Smith and Comcare

[2004] AATA 932

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 932

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2003/185

GENERAL ADMINISTRATIVE  DIVISION		)
Re		STEPHEN SMITH

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date6 September 2004

PlaceCanberra

Decision The decision under review is affirmed.

..............................................

Mr S. Webb, Member

CATCHWORDS

COMPENSATION - injury - liability accepted - decision to cease liability for the accepted condition set aside by decision of the Tribunal - rehabilitation assessment - claim for retrospective payment of tuition fees - rehabilitation determination - tertiary studies not rehabilitation - decision affirmed

Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 19, 36, 37, 67

Re Smith and Comcare [2002] AATA 249

Comcare v Chang (1996) 24 AAR 120

Slater v Telstra Corporation Limited (2001) 115 FCR 34

Peterson v Telstra Corporation Limited [1996] FCA 399 (28 May 1996; Olney J)

Lees v Comcare (1999) 29 AAR 350

Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111 ALR 1

Re Fox and Department of Defence (1995) 40 ALD 614

Department of Defence v Fox (1997) 24 AAR 171

Re Haslehurst and Comcare (1998) AATA 13105

REASONS FOR DECISION

August 2004 Mr S. Webb, Member         

1.      By this application Mr Smith is seeking review of a Comcare decision to affirm a primary determination that he should undertake a rehabilitation program that did not include tertiary studies he had previously commenced. 

2.      The matter came on for hearing in Canberra on 13 August 2004.  Mr Smith was represented by Mr R. Crowe, senior counsel, and Comcare was represented by Mr A. Reilly, solicitor.  Mr Smith gave oral evidence as did Ms E. Haswell and Dr G. Eaton.  Materials were tendered and labelled as exhibits.

factual context

3.      The following material facts arise from the evidence and are not in dispute.

4. Mr Smith (date of birth: 25 October 1966) completed Year 10 studies in the Australian Capital Territory (“ACT”). He then worked as a labourer for a period of years. In 1986 he was employed by the Royal Australian Air Force (“RAAF”) in the Airfield Defence Guard. He remained in that employment for approximately three and a half years. On leaving the RAAF he commenced a private investigation security business which he operated for five or six years. Thereafter he was employed as a security guard in a club and as a temporary janitor by the ACT Department of Education and Community Services. In or about October 1997 Mr Smith obtained full time casual employment as a Custodial Officer Level 3 with ACT Corrective Services in the Department of Justice and Community Safety. He underwent training and worked in the Adult Corrections Court Transport unit. He was injured in that employment on 20 April 1998.

5. In or about June 1998 Mr Smith commenced employment with the ACT Department of Education and Community Services (“the Department”) as a Youth Worker at the Quamby Youth Detention Centre (“Quamby”). On 6 August 1998 he commenced a fixed term contract for full time employment at Quamby which expired on 9 December 1998. On 14 October 1998 Mr Smith claimed compensation in relation to injuries he sustained during an incident on 6 October 1998 in the course of his duties. On 23 November 1998 Comcare accepted liability to pay compensation in relation to “neck sprain and closed fracture of one or more phalanges of foot (Right)” (“the compensable injury”).

6.      On expiration, Mr Smith’s full time contract was not renewed and thereafter he worked casual shifts at Quamby on 12 and 14 December 1998 and on a casual basis at the Belconnen Remand Centre in January 1999.  He was not employed or offered suitable employment by the Department thereafter.

7.      On 15 July 1999 Comcare determined that Mr Smith was not incapacitated for work and compensation was not payable after 8 March 1999.  That determination was affirmed in a reviewable decision dated 30 September 1999.  On 18 November 1999 Mr Smith applied to this Tribunal for review of that decision and the matter was heard on 3, 4 and 18 October 2001.  On 15 April 2002 the Tribunal set aside the reviewable decision and remitted the matter to Comcare for further determination (Re Smith and Comcare [2002] AATA 249) (T6).

8.      In 2000 Mr Smith commenced a part time Technical and Further Education (“TAFE”) Diploma of Justice course by correspondence which he completed in 2001.  In July 2001 he commenced a Fitness Instructor course with the Canberra YMCA.  In December 2001 Mr Smith enrolled in an undergraduate Bachelor of Laws Degree course at the University of Canberra, which he commenced in March 2002 on a full time basis.

9.      On 20 May 2002 Dr G. Eaton, Occupational Physician, certified that Mr Smith suffered from a neck injury and recommended the following treatment (T7 folio 61):

“-        Physiotherapy

-         Pain Management Program:  1.        Pain Management Education

2.        Psychological Counselling

3.        Supervised Exercise Program

at the Canberra Injury Management Centre.

