Regan v Workforce International
[2015] VMC 31
•25 September 2015
| IN THE MAGISTRATES COURT OF VICTORIA | F10853385 |
AT BALLARAT
| CHRISTOPHER REGAN | Plaintiff |
| v | |
| WORKFORCE INTERNATIONAL GROUP PTY LTD | Defendant |
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MAGISTRATE: | Magistrate B R Wright |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF DECISION: | 25 September 2015 |
CASE MAY BE CITED AS: | Regan v. Workforce International |
MEDIUM NEUTRAL CITATION: [2015] VMC 31
REASONS FOR DECISION
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Catchwords:
Workers Compensation – Termination of Weekly Payments – Fail to Comply with Return to Work Plan – Worker Undertaking Tertiary Course - Accident Compensation Act ss 203, 205
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Perry | Saines Lucas |
| For the Defendant | Mr S Smith | IDP Lawyers |
HIS HONOUR:
1 Both Counsel agree that this case involves a very limited issue. Was it reasonable for Mr Regan to not comply with a return to work plan for suitable employment at his place of employment on the sole basis that he believed a three year tertiary geology course provided him with better retraining and opportunity for future suitable employment.
2 Mr Regan is a 29 year old man who is a fully qualified motor mechanic and who had some prior experience in welding as well. He had been employed by the defendant from 5 September 2012. The Defendant is a labour hire company and placed Mr Regan solely at Maxitrans, a company which manufactured semi-trailers.
3 His job was to work on a plasma steel cutting machine. Steel was loaded onto the machine by a crane. He would place a cutting program into the machine which would then cut the steel accordingly. After that process pieces of steel greater than 20 kilos would be lifted off by a crane. Otherwise, smaller pieces would be removed by hand. He had no prior relevant medical history.
4 On Thursday 5 September 2013, exactly one year after starting work there, he was bent over placing pieces of steel onto a pallet. As he went to stand upright, he felt a pain to his lower back. He sought first aid, was given a heat pack but otherwise worked for the balance of the day.
5 On the next day he telephoned work and said that he was in pain. He was told by the employer to go to St John of God Hospital. He was then given a three day medical certificate to cover that day and the weekend.
6 On Monday 8 September 2013, he returned to St John of God Hospital and was given a modified duties medical certificate. He took it to his employer who allocated him light duties for the following day. On Tuesday 9 September he did light work operating a drill press without difficulty.
7 For the next three to four days he did full time office work preparing some computer specification programs. He coped with that work as well. His sharp back pain had subsided over that week.
8 On the morning of Monday 15 September, he was telephoned by his employer and was told to go to St John of God Hospital and get a clearance medical certificate if possible. He did so, went to work and was put back onto his pre-injury duties. He coped okay that day as he said he was not busy.
9
He was telephoned on the morning of Tuesday 16 September and told there was no work for him on that day. He did his pre-injury job on Wednesday
17 September without any sharp pain. On Thursday 18 September, he was telephoned and told his services were no longer required as there was no work. He has not worked since.
10 He went to his GP and a CT scan was reviewed. He received no return to work or rehabilitation offers for the balance of 2013. In January 2014 he decided to retrain as he believed he had continuing back problems. He had considered teaching, engineering and sciences but decided eventually on geology. He did a Pathways course at Ballarat University which is a bridging course for people with limited secondary qualifications to get to university enrolment stage. The course would take one semester in early 2014.
11 Meanwhile he had applied for weekly payments which was initially accepted for two weeks only. He went to conciliation in March 2014 and it was agreed he would be paid weekly payments. This was when he was doing the Pathways course.
12 On about 21 May 2014 he got a return to work plan from the Defendant or Allianz (the authorised agent) for full time work performing office duties, including paper shredding and supervising workers with disabilities. He did not take up the offer as he had commenced his studies and did not believe these tasks would rehabilitate him or lead to suitable long term employment.
13 His solicitors had written to Allianz a couple of weeks earlier noting the lack of rehabilitation offers, though there had been apparently some informal suggestion of ongoing employment with the Defendant. His solicitors noted he had already enrolled at university and suggested that the VWA pay for that course.
