Betty Silaphet v South Western Area Health Service

Judgment 1This is an application by Anthony Terrance Riley (the applicant) for reinstatement of an injured employee against Bindaree Beef Pty Limited (the employer), pursuant to section 242 of the Workers Compensation Act 1987 (the Act). 2The application was filed on 31 January, 2011 in the New South Wales Industrial Registry. 3The application was set down for conferences on 7 February and 8 March, 2011. Failing settlement of the application during those conferences, the application was programmed for a Hearing. 4The Hearing took place in Armidale Court House on 26 May, in Glen Innes Court House on 8 September and in Tamworth Court House on 9 September, 2011. An inspection of meat processing was held at the respondent's plant at Inverell on 8 September. 5At the Hearing, the applicant was represented by Mr Perry, barrister who called the following witnesses: Anthony Riley - the applicant Darren McNaughton - Slicer William Sutherland - former employee Wayne Mawson - Slicer Marthinus Botes - Medical Practitioner Graham Doig - Orthopaedic Surgeon McNaughton, Sutherland, Mawson, Dr Botes and Dr Doig gave evidence pursuant to a summons issued under section 165(3)(b) of the Industrial Relations Act 1996. 6At the Hearing, the employer was represented by Mr D Stewart, barrister who called the following witnesses: Robert Walters - Boning Room Senior Supervisor Michael Bayes - Group Human Resources Manager Catherine Brabrook - Occupational Therapist

BACKGROUND 7The applicant commenced employment with the employer in November, 1997, working as a slicer at the Inverell Abattoir. 8A slicer works on the hindquarters of a carcass using a knife to cut off the meat. 9As a result of the physical use of the body in performing that role, the applicant experienced pain and discomfort and lodged a workers compensation claim with his employer in 1999. 10Between 2001 and 2004, the applicant was downgraded to pre-trimming work, being a lesser paid job than a slicer but he received make up pay from the workers compensation insurer. In 2006, he was reclassified to the position of temporary promoted slicer. 11The applicant underwent surgery between 2006 and 2008, including left and right shoulder operations. 12In late 2008, the applicant began formulating a return to work plan. In September, 2008, a Dr Doig (Orthopaedic Surgeon) certified the applicant fit for return to work on suitable duties but on reduced hours per day over three days per week. The employer declined a partial return to work program and would only agree to a full clearance. 13The failure of the employer to agree to a partial return to work was referred to the Workers Compensation Commission of New South Wales, which made a Recommendation that the employer provide the applicant with light duties. This Recommendation was issued on 19 December, 2008. 14The applicant returned to work as a slicer, on restricted duties, on 15 January, 2009 - working 4 hours per day over 5 days per week. 15His hours of work were increased over time and on 25 March 2009, Dr Botes increased his hours to 7 hours per day as a slicer and one hour per day as a packer. 16In November, 2009, the applicant attended the surgery of Dr Graeme Doig (at the request of his instructing solicitors) for a report quantifying any entitlements he may have under section 66 of the Workers Compensation Act (NSW) 1987. The applicant then made a legal claim in consequence of that report. 17On 30 September, 2010, an agreement was reached in respect of the applicant's claim and monies paid out to him by Allianz Australia Workers' Compensation (NSW) Ltd ("Allianz"). 18On Monday, 18 October, 2010, Mr Michael Bayes, Group Human Resources Manager, called the applicant to a meeting about a letter he had received from Allianz about a large payout to the applicant for 40% less of efficiency in his left and right arm. The applicant deferred the meeting continuing until his witness arrived. 19Upon attendance of witnesses, Mr Bayes said that the employer had a duty of care and would not be copping a heavy fine if the applicant injured himself arising out of the loss of use in the applicant's shoulders, neck and back. After the meeting, the applicant went home. 20At another meeting on 20 October 2010, Mr Bayes advised the applicant that he was too much of a risk. The applicant offered to do other jobs. 21On 27 October 2010, at another meeting, Mr Bayes advised the applicant his services would be terminated and he would receive workers compensation benefits. 22The applicant received a letter from the employer, dated 29 October 2010, advised that his employment had been terminated. (Ex 1, Annex 31)