-Analgesic and anti-inflammatory medication

-Sleeping medication

-Possible treatment with antidepressants”

10.     On 20 June 2002 Dr Eaton certified that during the period from 18 June to 18 September 2002 Mr Smith was (T7 folio 62):

“Fit for restricted duties only

No heavy lifting

No extreme reaching

No sudden movement neck

No activities involving raising arms above shoulder level.”

On 5 September 2002 Dr Eaton reiterated those restrictions should apply during the period from 18 September to 18 November 2002 (T7 folio 63).

11.     On 11 June 2002 Ms K. Conroy and Mr D. Kennard, Physiotherapists for Canberra Injury Management Centre, completed an Initial Assessment Report in relation to Mr Smith.  They diagnosed “neurogenic cervical spine pain” and recommended a “Cognitive Behavioural Pain Management Program” (T8).

12.     On 19 June 2002 Ms K. Smith, Comcare, approved provision of “Cognitive Behavioural Therapy Programme” and “Psychology Treatment” for Mr Smith (T9).

13.     On 1 July 2002, Ms M. Lam, Rehabilitation Case Manager for Comcare, referred Mr Smith to Rosemary Dupont, Dupont and Associates Pty Ltd, for “Return to Work Assessment” (T10).

14.     On 12 July 2002 Ms Dupont produced an Initial Needs Assessment report (T11) containing six recommendations to which I will return below.  Ms Dupont observed at page five of her report:

“Due to the study commitment being undertaken by Mr Smith, his participation in the injury management program with Canberra Injury Management Centre, his volunteer commitments and his proposed holiday commitments, Mr Smith would be limited in undertaking any return to work program until possibly November.

Mr Smith understands his responsibilities under the SRC Act to participate in a rehabilitation including a return to work program and said he is committed to fulfilling his obligations.  He will seek employment and expects to continue his studies part-time during 2003.”

15.     On or about 25 September 2002 Dr Eaton certified that Mr Smith was fit to return to work full time “as soon as suitable position identified”.  Dr Eaton recommended a “gym based exercise programme” for Mr Smith at the rate of two or three sessions per week in the period from 25 September to 25 December 2002, with a further extension to 31 March 2003 (T12).

16.     On or about 16 October 2002 Ms Lam referred Mr Smith’s case to Rosemary Dupont “To develop a return to work plan with the aim of seeking a permanent position” (T13).

17.     On 31 October 2002 Ms Lam wrote to Mr Smith and informed him that “Our objective is to assist you to find permanent employment at your pre injury level and if you wish to take up university studies it will not constitute part of your return to work plan” (T14).

18.     On 5 November 2002 Mr Smith attended Dupont and Associates to participate in interview skills practice in preparation for a job interview with Centrelink the following day.  Ms Dupont reported that Mr Smith “did not want to sign [a return to work plan] without the inclusion of some reference to study” (T15).

19.     On 12 November 2002 Mr Smith met with Dr Eaton, Ms Dupont, Ms Lam and others to discuss his case in Dr Eaton’s rooms (T16).

20.     On 12 November 2002 Dr Eaton, Mr T. Robb and Ms V. Coghlan signed a discharge report in relation to Mr Smith for the Canberra Injury Management Centre.  In that report they recommended (T17 folio 84):

“-         Graduated return to work or retraining as determined by treating doctor

-Self Management of exercise programme

-Continued access to gymnasium facilities for 3 months

-No further passive treatments

-Continue to implement pain management strategies”

21.     On 12 November 2002 Ms Lam formally determined that Mr Smith should undertake the rehabilitation program described in a return to work plan that he and Ms Dupont agreed to and signed on that day (T18).  On 9 December 2002 Mr Smith requested a reconsideration of that determination.  On 10 December 2002 he submitted a claim for payment of “Retraining”, including course fees and books, and “Rehabilitation”, including gym fees (T20).

22.     On 6 January 2003 Mr Smith commenced full time employment with Centrelink in the position of Cash Economy Investigator.

23.     On 15 January 2003 Ms Dupont provided a “Closure Report” in relation to Mr Smith’s case (T25).

24.     On 20 January 2003 Mr Smith informed Comcare of his employment with an annual salary of $46,013 (T26).

25.     On 11 March 2003 Comcare issued a reviewable decision affirming the determination of 12 November 2002 as correct (T29).

26.     On 20 May 2003 a Comcare delegate wrote to Mr Smith and advised that “the issue of the reimbursement of the costs of your university course and Tafe course as raised in your letter of 10 December 2002 was included in that [reviewable] decision”.  The delegate observed that the claimed reimbursement for costs of the gym program and the fitness program on 10 December 2002 was a “separate issue and…a decision has not been made as to whether these costs are payable” (T39).

