National Foods Ltd v Green
[2005] WASCA 180
•20 SEPTEMBER 2005
NATIONAL FOODS LTD -v- GREEN [2005] WASCA 180
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 180 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:74/2004 | 16 JUNE 2005 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 20/09/05 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | NATIONAL FOODS LTD TRACEY GREEN |
Catchwords: | Workers' compensation Rehabilitation of worker Where rehabilitation funds exhausted Whether dispute resolution body has power to order further rehabilitation Construction of s 157 Workers' Compensation and Rehabilitation Act 1981 (WA) |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 (WA), s 3, s 5, s 72, s 157, s 158 |
Case References: | Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 Cooper-Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NATIONAL FOODS LTD -v- GREEN [2005] WASCA 180 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
- Appellant
AND
TRACEY GREEN
Respondent
ON APPEAL FROM:
Jurisdiction : COMPENSATION MAGISTRATE'S COURT
Coram : MS P M HOGAN CM
File No : CM 171 of 2003
Catchwords:
Workers' compensation - Rehabilitation of worker - Where rehabilitation funds exhausted - Whether dispute resolution body has power to order further rehabilitation - Construction of s 157 Workers' Compensation and Rehabilitation Act 1981 (WA)
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Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 3, s 5, s 72, s 157, s 158
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr M H Zilko SC
Respondent : Mr M D Cuerden
Solicitors:
Appellant : Kott Gunning
Respondent : Slater & Gordon
Case(s) referred to in judgment(s):
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
Case(s) also cited:
Nil
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1 STEYTLER P: I have had the advantage of reading the judgment of Wheeler JA. I agree with her, for the reasons which she has given, that the appeal should be dismissed.
2 WHEELER JA: On 23 July 2003, the appellant filed an application pursuant to what was then called the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act") seeking a review of weekly payments then being made to the respondent. At a preliminary review hearing in September 2003, the appellant sought to amend its application by including an alternative application for an order pursuant to s 157 of the Act that the respondent undergo rehabilitation. The Review Officer refused to permit the application to be amended in those terms, on the basis that he had no power "to order anything which would have the effect of exceeding the amounts set out in the various clauses of the First Schedule and an order in such terms would be acting outside our Act". The appellant appealed against the decision and the Compensation Magistrate dismissed the appeal. This appeal from the Compensation Magistrate raises the same issue. In order to understand the way in which the issue arises, it is desirable to set out certain of the provisions of the Act relating to rehabilitation.
3 "Rehabilitation" is defined in s 5(1) as including, but not being limited to, "vocational rehabilitation". "Vocational rehabilitation" is defined to mean, in relation to workers who have suffered a disability compensable under the Act, "the progressive and coordinated use of measures for counselling, occupational and vocational training and retraining, work assessment, and the use of aids, appliances, services or other means to facilitate the restoration of those workers to the fullest capacity for gainful employment of which they are capable". It is not clear what, if anything, is contained in the definition of "rehabilitation" over and above the concept of "vocational rehabilitation". For the moment, however, it is enough to assume that rehabilitation, for the purposes of this appeal, may be understood as encompassing simply vocational rehabilitation. Whatever its precise meaning, rehabilitation is one of the purposes of the Act, which are set out in s 3. Section 3(b) refers to the purpose of promoting "the rehabilitation of those workers [being the workers suffering disability referred to in (a)(i)] with a view to restoring them to the fullest capacity for gainful employment of which they are capable".
4 Expenses incurred by an injured worker in undergoing rehabilitation are provided for at two places in the Act. Clause 17(1a) of Sch 1 provides that, in addition to weekly payments, a sum is payable equal to the
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- reasonable expenses incurred in respect of "vocational rehabilitation up to, but not exceeding, in the aggregate the sum equal to 7% of the prescribed amount, and there shall be no revival of, or increase in, the entitlement under the subclause upon any subsequent increase in the prescribed amount". The precise amount does not matter, but it is common ground that, at the time at which the appellant made its application, the respondent had exhausted the proportion of the prescribed amount allocated to rehabilitation pursuant to that clause. Section 158 provides that, where a worker has no further entitlement pursuant to cl 17 of Sch 1 to compensation in respect of expenses incurred in undergoing vocational rehabilitation, the Commission "may authorise payment from the General Fund of so much of the costs of any further vocational rehabilitation as it thinks fit, but not exceeding in a particular case an amount of $2000".
