Cansino v South Western Sydney Area Health Service

LEGISLATION CITED: Workers Compensation Act 1987

Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; (1999) 130 IR 1 CASES CITED: Riley v WorkCover Authority (NSW) [2006] NSWIRComm 108; (2006) 151 IR 396 State Rail Authority of New South Wales v The Honourable Justice Bauer and Others (1994) 55 IR 263

HEARING DATES: 25/06/08, 26/06/08, 11/07/08, 25/07/08, 01/08/08

APPLICANT Mr A Joseph of counsel for the National Union of Workers, New South Wales Branch

LEGAL REPRESENTATIVES: RESPONDENT Mr R Warren of counsel

Solicitors Stevens & Associates

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES McKENNA C

NATIONAL UNION OF WORKERS, NEW SOUTH WALES BRANCH (ON BEHALF OF TODD BELL) AND TERMINALS PTY LTD

Application by National Union of Workers, New South Wales Branch on behalf of its member Todd Bell for reinstatement of an injured worker pursuant to section 242 of the Workers' Compensation Act 1987

DECISION [2008] NSWIRComm 1073 1 Todd Bell was formerly employed by Terminals Pty Ltd ("the respondent"). Consequent upon a work-related injury, the respondent terminated Mr Bell's employment. On 19 November 2007, the National Union of Workers, New South Wales Branch ("the applicant") made a reinstatement application to the Commission pursuant to s242 of the Workers' Compensation Act 1987 ("the Act"). 2 Part 8 of the Act is concerned with employment protection for employees who have received an injury for which the employee is entitled to receive workers' compensation benefits, and s242 of the Act specifically concerns applications for reinstatement by injured employees. So far as an interaction of the factual circumstances and the statutory provisions is concerned, it is common ground that Mr Bell was an injured worker within the meaning of the Act. The termination of Mr Bell's employment came about on medical grounds arising from a work-related injury and liability was accepted for the injury. In making the application for reinstatement, Mr Bell produced to the respondent a certificate given by his medical practitioner attesting to his current fitness to return to work. The respondent did not reinstate Mr Bell immediately to employment of the kind for which the applicant applied for reinstatement or to any other kind of employment that was no less advantageous to him. Hence, the applicant then made an application for Mr Bell's reinstatement under the injured worker provisions of the Act. 3 That application is opposed by the respondent. On the hearing, Mr A Joseph of counsel represented the applicant. Mr R Warren of counsel represented the respondent. Background

4 The respondent operates bulk liquid stevedoring/storage facilities at four Australian ports for products used for chemical, manufacturing, lubricating and fertilizing purposes, such as liquid chemicals, fuels, petroleum products, vegetable oils and liquefied gases. Although the respondent is the major or largest Australian operator of this line of business, there are only thirty workers at Port Botany; ten are employed by the respondent as terminal operators. The terminal operators work in teams of five.

5 Mr Bell commenced employment with the respondent in June 1995 at the Port Botany facility. As at the date of dismissal, Mr Bell's substantive position was as a terminal operator, grade 4. Over the course of his employment with the respondent, Mr Bell previously had sustained injuries to his back in 1997-1998 (as well as shoulder injuries), and subsequently returned to work. On 12 February 2007, Mr Bell suffered a further back injury when lifting a trailer at work. Workers' compensation liability was accepted in connection with that injury, as it was with the previous injuries. Hence, Mr Bell has had two significant episodes of back pain, about a decade apart. 6 As a result of the most recent injury, Mr Bell was unable to work from 13 February 2007 until 24 April 2007. Thereafter, Mr Bell returned to work, with the accommodation of the respondent, on rehabilitation-minded, light duties. The post-injury duties performed by Mr Bell in his employment with the respondent were gradually broadened. Nonetheless, it is common ground that it will remain permanently medically inadvisable, in the interests of attempting to avoid re-injury, for Mr Bell to perform work that is inconsistent with certain guidelines. While there were differing medical views, the recommendations concerning Mr Bell have involved matters such as not moving six-inch hoses; not lifting items above certain weight limits (the medical views varied between 5kg to 25kg); and avoiding working in a forward-flexed position or in jobs that require regular twisting and bending. 7 On 25 September 2007, the respondent determined, for reasons given in the letter extracted below, to dismiss Mr Bell: Dear Todd

As you are aware, since your back injury on 12 February 2007 the Company has worked tirelessly with its workers' compensation insurer, rehabilitation consultants and medical professionals trying to assist you in achieving full rehabilitation so that you may return to your pre injury position as a Terminal Operator.

As part of this process, in a recent medical report from Dr John Lose (a copy of which has previously been provided to you) he states that: "Mr Bell will never be able to safely perform all of the requirements of a grade 4 operator".

Accordingly, based on Dr Lose's opinion that you will never be able to perform the inherent requirements of your pre injury position, it should come as no surprise to you that the company intends to terminate your employment effective today's date, being Tuesday 25th September 2007.

