Construction, Forestry, Mining and Energy Union, New South Wales Branch (on behalf of Ross Speirs) v Springvale Coal Pty Limited

Industrial Relations Commission (NSW)|2009-08-18|Before: Bauer J

CITATION: Construction, Forestry, Mining and Energy Union, New South Wales Branch (on behalf of Ross Speirs) v Springvale Coal Pty Limited [2009] NSWIRComm 1074

APPLICANT Construction, Forestry, Mining and Energy Union, New South Wales Branch on behalf of Ross Speirs PARTIES: RESPONDENT Springvale Coal Pty Limited

CATCHWORDS: Injured worker - reinstatement application - s 242 of Workers Compensation Act - mining industry - worker dimissed following knee replacement surgery - application to employer for reinstatement refused - application to Commission for order for reinstatement - application opposed on basis the respondent was not the employer responsible for the injury leading to knee replacements - no relevant workers' compensation claims accepted against the respondent, only the worker's former employers - application opposed on grounds of fitness for inherent requirements of the job - application dismissed as no relevant injury/workers' compensation claim against respondent

LEGISLATION CITED: Workers Compensation Act 1987 ss 4, 240-243 Workers Compensation (Dust Diseases) Act 1942

ASMOF (NSW) v CSAHS [2005] NSWIRComm CASES CITED: Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 Riley v WorkCover Authority (NSW) (2006) 151 IR 396; State Rail Authority of New South Wales v The Honourable Justice Bauer and Others (1994) 55 IR 263

HEARING DATES: 8, 9, 10 July, 18 August 2009

APPLICANT Mr A Slevin of counsel Ms M Mitchell - CFMEU LEGAL REPRESENTATIVES: RESPONDENT Mr R Warren of counsel Solicitor - Mr S Woodbury, Blake Dawson

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES McKENNA C 25 September 2009

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, NEW SOUTH WALES BRANCH (ON BEHALF OF ROSS SPEIRS) AND SPRINGVALE COAL PTY LIMITED

Application by Construction, Forestry, Mining and Energy Union, New South Wales Branch on behalf of its member Ross Speirs for reinstatement of an injured employee pursuant to s 242 of the Workers Compensation Act 1987

1 This is an application made by the Construction, Forestry, Mining and Energy Union, New South Wales Branch ("CFMEU") pursuant to s 242 of the Workers Compensation Act 1987 seeking the reinstatement of its member, Ross Speirs, to his former position with Springvale Coal Pty Limited ("Springvale"). Mr Speirs was formerly employed as the Longwall Production Superintendent at the Springvale Colliery. 2 Springvale opposes the CFMEU's application for the reinstatement of Mr Speirs to his former position. That opposition was advanced on two principal bases. First, Springvale submits there is no jurisdiction to make an order for reinstatement because Springvale was not relevantly the appropriate employer concerning Mr Speirs' workers' compensation-related knee injuries. Second, Springvale submits, putting aside issues as to power, it would be inappropriate, in any event, to reinstate Mr Speirs, given the inherent demands of the job of Longwall Production Superintendent at the Springvale Colliery and the fact Mr Speirs has had bilateral prosthetic knee replacements. 3 On the hearing of the application, Mr A Slevin of counsel represented the CFMEU. Mr R Warren of counsel represented Springvale. Statutory provisions

4 Section 242 of the Workers Compensation Act is concerned with applications for reinstatement by injured workers. An "injured worker" is defined by s 240(2) as being a worker who has received an injury for which the worker is entitled to receive compensation under the Workers Compensation Act or the Workers' Compensation (Dust Diseases) Act 1942. As to the meaning of "employer", s 240(3) provides that "a person is the 'employer' of an injured worker only if the injury arose (either wholly or partly) out of the course of employment with that person". Section 241 provides that if an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may then apply to the employer for reinstatement to employment of a kind specified in the application, subject to the criteria in s 241(2)-(3). If the employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for an order under s 243, which reads as follows: 243 Order by Industrial Relations Commission for reinstatement (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation).