14 The Pathways course involved 16 contact hours per week and a similar amount of private study. He was successful in that course and enrolled in geology in June 2014. It is a three year Bachelor of Applied Science course with a view to doing laboratory work as a geologist.
15 The course involves 15 contact hours in the morning and afternoon and study at home or in a library/laboratory at university with occasional fieldwork. He said it would not be possible to do the course on a part-time basis. He had made no formal claim for payment of the course by the VWA as an “occupation rehabilitation service”, but enrolled in the course on a HECS basis.
16 He said that if he had been offered the return to work plan in late 2013 he would have accepted. After the offer he spoke to the Defendant who said he was required to undertake the return to work plan. He told them he was not prepared to give up his studies and return to light duties. He later received the usual warning and suspension notices under the Accident Compensation Act 1985 (“the Act”). His weekly payments were eventually terminated as at 22 July 2014.
17 His solicitors sent another letter to Allianz on 18 August 2014 seeking reimbursement of his course fees, though it appears no formal claim for payment of the course as an “occupational rehabilitation service” was made. In any event, this was not included as such in the Statement of Claim anyway.
18 In cross-examination he agreed that his back pain improved over his one week on light duties. The return to work plan was a job he believed that he could do on a full time basis. He could do any office or other similar job within his skills, provided he was able to take rest breaks and vary his sitting and standing at times.
19 At the time the offer was made he had limited computer skills. His only computer training in the Pathways course, apart from the operation of a computer, was in word processing. He saw his GP about the job offer on about 21 May 2014 but did not know or remember whether the GP said the job was suitable. However, I note at the opening of the case his counsel indicated that there was no dispute that he was capable of doing the return to work tasks then or now.
20 He had decided to do the geology course in late April 2014. He thought he had a reasonable chance of getting a job in that industry upon completion. He agreed that there were more general office jobs available. He had tried customer service in the motor vehicle industry, but was not successful in that job.
21 Later in his course there is an option to get a job placement and complete his degree on a part time basis. This would extend the time to complete his degree.
22 There was no other evidence called in this case, apart from the tendering of some formal documentation and some correspondence. No medical evidence was called or tendered by either party. This was understandable in that there was no formal claim for payment of the geology course as an “occupational rehabilitation service” and his Counsel conceded that his client was fit (which Mr Regan agreed to in evidence) that he had been fit to do the return to work plan at all relevant times.
23 The Act places obligations on a worker who has an incapacity for work. Pursuant to s.203(1), the worker "must make reasonable efforts to return to work in suitable employment or pre-injury employment at the worker's place of employment or at another place of employment."
24 Pursuant to s.203(3), for the purposes of sub-s.1, a worker must not be treated as making a reasonable effort to return to work in suitable employment during any period in which the worker has refused or failed to meet any obligations under this division.
25 Section 205 then sets out the procedures where a worker does not comply with the obligations under Division 3, which includes s.203. These procedures involve the warning, suspension and termination notices of weekly payments as were undertaken in this case.
26 Pursuant to s.203(2)(a), if a worker is waiting for the commencement of an “occupational rehabilitation service” after approval has been given, that is to be treated as making a reasonable effort to return to work in suitable employment during that period.
27 Of course, in this case there has been no formal application to undergo “occupational rehabilitation service” in the nature of “vocational re-training”, let alone for approval of such.
28 Mr Regan’s Counsel submits that the issue is whether it was reasonable for him to undertake the geology course as opposed to undertaking the return to work plan. He agrees that this is an objective test, but one of the considerations is the worker's subjective belief as well (see, Cox v TCC [2000] VCC 42, per Judge G D Lewis).
29 He submits that Mr Regan has attempted to retrain and improve himself. He has made a conscious decision to do this course as a realistic attempt to return to work in a stable and permanent profession as a geologist, as opposed to a short term insecure office position with the defendant.
30 Counsel for the Defendant submits that the only consideration is the return to work plan. The initial offer was made on 21 May 2014. His weekly payments were terminated as at 22 July 2014.
31 He makes no attack on the credit of Mr Regan, especially in regard to his desire and efforts to eventually obtain suitable employment. He submits that the chance of suitable employment as a geologist is speculative, especially given that he has not completed his studies and will not do so for at least almost another two years.
