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 ( www.mdguidelines.com ) 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