(4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission.

ORDER 1: The Commission orders, pursuant to s 243(2) of the Workers Compensation Act , that the employer reinstate the applicant to employment in the position of Longwall Superintendent at the Springvale Colliery.

ORDER 2: 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.

ORDER 3: The Commission orders, pursuant to s 243(4) of the Workers Compensation Act , that the employer pay to the applicant an amount which equates with the remuneration that the applicant would, but for being dismissed, have received in the intervening period between the time of making application to the employer for reinstatement and reinstatement, less any amounts received as payment in respect of workers' compensation or derived from alternative employment. This amount is to be paid as soon as practicable, and within twenty-one days from the date of this decision.

ORDER 4: The Commission orders, pursuant to s 246(1) of the Workers Compensation Act , that the period of employment of the applicant with the employer shall be taken not to have been broken by the dismissal. The intervening period between the date of the application by the applicant to the employer for reinstatement, and the reinstatement of the applicant, shall be counted for all purposes as a period of employment.

6 Matters relevant to the history to the application were outlined in the CFMEU's submissions as follows, which I have expanded upon slightly: 1. … 2. Mr Speirs has worked in the underground coal mining industry since 1971. In that time, he has worked for a number of employers. 3. In 1975, he was involved in an incident which resulted in an injury to his left knee [and had an operation to remove damaged cartilage in his left knee]. At that time, he was working at the Ivanhoe Colliery. 4. In 1978, he was involved in an incident which resulted in an injury to his right knee [and had an operation to remove damaged cartilage in his right knee]. At that time, he was working at the Ivanhoe Colliery. 5. In 1992, there was another incident involving injury to his left knee at the Western Main Colliery [and Mr Speirs had an arthroscopy of his left knee to remove a piece of bone]. 6. In 1995, he commenced work with [Springvale]. In his application for employment form, he disclosed that he had claimed workers' compensation for his knee injury at Western Main Colliery [where he had worked between 1982 and 1995]. 7. Whilst working with [Springvale] he was involved in two incidents which resulted in injuries to his knees. These occurred in 2000 and 2002. 8. After these incidents, Mr Speirs received treatment for his knees on a number of occasions. This treatment included: steroid injections in August and October 2000, an arthroscopy to his right knee in April 2004 and pain-killing drugs in 2007. 9. In August 2007, Mr Speirs provided a medical certificate indicating he was unfit for work due to the injuries to his knees. The certificate identified Mr Speirs' employment as a substantial contributing factor to the injury. 10. Mr Speirs was subsequently advised by his orthopaedic surgeon that he should have knee replacements. He had operations to replace his right knee on 19 October 2007. His left knee was replaced on 9 April 2008. Following surgery, Mr Speirs was placed on a rehabilitation programme. 11. Mr Speirs received compensation under workers' compensation legislation for lost wages and medical treatment associated with his knees. 12. Mr Speirs has not worked since August 2007. Following his operations he was placed on rehabilitation plans. 13. He was dismissed by [Springvale] by letter dated 3 June 2008. The dismissal letter referred to Mr Speirs' injuries and bilateral knee replacements as the reason for the dismissal. The dismissal took effect on 11 July 2008. 14. On 27 January 2009, Mr Speirs' treating doctor, Dr Roebuck, issued a certificate that Mr Speirs was fit for his pre-injury duties. 15. On 28 January 2009, Mr Speirs provided a copy of Dr Roebuck's certificate to [Springvale] and made application to [Springvale] pursuant to s 241 of the Workers Compensation Act for reinstatement to his pre-injury duties, being the position of Longwall Production Superintendent. 16. By letter dated 3 February 2009, the respondent notified Mr Speirs that it would not reinstate him claiming that it was not the relevant employer under the Workers Compensation Act . [The letter read as follows: We refer to your letter dated 28 January 2009. We note that your application for reinstatement to the position of Longwall Production Superintendent has been made pursuant to section 241 of the Workers Compensation Act 1987. Under s 241, the entitlement to apply for reinstatement may only be made to an employer if the injury or injuries giving rise to the termination of the employee's employment arose (partly or wholly) out of, or in the course of, employment with that employer. Your injuries did not arise out of your employment with Springvale Coal and, therefore, no entitlement to apply for reinstatement arises under s 241. Your application will not therefore be the subject of further consideration.] 17. That letter was drafted by Mr Gillard who is the Group Industrial Relations Advisor for Centennial Coal Company, the parent company for [Springvale]. 18. Centennial Coal was also the parent company for Ivanhoe Colliery, which ceased operations around 2006.

