid employment. The second reason was that the worker had failed to comply with section 75(B) of the Act by being unnecessarily self limiting by failing to undertake duties that were requested by IRS, such as providing a resume, authority form and medical certificate, so approval for a functional capacity evaluation could be obtained. The third reason provided in the notice was that the worker had failed to comply with section 75B of the Act by not returning phone calls and correspondence, nor sending required information to his rehabilitation provider and TIO within the required time frame. The fourth and final reason was that as a result of his behaviour and attitude towards IRS and the rehabilitation progress, IRS had not been able to request any information from treating parties, nor had it been able to undertake any assessments such as a functional evaluation, which would provide them with the information that was needed to begin the job search part of the worker’s program.
49. The reasons boil down to assertions that the worker had failed to discharge his statutory obligations as referred to in subsections 75B(2) and (3) of the Work Health Act. The employer purported to rely upon those circumstances as justifying the cancellation of the worker’s payments.
50. Subsection 75B(2) provides:
“Where a worker unreasonably fails to undertake medical, surgical and rehabilitation treatment or to participate in rehabilitation training or a workplace based return to work program which could enable him or her to undertake such employment and his or her compensation under Subdivision B of Division 3 may, subject to section 69, be reduced or cancelled accordingly”.
51. Subsection 75B(3) goes on to provide:
“Where a worker so required under subsection (1) unreasonably refuses to present himself or herself for assessment of his or her employment prospects, he or she shall be deemed to be able to undertake the most profitable employment that would be reasonably possible for a willing worker with his or her experience and skill and who has sustained a similar injury and is in similar circumstances, having regard to the matters referred to in section 68, and his or her compensation under Subdivision B of Division 3 May, subject to section 69, be reduced or cancelled accordingly”.
52. The employer filed a counterclaim which enables it to independently argue the cancellation of benefits arising out of the worker’s failure to discharge his obligations pursuant to subsections (2) and (3) of s75B of the Act: see Schell v Northern Territory Football League (1995) 5 NTLR 1 at 6.3; Disability Services v Regan (1998) 8 NTLR 73 at 78-79; Alexander v Gorey & Cole Holdings Pty Ltd (2002) 171 FLR 31 at para 30, NT TAB Pty Ltd v Gail Dickin [2004] NTCA 8 para 24. Had the worker been able to successfully challenge the s 69 notice on procedural grounds, rendering the notice invalid, the employer would have still been able to seek orders cancelling the worker’s benefits: see NT TAB Pty Ltd v Gail Dickin (supra).
53. Therefore, the worker’s appeal and the employer’s counterclaim give rise to the same substantive issues – alleged breaches of subsections 75B(2) and (3) of the Act – in respect of which the employer was dux litus and in relation to which it carries the burden of proof. The common issue is whether the worker unreasonably failed to present himself for assessment of his employment prospects.
The nature and scope of the rehabilitative process contemplated by subsection 75B(2) of the Work Health Act
54. The employer asserts that there was an unreasonable failure on the part of the worker to comply with his obligations under subsection 75B(2) in the following respects:
(a) The worker did not complete the IRS authority to obtain and release information which is now Exhibit 2 in these proceedings;
(b) The worker did not provide IRS with an appropriate medical certificate, showing that he had the capacity to go through vocational and functional assessments;
(c) The worker did not complete the activities statement which is in the Book exhibit E8, p 83;
(d) The worker did not provide IRS with a skills audit; and
(e) The worker did not provide IRS with realistic employment goals.
55. Mr Southwood submitted that as a result of those failures on the part of the worker the accredited vocational rehabilitation provider was unable to:
(a) complete a functional assessment;
(b) complete a vocational assessment;
(c) complete an assessment of the worker’s employment prospects;
(d) formulate what rehabilitation training the worker required and
(e) establish a work based return to work program.
56. Mr Southwood submitted that the worker must thereby be taken to have failed to undertake rehabilitation training and failed to participate in a work place return to work program.
