I. INTRODUCTION

9.1 In the Working Paper, rehabilitation was recognised as an essential objective of an accident compensation scheme. ¹ This Chapter examines the evolution of the concept of rehabilitation as a right and discusses in detail the areas of rehabilitation that should form an integral part of a transport accident scheme. The recommendations are the product of a program of research and consultation including a survey of existing rehabilitation facilities ² in New South Wales and discussions with disabled people. ³

9.2 According to the World Health Organisation, rehabilitation is the

... combined and coordinated use of medical, social, educational and vocational measures for training or retraining the individual to the highest possible level of functional ability. ⁴

An American commentator stresses a similar goal by defining rehabilitation as

... an individualised process in which the disabled person, professionals, and others, through comprehensive, coordinated and integrated services, seek to minimize the disability and its handicapping effects, and to facilitate the realization of the maximum potential of the handicapped individual. ⁵

This was echoed in the submission from the Rehabilitation Staff at the Royal South Sydney Hospital which described rehabilitation as

[t]he process of restoring a disabled person to the maximum level of function of which he/she is capable and wishes to achieve. ⁶

9.3 Chapter 5 referred to the fact that, despite efforts to promote road safety there were still 966 deaths and almost 34,000 injuries reported in road accidents in New South Wales in 1983 (paragraph 1.34). While improved car design, road conditions and driving techniques could reduce these numbers considerably, it is impossible in a highly motorised society to avoid accidental death and injury altogether. Where death or injury does occur, the first priority of any compensation scheme should be the reduction of the resulting human suffering and economic cost. The optimum result is the complete functional recovery of injured people or, if this is not possible, the maximisation of their functional ability. This requires prompt referral to, or intervention by skilled workers, ⁷ who may be doctors, occupational therapists, physiotherapists, social workers, psychologists or a number of other professionals. Each injured person’s needs will be different. Some will need only short-term medical treatment while others will need a complex program of rehabilitation demanding continuity of effort by a variety of many service providers.

9.4 Rehabilitation does not end when the injured person’s physical and social readjustment has been taken as far as skilled attention can. Where complete functional recovery cannot be achieved, the quality of long-term care available to the permanently disabled is .itself a continuation of the rehabilitation process. The better the long-term care, the less chance there is that the initial achievements will be lost or impaired. Effective rehabilitation means a long-term commitment to minimising the consequences of disability by providing mechanical aids and other forms of support and assistance designed to allow the disabled person to lead an independent life. Regrettably, there will always be some accident victims who cannot live independently in the community because their disabilities are too severe. The provision of long-term support with particular regard to the permanently disabled is taken up in Chapter 10. The main concern of this Chapter is the initial stage of rehabilitation aimed at averting permanent incapacity or minimising its extent.

9.5 It is also necessary for the community to have a firm commitment to rehabilitation and to the right of disabled people to participate in rehabilitation programs. Once the initial rehabilitation process is complete, the injured person requires continuing support and encouragement from family, friends, the workplace and the community generally, in order to achieve the goal of maximum independence. A widespread community commitment to rehabilitation also increases the chances that disabled people and their families will perceive it is in their best interests to participate actively in rehabilitation programs.

II. EMERGENCE OF REHABILITATION

A. Australia

9.6 The concept of rehabilitation is relatively new and its importance has not always been recognised. A submission from Dr. N. Wing, a rehabilitation pioneer in New South Wales, noted that

[t]he philosophy of Rehabilitation grew from very meagre beginnings in the Armed Forces in the USA and Great Britain, and was very reluctantly accepted by the medical profession and by Governments. ⁹

Since rehabilitation is a relatively novel concept it is helpful to trace briefly the emergence and development of rehabilitation services in Australia.

1. Charities

9.7 Rehabilitation services in Australia developed in a fragmented and uncoordinated fashion through charitable organisations, government agencies and hospital facilities. The first such services were provided by private charities.

As in other countries, voluntary organisations have played a pioneering role in the development of rehabilitation services for the civilian disabled in Australia. The first handicapped groups to receive attention were the blind, the deaf and the dumb, and organisations to assist people with these disabilities have been in existence for a long time. During the 1920s several voluntary bodies were established to meet the needs of disabled children. ¹⁰

A large number of private organisations continue to operate and provide services for disabled people, including transport accident victims. Some are managed by disabled people as self-help organisations, such as the Australian Quadriplegic Association and Handicapped Persons’ Alliance of New South Wales. Others are conducted by able-bodied people, or by a combination of able-bodied and disabled people such as the Paraplegic and Quadriplegic Association of New South Wales. They subsidise the purchase of equipment, conduct accommodation centres, ¹¹ provide sheltered employment ¹² and act as lobby groups to protect their members interests. ¹³ Their sources of funding include government grants, charges to clients, charitable donations and sales of items from sheltered workshops.

2. The Commonwealth Government

9.8 The first Government involvement in the development of rehabilitation services was through the Commonwealth Repatriation Department. The Department was established in 1917 to provide medical treatment to incapacitated ex-servicemen whose disabilities were connected with war service. ¹⁴ This rehabilitation service continued and was expanded following World War II. In 1952 a special vocational training scheme was established specifically for disabled ex-service people, called the Disabled Members and Widows’ Training Scheme. ¹⁵

9.9 The provision of rehabilitation services by the Government to civilian disabled people did not commence until 1941. ¹⁶ Amendments to the Invalid and old-age Pensions Act 1941 led to the establishment of vocational training programs for invalid pensioners. ¹⁷ Following the end of World War II, an interim scheme for disabled ex-service people, whose disabilities were not due to war service, was established. It included facilities for physiotherapy, occupational therapy, vocational and pre-vocational training and was conducted by the Department of Social Security. In 1948, the Commonwealth Rehabilitation Service was established following the report of a special government committee which recommended a rehabilitation program for physically handicapped people. ¹⁸

9.10 There are now two comprehensive vocational rehabilitation centres operated by the Commonwealth Rehabilitation Service in New South Wales. These are Mount Wilga Rehabilitation Centre at Hornsby which began as a day centre in 1953, and the Queen Elizabeth II Rehabilitation Centre at Camperdown, a more modern development which opened in 1977. The Commonwealth has also established rehabilitation facilities to assist in the transition to work: the Granville Work Preparation Centre commenced in 1974 and the Artarmon Work Adjustment Centre in 1975. As facilities have expanded so have the eligibility criteria. The services are provided free to social security recipients and certain young people. They are available to other disabled people at reasonable charges, which vary according to their capacity to pay. People with compensation claims are likewise eligible, but are expected to pay for the services from their compensation. ¹⁹ The concentration on vocational rehabilitation has been relaxed and the service now provides non-vocational rehabilitation designed to promote independent living. There are also limited Commonwealth rehabilitation coordination facilities in other centres including Newcastle and larger country centres. ²⁰

3. The State Hospital System

9.11 The development of rehabilitation facilities within hospitals in New South Wales has been more fragmented. ²¹ A specialist rehabilitation unit was established at the Royal South Sydney Hospital in 1956 and the Spinal Injuries Units at Royal North Shore and Prince Henry Hospital commenced in 1958 and 1963 respectively. The high quality work done by these units has been invaluable, both in individual cases and in developing a body of expertise for the acute care and the rehabilitation of seriously injured people. Until recently the development of facilities was not coordinated on a state-wide basis, although coordination now takes place through the State’s Department of Health and its regional offices. Demand for services still appears to exceed supply, but one submission claimed that this shortage was not insurmountable if existing resources were directed towards the establishment of additional rehabilitation units.

The nucleus of a staff for a Rehabilitation Department exists in most hospitals throughout the State, namely Occupational Therapists, Physiotherapists, Social Workers, Speech Pathologists. The only essential team members missing from some institutions are Psychologists and Specialists in Rehabilitation Medicine. ²²

4. The Workers’ Compensation System

9.12 The need for rehabilitation of injured workers was formally recognised in the original Workers’ Compensation Act, 1926 which contained a specific section authorising expenditure on rehabilitation. ²³ Notwithstanding this provision, it was not until 1969 that any expenditure on rehabilitation was incurred under the Act.

