Betts v Health Secretary in respect of Health Share

The Statutory Regime

1. 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.
2. These provisions set out several procedural steps, gateways and discretionary decision points.

Which issues are in dispute?

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. The applicant proposed an order for the maximum amount which would be allowed pursuant to s 243(4), which was opposed by the respondent.
17. 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.

The gateway - s 243(3)

1. 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".
2. 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). …"
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.]
4. 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.
5. 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.
6. 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.
7. 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).
8. 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.
9. 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.
10. 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] .
11. 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.
12. 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.
13. 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)."
14. 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.
15. 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.
16. 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.
17. Accordingly, the applicant has passed the gateway created by s 241(3).

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

1. 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. …"
2. 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'."
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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."
10. 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.
11. 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."
12. The respondent relied on Dr Smith's report as expert evidence that the applicant was not fit for the Employment.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. The most important parts of the cross examination of Dr Smith were the following five sections:

Section 1 Q. Dr Smith, I'm not a medical person, so could you please tell me what the difference is between remission and early remission? A. According to criteria of the DSM-V diagnostic and statistical manual mental disorders classification system of the American Psychiatric Association for alcohol use disorder, early remission is the first 12 months. After 12 months then it is considered to be sustained remission. Q. So we're talking about alcohol use disorder, Dr Smith. Then after 12 months with alcohol use disorder, once a person reaches sustained remission is there a recovery stage or is sustained remission something that applies for the rest of a person's life? A. The evidence suggests that there's a risk of - a higher risk of relapse for at least the first five years of recovery, including when a person is engaging in a recovery programme and is abstinent from alcohol. But after the period of five years and sustaining remission for that period of time, the risk of relapse is very low. Q. So you've talked about the risk of relapse. So according to the DSM-V which you refer to, 12 months is sustained remission. So after 12 months of sustained remission is there another category by which a person would be classified or do they remain in sustained remission for the rest of their life from a diagnostic point of view? A. If - diagnostically they remain in sustained remission for the rest of their life. Q. So there is no such thing as recovery under the DSM-V? It does not exist, is that correct? A. Recovery would be considered to be within the sustained remission category. Particularly after an extended period, the risk of relapse would be very low and - but a person would need to continue to abstain from alcohol. They would continue to have the diagnosis alcohol use disorder in sustained remission for the rest of their life.

Section 2 Q. So then you would agree that even with the existence of depressive symptoms-- A. Yes. Q. -that it would not necessarily exclude a person from having an ongoing and successful career, would that be correct? A. That's correct. Q. Dr Smith, you talk about the risk of relapse with alcohol use disorder in relation to timeframes. Do you believe that there is a risk of, in my case, relapsing or consuming alcohol in a problematic way without being reinstated to my role? A. Yes.

Section 3 Q. So without a commitment, without that commitment to abstinence, and you've confirmed that I did not give you a commitment of total abstinence. Would that be correct? A. Yes. Q. You say without it, you'd consider my risk of relapse to be very high? A. Yes.

Section 4 A. On page 394, I think the third paragraph, I noted that in October 2019, after a dog passed away, you noted the grief and started alcohol consumption at that time. Q. Mm-hmm? A. That was one of the stressors. Q. Mm-hmm. So, would it be correct then to say, Dr Smith, that you considered the passing away of a companion dog to be a minor stressor in a person's life? A. It's certainly a stressor, I think that would be clear to - certainly accepted. Q. And would you consider grief to be a minor stressor in a person's life? A. Grief is something that is experienced by everyone in their life, so it's something that, when I'm treating people, it would be the kind of stressor that needs to be able to be managed without using alcohol consumption. So, it would be the kind of stressor in which we would talk about developing alternate strategies. It's a ubiquitous stressor. Q. So, the fact that everybody experiences grief therefore makes grief a minor stressor. Is that what you're saying? A. Well, it is certainly a stressor. Whether it's minor. I accept it was certainly extremely distressing and I think that's the nature of stressors, that they can be individually more stressing for some people.

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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.

The Commission's discretion - s 243

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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."
7. 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.

Remuneration since requesting reinstatement

1. 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).
2. 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.
3. Each of these has a rational basis. Indeed, each has some force.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. For these reasons I do not consider it appropriate to make an order for remuneration pursuant to s 243(4).

Other matters

1. 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.
2. 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.
3. 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.
4. 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.
5. Accordingly, it is not necessary for me to consider Ms Spechler's evidence as to these issues.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. Accordingly, those concerns do not amount to a reason why the Commission should not exercise its discretion in favour of reinstating the applicant.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.

Orders

1. The Commission makes the following orders: 1. Pursuant to s 243 of the Workers Compensation Act 1987, the respondent is ordered to reinstate the applicant to the position of Quality Assurance Business Partner with Health Share, no later than 3 July 2023. 2. The Commission declines to make an order pursuant to a 243(4) of the Workers Compensation Act 1987. C Muir Commissioner

Endnotes

1. [14(1)(b)] above
2. [14(1)(c)] above DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2023