32 After hearing from the parties I raised with them a decision handed down by Judge Rendit in De Vincentis v Ianco and Lagreca [1998] VCC 47, and sought further submissions. That was a case with some similarity to the present case.
33 Mr De Vincentis had allegedly not cooperated with an occupational rehabilitation program because he was doing a tertiary course. There was also an application before that court for payment of that tertiary course as an “occupational rehabilitation service”.
34 The termination of weekly payments was set aside on what could be said as technical grounds. However the relevant “cease and determine” consequence of the refusal in that case is not applicable here where the sole consequence is simply that weekly payments “cease”. His Honour regarded that aspect of some importance in that case, I refer to p.10 of the judgment.
35 In the course of his decision His Honour stated at p.15,
"I must say that if the case came down to whether it was reasonable for the plaintiff to embark upon a two year course instead of doing something less and being returned to the workforce much quicker I would have held that it was not reasonable for the plaintiff to do so. As Miss Kinsky rightly said in the course of her evidence, Work Solutions Group is not concerned with vocational furtherance as such but timely return of injured workers to the workforce and in order for them to do so obtain training for them to this end."
36 Counsel for the Defendant highlighted the above passage from Judge Rendit's decision. Otherwise, he said that the facts of that case were different in a number of respects. For example, Mr De Vincentis had attempted return to work before commencing his course of study. He also had approval to do an evaluation test for his suitability for a course of study as well.
37 Counsel for Mr Regan submitted that Judge Rendit's comments were obiter and thus not relevant to the present case. He submitted that the present return to work plan should be looked at from the point of view whether his decision to participate in it was reasonable or not.
38 He said the plan had no specified duration, minimum time or guarantee of paid employment. It had its limitations as to skills in available employment, including such tasks as paper shredding. It put him into no better position for getting any job in the future. It put him in no better position to get an office duties job in the future, or indeed in any long term suitable employment. Simply, it gave him no transferable skills for the future. Thus, he said it was not unreasonable for him to decline the return to work plan.
39 That completes my discussion of the facts in both Counsels' submissions.
40 I pointed out that this is not an application for approval of an “occupational rehabilitation service” and in particular “vocational retraining”. There has been no application for such, let alone consideration or decision by the VWA on its suitability. Indeed, I do not know whether Federation University is an approved provider within the meaning of the Act as defined.
41 Even if it was, there is no medical evidence whatsoever before me as to Mr Regan’s injury, its severity, diagnosis or prognosis and any incapacity for work relevant to his pre-injury duties. The only relevant consideration I have is that Mr Regan concedes the return to work plan was suited to his capabilities and at the very least his GP did not advise against him doing it.
42 Section 203(1) requires a worker to make reasonable efforts to return to work in suitable employment. If he or she does not do so (i.e. “does not comply with that obligation”), he or she is then subject to the various procedures in s.205.
43 Clearly these provisions have been enacted in furtherance of one of the objects of the Act to try to obtain an early return to work for injured workers.
44 There is nothing in the Act to require a return to work plan to retrain or give a worker skill or experience to obtain long term suitable employment in a profession, trade or occupation that offers substantial future opportunities for employment. A return to work plan does not have to be on a permanent basis to be suitable employment (see, Calleja Nominees v Grant & Ors [2008] VSC 597 at para. [60], per Coghlan J).
45 If there is no real chance of suitable employment for a worker, then the issue of “vocational re-training” may be relevant.
46 The Defendant, quite rightly, does not attack Mr Regan's bona fides or credit in looking at trying to improve his situation by undergoing tertiary education. He submits, and I agree, that this does not mean that it was reasonable for him to not comply with the return to work plan. In any event, he has only completed part of the course, albeit with some considerable success so far. He still has some time to go. If and when he completes the course there is no real way to assess whether he would obtain suitable employment in that field anyway.
47 Although Judge Rendit's comments maybe obiter, I respectfully agree having regard to the express provisions of the Act that I have previously outlined. Despite what would appear to be his best intention to improve himself and gain tertiary qualifications with a view to a career in geology, I have to dismiss his proceedings to set aside the termination of his weekly payments in this case.
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