9.13 In 1968, Judge Conybeare of the Workers’ Compensation Commission was asked to undertake an inquiry on behalf of the Government of New South Wales into the feasibility of establishing a system for the rehabilitation of injured workers. His report, presented in 1970, recommended far-reaching changes to the Workers’ Compensation Act, including continuation of earnings-related compensation past the 26 week period, a clear obligation in the Act to ‘de for rehabilitation expenses, an obligation on the workers to participate in any provided rehabilitation which was offered and, significantly, the abolition of the worker’s right to proceed at common law. ²⁴ Only the recommendations relating to the creation of a rehabilitation section within the Workers’ Compensation Commission and the establishment of a right to recover rehabilitation expenses were implemented.

9.14 The Rehabilitation Department was established in 1974 but in its early years the numbers of people referred for rehabilitation were quite small. ²⁵ Following the 1980 amendments requiring the referral of injured workers whose incapacity continues for at least 12 weeks, ²⁶ the referral rate increased dramatically to approximately 350 cases per month. ²⁷ While the extra demands had been anticipated by the Commission a commensurate increase. ²⁸ An in staff did not eventuate, although the Commission continues to press its case. An acknowledgement of the cost effectiveness of rehabilitation is evidenced in the emergence of private rehabilitation consultants and rehabilitation sections in insurance companies active in the workers’ compensation industry. ²⁹

5. The Australian Woodhouse Committee

9.15 The Australian Woodhouse Report dedicated most of one volume to a scheme for rehabilitation, and emphasised the interaction between safety, rehabilitation and compensation.

It is self-evident that the problem of incapacity ... demands an attack on three fronts. The most important is obviously prevention. Next in importance is the obligation to rehabilitate the injured and the sick. Finally, there is the need to provide economic assistance in the form of compensation for their losses. The priorities need to be emphasised and particularly is it necessary to ensure that the objective of compensation does not bear down upon the far more important need for the restoration of health and physical well-being. ³⁰

9.16 The Report stated that rehabilitation services should be:

• universally available;
• easily accessible; entirely flexible;
• comprehensive;
• continuous; and
• complete. ³¹

Detailed recommendations for an Australia-wide coordinated and integrated program of rehabilitation were made. These included the establishment of a central coordinating Rehabilitation Division in the proposed Commonwealth Department of Social Welfare Policy and Planning, with a widespread regional administration to operate the following facilities in each region.

• Medical rehabilitation units and a limited number of specialist medical rehabilitation units.
• Mobile rehabilitation clinic teams.
• General rehabilitation centres.
• Sheltered workshops and day activity centres.
• Accommodation and domiciliary services for handicapped persons.
• Special facilities for the pre-school training associated with the special education of handicapped children, and for their accommodation. ³²

Little action has been taken on these proposals.

6. The Victorian No-Fault System

9.17 Althoughtherewasnomentionofrehabilitationinitstermsofreference,theMinogue Report ³³ stressed the need for suitable rehabilitation services. ³⁴ The Report recommended:

• the establishment of a small Rehabilitation Section in the Motor Accidents Board to undertake research into the rehabilitative needs of motor accident victims and the best methods of meeting those needs;
• the appointment of rehabilitation liaison officers to assist accident victims;
• the provision of financial assistance to existing evaluation teams; and the
• establishment of a Chair of Rehabilitation Medicine. ³⁵

The Report was also critical of the continuation of the fault-based common law system because of its adverse effects upon rehabilitation. ³⁶

9.18 The Victorian Motor Accidents Board has since become active in the field of rehabilitation. In 1981, a provision was inserted in the Motor Accidents Act 1973 stating that

[I]t shall be the duty of the Board to design and promote, so far as possible, a programme designed to secure the early and effective medical and vocational rehabilitation of persons injured as a result of accidents to whom or on behalf of whom the Board is or may become liable to make any payment under this Act. ³⁷

A fund has been established to meet the expenses of rehabilitation ³⁸ and the Board has undertaken specific initiatives to improve accident trauma services and to foster rehabilitation centres. ³⁹

B. New Zealand

9.19 The New Zealand Accident Compensation Act has contained provisions dealing with rehabilitation from the beginning, but there has been criticism of the lack of progress in the field. In a submission to the Commission, a New Zealand lawyer and trade union official, Mr. J R Wilson said:

[t]he promise of an enlightened system of rehabilitation has not been fulfilled ... The Act specifically requires the Corporation to “promote a well coordinated and vigorous programme for the medical and vocational rehabilitation of injured persons”. The 1982 Act also requires the Corporation to “place great stress upon rehabilitation”. However, claimants do not have any statutory right to rehabilitation assistance and the Corporation has, in the past, both in policy and practice, failed to meet the statutory directive. ⁴⁰

While he acknowledges that the Corporation has publicly committed itself to greater efforts in this area,⁴¹ he criticises the lack of professionally trained rehabilitation officers, inadequate services for vocational rehabilitation and the absence of a job placement service for rehabilitees. ⁴²

9.20 The Accident Compensation Act 1982 (NZ) states its objectives regarding the rehabilitation of accident victims as follows.

(a) Their restoration as speedily as possible to the fullest physical, mental and social fitness of which they are capable, having regard to their incapacity;

(b) Where applicable, their restoration to the fullest vocational and economic usefulness of which they are capable; and

(c) Where applicable, their reinstatement or placement in employment.⁴³

The scope for the provision of rehabilitation services by the Corporation is wide. The Corporation is given functions relating to cooperation and consultation with existing services, the promotion and provision of services, the fostering of new services, and the sponsoring of relevant projects. ⁴⁴ It is also given detailed responsibilities in relation to the rehabilitation of injured individuals. These include:

• providing financial assistance for training; ⁴⁵
• financing home modifications; ⁴⁶
• providing aids and appliances; ⁴⁷ and
• financing the purchase and/or modification of a motor vehicle.⁴⁸

The Corporation has power to undertake research into rehabilitation ⁴⁹ or to fund or otherwise encourage the development of training or education facilities to assist in its rehabilitation service function. ⁵⁰ This includes, for example, providing funds to encourage the training of more doctors in rehabilitation medicine.

9.21 A review of rehabilitation services in New Zealand, which pre-dated the 1982 Act, considered the role of the Accident Compensation Corporation in that field. ⁵¹ Some of the problems identified by the review included:

• the emphasis on rehabilitation of earners as against non-earners; ⁵²
• problems of overlap between the Corporation’s officers and other service providers; ⁵³ and
• the reluctance of the Corporation to meet certain patient requirements because hospitals were responsible for patient needs, while the Corporation was responsible for rehabilitation aids. ⁵⁴

The last problem flowed from divided responsibilities whereby hospital costs were not borne by the Accident Compensation Corporation, but by the general health care system. The review observed that delays had occurred prior to the decentralisation of services but that “the speed of response is now satisfactory”. ⁵⁵ On balance, the review found that criticisms of the Corporation had been “more than offset by entirely favourable comments made quite gratuitously”. ⁵⁶

C. International Developments

9.22 For many years the International Labour Organisation has expressed a commitment to the rehabilitation of disabled workers. ⁵⁷ Following the United Nations Declaration on the Rights of Mentally Retarded Persons in 1971, the United Nations-Declaration on the Rights of Disabled Persons was passed by the General Assembly on 9 December 1975. ⁵⁸ The Declaration recognises the right of disabled people to rehabilitation services to enable them to develop their capabilities and skills and their right to economic and social security. The importance of the Declaration was stressed in submissions ⁵⁹ and we recognise that it contains goals for which the community should aim.

9.23 During the International Year of Disabled Persons, sponsored by the United Nations in 1981, both employer and employee groups affirmed their support for the participation of disabled workers in the workforce. The Disabled Workers’ Charter was approved at the 1981 Australian Council of Trade Unions Congress. The Confederation of Australian Industry also adopted a charter for disabled people in that year. The National Labour Consultative Council, which was established in 1977, has issued guidelines for employers on the training and employment of disabled people. ⁶⁰

D. Anti-Discrimination Legislation

9.24 The New South Wales Government has recognised the importance of guaranteeing equality of opportunity to disabled persons. The New South Wales Anti-Discrimination Act, 1977, was amended in 1981 to prohibit discrimination on the ground of physical impairment. ⁶¹ While there are certain exemptions, the Act purports to cover discrimination ill work, ⁶² education, ⁶³ provision of goods and services, ⁶⁴ and accommodation. ⁶⁵ There has also been a considerable amount of public attention focussed on the problems faced by disabled people in the community through various reports and inquiries. ⁶⁶

III. ROLE OF THE ACCIDENT COMPENSATION CORPORATION

A. The Right to Rehabilitation

9.25 The central importance of rehabilitation to the Transport Accidents Scheme is based on the principle that disabled people should have, in the words of the United Nations Declaration on the Rights of Disabled Persons

... the right to medical, psychological and functional treatment including prosthetic and or thetic (sic) appliances, to medical and social rehabilitation education vocational training and rehabilitation aid, counselling, placement services and other services which will enable them to develop their capabilities and skills to the maximum and will hasten the process of their social integration or reintegration. ⁶⁷

and that

[d]isabled persons are entitled to the measures designed to enable them to become as self-reliant as possible. ⁶⁸

In view of its fundamental importance, we recommend that transport accident victims be granted a right by legislation to rehabilitation to enable them to recover or maximise their functional capabilities and become as self-reliant as possible.

