Betts v Health Secretary in respect of Health Share - [2023] NSWIRComm 1054 - NSWIRComm 2022 case summary — Zoe

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Betts v Health Secretary in respect of Health Share

[2023] NSWIRComm 1054

Industrial Relations Commission (NSW)|2022-10-27|Before: Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2022-10-27

Before

Mr J

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

decision

This is an application pursuant to s 242 of the Workers Compensation Act 1987 (WC Act) seeking reinstatement as a Quality Assurance Business Partner with Health Share and an order for lost remuneration.
The applicant had worked for Health Share from 2011, and elsewhere within NSW Health since 1998. In 2015, she began to struggle with her job and eventually became completely unable to work. The applicant claimed that her injuries were caused by her work and her claim for workers' compensation was accepted.
The applicant's employment was terminated on medical grounds on 17 June 2018. This was based on the opinion of the applicant's treating doctors that the applicant would never sufficiently recover to perform the inherent requirements of her former role.
After the termination of her employment at Health Share, the applicant secured a common law damages payment which was premised on her ongoing incapacity for work.
In July 2019, the applicant commenced part time work in a clerical capacity at Westmead Hospital. It became clear through the course of the hearing that this was for both economic reasons and because the applicant considered it assisted her recovery from her injury.
On 6 March 2020, the applicant wrote to the respondent seeking to be reinstated to her former role as a "Quality Coordinator". The letter set out: "On 17th June 2018 my employment with HealthShare NSW was terminated as a result of a work related medical injury/illness. Since then, I have made significant progress with my recovery and am hereby requesting immediate reinstatement to my former position as a Quality Coordinator (HSM level 2). You are most likely aware of the provision under Part 8 Section 241 of the Workers Compensation Act 1987 whereby an employer is required to immediately reinstate a terminated worker on production of a medical certificate indicating fitness to resume work. You are also most likely aware of section 243 whereby the Industrial Relations Commission can order reinstatement should the employer fail to comply with section 241. I have enclosed two medical certificates issued by my GP and by my treating psychiatrist as required. I look forward to resuming my role as a Quality Coordinator and to hearing from HealthShare shortly regarding a starting date." [Emphasis in original]

Dr Rastogi answered a number of specific questions over the 12 month period. Relevantly, she responded: 1. On 6 May 2020, setting out: 1. In answer to a question whether she was confident the applicant was able to resume full time work and meet the demands of her pre-injury role, without sustaining further injury: "She is stable and functioning well with treatment. She should be given a trial of pre-injury role/duties and provided support"; 2. In answer to a question whether, in her opinion, the applicant's impairment was now completely resolved: "Yes with current treatment, she has improved. I would not say the impairment has resolved completely. She needs ongoing treatment"; 3. In answer to a question as to how confident she was that a return would not result in an aggravation of the applicant's injury: "I cannot provide an opinion with guarantee that an aggravation will never occur. Her current symptoms have settled with improvement in functioning and ready for preinjury employment"; and 4. Indicating "Y", presumably for yes, as to the applicant being able to meet each of 16 separate "Capabilities" which the respondent stated were "necessary to perform the role of a Quality Assurance Business Partner", the role to which the applicant sought reinstatement; 1. In July 2020 setting out: 1. "[The applicant] has secured [illegible] intensive counselling and treatment that has helped build coping skills/resilience. She is aware of her condition and has family support. She has been well for more than 12 months and exposed herself to stressful situations without any relapse hence she is ready to resume her preinjury work"; and 2. "I am of opinion that she is fit for her preinjury role. She would need retraining with any changes and monthly support meetings with manager to assess progress and communicate issues"; and 1. On 1 December 2020 setting out: 1. [The applicant's] treatment by Dr Rastogi as: "1. Treatment from February 2015 to January 2018 • Inpatient admissions at Northside clinic • Group therapy • 1:1 counselling • [listing medications] 2. February 2018 till March 2020 • [listing medications]" 1. Providing a narrative as follows: "3. She is certified fit to drive without restrictions. She has been driving to Westmead Hospital and is working five days a week. She has driven long distances and all alone. 4. She has been abstinent from alcohol since December 2019 and continues to remain abstinent 5. There are no outside factor out of work that contribute to Ms Betts psychological injury 6. She is working five days a week in administrative role at Westmead in various wards and outpatient clinic. She does client face duties and works in multidisciplinary areas and deals with patients and relatives from diverse grounds. She has handled stress and had no relapses over last 12 months. She has good stress coping and handled difficult positions and situations with no relapses. 7. She has been working in highly stressful work environment and proven to function effectively without relapses. She has handled stressful situations and given she has made full recovery she has resumed premorbid functioning with intensive treatment she had received. She did not report any specific stressful situations in particular in her current work. 8. Given her recovery and her current working progress and working in stressful situations and working full time and good response to therapy over years and juggling different work scenarios and challenging situations in her current work she had a good predicament and relapse is unlikely. She has maintained premorbid functioning for more than 12 months and had no relapses and good insight. She is using adaptive coping skills and demonstrates good resilience. The risk of injury is limited and exacerbation is unlikely based on her 12 month progress. 9. Her ongoing treatment plan is to continue her anti-depressants and mood stabiliser long term for next 12 months and regular reviews with me only as needed 10. I am of the opinion given her current mental state and functioning, she is eligible for pre-injury duties and full time hours. I am confident she has capacity to work in preinjury duties and is very capable for performing all duties as of now. 11. She does not need any further investigations or treatment. she is managing her life independently and not needing regular psychiatric interventions. I only see her every 4-6 months now." 1. Attaching a patient record for the applicant at Dr Rastogi's practice.