For the Applicant 23Mr Perry, for the applicant, put the following in final submissions: (a) The applicant has applied for employment of a kind within the meaning of section 241 of the Act. That application was accompanied by a medical certificate from Dr Botes stating that the applicant was fit for pre-injury duties. (b) There is work "available" for the applicant to perform. There is case law on the meaning of "available": Transport Workers Union of NSW (o/b Lawson) v Lindsay Bros Management Pty Ltd [2008] NSWIRComm 157 (Boland J., President). This case referred to the authorities that make it clear that "available" does not mean a pre-existing specified position designated by the employer as being vacant. The evidence shows that the job of slicer (as originally applied for) and other jobs are available. (c) The case law authorities make it clear that the onus is on the employer on the question of available work. (d) The applicant is fit to do the work. The applicant has produced medical evidence in respect of his fitness for work. There was no medical evidence produced by the respondent to say that the applicant was not fit for work. (e) The respondent is concerned that if the applicant returns to work, he will re-injure himself or others. But the evidence of his surgeon, Dr Doig, is that there is minimal risk of requiring further surgery or causing significant damage to his shoulders. (f) As to the risk of re-injury, the respondent had assisted the applicant's previous return to pre-injury duties and assisted in reducing the risk of re-injury by making changes to the system of slicing, which caused his injuries. Rehabilitation providers had also taught the applicant the necessary skills and awareness to avoid re-injury. (g) The applicant brought evidence from witnesses (fellow workers) as to his ability to keep up with other workers, on the job. (h) The respondent did not call Ms Trevithick to give evidence. (i) The only reason why the applicant was terminated was because of a letter to the respondent from its insurer, concerning the applicant's impairment for work. Dr Doig gave evidence that impairment does not necessarily equate to incapacity for work. (j) The respondent put on evidence from two rehabilitation providers but their evidence had substantial difficulties.

For the Employer 24Mr Stewart, for the respondent, put the following in final submissions: (a) The applicant was not dismissed because he was not fit for employment as a result of an injury. Therefore, his application for reinstatement of an injured employee is flawed as it does not satisfy the requirement of section 241(1) of the Act. Proof of that is the termination letter issued by Mr Bayes, wherein the reason for termination is the 40% permanent loss of efficient use of each arm. This gave rise to the risk of re-injury. (b) The reason for termination of the contract of employment goes to the safety of the employee at work and the liability that is afforded to an employer who does not ensure the health, safety and welfare of an employee. Proof of Mr Bayes' concern as to the reason for dismissal, is found in Dr Higg's report and the reliance upon the medical assessment certificate issued pursuant to section 326 of the Workplace Injury Management and Workers Compensation Act 1998. (c) Given that the applicant was not dismissed on the ground that he was not fit for employment, then his application, pursuant to the Act, is flawed and his application should be dismissed. (d) Mr Stewart, in the alternate, addressed the submissions of Mr Perry on the facts of the case pertaining to the application now before the Commission - application for reinstatement of an injured employee pursuant to section 241 of the Act. (e) The evidence appears to show that no person believes that the applicant is fit for slicing work. The slicing work is heavy, hard and repetitive. The applicant gave evidence that he was feeling pain in his shoulders in October 2010 - at which time, he was still taking medication. (f) The applicant stated that he had adjusted his lifting techniques for slicing sections of meat, but it was submitted that that evidence had been discredited. Further, the applicant said he does not reach for the sections of meat that have been thrown onto the slicing table, by the boners (who cut sections of meat off the hanging carcass). That concession, Mr Stewart said, means that the applicant is not fit for full duties. The reason why the applicant does not reach, is because of his shoulders and his concern of re-injury. The applicant has physical restrictions when it comes to performing the job of slicer and this was demonstrated by him in the witness box. (g) The evidence of the three fellow workers of the applicant, did not assist his case. (h) The respondent's rehabilitation provider witness (Ms Brabrooke) did not present well in the witness box, but her opinion was unchanged, arising out of cross-examination, that the applicant was not fit for work and there was a risk of re-injury. (i) Dr Doig (the applicant's surgeon) stated in his report that there is a minimal risk of re-injury and conceded that the applicant's glenoid head was at risk. (j) The risk of re-injury is an important issue for the respondent, given the operation of the Occupational Health & Safety Act and case law decisions on employers' responsibility to have a safe working place. This includes taking particular measures to prevent an identifiable risk eventuating: Kirk v Industrial Relations Commission of NSW (2010) 190 IR 437. (k) Dr Doig and Dr Botes (witnesses for the applicant) did not display any real understanding of the slicing job, which is the job the applicant had been performing at the time of his dismissal. (l) Mr Bayes, Group Human Resources Manager, made his decision to dismiss the applicant, after he had read Dr Higg's report which was a damming indictment on the applicant's ability to work. (m) As to any other jobs within the abattoir that the applicant says he is capable of performing, Ms Brabrooke (rehabilitation provider) says he is not fit to carry out. The applicant brought no medical evidence he was fit for any of those other jobs.