B. Ensuring the Provision of Rehabilitation Services

9.26 There are already organisations, private and public which provide services of the nature required to give effect to the transport accident victim’s right to rehabilitation Attempts to establish new agencies would risk duplicating existing services and further fragment the provision of rehabilitation and allied services in this State. It would therefore be more efficient and economical for the Accident Compensation Corporation to coordinate the provision of services to transport victims through existing agencies. This view was supported in 1983 by the then Minister for Health Mr L J Brereton, MP, in commenting on the Working Paper.

[T]he establishment by the Accident Corporation of a completely autonomous and separate Medical Rehabilitation Service would be unwarranted and uneconomic. New South Wales already has an established system of Rehabilitation Services provided through the Public Hospital System with additional programmes offered by the two Centres at Mount Wilga and Camperdown, administered by the Department of Social Security, and from some resources within the private sector. Admittedly, there are shortfalls in certain areas and, as the Working Paper correctly identifies, greater co-ordination could be achieved between those services which do exist. These problems can be overcome and I would suggest the appropriate policy option for the Law Reform Commission to endorse would be integration with existing services. Expansion of service to meet increasing need can be achieved by cooperative effort, with the role of the Accident Compensation Corporation being defined primarily as a funding source. ⁶⁹

9.27 In general the Corporation should utilise existing public facilities in both health care and other fields, appropriate financial arrangments being made with the service providers. The next Chapter considers whether the Corporation should provide monetary compensation directly to the disabled person, or whether compensation should be provided in the form of services. As explained there, we prefer the latter in order to ensure that the disabled person receives the assistance required, although efforts should be made in such areas as attendant care to maximise the choices available to the disabled person. Accordingly, we recommend that wherever practicable, the Corporation coordinate and administer the provision of rehabilitation services through existing agencies rather than establish its own services.

9.28 This approach means that it will be necessary for the Corporation to maintain close liaison with all service providers in the field of rehabilitation. There must be careful assessment of the needs to be met and of the best means of meeting those needs, within the framework of the legislation and the policy guidelines developed by the Corporation. Negotiations with existing service providers and selection of appropriate sources of assistance should be a high priority following the establishment of the Accident Compensation Corporation. It will be necessary for the Corporation to ascertain, at an early stage, areas where services require expansion to provide for transport accident victims and, if necessary, to provide additional funds to enable the expansion to occur. In view of its statutory obligations, administrative procedures will be required to ensure that funds are directed specifically towards providing for the needs of disabled transport accident victims.

9.29 Many existing agencies which provide for the rehabilitation of the disabled and supply support services are overburdened. ⁷⁰ To some extent, the availability of extra funds may allow these services to be extended. In this way, the Corporation would be able to utilise the expertise of existing organisations. Since many of them are community-based, it would also enable services to be provided on a decentralised basis. Where there is already a critical shortage of facilities, such as in the area of vocational rehabilitation centres, the Corporation could work with existing agencies to build new centres or extend existing ones to cope with the extra demands generated by the Transport Accidents Scheme.

9.30 Where public rehabilitation services are not available or are too costly the Corporation should have power to make arrangements with other organisations providing such services. Interest has been shown in this area by the private sector. One submission identifies the rehabilitation services provided by such hospitals relevant to the needs of transport accident victims ⁷¹. Private services may well be able to fill the need for rehabilitation services in locations not served by public facilities or in cases where existing facilities simply cannot meet the demand.

9.31 Where services are not available in the public or private sector, the Corporation may need to become a service provider. There will also be other areas in which the Corporation should have power to act in the long-term interests of transport accident victims. For example, where a seriously disabled person is unable to obtain a housing loan from conventional sources, the Corporation should have the power to provide financial assistance or act as guarantor for a loan. Similar questions arise in relation to loans for other rehabilitation purposes. We recommend that the Corporation should have broad powers to ensure the provision of rehabilitation services and other support services, including the power

(a) to make financial and other arrangements with both government and private service providers to provide rehabilitation or support services to transport accident victims;

(b) to monitor contracted service providers to ensure satisfactory standards of service; and

(c) to provide, where necessary, services or assistance directly to transport accident victims.

C. A Rehabilitation Section

9.32 To encourage the prompt and effective utilisation of existing rehabilitation services and to foster the development of new ones, we recommend that the Corporation create a Rehabilitation Section to administer its rehabilitation functions. Its responsibilities should include:

• establishing and coordinating procedures for early referral of cases;
• monitoring of service providers to maintain adequate standards and prompt service provision;
• ensuring effective communication between claimants, their families, the Corporation and service providers through liaison officers, rehabilitation counsellors and, where necessary, interpreters; and
• developing, with claimants and appropriate rehabilitation personnel, individually tailored rehabilitation programs and supervising these programs.

Many of these functions would rest with rehabilitation counsellors employed by the Corporation. Such officers would not themselves conduct rehabilitation a function which should rest with doctors, physiotherapists, occupational therapists, vocational trainers, family counsellors, psychologists and many others. It should be the duty of the rehabilitation counsellors to monitor the progress of the person through the program and to act as a central inquiry point for the person and his or her family.

9.33 Chapter 15 refers to the desirability of employing liaison personnel in hospitals (paragraph 15.16). This is one means of ensuring prompt referral of transport accident victims to the Corporation. These people would not only advise transport accident victims of their entitlements under the Scheme, but would also be the first point of contact with the Corporation. Liaison personnel could alert rehabilitation counsellors to individuals who may be in need of special attention.

9.34 In addition, the Corporation will have to develop its own referral procedures. Sometimes accident victims, their families or medical practitioners will make direct approaches to the Corporation in relation to rehabilitation. However, special procedures will be required to identify potentially long-term incapacitated transport accident victims as early as possible. The work of hospital liaison officers and hospital visits by rehabilitation counsellors in cases of serious injury will assist in this process of identification. However, it is equally important to devise effective means of locating accident victims not admitted to hospital who suffer less traumatic but still incapacitating injuries. To this end the Rehabilitation Section may need to develop a list of types of injuries which should be referred to rehabilitation counsellors when an application for compensation is lodged. In addition, cases should be referred to a rehabilitation counsellor where the incapacity continues or is likely to continue for longer than 8 weeks. Accordingly, the initial medical certificate to the Corporation should indicate whether or not the incapacity is likely to continue beyond the 8 weeks period.

IV. MEDICAL AND FUNCTIONAL REHABILITATION

A. The Aim

9.35 When a person is injured in a transport accident, the first sources of assistance will probably be a hospital doctor or other medical personnel such as nurses or ambulance officers. While the first priority must be the acute care of the injured person treatment is also directed towards the goal of rehabilitation from the very beginning. Medical rehabilitation has been defined as a continuous process which ideally starting from the onset of sickness or injury, comprises measures:

• to prevent undue loss of mental and physical function during illness;
• to assist convalescent patients to recover full function and to resume their normal way of life without undue delay; [and]
• to help those for whom permanent disability is unavoidable to regain the maximum possible physical and mental function and to adapt to their residual disability. ⁷²

9.36 The rehabilitation process should begin as soon as possible after the injury and so far as practicable, should be integrated into other aspects of medical care. This point was emphasised by Dr. N. Wing in her submission.

