Chang, Meng v Comcare [1997] FCA 823

IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) ) DISTRICT REGISTRY ) No ACT G 71 of 1996 ) GENERAL DIVISION ) BETWEEN: MENG CHANG Appellant AND: COMCARE Respondent

JUDGES: GALLOP, O'LOUGHLIN, DRUMMOND JJ PLACE: CANBERRA DATED: 25 JUNE 1997 MINUTES OF ORDER THE COURT ORDERS THAT:

(1) The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) ) DISTRICT REGISTRY ) No ACT G 71 of 1996 ) GENERAL DIVISION ) BETWEEN: MENG CHANG Appellant AND: COMCARE Respondent

JUDGES: GALLOP, O'LOUGHLIN, DRUMMOND JJ PLACE: CANBERRA DATED: 25 JUNE 1997 REASONS FOR JUDGMENT (EX TEMPORE)

O'LOUGHLIN J: The appellant in these proceedings, Mr Meng Chang, made a claim for compensation under the Safety Rehabilitation and Compensation Act (Cth) 1988, ("the Act").He made his claim in July 1990 at which point of time he was working as an economist in the Industry Commission, a position he had held since the preceding year. It was his case that he was suffering residual stress injury, otherwise known as RSI, as a result of his work with the commission. He had claimed that intensive and continual keyboard work, coupled with work pressure and the long hours of work had caused his condition. A formal rehabilitation program was implemented on Mr Chang's behalf shortly thereafter but it consisted only of physiotherapy treatment, and that treatment terminated on 31 March 1992. In early 1992, Mr Chang applied to his employer for leave to undertake a Master of Commerce course at the University of New South Wales. That application was successful. He was granted leave without pay and he commenced his studies on 2 March 1992. Four months later in July 1992, whilst undertaking his university studies, Mr Chang sought payment of compensation based on his RSI condition. He sought that compensation for the period commencing 2 March 1992, when he had commenced his studies, until 3 July 1993, that being the anticipated date upon which he would conclude his university course. His claim was disallowed by Comcare and on a reconsideration that disallowance was confirmed on 25 June 1993. That decision, adverse to the interests of Mr Chang was one of two adverse decisions which he took to the Administrative Appeals Tribunal. The second of his unsuccessful claims related to the issue of rehabilitation. On 2 September 1992, that is some six months after the commencement of his university masters course, Mr Chang requested his employer arrange for him an assessment under s36 of the Act. Section 36 of the Act, so far as is relevant to these proceedings, provides in subsection (1) in these terms: "Where an employee suffers an injury resulting in an incapacity for work or an impairment the rehabilitation authority may at any time and shall on the written request of the employee arrange for the assessment of the employee's capability of undertaking a rehabilitation program." The balance of the section identifies the party or parties by whom that assessment is to be made, the requirement on the part of the employee to undergo an examination, consequences to the employee in the event of him failing to undertake an examination and so on. Mr Chang's request for a s36 assessment was rejected. Comcare reviewed and cofirmed that rejection. That occurred on 24 June 1993, the day preceding the day upon which Comcare rejected his earlier claim for compensation. This rejection of 24 June was the second of the two decisions adverse to his interests which Mr Chang took to the Administrative Appeals Tribunal. When the matter came before the Administrative Appeals Tribunal it concluded its deliberations on 13 November 1995 holding in Mr Chang's favour, that he was incapacitated for pre-injury work for the period that he claimed, that is for the period up to 3 July 1993. The Tribunal also held that Comcare was liable to Mr Chang in respect of that period. As to the question of rehabilitation the Tribunal held that Comcare had erred and it remitted that the matter to Comcare for reconsideration in these terms: "With the direction that the Master of Commerce course undertaken by the applicant in 1992 and semester one of 1993 be treated as part of the rehabilitation program undertaken by him to address his RSI condition." Comcare appealed to a single judge of this court against so much of the decision of the Tribunal as related to the rehabilitation program and the Master of Commerce course. It did not appeal against the other earlier decision of the Tribunal with respect to Mr Chang's incapacity for pre-injury work. In his judgment in the Court below Finn J said that the practical effect of the way in which the appeal was put before him at the suit of Comcare could be summarised in these terms: If the assessment of capability of undertaking a rehabilitation program is now to occur the question is whether Mr Chang is to be assessed as if the assessment was being made in 1992 and in light of his then condition or is it to be made of him now and in light of his present condition. Later in his judgment his Honour said this: "It was a consequence of the Tribunal's finding that Mr Chang was relevantly incapacitated when he made his written section 36(1) request on 1 September 1992." I interpolate that is not now challenged. His Honour continued: "On that date Mr Chang had a statutory entitlement to have the industry commission arrange for the assessment of his capability because he then satisfied the requirement on this subsection. If that assessment was then made it may have been favourable to him and it may have led to a section 37 program of the type he undertook in his university degree though the university would need to be an approved rehabilitation provider under section 34 of the Act but none of this occurred in 1992." For my myself I find no difficulty in accepting what his Honour there said. Indeed, I do not understand from the written submissions before us that his Honour's identification of the issues is in fact challenged. Although s36(1) gives an injured worker the right to have his or her capability of undertaking a rehabilitation programme assessed, the subsection does not confer on a worker