Attached is a final breakdown of your termination monies including your accrued but untaken entitlements to annual and long service leave. The Company does not require you to work out your four weeks notice and will pay you that amount in lieu.

Yours sincerely Douglas Eng NSW, State Manager Terminals Pty Limited 8 In a letter dated 4 October 2007, Mr Bell sought reinstatement or, effectively, re-employment in the following terms: Dear Mr Eng

As you know, Terminals Pty Ltd terminated my employment on 25 September 2007. My employment was terminated due to injuries I suffered in the workplace and the company's view that I could no longer do my job.

I recently saw Dr Stephen Yung on 2 October 2007. Dr Yung provided me with a medical certificate. I have attached a copy of this certificate. The certificate states that I am fit to perform duties subject to lifting up to 15kg, not moving the six inch hose, and not working in a forward flexed position.

That being the case, I request that the company reinstate me to my previous position as terminal operator for which I believe I am fit to perform the inherent requirements of, with the exception of work on the wharf involving lifting over 15kg and moving the six inch hoses.

In the alternative, I request that I be reinstated in one of the following positions:

1. Safety Checklist Inspector 2. Forklift Driver 3. Boiler Operator 4. Loading and Unloading of Trucks

I look forward to your response which I would appreciate within two weeks of this letter.

Yours truly Todd Bell 9 The respondent declined to act on these representations seeking Mr Bell's return to work at his former grade or in the alternative roles. In due course, the applicant commenced these proceedings. The proceedings

10 Predictably, given the existence of these contested proceedings, the evidence concerning matters of relevance to the determination of this reinstatement application was in dispute. Shortly stated, the applicant's primary position was that Mr Bell could be returned to his former role as a grade 4 terminal operator with methods of work that reasonably could be accommodated on a day-to-day basis. On the other hand, the respondent's primary position was that it was neither feasible nor safe for Mr Bell to perform inherent aspects of the work of a grade 4 terminal operator. 11 As to secondary or alternative positions, the applicant's case contended that there was suitable work available at Port Botany in which Mr Bell could be properly occupationally redeployed. As to that, the respondent's case contended that the alternatives proposed by the applicant would be, for example, impracticable or unreasonable, when considered against matters such as operational and financial considerations. 12 I turn first to the applicant's primary application. Any consideration of this application necessarily requires an examination of the evidence as to the nature of the work at the respondent's premises. I will also examine the medical opinions of the doctors who have had the benefit of examining Mr Bell or his work as a terminal operator, or both, and whose considered evidence I had the benefit of receiving in the proceedings; while, nonetheless, considering also the documentary evidence adduced as to earlier medical certificates, medical reports and the like. 13 The evidence concerning the nature of the performance of work at the Port Botany site was as detailed as it was contested. The principal evidence in this respect was given by three witnesses - and often with a high level of animation, as they physically demonstrated in the witness box how the work was performed. The applicant adduced evidence from Mr Bell and one of his workplace colleagues, Kyle O'Brien. Mr O'Brien is employed by the respondent as a terminal operator, grade 5. The respondent adduced evidence from Bradley Crockett, who is employed as the respondent's Operations Manager. Further short evidence, principally relevant to the reason for dismissal, and operational and financial matters (among other topics), was also given by Douglas Eng, who is the respondent's State Manager. As to specialist medical evidence, the applicant adduced written and oral evidence from Dr Seamus Dalton and the respondent from Dr John Lose, each of whom has relevant expertise in injury management. 14 The evidence of Mr Bell and Mr O'Brien suggested it would be practicable for Mr Bell to return to work at Port Botany, notwithstanding the post-injury restrictions. Of particular relevance, their evidence emphasised that aspects of the work involving the movement of, for example, heavy, six-inch hoses, pumps, etc., could be undertaken successfully with the use of forklifts; and otherwise through the collaborative effort typical of the work practices already in place at Port Botany as between the terminal operators themselves and other workers, such as truck drivers and ships' crews. Their evidence was dismissive of suggestions to the contrary. 15 Mr Bell and Mr O'Brien were emphatic that not only could the work be performed in the manner described by them, but that their descriptions were based on practical, everyday working experience. For instance, Mr O'Brien described how the practice of using forklifts for hoses initially had come about when much heavier, eight-inch hoses were formerly used at Port Botany. According to Mr O'Brien's evidence, it was physically impossible to move the eight-inch hoses without assistance. Mr O'Brien stated it was as a result of the impossibility of individually moving the eight-inch hoses that terminal operators had, of necessity, learned "the technique" of using the fork-lifts for the lifting and alignment of hoses. While Mr O'Brien acknowledged he had, when he was younger and "full of bravado", manually moved the six-inch hoses unassisted, he personally, along with "most blokes", had discontinued this work practice. In this regard, I note there was evidence that two terminal operators are aged over sixty; one has a hernia complaint and the other has had a double hip replacement and a hernia. Dr Lose said that he had been informed by a couple of workers that they do not always use forklifts. As Mr O'Brien put it, although some terminal operators may manually handle the six-inch hoses without the assistance of a forklift, to do so is to undertake the task "the hard way". As to this, I accepted the evidence of Mr Bell that the operators all have their own ways of doing things concerning hose work. The evidence of Mr Bell and Mr O'Brien was also critical of the evidence of Mr Crockett as it described the performance of terminal operators' duties concerning, for example, the physical stances that might be assumed by terminal operators when performing aspects of their work. 16 The evidence adduced by the respondent suggested it just would not be feasible to avoid, redesign, etc., the work contraindicated in the medical recommendations applicable to Mr Bell. In particular, the evidence of Mr Crockett indicated that moving, lifting or otherwise manoeuvring miscellaneous items and plant necessarily would involve weights exceeding those (variously) recommended for Mr Bell and unavoidably would involve, for example, twisting and bending, and adopting forward-flexing postures. To this end, Mr Crockett had weighed various items at the workplace. Despite the applicant's submissions, I do not consider the weights of items given in Mr Crockett's evidence were anything other than what the scale actually gauged. As the respondent submitted, the weights of items reported in Mr Crockett's evidence were not contradicted by any competing scientific evidence. 17 The evidence concerning the weight or dynamics of weights involved in, for example, turning a valve, was, potentially at least, more problematic. For instance, Dr Dalton was unaware of a reliable means by which to measure the weight or load on a person's lumbar spine that might arise from turning a valve; and, in that respect, I noted and accepted the evidence of the terminal operators as to, for instance, the comparative ease with which certain items, such as valves and swivel-hinged latches, actually could be turned or manually handled.