Rehabilitation is an ongoing process that should be introduced in the earliest hours after an accident and proceed gradually as the patient progresses from stage to stage of convalescence, until he is restored to the greatest degree of usefulness possible. ⁷³

Where integration does not occur, or is substantially delayed, the chances of successful rehabilitation decrease considerably. For example, a recent New South Wales study of people suffering from lower back pain conducted over a 10 year period stated that

... all sub-groups had much better outcomes if admitted within one week and very poor outcomes (range 12 to 28% ‘fit’) if admitted more than 12 weeks after injury. ⁷⁴

Another recent study, the findings of which were consistent with the foregoing study, concluded that

rehabilitation is the process of restoring function. And this can only be achieved by early assessment of function. This assessment must look not only at the musculo-skeletal function which is directly affected, but we must also look closely at the person with the injury and how that person functions psychologically, socially and in his work.⁷⁵

The immediate attention of both the patient and treating medical professionals to the goal of rehabilitation is very important even at the acute treatment stage, to maximise the patient s chances of successful recovery. We therefore recommend that the Corporation should be under a duty to provide rehabilitation services as soon as possible after the occurrence of the injury in a transport accident. Some ways of ensuring prompt access were discussed in paragraphs 9.32-9.34

9.37 The approach to medical and functional rehabilitation which appears to offer the greatest benefits to disabled persons is that of a skilled interdisciplinary “team” who jointly assess the needs and abilities of the injured person and who work systematically towards rehabilitation. The composition and function of one such team was outlined in one submission.

Royal South Sydney Hospital’s Rehabilitation Centre is staffed by Rehabilitation Medicine Specialists, Occupational Therapists, Physiotherapists, Psychologists, a Rehabilitation Engineer, Social Workers and a Speech Pathologist. A team such as this has the capacity to treat patients along the full spectrum, from the ward to resettlement in the community, which includes the home, former employment and leisure pursuits. ⁷⁶

Such teams function successfully at other hospitals with rehabilitation units in New South Wales. The emphasis varies from teams in which the medical specialist conducts the program with advice from other rehabilitation professionals to those in which other personnel play a substantially greater role. Wherever practicable multi-disciplinary teams of rehabilitation professionals should assess the abilities and needs of disabled transport accident victims and work jointly towards the goal of rapid rehabilitation.

9.38 The Corporation should also take account of the needs of family members of accident victims. While they are not likely to require physical rehabilitation they may have other important needs. For example, the family of a seriously disabled person will often require counselling to help them to adjust to their new roles. If a person is killed, family members may need special counselling even if they have not suffered nervous shock and are not therefore compensable victims. ⁷⁷ Similarly, a person who believes the death or injury arising from the transport accident is his or her fault, may require counselling. just as the physical trauma requires prompt attention, so too, does the emotional and mental trauma of these transport accident “casualties”.

9.39 Consistent with the view that the Corporation should be under a duty to provide such services, we recommend that the Corporation should be responsible for meeting the costs of rehabilitation services required for transport accident victims, subject to the general arrangements made with regard to hospital and medical costs. Where rehabilitation services provided as part of hospital treatment, the Corporation should bear the cost only to the extent that it is liable for hospital costs generally. If the recommendations in Chapter 13 are accepted, for example, part of the cost may be met by the Commonwealth.⁷⁸ What is most important is that the accident victim be relieved of any concern about meeting the cost.

Rehabilitation ... requires a positive approach in which the accident victim immediately begins to concentrate on the problem of recovering his health freed to the maximum possible extent from worry over problems such as meeting his expenses and supporting his dependants. ⁷⁹

9.40 Where transport accident victims require rehabilitation treatment it may be necessary for them to incur travelling expenses or even accommodation expenses in some cases. To a large extent-the decentralisation of services and the development of mobile rehabilitation teams will minimise the need for claimants to travel long distances (see paragraphs 9.49-9.50). However, we recommend that the Corporation should pay necessary travelling and accommodation expenses incurred by a claimant in obtaining rehabilitation treatment.

B. Problems Requiring Attention

9.41 If the objective of maximising opportunities for medical rehabilitation is to be realised, a number of difficulties must be considered. First, medical training has paid relatively little attention to rehabilitation. The second matter, which is probably a result of the first, is that there is a shortage of rehabilitation specialists and rehabilitation teams in New South Wales. Thirdly, rehabilitation medical facilities are concentrated in the urban centres of New South Wales. If the Corporation is to ensure access to rehabilitation facilities from the outset, these problems must be addressed even though their effects are not confined to transport accident Victims.

1. Medical Training

9.42 The 1970 Conybeare Report into Rehabilitation and Workers’ Compensation noted that witnesses

... deplored the scant attention given to rehabilitation in the training of many generations of New South Wales doctors... Generations of medical graduates have gone into practice with no real exposure to the ideas and techniques of rehabilitation; the result of this is reflected, according to most of the witnesses before me, in a striking lack of awareness, on the part of many doctors, of what rehabilitation is and what it can achieve. ⁸⁰

While the position has since improved, the heavy concentration on acute care in medical training at the expense of rehabilitative care has continued. In 1979, the Chairman of the National Advisory Council for the Handicapped, Mr C L D Meares, QC, said

[c]ontinuing major accent on acute health care is disturbing indeed and costs are mounting out of all proportion to real need. Not enough attention is specifically paid to prevention and restorative care... Medical Schools continue to concentrate on acute ‘scientific’ care and very little emphasis is given to rehabilitation and long-term care. ⁸¹

9.43 The establishment in 1980, of the Australian College of Rehabilitation Medicine ⁸² indicates a growing recognition within the medical profession that rehabilitation is an important facet of medicine. There are now rehabilitation components in the Family Medicine Program, which trains doctors for general practice. ⁸³ The development of rehabilitation training facilities should be fostered and encouraged by the Accident Compensation Corporation, although it cannot bear the primary responsibility for this task. We recommend that the Corporation should have powers to encourage and sponsor the development of rehabilitation training programs for medical practitioners and other health care professionals. This is perhaps more important for the disabled person than the present shortage of specialist rehabilitation doctors and teams. If medical and health personnel generally were more aware of the objectives of rehabilitation, the shortage of specialists referred to in the next paragraph would be less significant.

2. Shortage of Rehabilitation Specialists

9.44 One result of the communities lack of concern with rehabilitation is the shortage of doctors specialising in rehabilitation medicine. The Australian College of Rehabilitation Medicine estimates that the number of specialists should be at least doubled to meet present needs, and that needs are increasing. One reason given for the shortage is that rehabilitation medicine, like geriatrics, does not have a significant private practice base. ⁸⁴ Other reasons given include the reluctance of established medical schools to recognise rehabilitation medicine as a speciality ⁸⁵ and the lack of medical rehabilitation training centres. ⁸⁶

9.45 The need for recognition and development of a rehabilitation speciality has been debated by the medical profession for some time. ⁸⁷ Some doctors see this as a necessary step towards the integration of rehabilitation into hospital and medical treatment. Others see it as a step towards separation of the processes of treatment and rehabilitation. ⁸⁸ We think that two approaches should be fostered. Infusion of the principles of rehabilitation into all medical training is imperative. In addition, specialist doctors and rehabilitation teams are required to assist disabled people with special needs or problems. For example, even where all treatment is geared towards rehabilitation the need for special programs for victims of spinal injury or brain damage would remain.

9.46 A number of ways have been suggested to meet the need for more specialists and to imbue the training of medical personnel with the aims of rehabilitation. These include:

• the establishment of Chairs of Rehabilitation Medicine at universities; ⁸⁹
• the creation of more centres of excellence for research into rehabilitation; ⁹⁰ and
• the development of undergraduate courses with a substantial rehabilitation content. ⁹¹

There is an obvious need also for the organised dissemination of information about rehabilitation facilities and techniques to practitioners and medical personnel who have already completed their training. Nurses, doctors and other personnel should have the opportunity, through conferences, or refresher courses and other means, to be informed of developments in this area.

9.47 While many of these problems cannot be directly solved by the Accident Compensation Corporation, there is a role for such a body in this area. For example, the New Zealand Accident Compensation Corporation sponsored the establishment of a Chair of Rehabilitation Medicine at Massey University. The Minogue Report in Victoria also recommended that funds be provided for a Chair of Rehabilitation Medicine. ⁹² Other possibilities include establishing Postgraduate Research Grants or Awards to enable research work to be done and specialists to be trained in the treatment of transport accident victims. One submission suggested that medical practitioners should be subsidised while undergoing training in rehabilitation medicine to encourage them to participate in such programs. ⁹³ We therefore recommend that the Accident Compensation Corporation should have the power to support training and research in rehabilitation and to make grants to institutions and individuals f or these purposes. The Corporation should also have power to support dissemination of information concerning rehabilitation to health professionals, other groups and members of the community.