Applicant in Reply 25Mr Perry, in reply, put the following: (a) The respondent's submission that the Commission should decide the application based on the issue of risk, in the context of the Occupational Health and Safety Act, is an approach that would lead the Commission into error. The relevant provisions of the Workers Compensation Act, do not consider the issue of risk. The issue for the Commission is whether the applicant is fit for employment. (b) The respondent submitted that the application is the wrong application for the applicant to make, because he was not dismissed because he was not fit, but dismissed because he might re-injure himself. In making that submission, the respondent ignores its own letter of 19 October to the applicant which invited the applicant to attend a 20 October meeting "to discuss your future employment and whether you are able to perform the inherent requirements of those duties". (c) The issue for the Commission is whether the applicant is fit. The respondent, per the Act, can rebut the presumption of fitness, by satisfying the Commission that the injury was not a substantial and operative cause: Da Ros v Qantas Airways Limited [2001] NSW CA 89. (d) Contrary to the respondent's submission, the applicant says he is fit. (e) The evidence of Dr Doig was unimpeached by Mr Stewart's cross-examination. Dr Doig did not say there was a risk of re-injury. He said that the applicant's risk of injury is the same as any other slicer. (f) Dr Botes, it was said by the respondent, had changed his view. This was only a half correct submission. Dr Botes said as well, something to the effect, that workers use tricks on the job to protect themselves. CONSIDERATION 26The applicant filed a section 242 application pursuant to the Workers Compensation Act 1987, seeking reinstatement as an injured employee. Before considering that application, the Commission will deal with a threshold submission raised by the employer. THRESHOLD ISSUE 27 Mr. Stewart for the employer made a submission that the applicant's Section 241 Workers Compensation Act 1987 application was flawed. This was so, he said, because the dismissal letter said, in part, that the reason for dismissal was the risk of re-injury. (Ex1, Annex 31). Mr. Stewart also referred to case law which went to prosecutions against companies for breaches of occupational health and safety standards. That submission was opposed by Mr. Perry for the applicant. The Commission sets out below its response to the employer's submission. 28 The employer's reliance upon the Occupational, Health and Safety Act Act 2000 ( the O. H. and S. Act) or its predecessors, is misplaced. 29 The employer submitted that the applicant's employment was terminated in order to ensure that there was no risk of re-injury to the applicant. Further, the employer submitted that it acted in accordance with the terms of the O. H and S Act to ensure the applicant's health and safety. 30 The objects of the O. H. & S Act are found in section 3. The objects deal with ensuring, broadly speaking, the health and safety of employees at work and ensuring that safe work practices are in place at the worksite. The O. H. and S Act does not give the employer the power to terminate an employee's employment to ensure that the employee's health and safety is protected. The emphasis and purpose of the O.H. and S Act is to ensure that all efforts are made to keep employees at work and that they have a safe workplace. 31 For the above reasoning, the Commission rejects the employer's reliance on the O. H. and S Act as a justification to terminate the applicant's employment. 32 The Commission now turns to the operation of the Act to deal with the Employer's submission on this threshold issue. 33 It is clear that the applicant's employment was terminated, in part, due to his previous injury. This is so, as the termination letter refers to the risk of injury. 34 The reason for dismissal only has to include the employee's injury, in order for section 241 of the Act to be enlivened. The Commission notes the presumption in section 244 of the Act, as to the reason for dismissal. 35 The Commission finds on the evidence, that the employer has not rebutted the presumption that the applicant was dismissed, in part, at least, due to his injury. 36 For the above reasoning, the Commission finds that the jurisdiction to deal with the section 241 application, has been enlivened. THE SECTION 241 APPLICATION 37 Before considering the section 241 application, the Commission records that the legislative history of the injured employee provision, is set out in a Full Bench decision of the Commission: Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 at pp9-11, Hungerford and Marks JJ, O'Neill C, 23 August, 1999. 38 The legislative history set out in the foregoing Full Bench decision, concludes with the Industrial Relations Act 1996. 39 Subsequently one further important legislative change took place to the injured employee provision. Thus, Part 7 - Protection of Injured Employees (sections 91 to 100 inclusive) of the Industrial Relations Act 1996, was relocated to the Workers' Compensation Act 1987 (at Part 8) by operation of the Industrial Relations Further Amendment Act 2006.