18 Significantly, the respondent's evidence drew attention to the fact the weight restrictions for Mr Bell may preclude him from safely moving an injured or unconscious worker to safety when performing certain aspects of the work of a terminal operator; or assisting fully in dealing with a catastrophic failure. The evidence given by Mr Crockett was complemented by the evidence of Dr John Lose. Dr Lose provided injury management consultancy services for the respondent concerning Mr Bell, including a workplace assessment. Dr Lose was of the opinion that Mr Bell will never be able to perform safely all the inherent requirements of a grade 4 terminal operator.

19 I should say, at the outset, that the applicant has established a case favouring the reinstatement of Mr Bell to his former position as a terminal operator, grade 4. In so concluding I have considered the evidence and the principles discussed in cases such as Cansino v South Western Sydney Area Health Service (1999) 130 IR 1; [1999] NSWIRComm 355 and Riley v WorkCover Authority (2006) 151 IR 396; [2006] NSWIRComm 108. As such, it will be unnecessary to consider the secondary applications sought as alternatives by the applicant. 20 The evidence adduced by the respondent indicated that aspects of the work may involve items with weights that would exceed the medical recommendations concerning Mr Bell. I have also noted the concerns of Dr Lose about the potential for "unpredictability" in the work of a grade 4 terminal operator and the comparatively uncontrolled nature of the working environment at the respondent's premises. Despite my acceptance of the evidence that the forklifts may be used successfully for all aspects of lifting and alignment, I nonetheless accepted also the respondent's submission that there would be a need for the six-inch hose to be "at least moved marginally" by hand in alignment-related tasks. As the hoses do not self-connect, it must be accepted that the work would involve some level of manual handling, most likely the "wiggling" described in the applicant's case, in circumstances where the weight otherwise would be borne by the forklift. As to this, Dr Dalton was of the view that Mr Bell is clearly capable of moving individual hoses into position using a forklift and then is capable of using hand tools to connect hoses once they are lined up correctly by means of the forklift. Also, Dr Dalton's evidence helpfully explained some of the differences between lifting from the ground as opposed to carrying or moving from another position, such as from the raised tines of a forklift. 21 It will be the responsibility of Mr Bell to sensibly and prudently assess the tasks he can perform, against the background of the medical recommendations, without some form of assistance by means of forklifts or other devices; or where he should seek to enlist a co-worker for assistance. In this regard, the evidence made it clear that the division of responsibilities is left to the terminal operators themselves. I note that Mr Bell sustained his most recent injury when, imprudently, it would seem, he attempted to lift a very heavy trailer. As Mr Crockett noted, that trailer just should not have been manually lifted. Given that about a decade had elapsed since his previous back injury, one presumes Mr Bell allowed his guard to lapse about lifting such heavy weights. Despite this lapse, it would be reasonable to expect that Mr Bell will now be better and more properly attuned to the need for greater occupational health and safety (OHS) prudence in the personal performance of future work tasks, so as to avoid further back injury.