9.48 The shortage of other rehabilitation personnel, such as physiotherapists, rehabilitation counsellors and occupational therapists, which was mentioned in the Australian Woodhouse Report, ⁹⁴ is now less acute. The Woodhouse Report saw this staff shortage as a critical problem for the implementation of its proposals. While the position has improved, the vision in that Report of a decentralised, coordinated national scheme of rehabilitation for all disabled people is far from a reality. ⁹⁵

3. Centralised Services

9.49 The third obstacle to achieving the goal of adequate medical and functional rehabilitation facilities is that the vast majority of rehabilitation teams and facilities operate in Sydney or the other large urban centres of New South Wales. In the case of specialised facilities dealing with specific catastrophic injury this may be inevitable. It may also be necessary in the case of large specialist rehabilitation complexes, such as the Department of Social Security’s Queen Elizabeth II facility. This was recognised in the Australian Woodhouse Report.

Specialist medical rehabilitation units would necessarily be few in number, and they would need to be located, with rare exception in the capital cities and in association with one or more of the major teaching hospitals. They would provide a full range of sophisticated equipment and facilities and offer advanced medical and paramedical treatment required for special post-acute management and long-term medical rehabilitation assistance in the case of particular types of severe disability. A specialist “unit” for quadriplegics and paraplegics is an example. ⁹⁶

9.50 Nonetheless, effective rehabilitation of people injured in transport accidents may well be inhibited if they are taken away from their families and communities. While there are limits to the process, the continued development of rehabilitation services in country and suburban hospitals and regional centres should be encouraged by the Corporation. It should also evaluate the feasibility of using mobile rehabilitation teams in remote parts of the State. Similar proposals have been advanced by the Commonwealth Department of Health.

Mobile rehabilitation teams are needed to provide services especially in towns where no rehabilitation unit exists. A vocational counsellor should be included in the team. Apart from giving advice, assessment and treatment these teams could be used to improve the knowledge of rehabilitation concepts of health personnel in metropolitan fringe and/or non-metropolitan areas. ⁹⁷

Accordingly, we recommend that, so far as practicable, the goal of decentralisation of rehabilitation facilities should be pursued by the Corporation.

V. MEDICAL EQUIPMENT AND MECHANICAL AIDS

9.51 Aids to rehabilitation may be equally important during the initial stages of a program and in the longer term. Medical equipment, pharmaceutical supplies and mechanical appliances, all of which are essential to an effective rehabilitation program, are the “non-optional” costs of disability. It is obviously important to the rehabilitative process that such aids be readily available to transport accident victims and that the cost of providing them be met by the Corporation.

A. Medical Equipment and Pharmaceutical Supplies

9.52 Some people injured in transport accidents require prosthetic devices such as artificial members (limbs and organs), eyes and teeth, orthotic equipment such as splints, calipers or built-up shoes; or other equipment such as hearing aids, glasses or surgical braces. Others may require pharmaceutical supplies such as bladder and bowel care items, and materials such as sheepskin rugs to prevent pressure sores. The cost of providing equipment of this kind to a quadriplegic was estimated to be in the vicinity of $2,000 per year in 1983. ⁹⁸ Some of the case study participants had found these expenses prohibitive, particularly where they were not eligible for pensioner fringe benefits because they or their spouses worked. ⁹⁹ We recommend that the Corporation should bear the cost of necessary pharmaceutical supplies, and necessary prosthetic, orthotic or other corrective medical equipment, the need for which arises from disability suffered in a transport accident.

B. Aids and Appliances

9.53 In addition to medical or pharmaceutical supplies a person disabled in a transport accident may require aids or appliances to live independently. For example, a paraplegic may require a wheelchair, while a person with limited hand function may require special equipment to do everyday chores. A person with limited mobility may need a hoist or a special chair. One submission noted the importance of such aids for disabled people, and said that they should be prescribed by an occupational therapist who has the skills to assess and restore function. The submission stressed that aids often require special design to meet the individual’s disability and only a few can be mass produced. ¹⁰⁰ The cost of aids varies considerably. We recommend that the Corporation should also bear the cost of providing necessary aids and appliances and of altering existing equipment used by disabled transport accident victims.

9.54 One issue frequently mentioned in discussions with disabled people’s groups was the short period for which some aids were required. Some said that by the time the aid had arrived the person’s condition had improved so that it was no longer required. Alternately, they were provided with extra aids which were not required. Another problem was faced by those who were trying to find the right aid. Often the aid had to be used fora time before its usefulness (or uselessness) became obvious. Rather than providing aids and wheelchairs, some disabled people suggested that a “borrowing poor, of aids should be established. A borrowing pool of aids and wheelchairs known as “Westhelp” operates already among groups of parents of disabled children. ¹⁰¹ These arrangements allow disabled people to try out the aids which professional staff or others recommend and select the most appropriate. They also allow disabled people to borrow items required only for a short term and return them when they are no longer needed. The suggestion has great merit. We recommend that the Accident Compensation Corporation should establish borrowing pools of equipment which can be used by disabled transport accident victims. We acknowledge that some aids and appliances, and almost all prosthetic and orthotic equipment, require individual tailoring and are, therefore, inappropriate to such a proposal.

9.55 The frequency with which equipment will require replacement will depend largely on subjective factors. For example, a person who uses his or her wheelchair to lead a very active fife may require replacement items more frequently than someone who chooses not to or is unable to do so. We therefore do not favour the imposition of time limits upon the transport accident victim’s right to replacement aids or equipment. Instead, we recommend that the Corporation should provide replacement aids and equipment as often as is necessary and reasonable. However, this is another area in which the Corporation could develop guidelines to assist in making decisions in individual cases.

C. Research

9.56 There is a continuing need for research into the best ways of meeting the physical needs of disabled people. For example, one submission emphasised the importance of rehabilitation engineering, in relation to such matters as the design of aids, prosthetics, orthotics, communication devices and environmental control systems. ¹⁰² An Expert Committee in Rehabilitation Engineering was established in 1979 to exchange ideas and information and coordinate research on the needs of the disabled. This committee has recommended that one centre of excellence in research be established in each capital city. ¹⁰³ There are other examples of research of special interest to disabled people. We recommend that the Corporation should have power to make grants for research into the needs of transport accident victims. It should also have power to establish and develop research facilities in coordination with agencies already working in this field.

VI. WORKFORCE REHABILITATION

9.57 One aim of rehabilitation is to foster economic independence. This has obvious advantagesforthedisabledpersonandfortheScheme,whichwillberelievedoftheobligation to make continuing payments for loss of earning capacity. Resources directed toward this aim also have the potential for increasing the disabled person’s satisfaction with life and opportunities to participate in community activities.

A. Training and Retraining

9.58 A person injured in a transport accident may require training or retraining to enable him or her to enter or re-enter the paid workforce. This may also be true of the financially dependent spouse of a person who is killed in a transport accident. ¹⁰⁴ It is clearly desirable that the Corporation offer the opportunity for retraining, where the person is likely to benefit from the course and to be better equipped to resume or commence remunerative employment. It will be necessary for the Corporation to develop guidelines in order to identify the persons likely to benefit from training and the kind of program appropriate for each individual. The matters that would need to be taken into account include the person's:

• medical condition;
• educational and vocational history;
• hobbies, interests and special attributes;
• family responsibilities;
• future employment prospects; and
• likely period of employment, including proximity to retirement.

In addition, reports of rehabilitation assessment teams, vocational assessors and others will be important. These criteria are similar to those which operate under the New Zealand accident compensation scheme. ¹⁰⁵

9.59 We recommend that the Corporation should make available vocational training programs for people disabled in transport accidents and for the dependent spouses of people killed in such accidents. The Corporation should meet the costs of such programs and should formulate guidelines for admission designed to maximise the opportunities for successful vocational training. The term “spouse” includes de facto partner (paragraph 12.21). In accordance with general recommendations, the Corporation should use existing services, such as those operated by the Commonwealth Employment Services, the Commonwealth Rehabilitation Service or other agencies, wherever feasible.