The Statutory Provisions in Operation 40 Sections 91 to 100 inclusive of Part 7 of the Industrial Relations Act 1996 are virtually identical to sections 240 to 249 inclusive of Part 8 of the Workers' Compensation Act 1987. 41 Given that Part 7 and Part 8 are virtually identical, the Commission is aided in the approach to be taken to the statutory operation of Part 8, by reference to the Full Bench statutory approach to operation of Part 7, in Cansino ( pp11 to 14): The later Full Bench in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (o/b Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm108 at para 110. ("Riley's Case") reproduced, without adverse comment, the Full Bench approach in Cansino to the statutory interpretation of Part 7 - and hence Part 8. 42 Both Full Bench Decisions in Cansino and Riley , considered the meaning of certain terms contained in Part 7 and which same terms appear in Part 8: "employment of a kind"; "more advantageous"; "position"; "reinstatement"; "suitable employment"; "vacant"; and "available". Section 243 and Reinstatement Orders 43 Section 243 of the Workers Compensation Act 1987, sets out the type of reinstatement orders that may be made by the Commission. There are four types of orders listed in sub-section (2) and (3): being two orders in sub-section (2) and two orders in sub-section (3). 44 However, it would appear from a reading of sub-section (3), that the two orders listed in sub-section (3) can not be considered by the Commission as remedies for reinstatement, unless the two orders listed in sub-section (2) are not able to be utilised by the Commission. This is so, as sub-section (3) opens with the condition, " If the employer does not have employment of that kind available,.... "(underlining added). 45 Further, the use of the term "available" in the quoted extract above from sub-section (3), makes it clear that the two reinstatement order remedies listed in sub-section (2) can only be utilised, provided that employment of a kind is "available". The meaning of that term was considered in Cansino. (p29, para 20). 46 Having regard to the Cansino s tatutory interpretation of the operation of Part 7 (and hence Part 8), the Commission sets out below the four reinstatement orders. Thus, the Commission may make an order reinstating the employee to: Section 243 (2) (a) employment of a kind that is available and for which the employee has applied and which may be as advantageous or less advantageous than the pre-injury employment; or (b) employment of any other kind that is available and which is no less advantageous to the employee than that employment applied for; or Section 243(3) (c) employment of any other kind, being: (i) employment of a kind that is available but that is less advantageous to the employee; or (ii) employment of a kind that the Commission considers that the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation). 47 In respect of all four types of orders, there is a requirement that the employee is fit for that kind of employment. Such fitness is to be based on medical evidence. 48 Excepting for the last order of reinstatement listed, the other three orders of reinstatement require that the employment be "available".

Section 243 and the Procedural Process 49 There is a statutory procedure to be followed by an injured worker seeking a reinstatement order: (a) The injured worker is one who receives an injury for which the worker is entitled to receive compensation under the Workers Compensation Act 1987: Section 240(2). The applicant in this matter before the Commission, satisfies this criterion. (b) The injured worker was dismissed because he/she was not fit for employment arising out of the workplace injury: Section 241(1). The employer submitted that the applicant was not dismissed on the ground of fitness for employment. The Commission was advised that the reason for dismissal was the risk of injury that might befall the applicant given the 40% loss of efficient use of both arms. (c) The injured worker is to apply to the employer for reinstatement to "employment of a kind": Section 241(1). The applicant applied for the position of Slicer per correspondence of 18 November 2010, addressed to Michael Bayes. (Ex 1, Annex 35) (d) The injured worker is to produce a medical certificate to say that he/she is fit to undertake the work/role (employment of a kind) being sought: Section 241(3). The applicant supplied to Mr Bayes a copy of a medical certificate from Dr Botes, dated 10 November 2010. The medical certificate was attached to the correspondence of 18 November 2010 referred to above. Mr Stewart, barrister for the employer, pointed out that the medical certificate had not been ticked by Dr Botes that the applicant was fit for pre-injury duties. (Ex 1, Annex 34) Under cross-examination from Mr Stewart, the witness (Dr Botes) confirmed that the medical certificate was to be taken as confirming the applicant's fitness for pre-injury duties. (Tr 08/09/11, p42, line 44 to p43, line1) (e) The applicant's application for employment of a kind was rejected by the employer. This entitled the applicant to make an application to the Commission for a reinstatement order: Section 242(1).