22 There appears to be no practical difficulty in reinstating Mr Bell on the expectation that cooperative work practices will be involved, as the evidence indicated that this is what occurs already. To the extent there may be shared lifting of heavier weights, the performance of such tasks on a shared basis would act for the OHS benefit of all workers concerned in the tasks at hand, not just to accommodate the medical recommendations concerning Mr Bell. Similarly, there seems to me to be no impediment to reinstating Mr Bell to his former position on the expectation that he will need to observe the restrictions that have been placed on him in adapting his work methods with a view to the safe performance of duties. Mr Bell will have a personal responsibility for properly bracing and positioning himself for the safe performance of certain tasks, as well as continuing back strengthening/core stability exercises as may be medically advised from time to time. 23 As to weights, the opinions on the weight restrictions (coupled with a range of other recommendations) that should apply to Mr Bell have varied from assessments of 5kg (Dr Lose) to 15kg (both Dr Andreas Loefler and Dr Yung) to 20-25kg (Dr Dalton). That is:

. In a report dated 29 May 2007 Dr Lose recommended "an occasional weight lifting limit of 5kg". Again, in a subsequent, undated report noting a "date of examination" of 14 August 2007, Dr Lose recommended the following restrictions: "lifting limit of 5kg, avoidance of repetitive or sustained bending". (Dr Lose had noted in an earlier report dated 12 July 2007 that he expected posturally-correct, controlled safe lifting limits eventually to reach "between 15-20kg, possibly 25kg" after strengthening - but there was no evidence of any further examination by Dr Lose of Mr Bell after he made that 5kg recommendation.)

. In a report dated 19 July 2007, Dr Loefler, an orthopaedic surgeon, recommended that Mr Bell should stay on permanent restricted duties. Dr Loefler recommended that Mr Bell's lifting should be no more than 15kg and he should avoid working in forward-flexed positions and in jobs requiring regular twisting and bending.

. The most recent WorkCover certificate from Mr Bell's general practitioner, Dr Steven Yung, which was dated 2 October 2007, recommended lifting limits of 15kg, no moving of six-inch hoses and avoiding working in forward-flexed positions.

. Dr Dalton examined Mr Bell on 4 April 2008 and, in a report dated 18 April 2008, he recommended that a "a lifting restriction of 20-25kg would be reasonable" in Mr Bell's case, subject to applying correct lifting and bending techniques at home and at work - and that Mr Bell can safely perform his previous duties with the exception of lifting the six-inch hose. He disagreed with "the suggestion that a permanent restriction of 15kg is applicable", given Mr Bell's circumstances. 24 I consider the most recent medical assessment given by Dr Dalton formed the best basis for a contemporary snapshot of Mr Bell's capacities at the time of these proceedings, notwithstanding the earlier assessments by Drs Lose, Loefler and Yung - which were, by the time the hearing proceeded, about a year old. Dr Dalton is an obviously well-qualified, specialist physician and he had the benefit of most recently examining Mr Bell. If a specialist such as Dr Dalton had, for instance, formed the view that Mr Bell could not safely manage weights above 5kg, that evidence could not be disregarded so far as these proceedings are concerned. Medical conditions typically involve dynamic, not static, considerations - even where there is something in the nature of an underlying permanent condition. The letter dated 4 October 2007 seeking Mr Bell's reinstatement referred to 15kg weights. The initiating process filed on 19 November 2007 noted, in more general terms, at "B" that the application was for "a reinstatement order under s242 of the Workers' Compensation Act 1987" - albeit, in support of that application, the applicant outlined supporting information, including the assessments of Mr Bell's fitness that accorded with those in the WorkCover certificate signed by Dr Yung approximately six weeks before the application was filed. However, I could not reasonably proceed on the basis that the Commission was somehow relevantly bound in its consideration of the reinstatement application only to a 15kg specification, if the most contemporary medical evidence suggested a much lesser standard of, say, 5kg - any more than I could disregard the fact the evidence persuasively indicated a standard of up to 25kg. 25 As the respondent's submissions noted, there is no provision in the Occupational Health and Safety Act 2000 nor in the Occupational Health and Safety Regulation 2001 ("the Regulation") setting limits on the weights that a person may lift. Instead, weights must be considered in terms of relevant risk assessments and the like. The applicant placed reliance on general OHS obligations concerning the management of workplace risks in contending that the any OHS responsibilities concerning Mr Bell would, essentially, arise independently of particular medical guidelines. It is difficult to resist that statute-based proposition advanced by the applicant (and it would seem, in part or in whole, to address the issues raised by the respondent in relation to the potential for an OHS prosecution). It would appear, otherwise, that the proposition it is an inherent requirement of the job of a terminal operator to perform certain of the tasks involving weights described in evidence without forms of mechanical or personal assistance potentially runs foul of OHS guidelines issued under the National Code of Practice for Manual Handling [NOHSC: 205 (1990)] ("the Code"), to which both parties adverted in their submissions. While the Code recommends that no person should lift weights above 55kg, cl4.23 advises against weights above 4.5kg when performing work from a seated position and against weights above the range of 16-20kg from a standing position. The clauses relevantly read:

4.21 The weight of any load which is manually handled shall be considered in relation to other key risk factors including, in particular: (a) frequency and duration;

4.22 Where heavier objects are handled, more care is needed in the assessment of risk and in the application of appropriate control measures.