On 29 March 2021, the respondent's solicitors wrote to the applicant setting out: "HealthShare has considered [the applicant's] request for reinstatement and reviewed all of the information provided to date including the report provided by Dr Rastogi in response to HealthShare's request for more information. Based on all of the information available, HealthShare is concerned that [the applicant] is not fit for the inherent requirements of the role and therefore it has decided to decline her request for reinstatement into her former role as a Quality Assurance Business Partner. We understand that [the applicant] is presently working elsewhere. HealthShare has formed this view for a number of reasons including: 1. the medical report of Dr Patrick Morris dated 27 February 2018 which indicated that that [the applicant's] condition had stabilised, her impairment was likely to be permanent and that, due to her injuries, she was unlikely to ever return to pre-injury duties; 2. the fact that [the applicant] was assessed as having a 19% whole person impairment for the permanent injuries that she sustained; 3. the dearth of information in Dr Rastogi's report and attached medical files to explain the treatment undertaken and the factors going to [the applicant's] recovery especially in circumstances where the prevailing medical evidence indicated that her condition had stabilised, she had reached maximum medical improvement and her condition was unlikely to improve with or without treatment; 4. [The applicant's] unsuccessful attempts to return to work on suitable duties at points during July 2016, April 2017, May 2017 and June 2017. In respect of the attempted return to work in April 2017 [the applicant] reported to Dr Morris that she "attempted a retum to work program working 5 hours a day, 2 days per week. She started having a lot of anxiety, developed panic attacks and could not cope. Her depression increased and she described feeling 'useless' and 'afraid'. She lasted two weeks before having to stop work."; and 5. the fact that the requirements of her former role remain fundamentally the same including the requirements for Quality Assurance Business Partners to: (a) liaise with and support a number of hospitals and local health districts; and (b) frequently travel and work between multiple sites and locations across NSW. Should [the applicant] disagree with HealthShare's decision (and continue to seek reinstatement to her former role), HealthShare will require [the applicant] to attend a medical assessment with a suitably qualified Psychiatrist. That Psychiatrist will be asked, in the context of the requirements if the Quality Assurance Business Partner role, to examine [the applicant], the background giving rise to her injuries, and the medical records in order to determine whether she is in fact capable of returning to that role (so as to warrant reinstatement). Otherwise, please advise us … if [the applicant] does not accept Health Share's decision and the referral to a Psychiatrist is required." [Emphasis in original]

[2]

The Statutory Regime

The relevant sections of the WC Act set out: 241 Application to employer for reinstatement of dismissed injured worker (1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application. (2) The kind of employment for which the worker applies for reinstatement cannot be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury. (3) The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement. 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order. (2) An industrial organisation of employees may make the application on behalf of the worker. (3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed. 243 Order by Industrial Relations Commission for reinstatement (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being - (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). (4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission.
These provisions set out several procedural steps, gateways and discretionary decision points.

[3]

Which issues are in dispute?