a right to demand participation in a nominated programme. Participation in a rehabilitation programme comes about through the operation of s37. Subsection (1) of that section is in these terms: "A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation programme and where the authority so determines, it may make arrangements with an approved programme provider for the provision of a rehabilitation programme for the employee." (The Industry Commission is the rehabilitation authority). Subsection (2) then points out that: "A rehabilitation authority shall not make arrangements with an approved programme provider who is not approved by Comcare under section 34." Section 34 of the Act states simply that: "Comcare may, by instrument in writing, approve for the purposes of this Act a person who provides rehabilitation programmes." And it then sets out later the matters to which Comcare would have regard in deciding whether to approve the person. The operation of s37 did not, of course, arise because of the refusal of the rehabilitation authority to arrange for the assessment of Mr Chang's capability under s36. As his Honour said in the Court below: "The decision of the Administrative Appeals Tribunal could only relate to that refusal. It was beyond the scope of the Tribunal to examine whether any, and if so what, rehabilitation programme should be undertaken." In other words, at the point of time when the matter came before the Tribunal, there was yet to be determined matters such as the identity of the assessors to be nominated by the rehabilitation authority under s36(2); there was yet to be determined whether the rehabilitation authority would indeed make a determination that Mr Chang should undertake a rehabilitation programme. Again, the Tribunal did not have before it a determination of what would be a suitable rehabilitation programme, that is, what tertiary course, if any, should be undertaken, nor did it have before it the identification of an appropriate institution for the presentation of that course. And finally, there was no decision by Comcare identifying its approval of the University of New South Wales as an approved programme provider. All of those matters pointed to the obvious conclusion that it was beyond the powers of the Tribunal to determine the nature and identification of rehabilitation programme in the manner in which it did. The crux of this appeal rests in the proposition advanced by counsel for the appellant that this Court should recognise that there is a retrospective element in s36. By this I mean that this Court is asked to acknowledge that it should declare that today, in 1997, an assessment should be made of whether or not Mr Chang was, in 1992, entitled to some form of rehabilitation programme. We are not asked to go any further by identifying the nature of the programme or the identity of the approved programme provider, nor are we asked to identify the assessors who would engage in such an exercise. We are merely asked to declare today that an assessment can and should be made of Mr Chang's condition in 1992. For myself, I find that an exercise in futility. In my opinion, the concept of rehabilitation exists for the purpose of minimising the incapacity or the impairment of an injured employee. The word "rehabilitation" of itself is a word identifying prospectivity, not retrospectivity. I refer for that proposition to the definition of the word "rehabilitate" in the Macquarie Dictionary. Its first interpretation is: "To restore to a good condition, especially in a medical sense, of persons; regenerate, or alter to an improved form." A secondary interpretation is: "To educate for resumption of normal activities, as a person handicapped by accident or disease." In my opinion, it would be an exercise in futility to give a retrospective element to s 36. There is no evidence before the Court identifying the present state of Mr Chang's health, and one can therefore only hypothesise. But if indeed he presently suffers an impairment or an incapacity that traces back to his RSI injury in 1990, then of course s36 exists today for his benefit and continues to give to him that statutory right to request an assessment in terms of s36. If today, however, fortuitously his health has improved to that state whereby he is no longer injured or incapacitated then, of course, there is no need for him to embark upon any form of rehabilitation program. In summary, I can find no fault in the conclusion reached by the learned trial judge nor in the reasons which he advanced in support of his conclusion. In my opinion this appeal should therefore be dismissed. GALLOP J: I agree with the order proposed by O'Loughlin J and his reasons. I would only add for myself a few remarks; that the appellant is entitled to an assessment as found by Finn J is of no assistance to the appellant in respect of his claim to expenses incurred by him in his University of New South Wales course now completed. The university course was not arranged by the rehabilitation authority, as that phrase is used in s37 of the Act, it cannot now be arranged as a rehabilitation program which the appellant "should undertake". I agree that s37 has only a prospective operation, not retrospective. I agree with the trial judge, Finn J, that that is the proper construction of s37 according to the context of the provision in the Act and its proper construction and in accordance with well-established principle. I agree that Finn J was correct and I would dismiss the appeal likewise. DRUMMOND J: I agree with the order proposed by O'Loughlin J and his reasons, and I also agree with the reasons of the learned presiding judge. I too would dismiss the appeal. GALLOP J: The order of the court is that the appellant pay the respondent's costs of the appeal. I certify that this and the preceding 6 pages are a true copy of the Reasons for judgment of the Court. Associate: Dated: Counsel for the appellant : Mr J. Purnell Solicitors for the appellant : Erlington Boardman Allport Counsel for the respondent : Mrs J. Bonsey Solicitor for the respondent : Australian Government Solicitor Date of hearing : 25 June 1997