27.     On 16 February 2004 Dr Eaton reported that (Exhibit A2, p1-2):

“At one stage during his rehabilitation programme when the prospects of obtaining suitable employment appeared limited, Mr Smith decided to commence university studies in Law which I strongly endorsed and supported.  Psychologically this appeared to be a very positive step for Mr Smith as he had been significantly psychologically affected due to his work related injuries.

…

It appeared to me that Mr Smith was essentially undertaking a retraining programme to fit him out for suitable employment in the future.  In my opinion it has been quite reasonable for Mr Smith to undertake the tertiary studies as part of his rehabilitation.  This would significantly increase the opportunity for him to obtain suitable employment in the future.  Without retraining or obtaining suitable qualifications he may need to rely on employment which includes heavy physical activity.  This would increase the chances of aggravation of his condition or further injury.”

28.     At the date of the hearing in this matter Mr Smith was in full time suitable employment as a Compliance Officer with the Department of Immigration and Multicultural and Indigenous Affairs.

issues

29.     Mr Smith’s contention is that the rehabilitation program should have included provision for his tertiary studies.  That issue is at the heart of this case.

30.     A secondary issue was agitated by the Respondent concerning the effectual date of the Tribunal’s decision, to the extent that the Tribunal’s decision should not have retrospective effect prior to the day on which that decision is made.

31.     The issue for determination by this Tribunal is whether the reviewable decision to affirm the primary determination was the correct and preferable decision.  It follows that the Tribunal must determine whether the rehabilitation program determined by Comcare was appropriate in consideration of all the matters the determining authority is required to have regard to. 

legal principles

32.     This application rises under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

33. Under the Act a rehabilitation authority may determine that an injured employee who has suffered an incapacity for work or an impairment should undertake a rehabilitation program and, in such cases, may make arrangements for the provision of a rehabilitation program by an approved program provider (s.37(1)). When making such a determination the authority is required to have regard to matters set out at s.37(3).

summary findings

34.     I accept Mr Smith’s employment history prior to July 2001 as recorded by the Tribunal at paragraphs 15, 16, 17, 20, 22 and 23 in Re Smith (supra) and his oral evidence concerning his employment history.  Prior to the injury he suffered on or about 6 October 1998, he was employed by the Department as a Youth Worker and a Custodial Officer Level 3. 

35.     In Re Smith (supra) the Tribunal decided that suitable employment for Mr Smith would be “administrative, clerical and similar work, without contact duties, within the ACT and surrounding regions”. 

36. Having regard to the matters at s.37(3) of the Act, I am satisfied that the rehabilitation program was reasonable and appropriate in the circumstances. I am not persuaded by the evidence or by Mr Smith’s submissions that there is or was any compelling reason to include the tertiary studies he was undertaking in his rehabilitation program.

37.     That being so, I am satisfied that the reviewable decision to affirm the primary determination was the correct and preferable decision.

decision

38.     The decision under review is affirmed.

reasons for the decision

39.     Making this decision I have carefully considered all of the evidence, the submissions of the parties, the relevant caselaw and legislation.

retrospective operation of a rehabilitation determination

40. Undertaking a rehabilitation program is not a matter of right prior to a determination to that effect by the rehabilitation authority pursuant to s.37(1) of the Act. In Comcare v Chang (1996) 24 AAR 120 Finn J said:

“Before Mr Chang could undertake such a [rehabilitation] program the Industry Commission has to make a determination to that effect cf: Hardin v Comcare Australia (1995) 21 AAR 392.”

41. I note that there is no obligation on the Department to provide Mr Smith with a rehabilitation program. That is a matter of discretion with the power conferred by s.37(1) of the Act (see Slater v Telstra Corporation Limited (2001) 115 FCR 34).

42.     Relying on Comcare v Chang (supra) Comcare submitted that Part III of the Act could have no retrospective operation. Consistent with that construction of Part III, which I am satisfied is appropriately followed in this case (see Peterson v Telstra Corporation Limited [1996] FCA 399 (28 May 1996; Olney J)), Mr Smith did not press his claim for acceptance of his TAFE and tertiary studies as a rehabilitation program for which Comcare or the Department may be liable to pay prior to the operative s.37(1) determination. I am satisfied and find that Mr Smith’s private studies that he commenced in 1999 (TAFE) and 2000 (University of Canberra) do not constitute a rehabilitation program under the Act for which Comcare or the Department are liable to pay prior to 12 November 2002.