4.23 For lifting, lowering or carrying loads: (a) in seated work, it is advisable not to lift loads in excess of 4.5kg;

(b) some evidence shows that the risk of back injury increases significantly with objects above the range of 16-20kg, therefore, from the standing position, it is advisable to keep the load below or within this range;

(c) as weight increases from 16kg up to 55kg, the percentage of healthy adults who can safely lift, lower or carry the weight, decreases. Therefore, more care is required for weights above 16kg and up to 55kg in the assessment process. Mechanical assistance and/or team lifting arrangements should be provided to reduce the risk of injury associated with these heavier weights; and

(d) generally, no person should be required to lift, lower or carry loads above 55kg, unless mechanical assistance or team lifting arrangements are provided to lower the risk of injury.

Hence, the recommendations applicable to Mr Bell do no more and no less than accord with generally-applicable OHS guidelines promulgated in the Code in as much as they may concern work performed from a seated position (in excess of 4.5kg) or from a standing position (above the range of 16-20kg). The weight restrictions that apply to Mr Bell appropriately may be viewed in this nationally-applicable OHS context. 26 Given that the weight lifting limits applicable to Mr Bell properly may be viewed as unremarkable in the context of OHS considerations that apply generally under the Code, I turn now to some other aspects of the restrictions applicable to the work performed as a grade 4 terminal operator. Some of the medical advice recommended that Mr Bell should avoid working in a forward-flexed position, irrespective of weight-lifting limits that otherwise may apply. In that respect, the respondent's evidence included photographs of Mr Crockett performing certain tasks of a terminal operator in forward-flexed positions, among other positions. As to that photographic evidence, both Dr Dalton and Dr Lose were of the view that Mr Crockett's posture was, put at its lowest, less than optimal for anyone concerned with safely performing such work. Similarly, the evidence of Mr Bell and Mr O'Brien was to the effect that terminal operators simply would not perform the work in the "awkward" manner shown in the photographs of Mr Crockett. 27 As the applicant submitted, the Commission would conclude that there is a high risk of injury to any employee performing the type of work in the manner shown or described in some of Mr Crockett's evidence if the Commission accepted the respondent's contentions about the way certain tasks inherently have to be performed. For example, the photographic evidence adduced by the respondent to illustrate the difficulties that may be encountered by Mr Bell in performing aspects of the job in a forward-flexed position cannot be given weight, given that it involved postures by Mr Crockett which were disavowed by both the occupational specialists and the terminal operators themselves. Simply stated, if respondent's case is to the effect that the work at Port Botany needs inherently to be performed in the way demonstrated in the photographs of Mr Crockett, the evidence otherwise indicated that the work is not, and, indeed, should not, on OHS grounds, be performed in such ways. If the exigencies of the workplace are such that the work can be performed only in the manner demonstrated in some of the photographs of Mr Crockett, then the consensus view otherwise was that such postures are less than satisfactory in terms of OHS considerations generally. That being the case, it seems to be a self-evident proposition that alternative means of performing these aspects of terminal operators' work need to be organised by the respondent for the OHS benefit of any terminal operator undertaking such tasks. 28 Mr Crockett gave evidence in a careful and considered way, based on his understanding, deriving from his role as the respondent's Operations Manager, of what may, or may not, be involved in the work of a terminal operator. Obviously, in that managerial role, Mr Crockett has had the opportunity to observe the way work is performed at Port Botany and, indeed, to give directions concerning the performance of work. Notwithstanding the conscientious nature of Mr Crockett's evidence, where there was a contest on the evidence as to the ways and means in which terminal operators' work is performed, or can be performed, I strongly preferred and accepted the evidence of the terminal operators themselves who have performed the work in question on a day-to-day basis for many years. For instance, in repeated and robust exchanges in cross-examination about work tasks, Mr Bell and Mr O'Brien were adamant that not only could a forklifts, cranes etc., be used in the ways described in applicant's case, but that these were the very means by which they had routinely, personally performed the work over many years; and I accepted that evidence in such respects. 