As Mr Mattson for the respondent submitted, the first step in s 241(1) is a requirement that a worker be "… an injured worker … dismissed because he or she is not fit for employment as a result of the injury received …". This requires the applicant to have been dismissed because of an injury for which the applicant was entitled to receive worker's compensation.
The respondent conceded this requirement had been met by the applicant, as was clear in any event from the history of her injury, compensation and dismissal.
The second part of s 241(1) sets out that a worker may apply to be reinstated, and the applicant did in her letter of 6 March 2020.
Section 241(2) provides the employment which the worker may apply for "cannot be more advantageous to the worker than that in which the work was engaged when he or she first became unfit for employment because of the injury." Again, this is not in issue; the applicant sought reinstatement to the same role and at the level at which she was employed both in 2015 when she suffered the relevant injury and at the time of her dismissal.
Section 241(3) was referred to as a "gateway" by Mr Mattson, and the cases he cited support the use of that terminology. Whether the applicant "passed" that gateway is contested.
Section 242(1) allows a worker who is not "immediately" reinstated by the former employer to apply to the Commission for a reinstatement order. The applicant made such an application. As permitted by s 242(2), that application was, at least initially, made on the applicant's behalf by an industrial organisation of employees.
Section 242(3) provides that the Commission may not make a reinstatement order, other than in special circumstances, if the application to the employer for reinstatement was made more than two years after the injured worker was dismissed. It is accepted by the respondent that the application to the employer was made within the two-year period so that special circumstances need not be considered in this case.
The two-year period applies only to the application which must be made to the former employer. The WC Act does not provide a timeframe within which the worker must make an application to the Commission. It appears that the only way in which the Commission could take account of an inappropriately delayed application to the Commission would be in exercising the Commission's discretion pursuant to ss 243(1) and (2). I will return to that discretion more generally later.
I observe that the applicant made her application to the Commission more than a year after her application to the employer, and therefore some two years and 11 months after her dismissal.
In this case, the delay is fully explained by the extended exchange between the applicant and respondent, which from the applicant's perspective are easily understood as an ongoing hope that the respondent would ultimately reinstate her. It was not until 29 March 2021 that the respondent unequivocally declined to reinstate the applicant, with the application to the Commission being made some 11 days later.
Section 243, as has recently been confirmed by a Full Bench in Potter v Industrial Relations Secretary in respect of the Department of Regional New South Wales (No 2) [2023] NSWIRComm 1026, confers on the Commission a discretion as to whether a worker should be reinstated, if the Commission is satisfied that the worker is fit for employment of that kind. The parties in this matter did not have the benefit of the decision in Potter, but in my view were not disadvantaged as they conducted this matter on the basis held in Potter to be the correct understanding of s 243.
What is important, and was addressed by the parties in this matter, is that the Commission may only exercise the discretion as to whether to reinstate the worker if the Commission is first satisfied that the worker is fit for that kind of employment.
In this matter, the respondent contested that the applicant was fit to be reinstated, thus submitting that the precondition to the exercise of the Commission's discretion was not satisfied. The respondent also submitted against the exercise by the Commission of the discretion, should the Commission conclude that the applicant was fit to be reinstated.
The issues addressed in s 243(3) do not arise in this application. The respondent did not contest that it continues to have employment of the kind to which the applicant has applied to be reinstated.
Section 243(4) empowers the Commission, if it orders the worker to be reinstated, to order the employer to pay the worker an amount in compensation for lost remuneration. That amount may not exceed the remuneration the worker would, but for being dismissed, have received after making application to the employer for reinstatement.
The applicant proposed an order for the maximum amount which would be allowed pursuant to s 243(4), which was opposed by the respondent.
In summary, the following issues need to be determined by the Commission as they remain in dispute between the parties: 1. Has the applicant satisfied the gateway in s 241(3); 2. Is the applicant currently fit for employment of the kind for which she has applied to be reinstated (the Employment); 3. Assuming she is relevantly fit for the Employment, should the Commission exercise its discretion to reinstate the applicant; and 4. If the Commission orders reinstatement, what if any order should be made in relation to remuneration for the period since 6 March 2020.

[4]

The gateway - s 243(3)