43.     I do not agree with the proposition contended for by Comcare that the construction and interpretation of Part III in Comcare v Chang (supra) precludes a decision of this Tribunal from operation on the date on which the primary determination under review was made. The Tribunal’s jurisdiction is enlivened under s.64 of the Act in relation to an s.62 reconsideration of an s.60 determination (in this case an s.37(1) determination), being the primary determination under review (see Lees v Comcare (1999) 29 AAR 350 at paragraph 39). The Tribunal, standing in the shoes of the original decision maker, exercises all the powers of the original decision maker, that is in this case the s.62 reconsideration power to affirm, vary or revoke the primary determination in question. That being so, in consideration of whether the primary determination was the correct and preferable decision in all the circumstances, the decision of this Tribunal in this case will be operative from the date of the primary determination. The Tribunal will have regard to all of the evidence before it and is not limited to the evidence that was before the primary decision maker, but must address the same question that was before the primary decision maker (see Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111 ALR 1 at paragraph 11).

the s.37(1) determination

44. On 12 November 2002 the Department determined that Mr Smith should undertake a rehabilitation program comprised of a return to work plan to be provided by Dupont and Associates. It is not in dispute that the Department was the rehabilitation authority and the primary determination on 12 November 2002 was properly made. Nor is it in dispute that Dupont and Associates was an approved program provider for the purposes of s.37(1).

45. The suitability and appropriateness of a rehabilitation program must be assessed in the particular circumstances having regard to the matters set out at s.37(3) of the Act (see Department of Defence v Fox (1997) 24 AAR 171 at 176).

46. In Mr Smith’s submission, Comcare did not have proper regard to the s.37(3) matters at either the primary determination stage or on reconsideration. As will appear I do not agree. In effect Mr Smith’s submission concerning failure to have proper regard to relevant matters has two limbs. The first goes to the assertion that the original decision maker and the decision maker at the reconsideration stage did not have proper regard to the s.37(3) matters, in consequence of which it is alleged the primary determination and the affirming reconsideration decision are flawed. The second limb goes to the alleged failure on the part of those decision makers to have proper regard to the relative merits of including Mr Smith’s tertiary studies in the rehabilitation program. I will deal briefly with each limb of Mr Smith’s submission in relation to each of the s.37(3) matters.

(a)      any written assessment given under subsection 36(8)

47. The written assessment to which s.37(3)(a) refers is a capability assessment pursuant to s.36(8). In evidence before me is a report by Ms Dupont in which she addressed Mr Smith’s circumstances and made certain observations and recommendations in relation to his capability to undertake a rehabilitation program. Ms Dupont’s first recommendation that Mr Smith “continues with his current study program until the end of the year” must be read in its proper context, that is in the context in which it appears in the report and in the context of Mr Smith’s capability to undertake a rehabilitation program. 

48.     On that basis I am satisfied that Ms Dupont did not recommend that Mr Smith undertake tertiary study for the purpose of rehabilitation but considered it appropriate in the circumstances for Mr Smith to continue with his tertiary studies until the end of the year because “Mr Smith…has already made a considerable financial commitment to continue his studies to the end of the year” and “he would expect to receive reimbursement to cover any out of pocket expenses resulting from having to defer his studies”.  Also of note is Ms Dupont’s observation that permitting Mr Smith to continue with his studies to the end of the year “will enable him to complete both the Injury Management Program and his voluntary work obligations”.

49.     Other recommendations made by Ms Dupont are not controversial in these proceedings. 

50.     The evidence supports a conclusion that Ms Dupont’s report and her recommendations were had regard to by the primary decision maker and that Mr Smith was capable of undertaking the rehabilitation program.

51.     With regard to the relative merit, or otherwise, of including Mr Smith’s tertiary studies, Mr Smith was informed that his tertiary studies would not be included in a rehabilitation plan on 31 October 2002 (T14).  Plainly, he was capable of undertaking tertiary studies and was in fact doing so.  The fact is the matter was considered again on 5 November 2002 by Ms Dupont, and Mr Smith refused to sign a return to work program that did not include his tertiary studies (T15).  The issue was discussed with Mr Smith in a round table meeting involving Dr Eaton on 12 November 2002 and, thereafter on that day, Mr Smith signed a return to work program that did not include his tertiary studies.  Plainly, regard was had to the relative merit of including Mr Smith’s tertiary studies in his rehabilitation program and a decision was taken not to include those studies.