Mr Speirs' claims for workers' compensation benefits, by way of compensation and reimbursement for medical expenses and lost wages, were all made to the industry-based insurer, Coal Mines Insurance Pty Ltd ("CMI"). 7 There was no substantial issue between the parties in relation to the history of incidents concerning Mr Speirs' injuries as outlined in the CFMEU's submissions. The parties were, however, in sharp dispute concerning the appropriate characterisation of that injury history as it related to the application now before the Commission seeking an order for Mr Speirs' reinstatement to his former position at the Springvale Colliery.

8 Shortly stated, Mr Warren submitted there was no evidence on which it could be concluded Mr Speirs sustained an injury at the Springvale Colliery entitling him to receive Springvale-specific workers' compensation benefits under the Workers Compensation Act. In this respect, Mr Warren adverted particularly to the following matters arising from the evidence. To the extent Mr Speirs described injuries occurring at the Springvale Colliery on 21 August 2000 and 23 October 2002, the evidence indicated Mr Spiers did not lose any working time and, in fact, performed overtime around the time of the incidents. 9 Mr Warren submitted it was pertinent that no workers' compensation claims have been accepted by CMI, on behalf of Springvale, in relation to those incidents in August 2000 and October 2002. Although Mr Speirs received workers' compensation benefits from 27 August 2002, at the time he was working for Springvale, CMI treated the claim and provision of workers' compensation benefits as being referable to the insurance arrangements applicable between Mr Speirs and his previous employers. Moreover, Mr Warren submitted that to the extent the CFMEU sought to rely on proceedings before the Compensation Court of New South Wales in 2003, in which Springvale was named as the second of three respondents in workers' compensation proceedings: (a) there is no record of any payment against Springvale's workers' compensation insurance policy in 2003 concerning Mr Speirs in relation to those proceedings; and (b) the short minutes of order/terms of settlement before the Compensation Court referred only to injuries which pre-dated Mr Speirs' employment at the Springvale Colliery. 10 Mr Warren submitted there was no relevant workers' compensation injury during Mr Speirs' period of employment with Springvale to enliven the Commission's reinstatement jurisdiction under the Workers Compensation Act. In referring to the legislative intention of the injured worker provisions, Mr Warren submitted as follows: The legislation was not intended to penalise employers who employ persons with pre-existing workers' compensation claims by requiring such employers to reinstate an employee whose employment was terminated due to a condition arrived at as a result of compensable injuries sustained in previous employment. Such an outcome would pervert the beneficial nature of the legislation and create barriers for employment of workers with pre-existing workers' compensation claims. In this instance, Mr Speirs was employed by Springvale for approximately 13 years. During this time, Springvale provided support to Mr Speirs in relation to the compensable injuries he had suffered in previous employment, including in relation to facilitating medical appointments, facilitating workers' compensation payments by CMI and rehabilitation programmes. From the time Mr Speirs ceased performing work for Springvale, Springvale waited almost a year to determine whether Mr Speirs would be able to return to his duties after his double knee replacement before it made the decision to terminate his employment based on the available evidence. At all relevant time, Springvale's actions were appropriate and generous. 11 Mr Warren submitted that if the Commission were to find against Springvale concerning the occurrence of a relevant injury in relation to Mr Speirs' need for knee replacements, then, in the alternative, there was no medical evidence to support the claim the need for that surgery came about as a result of Mr Speirs' employment at the Springvale Colliery. Mr Warren submitted CMI had accepted a number of Mr Speirs' workers' compensation claims (eg industrial deafness, laceration) arising during his period of employment with Springvale, but none of the claims related to Mr Speirs' knee conditions or the knee replacement surgery.