B. Alterations to Workplace

9.60 Sometimes an employer is willing to employ a disabled person but finds it difficult to do so because of physical limitations in the workplace. For example, access to the building may be by a staircase or the equipment in the workplace may require modification if it is to be used by a disabled person. The Commonwealth Rehabilitation Service and the Commonwealth Department of Employment and Industrial Relations provide financial assistance for workplace modifications. ¹⁰⁶ These alterations may include devices such as special headsets for telephones, different chairs, stools or desks, modified work benches or work access. Publicising these possibilities and efforts by both employers and workers to ensure that workplaces are accessible to all people will probably enhance the employment prospects of disabled people generally. We recommend that the Corporation should provide reasonable work place modifications, where an employer employs or continues to employ a disabled transport accident victim and where the modifications are necessary to enable the disabled transport accident victim to work in or gain access to the workplace. The Corporation should have power to negotiate financial arrangements with Commonwealth Departments which provide such services. Should these negotiations not prove successful, the Corporation should make alternative arrangements to provide necessary workplace alterations. There are some workplace modifications which may benefit the employer and other workers or customers as well as the disabled transport accident victim. Where this is so, it may be reasonable for the Corporation to seek contribution from the employer. We recommend that, in deciding what workplace modifications are reasonable, the Corporation should have regard to:

(a) the cost of the modifications;

(b) the benefit of the modifications to the employer and other workers or customers and contribution to the cost by the employer; and

(c) the likely duration of employment of the disabled transport accident victim.

9.61 An obvious difficulty with this proposal is that the Corporation’s investment may be nullified if the disabled worker leaves the employment voluntarily or is dismissed. While the Corporation could not prevent such an event occurring, it may be able to minimise the consequences. For example, if the workplace modifications are fairly substantial the Corporation could negotiate an agreement under which the employer would reimburse a proportion of the costs if the disabled transport accident victim were dismissed within a set period. The Corporation could also waive this provision if the dismissal were justified and another disabled transport accident victim were employed in the dismissed person’s place. It should be open to the Corporation to provide workplace modifications on a second or subsequent occasion for a disabled worker, if there is good reason to do so. A worker may change ‘obs for compelling reasons, such as family circumstances or because the previous work environment was harmful to his or her health. The formulation in paragraph 9.60 allows the Corporation to make a judgment that a second or subsequent set of modifications is warranted.

C. Liability to Pay Workers’ Compensation

9.62 A potential employer of a partially disabled transport accident victim may be adversely influenced by the fear a liability may arise to pay workers’ compensation should the victim aggravate the disability at work or sustain a second, unrelated injury which may have more severe consequences because of the pre-existing disability. The general principle is that where a worker has a pre-existing disability and death or incapacity follows a work-related accident

... then the incapacity is regarded as resulting from the injury, although in fact it results from the injury taken together with the other circumstances. ¹⁰⁷ The Workers’ Compensation Act, 1926, states in general terms that

[w]here the death or incapacity of a worker results from more than one injury, liability to pay compensation under this Act shall be apportioned in such manner as the Commission determines. ¹⁰⁸

However, this section is generally believed to be limited in its application to disputes between insurers and employers in relation to consecutive work injuries. ¹⁰⁹

9.63 In Chapter 14 we recommend that if the subsequent disability or incapacity is reasonably attributable to the disability sustained in the transport accident, the Transport Accidents Scheme should be liable to pay compensation for the subsequent disability or incapacity (paragraph 14.39). This recommendation should provide considerable protection for potential employers, since a partially disabled worker who suffers a work-related injury to which his or her pre-existing disability contributes will be covered by the Transport Accidents Scheme rather than the workers’ compensation system. If, for example, a worker has restricted mobility because of a knee injury sustained in a transport accident and the work-related injury is the result of impaired mobility, the burden of compensation will not fall on the employer or workers’ compensation insurer.

9.64 Nonetheless, some potential employers may be concerned that disabled workers in some way may be more prone to work injuries unrelated to the pre-existing disability. Even if this fear is without foundation, it may act as a barrier in practice to the re-employment of disabled transport accident victims. ¹¹⁰ The problem may be overcome by improved incentives to re-employ under the workers’ compensation system which we understand are currently under consideration. However, the Corporation should be in a position to offer incentives itself and therefore we recommend that the Corporation should have power, for a specified period, to contribute to the cost of workers’ compensation insurance incurred by the employer who has provided or continued employment for a person disabled in a transport accident. In the case of self-insurers, a notional premium could be calculated to achieve the same purpose. However, the Corporation should cooperate with other agencies involved in workers’ compensation in order to devise other methods to encourage re-employment and thereby enhance rehabilitation. This may prove to be a useful means of encouraging employers to accept disabled workers who might otherwise simply continue to receive compensation under the Scheme for loss of earning capacity. An indemnity of this kind might be especially appropriate for the first six or twelve months of employment to provide protection to the employer during the period when the worker might be considered most vulnerable to work injuries.

D. Placement Programs

9.65 It is critical to a successful vocational rehabilitation program that the Accident Compensation Corporation play an active role in placing disabled transport accident victims in employment. Not only is this socially desirable, but the Corporation will also have a financial incentive to restore accident victims to employment as soon as possible. Among other things, the test proposed for post-accident earning capacity requires the Corporation to be satisfied that a disabled person is at no disadvantage in competing in the labour market for employment of which he or she is capable. The clearest means of being satisfied of this fact is, of course, to secure employment for the disabled person, thus establishing his or her post-accident earning capacity beyond doubt.

9.66 The Commonwealth Employment Service currently employs placement officers concerned with disabled people ¹¹¹ and a similar service is conducted by the Public Service Board of New South Wales. There is obvious virtue in the Corporation working in cooperation with agencies which conduct placement programs for disabled people, although this should not preclude the Corporation taking its own initiatives and developing its own programs. In particular, the Corporation should ensure that potential employers are aware of advantages under the Scheme, such as financial assistance for workplace modifications and indemnity against liability for workers’ compensation. We recommend that the Corporation should promote the placement of disabled transport accident victims in employment.

9.67 If placement programs are to be effective, it may be necessary to offer further inducements to employers to engage disabled transport victims. Some inducements, such as taxation incentives for companies which employ a minimum number or proportion of disabled people in their workforce, may be appropriate as general government policies applicable to all disabled people. However, there are others which the Corporation could adopt specifically. One example is the approach of the Commonwealth Employment Service, which pays subsidies to an employer to train and employ a disabled persons. The subsidies are payable for a period of at least 20 weeks, depending upon the period of training required, and the amount paid may vary during the training period, commencing at a relatively high level and reducing halfway through the approved training period. ¹¹² The employer is paid the subsidy and the worker receives wages in the normal way. A similar scheme would be very useful in relation to transport accident victims, conducted either by the Corporation itself, or by the Corporation in conjunction with other agencies. Accordingly, we recommend that the Corporation should have power to develop schemes providing financial incentives for specified periods to employers who engage or maintain disabled transport accident victims in employment.

E. Return to Work and Compensation Entitlement

9.68 Disabled people have many reasons for wishing to resume employment even if they are receiving compensation for loss of earning capacity. These include job satisfaction self-esteem, a desire for advancement and companionship with workmates. Nonetheless, where a person receives earnings-related compensation, albeit at a level less than 100 per cent of the loss, financial incentives to resume employment are not as great, generally speaking, as in schemes where compensation is paid on a less generous needs basis. A number of measures have been suggested to encourage resumption of employment. In Chapter 8 we recommended that the proportion of loss of earning capacity compensated should be increased beyond 80 per cent as the disabled person increases his or her involvement in the workforce (paragraph 8.24). The provisions relating to assessment of post-accident earning capacity are designed to ensure that a disabled person cannot simply decline to take advantage of employment opportunities that are reasonably open (paragraph 7.62). The proposals for assessment of permanent incapacity address the problem of incentives for the long-term disabled (paragraphs 8.52-8.60). The thrust of this Chapter is to maximise the opportunities for vocational rehabilitation of disabled transport accident victims.