57. As correctly identified by Mr Southwood, the following issues arise for consideration pursuant to s75B(2) of the Act:
(a) Can there be a failure on the part of a worker to participate in rehabilitation training when no specific training has been determined or put in place? and
(b) Can there be a failure on the part of a worker to participate in a workplace based return to work program when none as yet has been established?
58. Addressing those issues, Mr Southwood made the following submissions:
“The employer argues there can be a failure to participate in rehabilitation training pursuant to subsection 75B(2) of the Act where there is medical advice that a worker is capable of undergoing such training and should be assessed in order to determine what would be suitable rehabilitation training with the object of returning a worker to employment and the worker unreasonably fails to co-operate in the process that will enable appropriate rehabilitation training to be identified and undertaken.
Likewise the employer argues that there can be a failure to participate in a workplace based return to work program where there is medical advice that a worker is capable of participating in a workplace based return to work program and should be assessed in order to determine what would be a suitable workplace based return to work program with the object of returning the worker to work and the worker unreasonably fails to cooperate in the process that will enable an appropriate workplace based return to work program to be formulated, established and undertaken.
Subsection 75B(2) has to be read in the context of the Act as a whole. A fundamental purpose of the Act is to promote the rehabilitation and recovery from incapacity of injured workers. Further sections 75A and 75B create reciprocal obligations for the worker and the employer. The purpose of the Act would be defeated if a worker could avoid his obligations by unreasonably refusing to engage in the very process which enables the identification and establishment of appropriate rehabilitation training and a workplace return to work program. Such conduct must amount to a failure to participate in rehabilitation training and a failure to undertake a workplace based return to work program. The worker in this case has adopted a position which is clearly to the effect that he is not prepared to be retrained nor is he prepared to go back to work. There is no other explanation of his conduct”.
59. In reply to those submissions, Mr McDonald QC, submitted that as there was no rehabilitation within the meaning of Division 4 of Part V of the Act taking place at any material time, “any refusal or failure by the worker, even if proved, would be merely a refusal or failure to cooperate with the employer in a frolic of its own and would not attract the consequences set out in section 75B(2) and/or (3) on the Act”.
60. In support of that argument, Mr McDonald made detailed submissions that went to the statutory construction of s75B of the Act. It is helpful to set those submissions out in full:
“A purposive approach to statutory interpretation now prevails both at common law and pursuant to section 62A of the Interpretation Act, which provides:
‘In interpreting a provision of an Act, a construction that promotes the purpose or object underlying the Act (whether the purpose or object is expressly stated in the Act or not) is to be preferred to a construction that does not promote the purpose or object.’
The preamble of the Work Health Act sets out the general objects of the Act. The preamble provides:
‘An act to promote occupational health and safety in the Territory to prevent workplace injuries and diseases, to protect the health and safety of the public in relation to work activities, to promote the rehabilitation and maximum recovery from incapacity of injured workers, to provide financial compensation to workers incapacitated from workplace injuries or diseases and to the dependants of workers who die as the result of such injuries or diseases, to establish certain bodies and a find for the proper administration of the Act, and for related purposes”.
The preamble is part of the Act for the purposes of construction. Recourse to the preamble helps throw light on the statutory purpose and object: see Wacando v Commonwealth (1981) 148 CLR 1 at 23 per Mason J. So an interpretation of Part V of the Act especially section 75B thereof is assisted by reference to the Preamble. The reference to the object in the Act to ‘to promote rehabilitation and maximum recovery form incapacity’ helps in the constriction of the specific subsections here in question, namely, subsections 75B(2) and (3) of the Act.
In this appeal the employer purports to rely upon subsections 75B(2) and/or 75B(3) of the Act to justify cancellation. It is necessary to look at these subsections in their context both in the Act when read as a whole, and any more specific context the subsections may have.
The relevant subsections appear in section 75B of the Act. The section in its entirety is in Division 4 of Part V of the Act. Division 4 of the Act comprises sections 75 to 78 inclusive.