12 As to jurisdiction, Mr Slevin submitted Mr Speirs was appropriately characterised as a injured worker within the meaning of s 240 of the Workers Compensation Act given he was a worker who received an injury for which he had received workers' compensation benefits. As to Mr Speirs' injury itself, Mr Slevin drew attention to the definition of "injury" in s 4 of the Workers Compensation Act, which reads: 4 Definition of "injury"

(a) means personal injury arising out of or in the course of employment,

(b) includes: (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and

(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.

Mr Slevin referred also to the following quote from the decision of the New South Wales Court of Appeal in Strasberger Enterprises Pty Ltd trading as Quix Food Stores v Serna [2008] NSWCA 354, a case which considered the meaning of s 4 of the Workers Compensation Act : 21 In the present case the appellant challenged that approach, submitting that under the Workers Compensation Act , an injury was to be identified by reference to a particular incident. At least for the purposes of s 151H, an employee could not accumulate the consequences of separate incidents so as to satisfy the statutory floor, below which a claim must fail.

22 If this analysis is to operate, it must do so in some circumstances but not others. For example, there will undoubtedly be injuries, falling within the definition of "injury" in s 4 of the Workers Compensation Act , which do not arise from a specific incident or event. The term "injury" includes a "disease" which, as is recognised by s 15, may be contracted by a gradual process. Other forms of personal injury, which may or may not constitute a disease, may result from exposure to work conditions over time. The elements of the definition, at least in pars (a) and (b), are not exclusive of each other: see Favelle Mort Ltd v Murray [1976] HCA 13; 133 CLR 580 at 588-589 (Barwick CJ); Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 at 329-330 (Toohey, McHugh and Gummow JJ). All that is required is that the injury arise out of or in the course of employment, or, in the case of a disease, be contracted in the course of employment. The contention that the injury must be connected with a specific incident or event harks back to the long since repealed requirement of the Workmen's Compensation Act 1916 (NSW) which referred to "personal injury by accident" arising out of and in the course of employment: s 5(1), discussed by Kirby J in Zickar at 339. 13 Drawing from the definition of "injury" in the Workers Compensation Act and the comments in Strasberger, Mr Slevin noted Mr Speirs had sustained knee injuries at the Springvale Colliery in August 2000 and October 2002. He further submitted Mr Speirs' osteoarthritis was aggravated, accelerated or exacerbated by his employment at the Springvale Colliery, consistently with the medical opinions to that effect given by Mr Speirs' treating physician as well as his orthopaedic surgeon. Against that background, Mr Slevin submitted Mr Speirs had an injury and Springvale was the employer for the purposes of s 240 of the Workers Compensation Act. Consideration