29 Similarly, certain propositions put to Mr Bell and Mr O'Brien in cross-examination, against the backdrop of Mr Crockett's evidence, concerning the purported impracticability of performing certain tasks were rebuffed with the informed assuredness that clearly stemmed from personal experience in actually performing the tasks; again, I accepted the evidence of Mr Bell and Mr O'Brien as to such matters. Examples of answers in this respect to the effect that an employee seen attempting to perform work of the type suggested would be "sent off the wharf"; that the descriptions of the work were based on experience with more than a thousand ships, and the way the work was performed on "every one of them"; that not only could a forklift access a certain area, the task was performed with "no worries" in the manner described - not only on the day immediately before the evidence was given, but for the past thirteen years; that certain work "categorically" could be performed in the way described; and questioning why a terminal operator would persist in trying to open a valve that could not readily be turned. As to this last matter, the evidence of the terminal operators themselves dealt with the topic of how they deal with "sticky" valves, involving the reporting the matter for maintenance or using a water hose; and how drumming, among other tasks, is performed. As to lifting hatches and the like, it would, given some of the weights described in Mr Crockett's evidence, be in the interests of any terminal operator to do this as a shared task. I do note, however, that Mr Bell said he had never had occasion during his period of employment with the respondent to lift one of the heavier grates. I also accepted Mr Bell's evidence as to the range of duties he had actually performed in the time immediately preceding the dismissal; and accept he was reasonably well-integrated back into the workforce at that time. 30 In contrast with the evidence of the terminal operators, assuredly stemming from practical experience, Mr Crockett's evidence came from the view-point of a manager who, as he acknowledged, does not have a hands-on role in routinely performing terminal operators' work. For instance, under cross-examination, Mr Crockett referenced the position adopted in photographic evidence to an "upright row activity" he uses when training at a gymnasium, rather than basing it on the practical experience of having performed the terminal operators' tasks himself in an everyday working environment. I should note, in this respect, that Dr Lose's opinion concerning Mr Bell's ability to perform the inherent requirements of the job was informed, at least in part, by his understanding that terminal operators' work necessarily involves moving six-inch hoses and performing other aspects of the work in the manner described to him by Mr Crockett and Mr Eng on a site inspection. Dr Lose did not actually see Mr Bell or any other terminal operators at work. (That being said, I note that neither Dr Lose nor Dr Dalton have had the benefit of observing Mr Bell or any other terminal operator, for that matter, performing the work in question. To that extent, they were equally reliant on descriptions that have been given to them.) As I have noted earlier, I accepted and preferred the evidence of the terminal operator witnesses themselves as to the ways and means in which the terminal operators' work is performed at Port Botany to that of Mr Crockett. As a corollary, I am of the view, based on my findings as to the evidence concerning the performance of the work itself, that Dr Lose's opinion, at least to the extent it was reliant on the descriptions given to him by the respondent's managers, was backgrounded on some erroneous factual descriptions given to him concerning the means by which work is, and can be, performed at Port Botany - and must be discounted to that relevant extent. 31 By way of illustration, Dr Lose said that tasks involving the six-inch hose were among the most important. To that end, Dr Lose said he even attempted to lift one of the six-inch hoses himself during the workplace inspection. Dr Lose otherwise opined that he did not believe the work could be performed in the ways described by the terminal operators and his evidence proceeded on the assumption that at least some aspects of the work necessarily would involve "very, very heavy" lifting. For example, Dr Lose said in his oral evidence he assumed the work of a terminal operator necessarily would involve lifting a hose of a weight he estimated to weigh around 50kg, and he could not imagine any way of doing certain aspects the work other than through manually dragging that weight. To similar effect, Dr Lose had written in a report dated 29 May 2007: A general inspection of the site occurred, most particularly the operation tasks of concern to Mr Crockett, mainly the 6 inch hoses. The hoses consisted of insulated rubber, were approximately 3 metres in length, with heavy steel couplings at each end. It was conservatively estimated that the hoses would weigh in excess of 100kg; lifting an end to drag the hose would involve a weigh resistance of greater than 50kg.