A construction of subsections 75B(2) and (3) of the Act must be one read in context and with a purposive approach to statutory interpretation: s62A Interpretation Act in paragraph 19 above.
The specific context of subsections 75B(2) and (3) of the Act is provided by an important purpose and object section, namely section 75 of the Act which provides the express purpose of Division 4 of the Act.
Section 75 of the Act provides:
“(1) The purpose of this Division is to ensure (my emphasis) the rehabilitation of an injured worker following an injury.
(2) For the purposes of subsection (1), ‘rehabilitation’ means the process necessary to ensure, as far as is practicable, having regard to community standards from time to time, that an injured worker is restored to the same physical, economic and social (my emphasis) condition in which the worker was before suffering the relevant injury”.
Division 4 of the Act is headed ‘Rehabilitation and other Compensation’. By operation of section 55 of the Interpretation Act this is part of the Act for interpretation and construction purposes.
Section 75(1) of the Act specifies the purpose of Division 4 as being to ‘ensure’ the rehabilitation of an injured worker following an injury. Subsection 75(2) of the Act provides a definition of ‘rehabilitation’. The importance of section 75(1) of the Act is highlighted by the obligations of the employer set out in section 75A of the Act.
The immediate sectional context of both subsections 75B(2) and 75B(3) of the Act is subsection 75B(1) and (1A) of the Act.
Subsections 75B(2) and (3) must, of course, be read in accordance with the express object set out in section 75 of the Act which is to ‘ensure’ the rehabilitation of an injured worker following an injury. Therefore, the determination of what amounts to an unreasonable failure to undertake medical, surgical and rehabilitation treatment in subsection 75B(2) or unreasonably refusing to present for assessment of the worker’s employment prospects in s75B(3) of the Act must take into account and be construed in accordance with this object. The express object of Division 4 necessarily raised the bar for determining what is unreasonable in subsections 75B(2) and 75B(3) of the Act.
Given the purpose and intent of the Act and specifically Division 4 thereof, any alleged failures or refusals must be so serious as to prevent rehabilitation. Only this would warrant depriving the worker of weekly benefits and rehabilitation benefits under the Act. Any refusal or failure must be such that rehabilitation efforts become impracticable. For a useful example of this approach we refer the Knight v Normandy Mining Ltd [2000] NTMC 002 at paragraphs 28 and 29”.
61. At pp 19 to 20 of his written submissions, Mr McDonald expanded upon the argument that the worker could not be found to have been in breach of his statutory obligations because the dealings between the TIO and the worker and IRS and the worker did not involve any form of “rehabilitation” within the meaning of the Work Health Act:
“The worker’s obligations in respect of rehabilitation are set out in section 75B(1) of the Act. This provides as follows:
‘75B(1) Where compensation is payable under Subdivision B of Division 3 to a worker, the worker shall undertake, at the expense of the worker’s employer, reasonable medical, surgical and rehabilitation training or, as appropriate, in workplace-based return to work programs, or as required by his or her employer, present himself or herself at reasonable intervals to a person for assessment of his or her employment prospects.’
In the present case, there have been no allegations in respect of any refusal or failure by the worker other that in respect of rehabilitation treatment or, possibly, rehabilitation training. It is submitted on behalf of the worker that in either case, what must be involved is some sort of rehabilitation process within the meaning of the Work Health Act generally and Division 4 of Part V specifically”.
62. That submission was made on two separate bases.
63. The first was that the employer had failed to adduce evidence that IRS to whom the worker was referred in Brisbane in January 2003 was an accredited vocational rehabilitation provider, or that the personnel with IRS with whom the worker dealt were accredited vocational rehabilitation providers. Accordingly, it was submitted that “any action or failure to act, any failure or refusal on the part of the worker, was not in the context of any rehabilitation process recognised by the Work Health Act, in the absence of involvement by an accredited vocational rehabilitation provider, and therefore there can be no breach of the provisions of subsections 75B(2) and/or (3)”.