The respondent cited two decisions of the Commission as to the way in which it said the Commission should consider whether the applicant had passed successfully through the "gateway".
First, Mr Mattson took the Commission to Glenn Robson v GWA Group Limited [2015] NSWIRComm 9 at [23] and [25]: "23. The jurisdiction of the Commission under Pt 8 of the WC Act is enlivened in the event that each element of the jurisdictional criteria outlined in ss 241(1), 241(3) and 242(1) of that Act is satisfied. … 25. … [the] worker must have made an application to the relevant employer for reinstatement to 'employment of a kind specified in the application' … and produced 'a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement' in support of the same …. Whilst the requirement to produce a medical certificate attesting to the requisite fitness constitutes what has been described as the 'gateway' to the Commission's jurisdiction under Pt 8 of the WC Act, the certificate given by a medical practitioner for the purposes of s 241(3) is by no means conclusive of the application brought and, in particular, the resolution of whether the injured worker is fit for the purposes of s 243(2) and (3). …"
Mr Mattson then cited portions of the decision of Commissioner Sloan in Ronald MacDonald v Jetstar Airways Pty Ltd [2019] NSWIRComm 1010 at [62] - [64]: "62. To be entitled to make an application to the Commission for reinstatement pursuant to s 242(1) of the Workers Compensation Act, the worker must first have applied to the employer for reinstatement, and must have produced to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which he or she applies for reinstatement: s 241(1) and (3). 63. Section 241(3) is drafted in mandatory terms. It also has a temporal element, in that the medical certificate must be to the effect that the worker is fit for employment. As stated by the Full Bench in Casino (at p 12): 'The effect of the certificate, that is its general thrust, must be that the employee is fit to undertake the work as described by the employee when making application for reinstatement.' (Emphasis added) 64. That the medical certificate must demonstrate that the worker is currently fit for employment might be regarded as axiomatic in the context of the legislation. In any event, such a requirement is consistent with ss 243(2) and (3) of the Workers Compensation Act, which permit the Commission to reinstate a worker, but only if 'the worker is fit' for the employment to which he or she is to be reinstated." [Emphasis in original.]
The submission of the respondent was that, when properly analysed and considered, the certificates produced by the applicant when she applied to the employer for reinstatement did not amount to a certificate to the effect that the applicant was fit for the Employment.
This submission proceeded on two bases. The first being that the medical certificates provided by the applicant's treating psychiatrist and the applicant's general practitioner did not, even on the face of those documents, amount to certificates by the medical practitioners that the applicant was fit for the Employment. The second basis was that material disclosed by the applicant's medical practitioners during the course of their exchanges with the respondent otherwise demonstrated that the applicant was not fit for the Employment.
In respect of the first submission, it is clear that the general practitioner's certificate, from the face of her follow-up letter, could not meet the requirement of the gateway set out in s 241(3). It is doubtful the original certificate, even if not essentially withdrawn, could have amounted to a certificate satisfying the gateway.
The respondent also submitted that the original medical certificate provided by the applicant's treating psychiatrist, and the totality of Dr Rastogi's follow-up correspondence, did not amount to a basis on which the applicant could meet the requirement of the gateway set out in s 241(3).
While not expressed in terms which engaged with the decisions cited by the respondent, the applicant's submission was as simple as that she had met the only requirement of the gateway, which was Dr Rastogi's original statement that she was fit for the Employment.
For reasons set out below, I have concluded, on balance, that the applicant was not fit for the Employment at the time she applied and indeed in the proceeding months. However, despite some level of equivocation by Dr Rastogi, I have concluded that Dr Rastogi has given a medical certificate which satisfies the gateway.
Turning first to an analysis of Dr Rastogi's answers to the respondent's questions, it is sufficiently clear that Dr Rastogi is certifying that the applicant is fit for the Employment. It is true that Dr Rastogi provides answers which do not indicate a complete recovery such as: 1. "I would not say the impairment has resolved completely. She needs ongoing treatment" [1] ; and 2. "I cannot provide an opinion with guarantee that an aggravation will never occur. Her current symptoms have settled with improvement in functioning and ready for preinjury employment" [2] .
However, these are no more than a reasonable medical view that, in balancing the level of the applicant's recovery against the capacity of the applicant to perform the functions of the Employment, Dr Rastogi's opinion was that the applicant's recovery was sufficient for her to perform the Employment. That Dr Rastogi could not guarantee that there would never be a relapse, that she opined that the applicant required ongoing treatment, and that the applicant had not completely recovered does not change the substance of Dr Rastogi certifying that the applicant was fit for the Employment.
Any contrary view of Dr Rastogi's opinion is unreasonably negative. It is also contrary to the beneficial intention of Part 8 of the WC Act.
I am reinforced that this is the correct outcome by what I consider is a proper reading of the decision of Walton P in Glenn Robson in the passages cited by Mr Mattson. As His Honour sets out, even the production of the clearest and most optimistic of medical certificates would be " … by no means conclusive of the application brought and, in particular the resolution of whether the injured worker is fit for the purposes of s 242(2) and (3)."
Consistent with His Honour's reasoning, and with the other decisions cited by the respondent, the only time at which Part 8 of the WC Act tests the fitness of the worker for the employment is in proceedings before the Commission, and in consideration of the fitness of the worker at the time of those proceedings.
What is required to pass the gateway is, in accordance with the decision of Commissioner Sloan in MacDonald, a contemporaneous certificate of a medical practitioner stating that the worker is fit for employment. It is clear to me that the applicant produced such a medical certificate at the time she applied to the respondent for reinstatement.
As to the second of the respondent's submissions, it is sufficient to observe that the very structure of Part 8 of the WC Act effectively permits an employer, and without requiring any reason at all, to simply reject the reinstatement application and the medical certificate produced by the worker. In short, the second of the respondent's submissions attempts to bring forward to the gateway an issue which Part 8 of the WC Act clearly leaves to be determined by the Commission when considering an application made to the Commission.
Accordingly, the applicant has passed the gateway created by s 241(3).

[5]

Fitness as determined by the Commission - s 243(2)