14 Mr Speirs has had a long history of knee-related injuries, starting, it seems, with a football injury in 1970, when he had a left-knee meniscectomy. So far as work-related injuries are concerned, Mr Speirs relevantly sustained two injuries of sufficient seriousness to require further procedures for his left knee. In 1975, Mr Speirs injured his left knee while working at the Ivanhoe Colliery and had a left-knee meniscectomy. In 1992, while working at the Western Main Colliery, Mr Speirs again injured his left knee and had an arthroscopic debridement. 15 As for Mr Spiers' right knee, the initial injury occurred in 1978, when he was working at the Ivanhoe Colliery. As a result, Mr Speirs had a right-knee meniscectomy. 16 In 1995, Mr Speirs began working at the Springvale Colliery. There was evidence of two knee-related injuries arising during Mr Speirs' period of employment with Springvale. On 22 August 2000, Mr Speirs completed a form titled "Claim for compensation by injured workers to be given to employer" concerning the injury. In the claim form, Mr Speirs described the injury from the prior day as a "twisted left knee", and noted he had previously injured this knee when working at the Western Main Colliery. Mr Speirs did not lose any time from work as a result of this injury and worked some six hours overtime that day in addition to his normal shift. CMI did not register any workers' compensation liability against Springvale for this injury. 17 As to the injury on 23 October 2002, Mr Speirs noted in the claim form he had suffered a "twisted knee", and that the injury to his right knee was a "reoccurrence". Again, Mr Speirs did not lose any time from work on the day of the incident and worked some four hours overtime. Apparently, that claim form was sent erroneously to CMI in circumstances where Mr Speirs had not submitted a WorkCover certificate. CMI has confirmed liability was not accepted for the claim submitted by Mr Speirs regarding an incident on 23 October 2002. 18 Although CMI has not accepted any workers' compensation claims against Springvale for knee-related injuries, CMI has accepted claims concerning various other injuries suffered by Mr Speirs while working at the Springvale Colliery. Craig Gillard, Group Industrial Relations Manager, who is responsible for matters associated with workers' compensation for Springvale, gave evidence of the following registered workers' compensation claims by CMI against Springvale regarding Mr Speirs:

(a) 16 January 1996 - in relation to a lacerated left finger - no claim cost; (b) 30 October 1996 - in relation to a strained left lower leg - an amount of $34.50 was provided by CMI; (c) 21 March 1997 - in relation to strained left fingers - an amount of $50 was provided by CMI; (d) 31 December 1998 - in relation to bruising to the right elbow - an amount of $75.12 was provided by CMI; (e) 30 July 1999 - in relation to an industrial deafness claim - an amount of $10,379.86 was provided by CMI; (f) 13 July 2001 - in relation to a laceration left hand an amount of $8,771 was provided by CMI; (g) 23 October 2002 - in relation to a strained right knee - no claim cost; and (h) 24 July 2003 - in relation to bruising of the hand - an amount of $60 medical was provided by CMI. 19 Mr Speirs received workers' compensation benefits from 27 August 2002 for knee-related treatments, at the time he was employed at the Springvale Colliery, but, as Mr Warren's submissions noted, CMI did not process those claims against Springvale. Moreover, although proceedings were instituted in the Compensation Court in 2003 naming Springvale as a respondent, among Mr Speirs' other former employers, the short minutes of order/terms of settlement referred only to injuries occurring before Mr Speirs began working for Springvale. 20 If the Commission were to consider only the history of claims processed by CMI in relation to Mr Speirs' knee-related injuries, I think the application would fail for want of jurisdiction in as much as there is no evidence CMI accepted a workers' compensation claim against Springvale with respect to any knee-related injuries - and it was the knee injuries/knee replacement surgery which led to the dismissal. 21 Mr Slevin advocated a broader approach to the question of Mr Speirs' condition, adverting to the expansive definition of "injury" in s 4 of the Workers Compensation Act and the Court of Appeal's comments in Strasberger. Against the background of those submissions, I note aspects of the medical evidence indicated Mr Speirs' employment at the Springvale Colliery had contributed to his eventual need for knee replacement surgery, for example:

WorkCover certificates dated 29 August 2007 (Dr Mark Roebuck, general physician) and 3 September 2007 (Professor Warwick Bruce, orthopaedic surgeon), where the doctors had ticked the boxes confirming their opinions that "the worker's employment is a substantial contributing factor to this injury" ( ie the need for knee replacement surgery); and