9.69 Another potential barrier to vocational rehabilitation requiring attention is that a resumption of employment may itself prejudice entitlement to compensation if the attempt to resume employment proves to be unsuccessful. The disabled person may be uncertain for example, as to whether he or she can cope with the proposed employment, but would be willing to try, if compensation rights were not prejudiced in the attempt. In these circumstances, the Corporation should have power to allow a period of grace during which the disabled could cease employment and resume compensation for loss of earning capacity without having to make a fresh application This does not mean that the Corporation would be precluded from demonstrating on the usual criteria that the person’s incapacity for work has ceased. However, it does mean that a good faith effort to enter the workforce should not necessarily be considered as proof of capacity for work and that such an effort could be undertaken in the knowledge that lack of success will not prejudice a resumption of compensation for loss of earning capacity. We recommend that the Corporation should have power to approve the entry into or resumption of employment by a disabled transport accident victim on the basis that, if the employment does not continue beyond a specified period, that person should be entitled to compensation for loss of earning capacity without making afresh application. The length of the trial period will vary. In cases of severe or fluctuating disability, it may extend over a number of years.

F. Business Loans

9.70 A number of submissions contended that lump sums were useful to establish a person in her or his own business. For example, the Law Society of New South Wales stated that

[a] lump sum gives people an opportunity to re-establish themselves in an income earning activity which is within their physical limitations. ¹¹³

9.71 The Accident Compensation Corporation should encourage a disabled transport accident victim who desires to become economically independent by establishing a business. However, lump sum compensation for loss of earning capacity is not the best way of achieving this. Should the business fail, ¹¹⁴ the person would be left with no recourse but social security. Even then it is likely that social security will not be payable for the period of capitalisation of compensation. ¹¹⁵

9.72 In general if a person wishes to establish a business he or she must use his or her own capital or borrow from a lending institution. Where a person uses his or her own capital wise financial planning is necessary to avoid loss. If finance is sought, the applicant must prepare detailed proposals which shed light on the prospects of the venture. The person must demonstrate that the venture has a reasonable chance of success before a lending institution will support it. In many cases where a disabled person has the skills and motivation required for business success, a lending institution will be prepared to provide funds in accordance with its usual criteria. In these circumstances the most constructive role for the Corporation to play may be to provide independent advice to the disabled person and to assist in planning the venture and in preparing applications for finance. We recommend that the Corporation should provide financial counselling if requested by any person who is entitled to or has received compensation under the Scheme. ¹¹⁶ Such advice may be particularly important in relation to investment of the lump sum paid for permanent disability, but may be helpful on other matters such as proposed business initiatives.

9.73 It may also be appropriate for the Corporation to provide more tangible assistance to a person wishing to establish a business. Such assistance may be necessary to promote vocational rehabilitation and is likely to prove cost effective. We recommend that the Corporation’s power in relation to a person incapacitated in a transport accident should include:

(a) continuing compensation for loss of earning capacity for a specified period during which the person commences and conducts a business. venture;

(b) guaranteeing loans made to that person for business purposes; and

(c) making loans, in such terms as are appropriate, to enable that person to commence or continue a business.

These powers will need to be exercised cautiously. However, the process of rehabilitation requires a wide variety of powers to permit flexible responses to the circumstances of disabled people.

VII. SOCIAL REHABILITATION

9.74 When a person suffers a serious injury, a very important part of the rehabilitation process may be re-learning activities which were previously undertaken almost automatically. These include dressing, grooming, bathing, cooking, eating, drinking, writing, speaking and many other every day skills. It may also include sexual counselling for the person and his or her partner. Even where the disability is less catastrophic the person may need to develop a new lifestyle to minimise continuing pain, or to lessen the chance of aggravation or deterioration. Where a person is unable to work, he or she will need alternative interests that ordinarily would be regarded as leisure activities. The family of the disabled person will also need to make adjustments, both emotional and otherwise, to their changed circumstances. The importance of social rehabilitation, in many cases, places it earlier in the rehabilitation process than vocational rehabilitation, although the two often interact.

9.75 To some extent the lump sum compensation for permanent disability (Chapter 11) recognises the difficulties of these adjustments and acknowledges that, even with as many services as possible to assist the person to live independently, there are intangible and immeasurable losses, which he or she may feel acutely. However, effective training for independent living can substantially offset the intangible losses. This training should aim to educate the disabled person to minimise the handicaps flowing from his or her disability. For example, if a person has a lower back injury, the function of an independent living training program would be to show how the person can perform activities without aggravating the condition and how other parts of the body or aids and equipment can be used to minimise handicap and discomfort.

9.76 Rehabilitation programs should include leisure counselling, particularly when the disabled person is unable to undertake any kind of remunerative employment. One submission noted the importance of this kind of rehabilitation to disabled people.

Sporting and other recreational facilities for severely disabled persons should become the focus of concern for a rehabilitation division to maximise the potential of all disabled persons. ¹¹⁷

Thus we recommend that the rehabilitation programs for people disabled in transport accidents should include training for independent living, social rehabilitation and leisure counselling.

VIII. SUMMARY

9.77 Although of comparatively recent concern in compensation schemes, rehabilitation was given a high priority in the Australian Woodhouse Report and increasingly has become acknowledged as an essential component of accident compensation. Prompt and effective rehabilitation reduces both unnecessary suffering and the ultimate cost of compensation by restoring the accident victims functional capacity to the maximum possible extent. Transport accident victims should therefore have a right to rehabilitation and the Corporation should be actively involved in ensuring that the necessary rehabilitation services are provided. This can be achieved by utilising existing facilities in both the public and private sectors. But where these are inadequate or unsatisfactory, the corporation should have power to provide services directly. A special Rehabilitation Section within the corporation is proposed to encourage the prompt and effective utilisation of existing rehabilitation services and to foster the development of new ones. The Section would employ rehabilitation counsellors to identify transport accident victims in need of rehabilitation and to provide them with advice and assistance.

9.78 In fulfilling its duty to provide prompt and effective medical and functional rehabilitation, the Corporation should:

• bear all costs associated with the provision of rehabilitation services;
• meet the costs of travel and accommodation necessarily incurred in obtaining treatment;
• encourage the development of training programs for rehabilitation professionals; and
• provide mechanical equipment, pharmaceutical supplies and mechanical aids.

9.79 In addition to functional and medical rehabilitation, the Corporation should also play an active role in the vocational and social rehabilitation of transport accident victims. Vocational rehabilitation includes not only training programs but also payment for alterations to the workplace and active involvement in job placement programs. In addition the Corporation should take measures to minimise the financial risk to employers of engaging disabled transport accident victims. Another form of vocational rehabilitation which the Corporation may undertake is assistance in establishing a business. Social rehabilitation involves not only retraining for everyday activities and learning to cope with the disability but also counselling in human relationships and leisure activities.

1. Working Paper, para. 11.42.

2. See J. Dewdney and I. Inwin, The Aftermath-Caring for Accident Victims in New South Wales (Unpublished Commission document, 1983).

3. We have been assisted greatly through criticism and suggestions from disabled people, medical practitioners and rehabilitation personnel. In addition, we have met with various groups Such as the Australian Quadriplegic Association, and the New South Wales Council of Social Service, which organised a seminar attended by both able-bodied and disabled community members. We received submissions from the organisations representing disabled people and disabled individuals, (see eg. submissions W15, W44, W74, W83 and W85), as well as conducting Our internal Case Study program. For further information on these matters see paras 1.7-1.12, 1.18-1.32.

4. World Health Organization Expert Committee on Medical Rehabilitation, Second Report (Geneva 1969).

5. J Henle, Rehabilitation of Auto Accident Victims (US Department of Transportation, Automobile Insurance and Compensation Study, 1970), p.4.

6. Submission W42, p.2.

7. For a study which confirms the importance of early referral, see D Hewson, J Halcrow and C Brown, Compensable Back Injuries-Characterisation of a Ten-year Rehabilitation Centre Caseload (Royal South Sydney Rehabilitation Centre 1982), pp.82-83. See also Submission W24, p.11.

8. Report of the Rehabilitation Review Committee (New Zealand 1982), para.50.

9. Submission W24, p.3.

10. T H Kewley, Social Security in Australia 1900-1972 (2nd ed. 1973), p.326.

11. See note 2 above, paras.7.9-7.10. These paragraphs summarise some of the organisations which have developed Such centres in co-operation with the New South Wales Housing Commission. There are also, of Course. private hostels and hospitals which serve this purpose.

12. See eg. Paraplegic and Quadriplegic Association of New South Wales.

13. Many groups undertake this function, but there are umbrella organisations Such as the Australian Council for Rehabilitation of disabled.