5 It is common cause in the present case that the appellant had not made any application for additional funds pursuant to s 158. That section may be put aside for the moment, since the Review Officer indicated to the appellant that, were additional funding obtained pursuant to that section, he would be willing to consider the proposed amendment to the appellant's application.
6 Section 157 provides, relevantly:
"(1) A dispute resolution body may at any time require a worker who is incapacitated to undergo rehabilitation as specified by a dispute resolution body … "
7 The short question in this appeal then, is whether, as the appellant submits, s 157 means precisely what it says on its face and gives to the Review Officer power to order a worker to undergo rehabilitation, notwithstanding that there is no power in the Review Officer to order payment of the expenses of that rehabilitation, or whether, as the respondent submits, s 157 in its context is limited to ordering rehabilitation where there are funds available to meet that expense.
8 It was common ground in the present case that the appellant had indicated that it was prepared to undertake to meet the costs of any rehabilitation. The precise form of the undertaking, or of the order which might be made giving force to that undertaking, was not discussed. However, that consideration may be put to one side also for the purposes of this appeal. It was accepted by the appellant that the question is one of principle. If the words of s 157 are wide enough to order a worker to undergo rehabilitation even where the entitlement to compensation for rehabilitation has ceased, it must follow that the Review Officer has such
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- power whether or not any person other than the worker is prepared to undertake to meet those costs. The question of whether an employer was prepared to offer such an undertaking would, of course, be a relevant consideration to the exercise of the Review Officer's discretion, assuming a discretion to order rehabilitation in such circumstances existed.
9 In my view, the conclusion of the Review Officer and the Compensation Magistrate is the correct one. That is, the power of the dispute resolution body to order a worker to undergo rehabilitation exists only where there is a corresponding power to order the payment of any expenses involved in that rehabilitation. The issues of compensation and rehabilitation are linked, in the statutory scheme. They were in the title of the Act as it stood at the relevant time. They are the first and second matters mentioned in s 3, which sets out the statutory purposes.
10 Further, when one has regard to the purposes set out in s 3, the first of those purposes is, in par (a), to make provision for the compensation of workers who suffer from a disability. An Act which has as its first-mentioned purpose the compensation of disabled workers should not, in my view, be interpreted so as to permit a financial burden to be imposed upon a worker in respect of a disability, unless no other conclusion is available on the words of the statute. The costs of rehabilitation could be very significant and, while rehabilitation (in the sense of the restoration of some capacity for work) may ultimately be beneficial to the worker, the process of rehabilitation may, on occasions, be a disagreeable or even painful one. The significance of the burden imposed on a worker by a requirement to undergo rehabilitation is made clear when one looks to the penalty which may flow from the failure either to undergo rehabilitation or to co-operate in such rehabilitation. Section 72 provides that a worker's entitlement to weekly payments of compensation is suspended during any period when the worker is required to undergo rehabilitation, but refuses to do so or does not reasonably co-operate. The effect of the construction contended for by the appellant, then, is that it would be open to a Review Officer to order that a worker undergo rehabilitation, for the cost of which the worker would be liable, on pain of having the entitlement to weekly payments of compensation suspended.
11 While the Act has a number of provisions directed to encouraging the rehabilitation of workers, I would not read s 157, which alone appears to empower a person to direct a worker to undergo that process, in a manner which would permit the imposition of a burden upon the worker. In its context, then, I would understand s 157 as permitting a dispute
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- resolution body to require a worker to undergo rehabilitation, where the relevant percentage of the prescribed amount has not been reached pursuant to cl 17(1a) of Sch 1, or where the Commission has authorised payment from the general fund which will meet the cost of that rehabilitation.
12 The conclusion which I reach as a matter of principle, based upon the purposes of the Act, is reinforced by the observation that, as counsel for the respondent submits, s 157 is drafted in a somewhat shorthand way. It cannot, I think, be doubted that the reference to "a worker who is incapacitated" is not to be understood as referring to any worker who is incapacitated, but only to one who has suffered a disability, in respect of whom, because the disability has led to incapacity, a liability to pay compensation has arisen pursuant to s 18.
13 The appellant contended that the words "at any time" tended to suggest that a requirement may be made by a dispute resolution body at a time subsequent to the exhaustion of the amount permitted pursuant to cl 17(1a) of Sch 1. However, if the section is not understood in that way, those words still have work to do, since they indicate that, so long as there is a right of indemnification pursuant to cl 17(1a) of Sch 1 or s 158, there is no time limit within which the application pursuant to s 157 may be brought.