52.     Having careful regard to Ms Dupont’s report, there is nothing persuasive in her report that compels me to conclude that it would have been preferable to include Mr Smith’s tertiary studies in his rehabilitation program.  Ms Dupont’s recommendation that Mr Smith be permitted to continue with his studies to the end of that year for the reasons stated was reasonable.  That recommendation was directed, appropriately, to minimise any adverse effect on Mr Smith of requiring him to commence a rehabilitation program that would necessitate deferment of his studies.  I note that the recommendation also addressed the desirability of Mr Smith completing the Canberra Injury Management Program he was undertaking at that time before commencing the return to work program.  Those were issues relevant to his capability of undertaking the return to work program.  It does not follow that his tertiary studies should be included in the rehabilitation program, nor was that what Ms Dupont recommended.

(b)      any reduction in the future liability to pay compensation if the program is undertaken

53.     In Mr Smith’s submission any future liability to pay compensation would be reduced if his tertiary studies were included in his rehabilitation program.  The basis of that submission goes to the payment of income support payments in relation to possible future periods of incapacity and is predicated on the assumption that Mr Smith would be more likely to obtain suitable full time employment with a legal qualification.  As will appear, I do not agree.

54.     While there is no direct evidence of a comparative analysis of Mr Smith’s request that his tertiary studies should be included, it is apparent that the rehabilitation program was aligned to obtaining suitable employment within the ambit of his previous vocation and within the medical restrictions on his capacity for work at that time. 

55.     The fact is Mr Smith’s previous vocation and employment did not require tertiary training or qualifications.  His subsequent employment by Centrelink and DIMIA in positions that do not require tertiary qualifications points to the existence of employment that is suitable for Mr Smith within the ambit of his previous vocation and capacity in employment and without the requirement for tertiary qualifications.  While engaging in tertiary studies may assist his competitiveness in the labour market for those positions or for similarly suitable employment, there is no requirement for it.  Essentially, Mr Smith’s tertiary studies are more aligned to the advancement of his career than as rehabilitation to his previous vocation or capacity in employment.

56.     I am satisfied, on the balance of probabilities, that the respective decision makers at the primary determination and reconsideration stages had regard to the likely effect of the program, if undertaken by Mr Smith, on any future liability to pay him compensation.  The program directed resources to activities considered likely to return him to his fullest capacity in suitable employment.  One objective of the program was “identification of permanent employment” by 8 February 2003. 

57.     Mr Smith completed and gained benefit from the Canberra Injury Management Program on or about 12 November 2002, and was certified by Dr Eaton as fit to commence suitable employment on a full time basis thereafter. In those circumstances it was appropriate to assist Mr Smith to obtain suitable employment as a priority.  As can be seen from the activities specified in the return to work plan, specific regard was had to assistance Mr Smith reasonably required to obtain suitable employment:

(a)Identification of work trial

(b)Job seeking support

(c)Liaison with medical specialists

(d)Monitoring of work level

(e)Liaison with case manager and reports.

58.     The evidence is that Mr Smith’s rehabilitation program was very effective in reducing future liability to pay him compensation.  Plainly, regard was had to that objective when negotiating the rehabilitation program. 

59.     I am satisfied that the program was appropriately constructed on the basis of that regard and so find.  There is no basis on which to conclude in Mr Smith’s case that any greater reduction in future liability to pay compensation would result from him undertaking his tertiary study.  In fact the contrary case is persuasive.  That is, if Mr Smith was to continue his tertiary studies as a part of his rehabilitation program liability to pay him compensation pursuant to s.37(5) would continue for the period of his bachelor degree course and thereafter until suitable employment was obtained at least to the level of his pre-injury employment. Detailed consideration was given to Mr Smith’s then existing skills and qualifications and an assessment was made of his capacity to undertake suitable employment.  There is no reason to find that that assessment was incorrect. 

60.     Mr Smith pointed to his previous record of short term casual employment to indicate his need for retraining and the relative merits of obtaining a qualification to improve his employment prospects.  However, that submission does not take into account other factors, such as the improvement in Mr Smith’s condition as a result of his completion of a Canberra Injury Management Program on or about 12 November 2002 and the professional assistance provided to him by the rehabilitation provider in relation to obtaining suitable full time employment under the return to work plan. 

(c)      the cost of the program

61.     S.37(3)(c) directs regard to the cost of the program.  Implicit in that direction is the issue of relative value for money, that is the relative cost of achieving the object of the rehabilitation program.  The aim of rehabilitation is “to restore an injured individual to their fullest physical, psychological, social and vocational capabilities” (Re Fox and Department of Defence (1995) 40 ALD 614 at 620). In my opinion the restorative objective of the rehabilitation program in relation to the fullest capabilities of the injured employee does not refer to the prospective achievement of that person’s career aspirations or potential beyond the level or ambit of their vocation capacity in employment prior to injury.