14. F Rowe, “Rehabilitation in Australia” (1958) 78 International Labour Review 461, at p.464.

15. Ibid.

16. See note 10 above, pp.326-327.

17. Invalid and Old-age Pensions Act 1941 (Cth), s.6.

18. Social Services Consolidation Act (No.2) 1948 (Cth.), s.20.

19. Social Security Act 1947 (Cth.), s.135R.

20. See note 2 above, para. 10.2.1.2.

21. See note 14 above, at p.463.

22. Submission W42, p.2.

23. Workers’ Compensation Act 1926, s.52. See also, Official Farewell by Bench and Bar to His Honour Judge Perdriau, first Chairman of the Workers’ Compensation Commission of New South Wales, (1950) 24 WCR 93, at p.102, per Perdriau J.

24. Conybeare Report, pp.117-129, esp. at p.122.

25. Forty-ninth Annual Report of The Workers’ Compensation Commission of New South Wales and Statement of Accounts for the Year ended 30th June 1975, p.31.

26. Workers’ Compensation Act 1926, s.52A.

27. Fifty-fifth Annual Report of The Workers’ Compensation Commission of New South Wales for the Year ended 30th June 1981, p.38.

28. Workers’ Compensation Commission of New South Wales, Rehabilitation Department, Submission to the Attorney General on Costs of the Workers’ Compensation System (June 1983), p.3.

29. See eg. International Rehabilitation Associates and Industrial Rehabilitation Service.

30. Australian Woodhouse Report, vol.1, para.8.

31. Id., vol.2, para.34.

32. Id., para.4(4).

33. See paras.4.36-4.37.

34. Minogue Report, 7.01-7.02.

35. Id., para.7.24.

36. Id., paras.7.29-7.31.

37. Section 57A(l).

38. Motor Accidents Act 1973 (Vic.), s.61A.

39. Ninth Annual Report of the Motor Accidents Board, Year ended 30 June 1982 (Victoria 1983), paras.6-7.

40. Submission W9, p.7. Mr. Wilson is the Industrial Secretary of the National Union of Railway men.

41. Id., p.7.

42. Id., pp.7-8.

43. Accident Compensation Act 1982 (N.Z.), s.36(2).

44. Id., s.37(l).

45. Id., s.37(3)(d)(i), (ii) and (iii).

46. Id., s.37(3) (e).

47. Id., s.37(3) (0.

48. Id., s.37(3) (g).

49. Id., s.37(5).

50. Id., s.37(3) (d) (iv).

51. See note 8 above, para. 183.

52. Ibid.

53. Id., paras.184, 191.

54. Id., para.190.

55. Id., para.188.

56. Id., para.193.

57. See eg. International Labour Organisation, Recommendations Concerning Vocational Rehabilitation of the Disabled (Geneva 1955), rec.99.

58. This was passed at the 2433rd plenary meeting.

59. See eg. Submission W24, p.6 ff.

60. National Labour Consultative Council, Disabled People: Working for a Better Future (1982).

61. Anti-Discrimination Act, 1977, part IVA. The area of employment gives rise to the largest proportion of complaints of discrimination on the ground of physical impairment. Of the 91 complaints received in 1981-82, 79 per cent related to discrimination in employment. The-corresponding figure for 1982-83 was 72 per cent of 47 complaints: Anti-Discrimination Board Annual Report year ended 30 June 1983, p.85.

62. Anti-Discrimination Act, 1977, ss.49 B-491.

63. Id., s.49J.

64. Id., s.49 K.

65. Id., s.49 L

66. See eg. Commission of Inquiry into Poverty, Social Medical Aspects of Poverty Series, The Social Relationship between Poverty and Disability in Australia, Research Report by S Treloar, ACROD (1977); Parliament of Tasmania, Report of the Tasmanian Board of Inquiry into the Needs of the Handicapped (1980); South Australian Committee on Rights of Persons with Handicaps, The Law and Persons with Handicaps (1978), esp. vol.1; New South Wales Anti-Discrimination Board, Discrimination and Physical Handicap (1979); National Women’s Advisory Council, So Much Left Undone (1983).

67. Declaration on the Rights of Disabled Persons passed at 2433rd plenary meeting of the General Assembly of the United Nations, 9 December 1975, cl.6.

68. Id., cl.5.

69. Correspondence from the Minister for Health to the Attorney General, dated 9 December 1983 and forwarded to this Commission for attention. See also. Submission W42, p.2.

70. See eg. Council of Social Service of New South Wales, Cold Comfort (1983).

71. Submission W86.

72. Commonwealth Department of Health, Rehabilitation in Health Services (1979), para.2.6.

73. Submission W24, pp. 10-11.

74. See D Hewson, J Halcrow and C Brown. note 7 above, p.59. The importance of early referral to rehabilitation and of integration of rehabilitation principles is also stressed in the Conybeare Report, para.6(1).

75. Dr A Ganora, Survey of Patients 1-150 Consecutive Referrals Presenting with Back Pain to the Illawarra Rehabilitation Centre, paper presented at the Illawarra Rehabilitation Centre Insurance Symposium (June 1983), pp.8-9.

76. Submission W42, p.5.

77. D Hart and D Linklater, Psychological and Social Losses from Road Traffic Crashes (Traffic Accident Research Unit, Research Report 2/81, 1981).

78. See paras.13.63-13.72

79. Minogue Report, para. 7.07.

80. Conybeare Report, para.6(6).

81. See note 72 above, p. ix; see also, Commission of Inquiry into Poverty, Third Main Report, Social Medical Aspects of Poverty in Australia (1976), p.68.

82. The College was inaugurated on 23 February 1980.

83. See note 72 above, para.7.8.

84. Id., para.6.6.

85. Id., p.xiv.

86. Id., p.xv and para.6.4.

87. For discussion see Commission of Inquiry into Poverty, note 81 above, p.69.

88. Dr B M Ford, “Medical Rehabilitation”(1974) 2 Medical Journal of Australia 177.

89. See note 72 above, p.xiv.

90. Australian Woodhouse Report, vol.2, paras.215-216. See also note 72 above, pp. xv-xvi.

91. Australian Woodhouse Report. vol.2, paras.210-214.

92. Minogue Report, para.7.24.

93. Submission W24, p.13.

94. Australian Woodhouse Report, vol.2, paras.221-225. See also paras.226-230 on other problems for the paramedical and medical support personnel.

95. See eg. note 72 above, para.7.6.

96. Australian Woodhouse Report, vol.2, para.92.

97. See note 72 above, para.7.4. See also Australian Woodhouse Report, vol.2, paras.93-95.

98. This figure is an estimate provided by the Australian Quadriplegic Association.

99. See eg. Case Study Booklet para.3.20, CS 142.

100. Submission W24, p.22.

101. See note 2 above, para.5.4.2.2(b).

102. Submission W42, pp.20-21.

103. See note 2 above, para.5.4.1.1.1 (c).

104. The concept of work force rehabilitation for the spouses of deceased earners is not a new concept. The Repatriation Act 1920 (Cth.), made provision for war widows in this regard, while in 1958 the scope of the Commonwealth Rehabilitation Service was widened to include widows’ pensions: see note 10 above, pp.330-331.

105. New Zealand Accident Compensation Corporation, Rehabilitation Manual, para.5.5.

106. See note 2 above, para. 10.4.

107. Ward v. Corrimal-Balgounie Collieries Ltd. (1938) 61 CLR 120, at pp.129-130, per Latham C J, see also C J Mills, Workers’ Compensation (New South Wales) (2nd ed. 1979). para.174.

108. Section 7A.

109. No case has attempted to use this section to apportion between work and non-work injuries. For a leading case on the interpretation of s.7A, see National Employers’ Mutual General Insurance Association Ltd. v. Calver [1983] 3 NSWLR 107.

110. This may be so notwithstanding Part IVA of the Anti-Discrimination Act 1977: see para. 9.24 above.

111. The Disadvantaged Persons Officer’s responsibilities include other disadvantaged people in addition to disabled individuals.

112. See Commonwealth Employment Service. Help To Break Down The Barriers-Employ A Disabled Person, leaflet 4-3-220 (April 1983).

113. Submission W28, para.2.2.2.

114. See eg. lump sum survey, vol.1, p.145, Case No.46.

115. Social Security Act 1947 (Cth), s.115B.

116. See eg. Submission W85, p.3.

117. Submission S93. p.7.