14 I would dismiss this appeal.
15 PULLIN JA: Section 157(1) of the Act provides that:
"A dispute resolution body may at any time require a worker who is incapacitated to undergo rehabilitation as specified by a dispute resolution body and, without limiting the matters that may be specified by a dispute resolution body under this subsection, a dispute resolution body may specify that the worker undergo vocational rehabilitation provided by a different rehabilitation provider selected by the worker."
16 The employer in this case has sought an order requiring the worker to undergo rehabilitation and is prepared to undertake to pay for that rehabilitation.
17 The worker resists such an order being made. In the absence of any concern about the quality of rehabilitation or its effect, it is difficult to understand why a worker would resist the order. No reason was given to this Court by the worker. The dispute resolution body - a Review Officer
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- - refused to make an order because he considered he had no power to make such an order and on appeal the Compensation Magistrate agreed and dismissed the appeal. This is an appeal against that dismissal.
18 Section 157 read alone is unambiguous. It confers a power on the dispute resolution body to make the order for rehabilitation. The power is not subject to any restriction. It is, however, not acceptable to read the section on its own. It must be considered in the context of the Act read as a whole: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 304. A statutorily conferred discretion expressed without any qualification is unconfined, except insofar as it is effected by limitations to be derived from the scope, context and purpose of the Act: R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49.
19 I therefore turn to a consideration of the Act and the purposes of the Act as revealed by reading the Act as a whole. The title of the Act makes it clear that the legislation is concerned not only with payment of workers' compensation but also with rehabilitation of workers. Section 3 states that the purposes of the Act includes the promotion of rehabilitation of workers with a view to restoring them to the fullest capacity for gainful employment of which they are capable. The Act also provides for payment of workers' compensation, which includes payment of "a sum equal to the reasonable expenses incurred in respect of" hospital and medical treatment and "vocational rehabilitation up to, but not exceeding, in the aggregate, a sum equal to 7% of the prescribed amount …" . See Sch 1, cl 17 of the Act. Section 158 provides that where a worker has no further entitlement under cl 17 to compensation in respect of expenses incurred in undergoing vocational rehabilitation, the Commission may authorise payment from the general fund of so much of the costs of any further vocational rehabilitation as it thinks fit, but not exceeding, in a particular case, an amount of $2000".
20 These provisions reveal that to recover this compensation a worker must incur expense and then claim to be indemnified. Usually a worker wants to be rehabilitated and so s 157 will not be called into operation. However, it may be necessary to do so for a variety of reasons. Two occur to me immediately. First, a worker may be a malingerer and may not want to be rehabilitated because he or she would prefer to receive weekly payments than to be made well enough to return to work. Secondly, a worker may have a genuine, but unreasonable fear of the rehabilitation treatment. The power is given by s 157 to a dispute resolution body to consider the reasons why the worker refuses to
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- undertake rehabilitation and, if appropriate, to order the worker to undergo rehabilitation. In making an order for rehabilitation the dispute resolution body is in effect also ordering a person to incur the expense associated with the rehabilitation. If the expense is incurred, then the worker may claim worker's compensation being the "sum equal to" the expense incurred. If the limits prescribed by cl 17 and s 158 have been exceeded, then the worker, if he could be ordered to undergo rehabilitation and therefore to meet the expense, could not recover that cost. I therefore consider that there is no power conferred under s 157 to order a worker to undergo rehabilitation if the cost of such rehabilitation to the worker added to the total cost to the worker of previous rehabilitation exceeds the limit prescribed by the Act (including s 158). However, if a worker had already reached the limit and a rehabilitation provider was prepared to provide its services free or if another person was prepared to meet the cost, then the worker would not be exposed to any expense exceeding the limit, in which case the power to order rehabilitation would exist because the cost to the worker (nil in the examples I have given) added to previous rehabilitation costs would not exceed the limit.
21 In this case the employer is willing to pay the ongoing expenses and is prepared to undertake to enter into a contract with the rehabilitation provider to meet the expenses with no recourse to the worker. The employer therefore seeks an order that the worker be required to undertake rehabilitation subject to the undertaking, which will mean the worker will have no obligation to meet the expense of the rehabilitation. In those circumstances I consider that there is power to make an order under s 157.
22 I agree with Wheeler JA that the reference to "a worker who is incapacitated" must refer only to one who has suffered a disability and in relation to whom the liability to pay compensation has arisen pursuant to s 18.
23 I would allow the appeal.
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