However, Mr Bell and Mr O'Brien were emphatic in their evidence that they did not lift, drag, etc., the six-inch hoses unassisted in the manner contemplated in Mr Crockett's descriptions. 32 As an overarching OHS consideration, workers obviously should not, in any event, reasonably be expected to engage in "very, very heavy" lifting. Dr Lose prepared a report dated 12 July 2007, in which he referred, among other matters, to manually handling items weighing up to 150kg as part of the job of a terminal operator, depending on the work activity. I agree with Dr Dalton's observation that, "I presume that manual handling and lifting of weights of up to 150kg would not be required, but that is not clarified in the description of the tasks". Nonetheless, I observe, in this respect, that a report prepared by Dr Lose dated 29 May 2007 noted that the heaviest aspect of the work would involve the hoses. He stated that that each length of insulated hose would weigh more than 100kg and that a worker may at times be required to lift and drag the end of the hose for coupling and uncoupling. Similarly, Mr Crockett recounted an incident in 2007 when employees were (assuming I understood the evidence correctly) called-upon to share in lifting, without the benefit of mechanical assistance, barrels weighing around 200kg. It would seem most troubling in terms of OHS considerations if there is any expectation from the respondent that employees should be able, as an inherent requirement of the job, to manually perform work involving weights around an estimated 100-200kg without mechanical assistance. Any such expectation would, to my mind, be unacceptable in terms of OHS considerations, quite apart from Mr Crockett's evidence that the avoidance of heavy lifting is consistent with the respondent's emphasis on safe working practices. 33 The parties' cases focussed on various aspect of the work where there was dispute about tasks that Mr Bell may, or may not, be capable of performing. Of those matters, there was a particular matter where the respondent's evidence could not successfully be disputed by the applicant - namely, as to Mr Bell's ability to assist in lifting an injured or unconscious worker in a rescue situation. Shortly stated, terminal operators conduct cleaning tasks in confined spaces. The respondent has established OHS measures in the Safety Management Manual that must be observed when tasks are being performed in confined spaces. Those measures are found at cl3.6.5.3.3 of the Manual and are titled "Standby Duties for Confined Space Entry". Under those measures, as described in the evidence, three terminal operators are on hand when cleaning is performed in a confined space, such as a tank. One terminal operator enters the confined space to perform the work; a second terminal operator provides assistance near the entry to the confined space; and a third terminal operator, equipped with a radio to summon assistance from other employees should an emergency arise, acts as a type of conduit for coordinating assistance in the event of some OHS incident. The third employee with the radio must never enter the confined space, nor even put his or her head inside the confined space. The Manual emphasises, as a "first principle", the need to obtain assistance in the event of an OHS incident. 34 The applicant's case contended that Mr Bell could perform the role of standby person, whereas the respondent's case posited that Mr Bell could not, given the weight lifting restrictions that apply to him, be capable, in the event of an OHS incident, of safely lifting or moving an injured or unconscious worker, or assisting in such a task. 35 The applicant's submissions suggested that the lack of evidence from the respondent concerning the incidence of past accidents of this type inferentially indicated there would be a statistically small or statistically negligible likelihood of Mr Bell being called-upon to lift or move an injured worker from a confined space. Despite the applicant's submissions, the very purpose of having a stand-by person is to deal with the contingency of a potential OHS incident, even if it is a statistical rarity. Potentially at least, the stand-by person might be expected to be involved lifting or moving an injured or unconscious worker after that worker had been lifted or assisted from the confined space - bearing in mind that the person with the radio must never, himself or herself, actually enter the confined space.

36 Dealing with any incident involving an injured worker requires a measured OHS response; and it is clear that one of the purposes of OHS measures is to prevent harm or injury to potential "rescuers" of the type that, regrettably, has characterised the sometimes inappropriate responses to OHS incidents. Arguably, no worker in NSW should be expected to lift, without assistance, an injured person weighing more than 55kg - for to do so would be counter to the maxima in the Code, let alone being contrary to Mr Bell's recommended weight-lifting restrictions. But even if lifting the weight of an average male terminal operator (which I assume is greater than 55kg and is more likely to be in the vicinity of Mr Bell's own weight of about 90kg) were evenly split between two or three people, the lifting still would be above the restrictions recommended for Mr Bell. Not only would lifting the equally shared weight of a terminal operator be above the weights variously recommended for Mr Bell, it would be contrary to the guidelines in the Code in as much as it makes general recommendations concerning weights above the range of 16-20kg. Against the background of the provisions in the Code, it may be generally advisable for more than two people to be involved in lifting an injured or unconscious worker from a confined space or away from it. Be that as it may, it seems to me Mr Bell's restrictions would, as the respondent has contended, militate against him being safely involved as stand-by person in personally lifting an injured or unconscious colleague, once the worker had actually been recovered or assisted from the interior the confined space. By extension, as the respondent's submissions noted, Mr Bell could not be directed, as part of a more general response to an OHS incident, to don safety gear and enter the confined space for the purpose of assisting in lifting a "downed employee". 37 Although Mr Bell's restrictions would impede his ability to lift an injured or unconscious worker out of, or away from, a confined space, there was nothing on the evidence to indicate he could not successfully perform the task of the person who performs the cleaning in the confined space. The heavy breathing apparatus that terminal operators use when working in a confined space is not worn by them personally; that unit is located outside the confined space and connected to the worker by some form of line. It seems Mr Bell has not actually performed cleaning work in a confined space since his injury, but there is nothing to indicate that his restrictions mean he cannot perform such work. Indeed, Dr Dalton was of the opinion that Mr Bell can manage the tank cleaning duties. I take it Mr Bell would need to be cognisant of avoiding forward-flexing postures when performing cleaning tasks - while also noting Dr Dalton's evidence that he did not see risks for Mr Bell in occasionally bending forward as part of his job or as part of the normal activities of everyday living (and that unnaturally restricting ordinary bending activities actually may be counter-productive in terms of injury management). If there is a concern Mr Bell could not lift an injured or unconscious worker, it seems to be a self-evident proposition that one reasonably available alternative would be for Mr Bell himself to be the person who performs the cleaning work. 38 In a vein similar to that concerning potential difficulties concerning the rescue of an injured worker, Mr Crockett gave evidence that, in the event of a catastrophic failure during a shipping discharge, Mr Bell or his colleagues may be called upon to disconnect hoses manually "more than likely without mechanical lifting devices given the emergency timeframes that he would be operating under". Once again, the response to a catastrophic failure must be measured in the context of OHS considerations for the terminal operators themselves. If the work involving the hoses is ordinarily performed by "most blokes" with mechanical assistance, given the heavy weights involved, it is difficult to accept that any one or more of them should be put at risk of personal injury by being expected by the respondent to perform the work without such assistance in atypical situations. In any event, the evidence of Mr O'Brien detailed the actual procedures - involving closure of valves, the use of a rattle gun and the use of the ship's crane - that would be followed in the event of a catastrophic failure.