Mr Mattson took the Commission to the decision of Commissioner Newall in New South Wales Nurses and Midwives Association (on behalf of Jennifer Cox) v Manchester Unity Australia Limited [2015] NSWIRComm 1003, at [39] and [48]: "39. In determining fitness for work, and specifically in the context of reinstating an injured worker, the Commission may properly assess that fitness by asking whether the worker is fit to carry out a 'timely, safe and durable return to work': Robinson v Commissioner of Police [2014] NSWIRComm 35 at [131]. … 48. … Indeed, to reinstate an employee under s.243(2) to a position for which the worker is not fully fit would be flatly contrary to the express provisions of the subsection, which place an absolute requirement on the Commission to be satisfied that the worker is fit for the work to which they are reinstated. …"
Mr Mattson then took the Commission to the Full Bench decision in Robinson v Commissioner of Police [2014] NSWIRComm 35, at [131] - [132]: "131. It is a difficult concept to capture in words, but we think all that the Commissioner was attempting to state in [118] was that in determining fitness for the relevant kind of employment the Commission is entitled to consider whether in reinstating a worker it was effecting a 'timely, safe and durable return to work...' … . 132. If for example, there is conflicting medical evidence that a return to the kind of employment the injured worker seeks will raise the real and foreseeable risk of exacerbating a physical injury and result in the worker having to again leave employment, or it is more likely than not there will be a relapse of a mental illness that may place fellow workers and the public in jeopardy, that is a serious consideration that must be taken into account by the tribunal. If there is medical evidence that such circumstances exist that is not an 'unknowable future event'."
As observed above at [51], the respondent did not need to either have, nor to justify, any reason to refuse the applicant's request that she be reinstated to the Employment. Nevertheless, the evidence before the Commission disclosed both the reasons why the respondent did not immediately reinstate the applicant, and that those reasons were, at the time of the request, understandable and rational.
The detailed medical records of the applicant, as disclosed to the respondent when considering her application for reinstatement, and later pursuant to orders of the Commission during these proceedings, make clear that at the time the applicant asked the respondent to reinstate her it was unlikely that she was actually fit for the Employment. Indeed, I have concluded that as at 6 March 2020 the applicant was not fit for the Employment.
I have concluded the applicant was not fit because at this time she was still grappling with what was, by her own admission, a dependence on alcohol as a means to cope with anxiety and stress. The reports of Dr Rastogi set out, on their face, that the applicant had been abstinent from the consumption of alcohol for some months at the time of seeking reinstatement. As the applicant conceded during proceedings in the Commission, this was in fact not the case; she had experienced at least one relapse where significant quantities of alcohol were consumed and for which she sought medical support including inpatient treatment.
The respondent became aware of the likelihood that the applicant was not in fact abstinent at the time of her application from medical records provided through correspondence with Dr Rastogi. More detailed medical records related to that treatment were produced in response to summonses during proceedings in the Commission.
Considerable reliance was placed by the respondent on this discrepancy, and the associated relapse, both on the question of whether the applicant was in fact fit for the Employment, and as to the impact that the discrepancy should have on the exercise of the Commission's discretion as to reinstatement.
The respondent led evidence from Glenn Smith who described his occupation as an addiction psychiatrist. Dr Smith gave evidence in relation to a report he prepared for the respondent of what he described as a psychiatric examination of the applicant, conducted by videoconference in September 2021.
In his report, Dr Smith provided what was described as a provisional diagnosis in two parts being: 1. "Major Depressive Disorder with Anxious Distress, in remission"; and 2. "Alcohol Use Disorder, in early remission."
Later in his report under a heading "Summary and Opinion", Dr Smith set out: "[The applicant] is … living … in Wagga Wagga. She denied a history of significant anxiety or depressive symptoms prior to around 2014 when she suffered from significant anxiety and depressive symptoms, diagnosed as Major Depressive Disorder. She was significantly impaired, requiring repeated psychiatric hospital admissions and she was subsequently assessed as suffering 19% whole person impairment in early 2018. She made a claim for work injury damages after that, and the matter was reportedly settled in around 2019. [The applicant] told me that her alcohol consumption escalated in late 2019 in the context of her dog dying but the reports of Dr Morris, Approved Medical Specialist for the Workers Compensation Commission, and her treating GP noted an escalation in alcohol consumption from at least 2017. There was evidence in her provided history and the available documentation (from her GP) of ongoing problematic alcohol consumption as recently as early 2021. [The applicant] provided a history of having a relapse briefly after the passing away of her grandmother in February 2021. She denied excessive alcohol consumption since around March 2021. She presented with only partial insight into the significance of her alcohol consumption, stating that she does not believe that she needs to abstain completely and that if she consumes alcohol in her own time there should be no problem with that. There was also evidence of minimisation of the significance of her history, notably that she told me that she had not consumed alcohol in a problematic pattern since October 2019, while Dr Morris' report suggests a more significant problem. [The applicant] reported that her depressive symptoms had improved from 2019, through the implementation of strategies from the outpatient mood program, psychological therapy and treatment with Dr Rastogi. The only changes in treatment from 2018 have been cessation of the outpatient group and of psychological therapy in around 2019. Factors that changed after 2018 were resolution of her claim in around 2019, and her return to work as a ward clerk. She felt positive and happier returning to a work role. It is likely, in my opinion, that her return to work did result in some improvement in her condition. Notwithstanding that, there was evidence that she has had difficulty coping with minor stressors, resorting to using alcohol in an excessive pattern to cope with emotional distress. [The applicant] has not received any significant treatment for her Alcohol Use Disorder and without a commitment to abstinence from alcohol, in my opinion, her risk of relapse to problematic alcohol consumption is very high. In my opinion, [the applicant] presented with symptoms consistent with the diagnosis of severe Alcohol Use Disorder, in early remission, although there would need to be independent verification that she is not currently consuming alcohol. She also presented with a history consistent with the diagnosis of Major Depressive Disorder, with Anxious Distress, currently in remission.
Further on in his report, Dr Smith set out his opinion of whether the applicant was fit to perform the Employment, "without any risk of injury or exacerbation of injury": "In my opinion, [the applicant] would likely be at high risk of relapse to heavy alcohol consumption and then significant anxiety and depressive symptoms if she returned to her pre-injury role. Her pre-injury role requires substantial travel which likely had a significant impact on her mood previously and there is evidence that, even with minor stressors, she remains at risk of resorting to alcohol consumption as a means of coping. Therefore, in my opinion, [the applicant] presented as unfit to return to the full-time pre-injury role as Quality Assurance Business Partner for Health Share."
The respondent relied on Dr Smith's report as expert evidence that the applicant was not fit for the Employment.
The applicant cross-examined Dr Smith at length. Before setting out the important parts of that cross examination, I consider it is important to observe that the applicant's cross examination of Dr Smith was meticulously organised, well directed to the case which she advanced, and professionally delivered. This will become relevant, as I set out below, in relation to the exercise of the Commission's discretion and, and prior to that in support of the finding I make that the applicant is fit to resume the Employment.
It is also important to set out, prior to extracting relevant portions of the cross examination of Dr Smith, that the applicant gave evidence to the Commission that she had been completely abstinent from the consumption of alcohol for 18 months. During the proceedings the applicant tendered what she described as the report of a hair analysis, which she submitted provided independent confirmation that she had been abstinent from the consumption of alcohol for at least six months.
During the proceedings I expressed a view that I would be unable to place much weight on the report. This was for a range of reasons, including it not being clear on the face of the document precisely what that report was, and it being probable that the most valuable weight which could be placed on the document may have required expert evidence.
Consistent with views expressed during the proceeding, I do not consider this is of great moment, as the applicant gave direct evidence that she had been abstinent from the consumption of alcohol for 18 months and this was not seriously challenged by the respondent. I accept the applicant's evidence and find that she has been abstinent from the consumption of alcohol for that period.
It was Dr Smith's professional opinion that he would be cautious in accepting the word of a patient with a history similar to the applicant that they have been abstinent without objective evidence such as hair testing. It is of course understandable from a medical perspective, and Dr Smith is a medical expert, that a treating medical practitioner may be sceptical of what is reported by their patient. Nevertheless, the way in which evidence is given, and accepted or rejected at the Commission, follows more closely the rules of evidence than it does Dr Smith's appropriate medical scepticism.
I also observe that insofar as it was placed in evidence before the Commission, principally through Dr Smith, the kind of objective testing Dr Smith referred to is only capable of detecting consumption or abstinence as far back as six months.
The most important parts of the cross examination of Dr Smith were the following five sections:

[10]

Section 5 Q. So, Dr Smith, is it your opinion that I'm unfit to return to my pre-injury role because I remain, as you say, at risk of resorting to alcohol consumption? A. At the time of that assessment the risk of return to alcohol consumption was a significant factor in my conclusion. Q. So the resorting to alcohol consumption in your opinion, would that be the only catalyst for not recommending - or for being unfit to resume my employment? A. It was-- Q. You don't mention - I only ask that because you don't mention any relapse to major depressive disorder at all there? A. In my opinion the most significant risk factor for relapse to anxiety and depressive symptoms was the risk of relapse to alcohol consumption, but the risk of relapse of anxiety and depressive symptoms in the context of stressors would also be present. Q. So is it your opinion, Dr Smith, then that a return to my role would lead to a recurrence of major depressive disorder? Would that happen? A. There would be a risk of that, but I would not say that it would necessarily, but there would-- Q. But you believe it's likely to happen through the use of alcohol? A. That was my - my main concern was that that was the biggest risk. Q. So you've basically - you're saying that you've assessed the lack of fitness based on risk, would that be correct to say? A. Yes.

The significance of the first section of cross examination is that at the time of Dr Smith's diagnosis in his report of September 2021, the applicant's alcohol use disorder was in early remission. By the time of the hearing, that become the alcohol use disorder was in remission. That is to say, it has moved from early remission to sustained remission.
I consider that the sum and substance of the respondent's challenge to the opinion of Dr Rastogi, that the applicant was fit for the Employment, was related to her alcohol use disorder. Of course, as Dr Smith gave evidence, there is always a risk that someone in remission from this disorder will relapse. Nevertheless it is clear, again from Dr Smith's evidence, that the longer the remission has continued the less likely that risk is to manifest.
It might be thought that the second portion of the cross examination extracted above was self-evident. It is the point and intention of Part 8 of the WC Act to be beneficial in a worker's recovery. Part 8 does not require a worker to have completely recovered; it requires the worker to have recovered sufficiently to be fit for the Employment.
The significance of the third part of the cross examination is again likely self-evident. At the time Dr Smith assessed the applicant in September 2021 the applicant was unwilling to give a commitment to total abstinence. It was the applicant's evidence, which I have accepted, that she has since committed to total abstinence and had kept that commitment for 18 months.
The fourth of the extracted parts of the cross examination is included because I consider that it demonstrates that Dr Smith's assessment of the applicant in September 2021 did not place sufficient weight on the importance to the applicant of the death of her dog. I consider that during cross examination Dr Smith conceded that the death of a pet will impact different people to different extents. I accept the submissions of the applicant that Dr Smith resiled from his earlier assessment of the death of the applicant's dog as a minor stressor.
The significance of the fifth and final part of the cross examination extracted above is that it reinforces the conclusion I have come to above at [72], that the substance of the challenge made by the respondent to the applicant's fitness for the Employment is about her dependence on alcohol. I have concluded, based on her evidence, and that of Dr Smith, this disorder is not likely to prevent her being fit for the Employment.
I accept and adopt the submission of the applicant that the mere risk of a relapse does not amount to a sufficient challenge to the fitness of the applicant for the Employment. Both Dr Rastogi and Dr Smith were clear that there is of course always a risk of a relapse. Dr Smith's evidence was that a person who has been diagnosed with a major depressive disorder, or an alcohol use disorder, can never be considered cured in an absolute sense. They can only reach a state of remission which might be early or sustained, with perhaps a very low risk of relapse after a period of five years.
It was not the evidence before the Commission that the applicant had been abstinent from the consumption of alcohol for more than five years. Nevertheless, it was the evidence, which the Commission has accepted, that she had been abstinent for considerably more than 12 months and therefore has risk reached a state of sustained remission from her alcohol use disorder. It was the evidence that she is much less likely to relapse at that point, than during the first 12 months.
I am reinforced in the view that the applicant is fit for the Employment because of the way she conducted her case before the Commission. In particular I was impressed by the way in which she conducted her cross examination of the witnesses, and in particular the respondent' expert witness, Dr Smith. It was apparent that representing herself in this matter before the Commission was a stressful undertaking. The applicant remained organised, relevant to the case she was putting, and indeed presented her case to a standard which professional advocates regularly appearing before the Commission should be pleased to reach.
Before moving to consider the Commission's discretion, I observe that the applicant referred the Commission to a decision of Commissioner Murphy in Fire Brigade Employees' Union of New South Wales v Fire and Rescue NSW [2022] NSWIRComm 1056, but without taking the Commission to any specific part of that decision.
The applicant asserted that the decision of Commissioner Murphy stood for the proposition that a risk of re-injury did not equate to a current lack of fitness. I have been unable to place any weight on the decision of Commissioner Murphy in support of the applicant's submission. The Commissioner's decision concerns a different statutory scheme from Part 8 of the WC Act and was addressed by the applicant at only the most superficial level.