64. The second basis for the submission that there was no “rehabilitation process” in train at any material time was put in these terms:
“At all times material to these proceedings, the employer company was no longer operating. Further, the evidence of Professor Yellowlees was that the worker was barred by the symptoms of his condition of post-traumatic stress disorder from returning to work in the hotel industry. This meant that the employer could not comply with the provisions of section 75A(1)(a) of the Work Health Act, which provides as follows:
‘75A Employer to assist the injured worker to find suitable employment
(1) An employer liable under this Part to compensate an injured worker shall –
(a) take all reasonable steps to provide the injured worker with suitable employment; and
(b) so far as is practicable, participate in efforts to retrain the worker.
Penalties provided.’
Section 75A(2) goes on to deal with the situation where an employer cannot comply with these obligations, as follows:
‘(2) Where an employer liable under this Part to compensate an injured worker is unable to provide the worker with suitable employment in accordance with subsection (1)(a), the employer must (my emphasis) refer the worker to an alternative employer incentive scheme developed by the Authority.
Penalties provided.’
Given the circumstances of this case that the employer could not comply with its obligations under section 75A(1)(a), the employer was then obliged to refer the worker to an alternative employer incentive scheme developed by the Work Health Authority (now known as NT WorkSafe).
There is no evidence before the Court that there was any liaison between the TIO and the Work Health Authority concerning any employer incentive scheme, nor that there was any referral by the employer/TIO of the worker to any such scheme developed by the Authority.
The terms of section 75A(2) are mandatory, and in the absence of compliance in this case, it is submitted that what the TIO and IRS arranged for the worker, Mr McIntyre, was once again not rehabilitation within the meaning of Division 4 of part V of the Work Health Act.
It is once again submitted that accordingly, even if there was any failure or refusal on the part of Mr McIntyre to cooperated with the TIO or IRS as alleged, this would not trigger the provisions of subsections 75B(2) and/or (3) of the Act, which are subject to the limitations in Division 4 of Part V of the Act”.
65. It is important not to overlook the following additional submissions made by Mr McDonald as to the absence of any rehabilitative process, program or treatment during the course of dealings between the worker and TIO/IRS.
66. Mr McDonald submitted that there was no evidence of the institution of any rehabilitation training or the establishment of workplace return to work program.
67. As to “rehabilitation treatment”, which is referred to in subsection 75B(2), counsel made the following submissions:
“What we are left with is the possibility of ….’ medical, surgical and rehabilitation treatment….which could enable him to undertake more profitable employment.’
‘Medical, surgical and rehabilitation treatment’ is defined in section 49(1) of the Act. The definition includes:
“Medical, surgical and rehabilitation treatment’, in relation to a worker, includes –
(a) an attendance, examination or treatment on or of the worker by a person entitled under the Medical Act, the Dental Act or the Health and Allied Professionals Registration Act, or a corresponding law of a State or another Territory of the Commonwealth, to provide such attendance, examination or treatment or, where there is no such corresponding law, an attendance, examination or treatment by a person which, if provided or carried out at the place where the person normally provides his or her service, would be recognised for compensation purposes under a law providing for compensation to injured workers in that place;
(b) the provision of a certificate by a person referred to in paragraph (a) required by the worker, a dependant of the worker or the worker’s legal personal representative for a purpose relating to the operation of this Part;
(c) the provision for the worker of – not relevant;
(d) to (f) inclusive – not relevant.’
The evidence shows that there was no failure by the worker in respect of ‘an attendance, examination on or of the worker’ by any relevant person. Mr McIntyre attended all examinations and appointments except on three occasions, when he telephoned first and rescheduled the appointment: see the attached chronology. It is also clear from Professor Yellowlees’ reports and the IRS progress notes and the IRS Initial Assessment report that Mr McIntyre participated in all such appointments/examinations.
It is apparent in this case that the subparagraphs (b) to (f) in the section 49(1) definition of ‘medical surgical and rehabilitation treatment’ are not applicable in this case.