Employment of the kind for which the worker has applied 50 The applicant has applied for the position of Slicer and also listed other positions which he says he can perform. 51 The Commission has already set out the four types of reinstatement orders and stated that the latter two orders (found in section 243(3)), are only available if none of the two orders in section 243(2) can be utilised. 52 And section 243(2) contains in its first set out order, the priority that it is to be considered firstly by the Commission. Thus, the words of priority are: "...for which the worker has so applied for reinstatement...." So, the first focus of the Commission has to be on the kind of employment for which the worker has so applied. The applicant nominated to the employer that he sought reinstatement to the role of Slicer. Two questions then arise for consideration. Firstly, is that role "available" and secondly, is the applicant fit for that role/employment of a kind? 53 Finally, the Commission notes that section 243(2) and (3), contain the term "may order" in the context of the Commission's consideration of the possible reinstatement orders. Thus, the Commission has a discretion, at the end of the day, as to its reinstatement power - whether to make an order and if so, to what extent.

Is the role "available"? 54 The applicant's first hurdle is that the role is "available". The evidence demonstrated that the role is available. 55 The Commission will now consider the next issue being the evidence put forward by the applicant that he is fit for the work for which he applied and also consider the respondent's evidence against that work application.

Is the applicant fit for the work? 56 The key issue for the Commission's determination in this matter is the question going to the applicant's fitness for the role. The applicant answers in the affirmative and relies upon medical evidence to support his position: Dr Botes and Dr Doig. The employer provided no medical evidence to say that the applicant was not fit. The employer relied upon a number of reports/evaluations concerning the applicant's fitness to support its case of the possibility of re-injury. The employer was opposed to the reinstatement application. 57 Having considered all of the documentary material, oral evidence and submissions, the Commission finds that the applicant is fit for the kind of employment for which he has nominated: Slicer. The Commission's reasoning is set out below. 58 A matter of significance in favour of the applicant's case, is the fact that he had been performing the role of slicer, without issue from the employer, for some time. It was only when Mr Bayes was alerted to the large insurance payout to the applicant, that the employer focussed its attention on the applicant's job and dismissed him. The Commission will now provide the relevant historical backdrop. 59 The applicant had been employed by the abattoir since 1997, working as a slicer. With the passage of time, he experienced pain and discomfort and lodged a workers compensation claim in 1999. He was downgraded between 2001 and 2004. He was back in the job as slicer in 2006 but underwent surgery between 2006 and 2008 - including operations to his right and left shoulders. 60 In the latter part of 2008, a rehabilitation program was put in place for the applicant. A Functional Capacity Evaluation Report was undertaken by a Mr Hughes on 24 September 2008. He was from Interact Injury Management and is an Exercise Physiologist. Arising out of that report, Mr Hughes, the applicant and Mr Bayes agreed that the applicant would attempt a restricted duties return to work program with the goal of getting back to full time employment. The next day after the date of the report, 25 September 2008, Mr Bayes changed his mind and did not want to go ahead with the agreement to rehabilitate the applicant through suitable duties. Mr Bayes' reasoning for changing his mind was risk of re-injury. (Tr 26/05/11 - p70, line 27 to p72, line 48) 61 The applicant instructed his firm of solicitors to pursue his goal of a partial return to work, by referring the matter to the Workers Compensation Commission of New South Wales, which organised a Dr Loeves to carry out a workplace assessment. The Workers Compensation Commission made a Recommendation on 19 December 2008, that the employer provide the applicant with light duties. The applicant also agreed that if he could not up-grade to his pre-injury duties within three months, he would look for work elsewhere. 62 The applicant returned to work as a slicer, on restricted duties, on 15 January 2009 and by 28 May 2009, he was back to full pre-injury duties. He continued in that role from May 2009 to October 2010 when he was dismissed by Mr Bayes, who agreed that he was not aware of any problem with the applicant's performance as a slicer for that May 2009 to October 2010 period. (Tr 26/05/11, p78, line 26 to 34) 63 The above historical outline, relevantly shows that the applicant agreed to a return to work program and that if he failed that program within three months, then he would not pursue that slicer's job any further. He did not fail. From May 2009 to October 2010, he was back on pre-injury duties as a slicer and Mr Bayes (who was concerned about risk of re-injury) was not aware of any problems in the applicant performing that role of slicer. Importantly, Mr Bayes had no evidence that the applicant was not fit to carry out the role of slicer. The fact that the applicant had been performing the role between May 2009 and October 2010 without issue from the employer, is telling evidence in the Commission's mind, that the applicant was fit for the role of slicer. 