a report by Professor Bruce dated 19 February 2008, giving a diagnosis of "severe osteoarthritis of both knees", which included the following opinion under the heading "Liability": In relation to the history given to me by the patient and the mechanisms of trauma, the predominant reason for his arthritis in the left knee is the loss of both menisci. However, the osteoarthritis has been substantially aggravated or accelerated by the nature and conditions of his employment both with Western Main Colliery and Springvale Colliery and injuries as a coal miner. As far as the right knee is concerned, the injury in 1975 is the predominant cause of the arthritis but again the condition has been substantially aggravated and exacerbated by the nature and conditions of his employment with Western Main Colliery and Springvale Colliery. 22 Hence, there is at least some evidence, particularly Professor Bruce's report dated 19 February 2008, that the condition of Mr Speirs' knees deteriorated due to his employment at the Springvale Colliery (albeit there were other likely contributing causes to the deterioration, such as Mr Speirs' weight - which was noted in one report as being around 118kg). As against that, the fact remains there is no evidence of Mr Speirs having made any successful knee injury-related workers' compensation claim against Springvale - and, I think, this remains the principal threshold impediment to the CFMEU's application on Mr Speirs' behalf in these proceedings. If Mr Speirs' workers' compensation lawyers had, for example, sought successfully to apportion to Springvale some of the workers' compensation liability for knee injuries before the Compensation Court in 2003 (the proceedings post-dated the knee injuries in 2000 and 2002), or CMI had itself at any time apportioned liability between Springvale and Mr Speirs' former employers, based on the nature of the claims submitted and the medical advice on which the workers' compensation claims were assessed, this application would have a different complexion. 23 I have also given consideration to the possibility CMI may, in effect, have mis-processed claims with respect to Mr Speirs' knee injuries on 21 August 2000 and 23 October 2002, for example: (a) that the injury on 21 August 2000 should have been treated by CMI as a compensable claim against Springvale, rather than against former employers' workers' compensation insurance arrangements; and (b) that the claim concerning the incident on 23 October 2002 properly should have been accepted by CMI and registered against Springvale's workers' compensation insurance policy. Even if that were the case, the evidence as to the nature of those two incidents at the Springvale Colliery would not lead me to a conclusion the injuries would have, without more, contributed, aggravated, accelerated, exacerbated or caused a deterioration, in the sense considered in s 4 of the Workers Compensation Act, to an extent of significance such as to necessitate double knee replacements several years later. That is, even if CMI mis-processed the paperwork concerning the incidents on 21 August 2000 and 23 October 2002, those incidents were described as involving twists to the knees. Mr Speirs lost no working time on the day of either of those incidents, and also worked 4-6 hours' overtime, albeit he did subsequently receive medical treatment. Whether taking the 2000 incident or the 2002 incident into account, several years elapsed before Mr Speirs was advised to undergo knee replacement surgery. 24 All things considered, I prefer the submissions advanced on behalf of Springvale in relation to the threshold issue and, as such, propose to dismiss the application. Mr Warren submitted, without demur from Mr Slevin, that if the application were to be dismissed because Springvale's submissions on the threshold issue were accepted, there would be no cause to give further consideration to the question of whether the CFMEU had established a case favouring the making of the orders it proposed. I accept this is an appropriate course. 25 Lastly, I have considered the submissions by both parties concerning the beneficial intent of the legislation, and the cases relied on by Mr Slevin in relation to the predecessor and present provisions, including Cansino v South Western Sydney Area Health Service (1999) 130 IR 1; Riley v WorkCover Authority (NSW) (2006) 151 IR 396; ASMOF (NSW) v CSAHS [2005] NSWIRComm; and State Rail Authority of New South Wales v The Honourable Justice Bauer and Others (1994) 55 IR 263. I also take notice that it is, regrettably, often difficult for people who have had a pre-existing workers' compensation claim to find alternative employment with a new employer. If the reinstatement of injured worker provisions of the Workers Compensation Act were given the broad sweep advocated by the CFMEU as being consistent with the beneficial intent of the legislation, there may be even greater difficulty for injured workers to apply successfully for post-injury jobs in circumstances where potential employers may be concerned about attracting an overlay of workers' compensation-related obligations for injuries sustained in a previous job. 26 Order: The application is dismissed. ______________

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Workmen's Compensation Act 1916(NSW)

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