Accordingly, it is plain that there has been no ‘failure’ by the worker within the meaning of subsection 75B(2) of the Act, or at all, to undertake rehabilitation treatment as defined”.
68. The very exhaustive submissions made on behalf of the worker and employer are directed at the import and scope of s75B(2) – and its underlying philosophy and, indeed, that of Division 4 of Part V of the Act.
69. As the submission made by both counsel in this matter indicate, the scope of the rehabilitative process referred to in s 75B(2) is of critical importance to the determination of this case because unless a process of rehabilitation had been set in train the worker cannot be found to have failed to discharge the rehabilitation obligation imposed upon him by the Act. The critical question is whether the course of dealings between the worker and the TIO and/or IRS involved the undertaking of medical, surgical and rehabilitation treatment and/or participation in rehabilitation training or a workplace based return to work program. If it did not, then any conduct on the part of the worker cannot be found to constitute a failure on his part to fulfil his statutory obligations.
70. Both counsel are in general agreement as to how the statutory construction of subsection 75B(2) ought to be approached: the subsection has to be read in the context of the Work Health Act as a whole, and a purposive approach to statutory interpretation needs to be adopted. The Court totally agrees with that approach. The meaning and effect of subsection 75B(2) can only be divined through an appreciation of the overall structure of the Act and its purposes or objects.
71. The purpose of Division 4 of Part V of the Work Health Act and the function of s75B within the statutory scheme was discussed by Martin CJ in Ansett Australia v Van Nieuwmans (unreported decision of the Supreme Court NT delivered 15 December 1998 par 10):
“Section 75B falls within Division 4 of the Act “Rehabilitation and other Compensation”. The purpose of the Division as set out in s75 is to ensure the rehabilitation of an injured worker following an injury, and under s75A an employer liable for workers compensation and rehabilitation is to take all reasonable steps to provide the injured worker with suitable employment or, as the Act was at that time, if unable to do so, to find suitable employment with another employer. There is a further obligation, so far as is practicable, to participate in efforts to retrain the worker. Subdivision B of Division 3 (s75B(i)) is that dealing with weekly compensation for incapacity for work and the obligation on the worker under s75B who is receiving such compensation is to undertake, at the expense of the worker’s employer, the various forms of treatment, or to participate in rehabilitation training and return to work programs as referred to in that subsection”.
72. In my view, these observations can be applied mutatis mutandis to the current provisions of the Act.
73. The word “rehabilitation”, which appears twice in subsection 75B(2), provides an important textual clue as to whether the course of dealings between the parties formed part of the rehabilitative scheme contemplated by the Act. The word “rehabilitation” first appears in relation to the treatment aspect, and secondly, with respect to the aspect of training or reintroduction into the work force. As is made clear by the definition in s75(2), “rehabilitation” involves the process (emphasis added) that is “necessary to ensure, as far as practicable, having regard to community standards from time to time, that an injured worker is restored to the same physical, economic and social condition in which the worker was before suffering the relevant injury”.
74. In abstract terms, a “process” entails a course of action, involving a series of stages, steps or operations, each of which is designed to achieve an end product or result. By its very nature, any process must have a beginning and an end. Consistent with that analysis, a process of rehabilitation such as that contemplated by the Work Health Act has all of those structural characteristics. In the present case, had a process of rehabilitation, within the meaning of the Work Health Act, begun and been embarked upon?
75. In order to answer that question, it is necessary to examine the chronology of events.
76. On 30 December 2002, two crucial events occurred. First, the TIO sent a fax to Professor Yellowlees advising that it had appointed a rehabilitation provider to assist in the worker’s return to work. It was indicated that the TIO was prepared to support the worker’s return to work in another industry. Secondly, the TIO wrote to the worker advising him that it had appointed a rehabilitation provider. The worker was at the same time informed that the provider would be contacting him. The TIO further advised that “a different approach leading to a more successful outcome (was) being adopted”. In my opinion, those events initiated the process of rehabilitation contemplated by the Work Health Act and marked that commencement of that process, but it had also communicated its decision to the worker.