39 One area of particular evidentiary focus in the proceedings was the question of re-injury, albeit the applicant submitted that the relevant question for consideration is Mr Bell's fitness for reinstatement, not the question of re-injury itself. As things stand, Mr Bell is now well-recovered from his injury and is "almost asymptomatic". Dr Lose was of the view that, given Mr Bell's medical history, his former position as grade 4 terminal operator "carries an unacceptable risk of symptom exacerbation or injury aggravation". Dr Dalton was of the view that Mr Bell's medical history was not necessarily a predictor of increased risk of re-injury, subject to the matters such as adhering to the medical recommendations, adopting proper positions and maintaining core strength training. Dr Dalton's evidence, in a more informed way than Dr Lose's evidence, I thought, indicated that, based on research findings, the existence of a prior injury is not, of itself, necessarily an indicator of a higher predisposition to further injury when considered against an array of considerations. Neither Dr Dalton nor Dr Lose suggested that risk could be eliminated entirely - and it is difficult to ascertain, in circumstances where risk of back injury cannot be eliminated for anyone (whether performing work or everyday tasks), what level of risk, or increased risk, is posed for Mr Bell in particular. As Dr Dalton noted in his report, to the extent that Mr Bell's tasks involve bending, lifting and twisting, these tasks can be performed safely by Mr Bell, no more and no less than they should be performed safely by any employee to minimise the risk of back injury; and that there are numerous individuals working in physically demanding jobs who have more significant lumbar disc pathology than Mr Bell - which on this last point Dr Lose was in agreement. The doctors' differing opinions about re-injury ultimately was inconclusive in the sense that their evidence did not predominantly or decisively favour or, alternatively, militate against, reinstatement - other than to say that Mr Bell's circumstances, as against risks within the population for injury generally, depends on any number of variables. 40 Lastly, the applicant's submissions addressed the beneficial nature of the legislation and the fact it necessarily presupposes that applications will be made by workers who have been injured, and that some reasonable level of accommodation should be given to injured workers in such respects. As to this submission, I note, and respectfully adopt, the following comments by Bauer J, which were quoted with approval by the Supreme Court in State Rail Authority of New South Wales v The Honourable Justice Bauer and Others (1994) 55 IR 263 at 267: The aim of rehabilitation … must surely be to integrate injured workers into the workforce at a type of work they can perform and to be useful that integration requires the continuing provision of suitable employment. There is an obligation on the employers to assist and cooperate in such a purpose, an obligation contained not only in legislation but imposed on the employer by its position as a corporate citizen. If the employer terminated the employment of an employee who after a work related injury has been integrated into the workforce the subversion of the laudable aim of rehabilitation lies in the dismissal not the reinstatement. 41 The applicant has established a case favouring an order for the reinstatement of Mr Bell to the position of terminal operator, grade 4, with continuity of service, and I am satisfied it is appropriate to order accordingly. I accepted Dr Dalton's opinion as to Mr Bell's current fitness, and as to the medical recommendations that should be observed. Mr Bell's performance of duties as a terminal operator following reinstatement should be undertaken in accordance with the most current medical recommendations, that is, as advised by Dr Dalton. 42 I accept also it is appropriate, as a corollary to the findings in favour of reinstatement and continuity of service, to accede to the applicant's submission that there should be a remuneration order in Mr Bell's favour. I note both parties sought leave to address further on what actually may be an appropriate amount of remuneration in the event the applicant's claims on behalf of Mr Bell were successful. If agreement cannot be reached between the parties themselves, leave is granted to seek a re-listing for the purpose of submissions on the amount of remuneration or for the formalisation of any other orders if that is necessary. Any such application for a re-listing should be made within twenty-one days from the date of this decision. ________________________

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