62.     Scant evidence was adduced concerning the quantum of actual or prospective costs associated with Mr Smith’s tertiary studies after the date of the determination under review.  Nonetheless, in Mr Smith’s submission any such cost is reasonable and should be compared to the possible cost of on-going incapacity payments prior to him obtaining suitable employment. 

63. Incapacity payments under s.19 are not payable during the period an employee is undertaking a rehabilitation program pursuant to an s.37(1) determination. Nonetheless, equivalent compensation is payable under s.37(5). Such compensation payments are indirect costs that may be properly considered in relation to the cost of a rehabilitation program for present purposes.

64. In relation to Mr Smith’s submissions concerning relative costs, there is a simple logic to consider: the sooner Mr Smith was rehabilitated to suitable full time employment that was properly aligned with his previous vocation and capacity in employment, the sooner income support payments under the Act would be curtailed.

65. If Mr Smith’s submission is to be accepted then consideration must be given to the relative periods during which income support payments under the Act may be payable. That is a prospective and speculative exercise. I am not persuaded by Mr Smith’s submissions that a shorter period and a lower cost would result from inclusion of his tertiary studies in the rehabilitation program. On the contrary, I am satisfied on the balance of probabilities that Mr Smith, standing as he was in November 2002 with his work experience, skills and qualifications, his fitness for suitable employment and some improvement in his medical condition, was more than likely to obtain suitable employment as a result of the determined rehabilitation program in a shorter period and at a lower cost than an alternative program including his tertiary studies. I so find.

(d)      any improvement in the employee’s opportunity to be employed after completing the program

66.     As I have said, the rehabilitation program that was determined on 12 November 2002 was directed in essential part to assist Mr Smith to obtain suitable employment.  His opportunity to be employed as a result of undertaking the program was improved by the assistance it provided.  It is true the rehabilitation program did not provide him with the opportunity to obtain tertiary qualifications which, it was submitted, would have improved his opportunity for suitable employment in the future.  However, obtaining tertiary qualifications is but one option for improving a person’s opportunity for employment, and in these competitive times, it is an option that does not carry with it any guarantee of success.

67.     The evidence is that the rehabilitation program intended to provide practical vocational support to assist Mr Smith obtain suitable employment.  That included identifying suitable positions, a trial in suitable employment, monitoring his progress and liaising with relevant individuals.  In the circumstances in which Mr Smith found himself at that time in November 2002, I am satisfied that a practical approach to assist Mr Smith to obtain suitable employment as soon as possible after completing the Canberra Injury Management Program, especially in consideration of previous delays in providing him with a suitable rehabilitation program, was appropriate.  To do otherwise on the basis of Mr Smith completing his bachelor degree would have meant a delay in him obtaining full time suitable employment and a delay in his vocational rehabilitation.  It follows and I am satisfied that due regard was had to matters relating to Mr Smith’s future employment opportunity when the determination was made.

68.     Nonetheless, it can be accepted that engaging in legal studies at TAFE and subsequently at the University of Canberra improved Mr Smith’s competitiveness in seeking to obtain suitable employment.  Ms Haswell’s evidence confirms that point.  Her evidence was that Mr Smith’s legal studies and qualifications at the date of his application and interview were factors the selection committee found attractive when recruiting Cash Economy Investigators for Centrelink.  I note that those studies and qualifications were not conducted as part of a rehabilitation program, but were personal activities Mr Smith undertook for his own reasons.  Nonetheless, it was not Mr Smith’s studies and qualifications alone that Ms Haswell and the selection committee found appealing in Mr Smith’s case.  His years of experience in the cash economy and in the security industry were held in high regard.  I also accept that support he received from his rehabilitation provider to identify suitable employment opportunities and concerning interview techniques were also significant factors that improved his opportunity of employment.

69.     I am not persuaded to conclude that any possible increase in Mr Smith’s competitiveness in the labour market for suitable employment opportunities that may flow from completion of his tertiary studies is sufficient in his circumstances to warrant inclusion of tertiary study in his rehabilitation program.  Careful consideration of the evidence does not persuade me to conclude that Mr Smith is, or was at the time the determination was made, prevented by his injury from pursuing a vocation within the ambit of the industry in which he was previously employed and obtaining employment that is aligned with his previous capability.  Subsequent events and Mr Smith’s success in obtaining suitable full time employments, albeit without a tertiary legal qualification, support that conclusion. 