64 Despite the employer not raising an issue with the applicant in the May 2009 to October 2010 timeframe as to his fitness, the employer questioned during the proceedings, the applicant's possibility of re-injuring himself/fitness to do the role. 65 The applicant was cross-examined about his fitness for the role of slicer, which job requires using a knife to trim meat sections thrown on the table by boners. The trimmed meat is also cut to specifications. The carrying out of the trimming and cutting requires, as well, the turning over of the meat section to carry out trimming or cutting. 66 The applicant gave a demonstration in the witness box as to how high he could raise both arms. He could do so to a height that was more than that required for turning over/rolling over sections of meat on the trimming/cutting table. 67 The applicant admitted that he gets muscle pain from a hard day's work and is on medication for neck and back pain: Panadeine Forte and Mobic. In re-examination, he said the taking of the Panadeine Forte does not interfere with his duties. 68 The applicant was cross-examined on the physical requirements of the job in respect of a particular phase of his work. This work phase is when the slicer has to reach across the table to grab a section of meat thrown on the table by the boner. That is, the boner does not always throw a section of meat to land next to where the slicer is working. The applicant said that if a section of meat lands beyond his arms' reach, then he asks another slicer to move the meat toward him. The applicant initially denied but then conceded that the reason why he does not reach for a too far away section of meat, is the risk of re-injury. He also gave as his reason for not over-reaching, that he is trying to protect himself. 69 In assessing the foregoing evidence, the Commission is not persuaded that the applicant's work method of not over-reaching for a too far away section of meat, means that he is not fit for the role of slicer. Again, the evidence of Mr Bayes shows that the employer took no issue with the applicant's work performance between May 2009 and October 2010. This is the period of time, in which, the applicant has adjusted his work method. In re-examination, he said that no one has said to him, in this time frame, that his work was not up to scratch. 70 The applicant called three witnesses being current or former employees to give evidence: Sutherland, Mawson and McNaughton. In cross-examination, Mr Mawson, a slicer, said as to the issue of pain in performing the job, that the applicant's complaint about pain was no more than anyone else would complain. Mr Mawson said in evidence-in-chief that he had worked with the applicant for about two years and any struggles the applicant might have had with the work was no more than anyone else (due to some of the meat cuts getting quite hard). Mr McNaughton stated under cross-examination that he did not notice the applicant having any difficulties performing the work. 71 The evidence of these two fellow workers are consistent with the earlier evidence that the employer had not taken issue with the applicant's ability to perform the job - that is, the applicant's fitness for the role. 72 The cross-examination of the applicant brought out the applicant's concession that he does not over-reach because of the risk of re-injury, which was a major issue pursued by the employer in the proceedings. 73 The Commission notes straight up, about this risk of injury issue, that it is one that the applicant is conscious of and, to his credit, he takes a precaution in his work technique to avoid. He had taken that precaution between May 2009 till the time of his dismissal in October 2010. He had taken that precaution without any subsequent complaint from the employer that his work was not up to scratch. 74 The employer called evidence from Catherine Brabrook, Occupational Therapist, of Interact Injury Management. Mr Stewart in final submissions, said that her evidence was that the applicant was not fit for the job and there was a risk of re-injury. 75 The Commission was provided with a Worksite Assessment Report (Ex 11) of Ms Brabrook's and dated 8 September 2011. In her report she had this to say about the slicer's job: "6.2 The role of slicer is assessed as requiring a "medium" (moderate) level of physical demand as per The Dictionary of Occupational Titles (see appendix). The available medical reports advise that Mr Riley had bilateral hemi-arthroplasty in 2007 (left shoulder) and 2008 (right shoulder). The MD Guidelines ( ) advise that "this procedure (shoulder arthroplasty) is not compatible with return to moderate or heavy work". Due to the constant upper limb use, repetitive movements and pace of which the job is completed it is unlikely that this position would be suitable for Mr Riley or sustainable into the long term." 76 The latter part of the foregoing extract, questions the applicant's ability to sustain working in the position of slicer and raises the issue of re-injury. 