77. In my view, an acknowledgment on the part of an employer of its “rehabilitation” obligations under the Act by the appointment of a rehabilitation provider is a foundational step in the process of rehabilitation envisaged by the Work Health Act. Communication to a worker that a rehabilitation provider has been appointed signals the commencement of the rehabilitation process, in respect of which the worker has a mutual “rehabilitation” obligation. Once the process of rehabilitation has been set in train, each subsequent step taken by the employer or rehabilitation provider or by them jointly forms part of the process of rehabilitation. That process is ongoing, and continues until such time as the objective of that process – the restoration of the worker to the same physical, economic and social condition in which he or she was prior to suffering the relevant injury – is achieved or the process is prematurely brought to end, as in the present case.
78. As averted to by Mr Southwood in his submissions, the process of rehabilitation under the Work Health Act necessarily involves the identification and establishment of appropriate rehabilitation training and workplace based return to work programs. Although these preliminary processes are preparatory to the actual process of restoring a worker to his pre-injury physical, economic and social condition, they are clearly in furtherance of and for the purpose of rehabilitation such that they form an integral part of the rehabilitative process.
79. In my view, there is considerable strength in Mr Southwood’s submission
that the rehabilitative purposes of the Act would be defeated if a worker could avoid his “rehabilitation” obligations by failing to cooperate and engage in the preliminary processes that are necessarily and inextricably linked to the rehabilitative process. In my opinion, it would lead to a absurdity if those preliminary processes were construed not to form part of the process of rehabilitation envisaged by the Work Health Act. It would be an equally absurd outcome if a failure to participate in those essential early processes were not considered to be a failure to participate in the process of rehabilitation contemplated by subsection 75B(2) of the Act. A failure by the worker to participate in those early stages of the rehabilitative process must amount to a failure to participate in the process of rehabilitation.
80. In my opinion, the employer had embarked upon a rehabilitative process involving the worker. That process involved the identification and establishment of appropriate rehabilitation training and workplace based return to work programs. Those preliminary processes formed an integral part of the rehabilitative process contemplated by subsection 75B (2), that is to say, the worker’s participation in “rehabilitation training or a workplace based return to work program which could enable (the worker) to undertake more profitable employment”.
267. The various reports prepared by Professor Yellowlees’ also disclosed a reasonably good prognosis in relation to the worker’s return to paid employment.
268. In his report dated 23 September 2002 Professor Yellowlees said of Mr McIntyre:
“He knows that he is still very competent in many areas and it would seem much more sensible for him to commence re-training in an unrelated work area from past experiences…”
“I believe that Mr McIntyre could be fit to retrain in other areas, we discussed possible work with animals for instance, but he will obviously need to have some career counselling, as well as vocational support and training…” “Obviously it is to be hoped that he will retrain in another area, and within not too long would be likely to be earning more than $30,000 per annum at which stage he would be financially ahead of his present situation, and of course will be psychologically and socially feeling very much better through a new career option…”
“All of this is a very major change for Mr McIntyre, but one that I am confident that he will take to very positively…”
“I must say incidentally, that I was overall very impressed by him and by the end of the interview he was presenting a warm, pleasant, friendly and much more optimistic manner”.
269. In his subsequent report dated 26 November 2002 Professor Yellowlees reported on his discussions with the worker regarding the employment option of greyhound trainer. In relation to that option the Professor stated:
“…must say it looked extremely sensible to me. He took the view that it would be an aim that within two or three years time he would be completely independent of the TIO and earning more than his present payments from TIO and was very positive about his prospects in that regard”.