(e) the likely psychological effect on the employee of not providing the program

70.     The evidence is that Ms Dupont recommended a return to work program and it was subsequently determined that Mr Smith should undertake that program.  There is scant evidence to suggest that failure to provide that rehabilitation program may have had an adverse psychological effect on Mr Smith.  The fact is Mr Smith harboured concerns in his mind at that time about the way in which he perceived he had been treated by his previous employer and by Comcare after being injured.  His psychological state had previously decompensated in relation to his injury.  It is probable that any psychological improvement that resulted for Mr Smith from undergoing the Canberra Injury Management Program, and the psychological and pain management counselling therein, may have been compromised by failure to provide a suitable rehabilitation program that was consistent with the recommendations of the rehabilitation provider.

71. The evidence is that Mr Smith’s psychological state was assessed and reported on by Ms Dupont in her initial report. That report and other material was before the rehabilitation case manager when she exercised her delegated power to endorse the return to work program and make a determination pursuant to s.37(1). I am satisfied that the likely effect on Mr Smith’s psychological state of not providing the program was duly had regard to at that time. I am also persuaded by the evidence before me that the rehabilitation program and the determination that Mr Smith should undertake it were appropriate in the context of his, then, psychological condition.

72.     In Mr Smith’s submission, proper regard was not had to the likely effect on his psychological state of not including his tertiary studies in the rehabilitation program.  Plainly enough, the interruption of Mr Smith’s career, in particular his difficulty obtaining full time suitable employment in the period prior to November 2002, acted upon his psychological condition (see Dr Eaton’s report at Exhibit A2).  I accept that it was for that reason the return to work program was essentially vocational in nature and was directed to assisting Mr Smith to find suitable full time employment.  In Mr Smith’s evidence, he commenced his legal studies at TAFE and subsequently at the University of Canberra in order to improve his chances of obtaining suitable employment.  That may be true.  However, the fact is the rehabilitation program was directed to deliver results and restore Mr Smith to his fullest pre-injury capacity.  As subsequent evidence reveals, it was extremely successful and assisted Mr Smith to obtain suitable full time employment to his satisfaction within a matter of weeks.  There is no evidence, then or now, that the decision to exclude Mr Smith’s tertiary studies from his rehabilitation program was made without due regard to the likely effect on his psychological condition. 

73.     The psychological benefit to Mr Smith of obtaining suitable full time employment must be considered in relation to the psychological effect of not including tertiary studies in his rehabilitation program. 

74.     I do not accept that Mr Smith’s evident disgruntlement and dissatisfaction with the decision to exclude his tertiary studies is a psychological effect that was sufficient reason to include tertiary legal studies in his rehabilitation program.  I am satisfied that Mr Smith perceived tertiary studies in the law as desirable for his future career, taking into account the restrictions on his capacity that were the result of his injury, and that aspiring to a career based on a tertiary legal qualification had psychological benefits for him.  However, I am persuaded that those aspirations relate to the advancement of Mr Smith’s career.  His actions in that regard are commendable.  Nonetheless, that does not persuade me to conclude that his career aspirations are properly aligned for the purposes of rehabilitation to his previous vocational trajectory or his capacity in employment prior to injury.

(f)      the employees attitude to the program

75.     The evidence is that Mr Smith was strongly of the opinion that his rehabilitation program should include his tertiary studies.  In his words he was “almost devastated” that the program as determined did not include those studies. Nonetheless, Mr Smith signed the return to work program on 12 November 2002. In his submission that fact does not compromise his right to seek reconsideration and review of the s.37(1) determination, nor does it. Nonetheless, it does indicate that Mr Smith agreed to commence the program whether or not he chose, as he subsequently did, to seek reconsideration of the determination and inclusion in the program of his tertiary studies.

76.     Plainly, even though Mr Smith may have been “devastated”, he was willing to undertake the rehabilitation program and, in fact, actively participated in utilising the assistance provided thereby in relation to obtaining suitable full time employment. 

77.     There is sufficient evidence to compel me to conclude that Mr Smith’s attitude to the program, as recommended, was properly had regard to.  Having regard to that matter now, I am persuaded to find that the program as arranged was appropriate in the circumstances.

(g)      the relative merits of any alternative and appropriate rehabilitation program

78.     In Mr Smith’s submission regard should be had to the inclusion of “vocational retraining” in the rehabilitation program on the basis that Mr Smith’s career was “thrown off track” by his injury.  By “vocational training” I understand Mr Smith to mean the components of the Bachelor of Laws degree he commenced in 2000 that he had not completed on 12 November 2002.  I have dealt with related matters in the preceding paragraphs and for reasons already stated I am satisfied that the relative merits and appropriateness of an alternative rehabilitation program including tertiary studies were duly had regard to.