77 Ms. Brabrook's report was made after the applicant had been dismissed. That is, her evaluation is made after the event. There does not need to be any speculation as to Ms. Brabrooks evaluation as to its possible accuracy or otherwise, because the applicant had already been performing the role, per a rehabilitation programme, from May 2009 to October 2010. In that time frame, the applicant had not suffered any re-injury and had carried out his role as slicer without any comment from the employer. The fact that he had carried out that role, without any adverse reaction or comment, undermines the negative evaluation by Ms. Brabrook and so undermines as to make her evaluation non-persuasive. 78 Apart from the foregoing finding, the Commission also records that Ms. Brabrook's negative assessment of the applicant was made in the circumstance where she (an occupational therapist) had never met him and not carried out a formal functional assessment of the applicant. Her negative evaluation is her opinion based on other people's medical and functional assessment opinions. (Tr. 08/09/11 - p.15). She was unaware that the applicant had been performing his pre-injury duties. (Tr. 08/09/11 - p.18). 79 By contrast, the applicant brought forth witnesses as to his fitness to work, being two medically qualified doctors - his local medical practitioner (Dr. Botes) and his orthopaedic surgeon (Dr. Doig). Ms. Brabrook is not medically qualified. 80 Dr. Botes was cross-examined on the applicant's fitness and the risk of re-injury. 81 Dr. Botes confirmed that his medical certificate (although not stating as such) was to be taken as saying the applicant was fit for pre-injury duties. (Tr. 08/09/11 - p.42 to 43). Later on, in cross-examination, he considered that the fitness for pre-injury duties needed a qualification as to a weight lifting restriction. Be that as it may, there was no evidence from the employer of issues it had raised on the job, with the applicant, as to his capacity to perform the role of a slicer. No issue had been raised with him from May 2009 to October 2010. 82 As to the risk of re-injury, Dr. Botes agreed that there is such a risk but stated that it did not necessarily follow that the applicant was not fit for work. He elaborated this response to mean that employees have a way of protecting themselves on the job. In respect of the applicant, certain people had been involved in agreeing that he would perform the job in a specific way. By adhering to that advice, the applicant did not injure himself. Dr. Botes went on to say that anybody doing the work at Bindaree Beef had the possibility of injuring themselves, with or without previous injury. (Tr. 08/09/11 - p. 50 to p.51). 83 The applicant had also given evidence about protecting himself. This was in the context of not over-reaching for a section of meat that had not been thrown close enough to the slicer, by the boner. 84 The applicant also deposed as to how he would perform the job in a specific way - as indicated by Dr. Botes above. The applicant said that over the period of rehabilitation, he had been taught by the rehabilitation providers the necessary skills and awareness to avoid re-injuring himself. This had been achieved by adjusting his lifting technique, moving his feet when twisting and improving his general fitness. (Ex. 1, para 39). 85 In re-examination, Dr. Botes agreed that his response under cross-examination, as to the applicant's fitness for the job of slicer (in the context of over-reaching) was made on the assumption that the applicant's duties required him to over-reach. He added that as far as he knew, it was not necessary to over-reach and over-reaching has the risk of injury not only for the applicant but for anybody. 86 During cross-examination, Dr. Botes advised that his opinion as to the applicant's fitness for the job was based as well, on discussions with Dr. Doig, the applicant's orthopaedic surgeon. 87 Dr. Doig was cross-examined by Mr. Stewart on the applicant's fitness for work and the issue of re-injury. He was questioned as well about his Supplementary Medical Report of 17 February 2011. (Ex.1, Annex 40). 88 Under cross-examination, Dr. Doig denied that the applicant was likely to suffer re-injury because he had a "spare-part" inserted as part of a shoulder operation and possibly, he said, there was less risk of re-injury. 89 Dr. Doig admitted that although his February 2011 Report was positive about the applicant's fitness to work, he had not examined the applicant since 2009. He explained that his February 2011 Report was based on his meeting with the applicant and the applicant's remarks about pain in the context of performing the job. Thus, Dr. Doig's assessment as to the fitness was based on the pain tolerance of the patient. As such it is a subjective symptom and one person's agony is another person's niggle, he said. 90 As to the risk of re-injury, Dr. Doig's distinguished between a new event and aggravation of an existing event. His medical opinion was that the applicant had the risk of deterioration and chondral damage with time, as in any joint. Dr. Doig concurred that he had not seen slicing work undertaken in an abattoir. 