[11]

The Commission's discretion - s 243

It was implicit, rather than express, in the submissions of the applicant that, once she established that she was fit for the Employment, it was presumed by Part 8 of the WC Act that she should be reinstated. The respondent did not concede that Part 8 proceeds on such a basis.
Given the remedial nature of Part 8 of the WC Act, I consider that the onus in relation to the exercise of the Commission's discretion, once it has been found a worker is fit for the Employment, should rest on the employer. That is, generally having reached this point the Commission would exercise the powers under s 243 to reinstate the worker, unless there appears to be a good reason why the Commission should not.
In this case, the applicant has determinedly pursued reinstatement, expressing to the Commission her desire for that reinstatement, both because she believes it will assist her rehabilitation, and because she finds meaning and personal satisfaction from the Employment. To the extent that any onus fell on the applicant, these should be sufficient reasons for the Commission to exercise its discretion in the applicant's favour, subject to consideration of any submissions by the employer.
In oral submissions, Mr Mattson confirmed that the respondent's submissions as to the exercise of discretion were as set out in the respondent's Outline of Submissions. In that Outline, the respondent referred to a Full Bench decision in Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355. The recent Full Bench in Potter, noted above at [29], confirmed the substance of the submission made by the respondent in reliance on Cansino. I observed that in Cansino the relevant passages were obiter.
The effect of the passages cited by the respondent confirmed the discretionary nature of the power of the Commission pursuant to s 243 of the WC Act.
In the Outline the respondent submitted that: "Even if the Commission felt the Applicant was fit, or capable of performing the role, as a matter of discretion it would not risk re-instatement and future serious and debilitating taking illness for the Applicant. The risk of future serious injury is real and not fanciful and demonstrative from the recent history."
I consider that, although on its face, the respondent's submission could be seen as merely repeating the question of the applicant's fitness, ultimately it is subtly different and appropriate to be made as to the Commission's discretion. Nevertheless, following the analysis above at [77] to [79] as to the applicant's fitness, I consider it follows that the material before the Commission would not warrant the Commission refusing to exercise discretion on this basis. Based on that analysis, the risk of re-injury is at a level where it clearly does not outweigh the beneficial and remedial intention of Part 8 of the WC Act.

[12]

Remuneration since requesting reinstatement

As set out above at [33], if the Commission orders reinstatement, the Commission may make an order for lost remuneration. The maximum amount of such an order would be remuneration lost by the applicant since 6 March 2020 when she applied to the respondent for reinstatement. The applicant seeks the maximum permissible order pursuant to s 243(4).
The respondent opposed any order for "backpay" on four bases: 1. The applicant's evidence that she chose part-time employment, at a lower rate of pay, and resigned from that employment to move to Wagga Wagga, because it suited her and her recovery; 2. The applicant not providing complete or adequate evidence to support her initial reinstatement claim; 3. The applicant not cooperating with the respondent's request that she attend an independent medical examination when first asked; and 4. The applicant not actually being fit for reinstatement at the time she originally applied to the respondent.
Each of these has a rational basis. Indeed, each has some force.
I have already set out my conclusion that the applicant was not fit for the Employment at the time she originally applied to the respondent. It is also abundantly clear that the applicant sought part-time employment, and at a lower rate of pay, for the reasons articulated by the respondent. In combination, these overwhelm the other two bases submitted by the respondent for the reasons I set out below.
For this reason, I have not addressed the second and third reasons of the respondent in detail. Each would have been a basis for some delayed commencement of backpay, but each of these delays would have been shorter than the delays warranted by the first and fourth reasons.
When viewed in their totality, and in light of the evidence before the Commission, the first and fourth reasons in fact merge. Had the applicant been fit for the Employment at the time she applied to the respondent for reinstatement, it seems obvious that the first reason would not have manifested. That is, the applicant would not have needed part-time employment nor would she have needed to resign from that part-time employment to relocate Wagga Wagga.
The way in which the applicant has ultimately been able to persuade the Commission that she is fit for the Employment meant that this fact could not be established until her application came before the Commission for hearing. Accordingly, the Commission should not make any order for lost remuneration prior to the hearing of the matter in October 2022.
However, I do not consider it would be appropriate to make an order for remuneration lost since October 2022 because the applicant provided no evidence that she had sought any employment, other than the Employment with the respondent, subsequent to her resignation from her part-time role at Westmead. The only evidence before the Commission was that the applicant resigned from that alternative employment after applying to the respondent for reinstatement to the Employment.
In response to questions from the Commission about any evidence of mitigation, the applicant submitted that it would have been impossible for her to have sought alternative employment without references from her supervisors at Health Share or at Westmead. The difficulty with this submission is that the applicant was able to obtain part-time employment at Westmead without any support from her former supervisors at Health Share. It does not, in any event, demonstrate any attempt at mitigation.
For these reasons I do not consider it appropriate to make an order for remuneration pursuant to s 243(4).