270. In his third report dated 30 January 2003 Professor Yellowlees reported thus:
“I had a good and interesting session with Jon today…where I was essentially talking to him in the role of a ‘coach’ with respect to his future work options. As you know Jon has gone off the idea of greyhound training in the short-term, mainly because he has moved into a unit at the Gold Coast and it is relatively impractical right now. He does seem to be interested still in a new career and is pleased that the TIO is prepared to help him with this. He told me that he had seen the rehabilitation people last week and we spent most of the session today talking about the type of jobs that he might look for in a sporting environment, as that is where his main interests, skills and expertise lie. There seemed to be quite a few possibilities in training, coaching, talent spotting and stewarding in particular and we had a good discussion about these”.
271. In his fourth report dated 20 March 2003 Professor Yellowlees reported on the worker having thought about other career options, for example, placement in public relations, marketing ad promotions. The Professor stressed the need for Mr McIntyre to take “quite a bit of initiative in looking for work”. He had suggested that the worker acquire computer skills and expertise with the use of the internet.
272. In that report the Professor also referred to the worker’s apparent lack of cooperation with his potential rehabilitation provider, although he noted the worker’s assurance that he was prepared to give Ms Nearhos access to his relevant medical files and provide her with a resume.
273. In his subsequent report dated 24 April 2003 Professor Yellowlees reported that the Diploma of Business in Marketing offered at the Gold Coast TAFE represented a reasonable option for Mr McIntyre as “it would get him back into some sort of business career which is in line with his hotel management position that he had prior to his injury”. More significantly, the Professor stated:
“From the psychiatric point of view Jon presents well today and I certainly think he is fit to undertake these types of courses and hope that he will do so…”
274. In his final report dated 28 October 2003 Professor Yellowlees reported that the worker had not been “advancing his cause from a medical point of view”, and stressed the need for Mr McIntyre to move forward and to assume responsibility for his own future.
275. Viewed as a whole, the seven medical reports prepared by Professor Yellowlees disclosed a reasonably good prognosis for the reintegration of the worker into the workforce through an appropriate rehabilitative process and assessment process, provided the worker was prepared to take responsibility for his future. However, the evidence before the Court did not show that Mr McIntyre was willing to assume such responsibility.
276. This is a case where the aggregate of a number of different factors – the capacity and attitude of the worker, the inconsistent behaviour of the worker, the doubtful honesty of the worker, the worker’s procrastination, the conduct of the employer through the TIO/IRS and the reasonably good prognosis in relation to the worker’s return to the workforce – rendered the worker’s failure or refusal to comply with his statutory obligations under s75B(2) and (3) unreasonable.
277. One final matter that needs to be addressed is the attempt by the TIO/IRS to reactivate the rehabilitative process and assessment process after cancellation of payments and the worker’s subsequent conduct. I mention this matter just to make it patently clear that I do not consider that they are factors which bear upon the failure or refusal of the worker to engage in the statutory processes nor upon the reasonableness of the worker’s conduct.
278. I agree with the submission by Mr McDonald that the worker was at that point under no statutory obligation to engage in rehabilitation or a process of assessment of unemployment prospects. But even if I am wrong in reaching that conclusion, it is difficult to see how the employer can reasonably satisfy the Court that the worker was unreasonable in declining to attend the proposed appointment. He apparently acted after seeking legal advice, and the legal advice appears prima facie reasonable.
(b) The remaining subsection 75B(3) issue : the deeming provision
279. Although I have reached the conclusion that the worker unreasonably refused to present himself for assessment of his employment prospects, as indicated earlier, I propose to defer giving my decision in relation to the deeming provisions of subsection 75B(3) and finally determining the 75B(3) issue until I have had the benefit of receiving and duly considering further legal argument.
(c) The final disposition of the matter
280. Given that there are two main issues remaining to be finally determined – the “most profitable employment” issue in relation to subsection 75B(2) and the issue relating to the deeming provision in subsection 75B(3) – the matter cannot, at this stage, be finally determined and made the subject of final orders.
281. I will hear the parties in relation to the residual issues at a time that meets the convenience of both the Court and the parties.
Dated this 15th day of September 2004
Mr J A Lowndes
STIPENDIARY MAGISTRATE
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