91 The Commission's evaluation of Dr. Doig's evidence is that it has not been undermined. He presented in particular as a no nonsense witness. His evidence was direct and he showed himself to intelligently evaluate the issues being put to him. His medical opinion of the applicant as to fitness to perform the job was not undermined by any of the issues or opinions of other person's assessments of the applicant. CONCLUSION 92 The Commission has before it, an application for reinstatement of an injured employee, pursuant to section 241 of the Act. 93 The Commission's deliberation of that application also included an inspection of the Inverell abattoir and, in particular, the work of a slicer, boner and other related jobs. 94 The Commission considered and rejected the employer's threshold submission that the applicant's section 241 application was flawed because the termination letter said, in part, that the reason for dismissal was the risk of re-injury. 95 The Commission then considered the section 241 application for reinstatement of an injured employee to the position of Slicer. The evidence demonstrated that this role is available. The Commission then considered, at length, the issue as to whether the applicant was fit for the role. Not only was that issue considered, but so was the employer's argument that there was a risk of re-injury. The latter argument was sometimes labelled as a "nature and conditions" argument. That is, there was a risk of re-injury due to the type of work the applicant was seeking to undertake through his section 241 application. The employer did not produce any medically qualified person(s) as witnesses to argue against the applicant's fitness for work or risk of re-injury. The only witness produced by the employer to speak of the applicant's fitness or possibility of re-injury was an occupational therapist, whose opinion was also based on other reports. The Commission was not persuaded by that opinion. 96 The applicant himself gave evidence and was given supporting evidence from fellow abattoir workers as to his fitness to perform the role of slicer. The applicant also produced two medically qualified persons to support his claim that he was fit to perform the role of slicer. 97 In considering the issue as to the applicant's fitness, the Commission found it significant that the applicant had been performing the role of slicer from May 2009 to October 2010, pursuant to a rehabilitation program, and without any issue being raised by the employer as to the fitness for the role of slicer. The catalyst for the applicant's dismissal was Mr. Bayes intervention upon his being advised of a large workers compensation insurance payout to the applicant. Without that catalyst, there was no evidence presented that the applicant's role of a slicer was under a cloud. 98 Dr. Botes, Medical Practitioner and Dr. Doig, Orthopaedic Surgeon gave evidence for the applicant as to his fitness for the role. Their evidence as to the applicant's fitness was not undermined through cross-examination - either directly on the issue of his fitness or his fitness through the possibility of re-injury. 99 Having considered all of the material - documentary evidence, oral evidence and submissions, the Commission finds that the applicant has satisfied the relevant statutory hurdle to make good his claim for reinstatement to the position of slicer. That role is available and the applicant is medically fit to perform that role. 100 Having made that finding, the Commission was then required, by statute, to consider whether it should exercise its discretionary power to make an order of reinstatement, per section 243 (2), in favour of the applicant's sought after role as a slicer. Having considered all of the evidence and submissions, the Commission will issue an order for the reinstatement of the applicant into the role as slicer. 101 The Commission will also make the appropriate order as to lost remuneration. The period of time for which the lost remuneration order will operate, will be from the date the applicant made his application to the employer for reinstatement (31 January 2011) to the date of the order for reinstatement (23 December 2011) :section 243(4), That order for lost remuneration shall have deducted from it, any Worker's Compensation payments made to the applicant in that operative period of time. ORDERS For the reasons set out in this Decision the Commission has determined that the dismissal of the applicant Anthony Riley warrants the intervention of the Commission by way of an Order under section 243(2) of the Workers Compensation Act 1987. The Commission hereby makes the following Orders: (1) The Commission orders, pursuant to section 243(2) of the Workers Compensation Act, 1987, that Bindaree Beef Pty. Limited (the employer) reinstate Anthony Riley (the applicant) to employment of a kind, being the position of slicer. (2) The Commission orders pursuant to section 243(4) of the Workers Compensation Act 1987, that the employer pay to the applicant an amount of money being for the period from the date of the making of his application for reinstatement (31 January 2011) to the employer, to the date of this order (23 December 2011) less any amount of money received as payment in respect of workers compensation or derived from alternative employment. (3) The Commission orders that the applicant is to be reinstated to the employment of the kind herein stipulated as soon as practicable, and within twenty-one days from the date of this Decision. A MACDONALD COMMISSIONER 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 January 2012