79.     The evidence is that none of the employments in which Mr Smith was engaged on or before the date of his injury required tertiary qualifications.  His career trajectory at that time in the security industry did not involve and was not oriented to tertiary studies, and did not require and was unlikely, on the balance of probabilities, to result in tertiary qualifications.  I so find.  However, that does not conclude the matter.  If indeed Mr Smith was prevented by his injury from obtaining suitable employment within the ambit of his previous vocation or the level of his capability in employment, then tertiary retraining within his capability may be reasonable rehabilitation (see Re Haslehurst and Comcare [1998] AATA 13105).

80.     However, considering all of the evidence, especially the medical assessments of Dr Eaton, I am not persuaded that Mr Smith was prevented by his injury from obtaining suitable employment within the ambit of his previous vocation.  Plainly, he was prevented from undertaking employment beyond the restrictions on his capacity at that time.  Those restrictions related to heavy lifting, excessive reaching, sudden movements, raising his arms above shoulder height and exposure to aggressive clients.  It cannot be said that there is no suitable employment within the security industry that is within Mr Smith’s capacity.  The fact is Mr Smith identified a number of suitable employment opportunities with the assistance of Ms Dupont for which he applied.  He was successful in obtaining one of those positions as an Investigator with Centrelink and has more recently been appointed to the position of Compliance Officer with DIMIA.  Those positions are consistent with his previous experience in the security industry and as an investigator.  I mention those employments merely to demonstrate the existence of and Mr Smith’s capacity to obtain suitable employment within the ambit of his previous vocation, albeit not involving physical security or custodial duties contrary to his medical restrictions and without a tertiary legal qualification.  It follows that Mr Smith’s case is distinguished from Re Haslehurst (supra)

81.     Mr Smith’s case is distinguished from that of Ms Fox in Department of Defence v Fox (1997) 24 AAR 171. Ms Fox was undertaking a course of study at the Royal Military College, Duntroon, that would qualify her as an officer. O’Loughlin J found no error of law in the AAT decision that “aligned a tertiary course as a rehabilitation program to her RMC course”.  Mr Smith’s circumstances were that he was employed in work that did not require and would not ordinarily be expected to lead to a qualification that could be aligned with a tertiary qualification.  The evidence is that positions in the corrective service and security industries in which Mr Smith was engaged and to which he claimed to aspire before his injury did not require a high level of qualification.  Mr Smith was not engaged in a course of study at the time of his injury and his injury did not prevent him from undertaking any such study.

82.     Unfortunately for Mr Smith, his tertiary study cannot properly be aligned as a rehabilitation program to his previous vocation or capability in employment.  That being so, I am not persuaded that inclusion of his tertiary studies in a rehabilitation program from 12 November 2002 was justified or appropriate in the circumstances.

(h)      any other relevant matter

83. The delay in providing Mr Smith with a rehabilitation program is a relevant matter in the circumstances. Even though there is no obligation to provide an injured employee with a rehabilitation program, the short title of the Act suggests that emphasis should be given to the rehabilitation of injured employees.

84.     Following Comcare v Chang (supra) it was not appropriate in November 2002 to assess Mr Smith’s capacity to undertake a rehabilitation program in 1999 or to make arrangement to provide him with a program that may have been appropriate in 1999.  Following the reinstatement of liability in April 2002, Mr Smith’s capacity was properly assessed and recommendations were made in July 2002.  Those recommendations, relevantly, provided for him to continue with his studies until the end of the year, thereby permitting him to complete a Canberra Injury Management Program, and for assistance to obtain suitable full time employment thereafter.  That being so, regard was had to the likely effect of requiring Mr Smith to undertake a rehabilitation program that would conflict with his personal study commitment.  In my opinion that was an appropriate response to Mr Smith’s circumstances at that time.

conclusion

85.     Considering all of the evidence and the delay in Mr Smith’s rehabilitation, I am satisfied that Mr Smith’s rehabilitation program was properly aligned to his previous vocation and employment, and was appropriate.  It follows that the determination that Mr Smith should undertake a rehabilitation program not including his tertiary studies was the correct and preferable decision.

86. Having proper regard to the matters set out at s.37(3) of the Act, I am persuaded to conclude that the reviewable decision was correct. That decision is affirmed. That being so, I make no orders concerning costs.

I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.

Signed:         Z. Khan
  Associate

Date/s of Hearing   13 August 2004
Date of Decision   6 September 2004
Counsel for the Applicant          Mr Robert Crowe
Solicitor for the Applicant           Mr Richard Faulks
Solicitor for the Respondent      Mr Anthony Reilly