[13]

Other matters

There are a small number of other matters which should, for completeness, be addressed. They arise from the evidence of the applicant's supervisors at Health Share and at Westmead.
Miralynn Spechler was employed by Health Share as a Quality and Accreditation Manager, and would be the applicant's supervisor were she reinstated. Her evidence in relation to the applicant can be categorised into four groups: 1. Difficulties experienced by the applicant in performing her work as a Quality Coordinator around the time the applicant first suffered her workplace injury; 2. Attempts by the applicant to return to work in 2017; 3. Evidence concerning the role to which the applicant seeks reinstatement; and 4. Concerns about various workplace effects which might flow from reinstatement of the applicant.
I consider that the first two of these are matters which are relevant neither to whether the applicant is fit for reinstatement, nor whether it is appropriate for the Commission to exercise its discretion as to reinstatement.
They both relate to periods during which it is common ground that the applicant was largely or wholly unfit for work. It is difficult to see that they can have any bearing on whether the applicant is now fit, and if fit, how a past unfitness could of itself have a bearing on whether the Commission should exercise its discretion to reinstate the employee.
Accordingly, it is not necessary for me to consider Ms Spechler's evidence as to these issues.
In the third category, Ms Spechler gave evidence that the role of a Quality Assurance Business Partner is in essence the same as the role which the applicant was performing prior to her dismissal. Ms Spechler emphasised that technological developments, and certain operational changes, had resulted in the job being more complex than at the time the applicant was employed by Health Share.
During cross examination, the applicant put to Ms Spechler that the award grading of a Quality Assurance Business Partner was the same as it had been when she was employed, and Ms Spechler agreed this was the case.
Whilst I accept that there have been some additional complexities added to the role, the fact that the award grading has not changed means that the role must, by definition, be fundamentally the same.
Accordingly, Ms Spechler's evidence does not amount to a reason why the Commission should not exercise its discretion in favour of reinstating the applicant.
Under the fourth category, Ms Spechler set out her concerns that if reinstated the applicant would be disruptive to the respondent's workplace, had demonstrated an unsatisfactory work ethic, was viewed unfavourably by some ongoing members of the relevant workgroup, and may not cope with the stress of the job. Ms Spechler was challenged on each of these by the applicant during cross examination.
I accept that Ms Spechler genuinely held each of her articulated concerns, and for reasons related to her experiences interacting with the applicant. Nevertheless, it was apparent from the cross examination that Ms Spechler's views and concerns were formed during a short period supervising the applicant, and in the context of the applicant's then significant workplace injury.
Accordingly, those concerns do not amount to a reason why the Commission should not exercise its discretion in favour of reinstating the applicant.
It is an inevitable that in any workplace there will be differing views between employees as to the relative effort and competence of the members of that workplace. Especially in the context of the applicant's prior injury, and in consideration of the remedial nature of Part 8 of the WC Act, I do not consider it is appropriate that the relatively general concerns raised by Ms Spechler are a basis for the Commission not to reinstate the applicant.
Monica Sastre was the Clerical Coordinator for administration staff in the area at Westmead where the applicant worked, and a supervisor of the applicant during her employment at Westmead.
The substance of Ms Sastre's evidence was that the applicant struggled to cope with the stress of employment in the objectively more junior role in which she was employed at Westmead, and that she proved to be an employee with an unreliable attendance record.
Because of what transpired during the applicant's cross examination of Ms Sastre I am unable to place any weight on Ms Sastre's evidence. During that cross examination, Ms Sastre disavowed that she was the author of a central portion of her witness statement. Mr Mattson submitted that only those portions of her evidence were disavowed, and that the remainder of her evidence remained of relevance and of use to the Commission. I am unable to accept this submission.
I want to stress that I do not make broader findings as to Ms Sastre's credit or credibility as a witness. It was clear that Ms Sastre found the process of giving evidence stressful. Nevertheless, the events of cross examination mean it would be unfair to the applicant if the Commission placed any reliance on Ms Sastre's evidence.
Given the findings above at [56] that the applicant was not fit for the Employment at the time of employment at Westmead, and the basis on which this finding has been made, it is in any event questionable whether Ms Sastre's evidence would have been relevant.