Diaz v. Sydney South West Area Health Service [2008] NSWIRComm 1034

Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000 Workers Compensation Act 1987

Big W Stores v. Donato (1994) 58 IR 239 Mitchell v. Macquarie Health Service (1996) 67 IR 107 Moukahal v. Star Track Express Pty Limited [2006] NSWIRComm 1159 Paris v. Stepney Borough Council (1951) AC 367 CASES CITED: Preference of Employment Case (1977) AR 458 Riley v. WorkCover Authority of New South Wales (2006) 151 IR 396 State Rail Authority of New South Wales v. Bauer (1994) 55 IR 263 Tyrell v. State Rail Authority - unreported Urban v. Uncle Bens of Australia Pty Limited (1997) 78 IR 70

HEARING DATES: 26/03/2008, 27/03/2008, 28/03/2008, 30/04/2008

APPLICANT Spiro Eistis Ron Kramer Associates

LEGAL REPRESENTATIVES: RESPONDENT Jacqui Clark Sydney South West Area Health Service Department of Health

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Ricardo Diaz and Sydney South West Area Health Service

Application under S.241 of the Workers Compensation Act, 1987

1 Mr Ricardo Diaz was employed as a kitchen hand (Hospital Assistant, Grade II) in Fairfield Hospital under the terms of the Health Employees (State) Award. His employer is the Sydney South West Area Health Service. He incurred a work related injury and ultimately on Friday, 13 August, 2004 he was informed by the hospital that it had no work available to him consistent with the restrictions flowing from his ongoing medical condition. He has not been engaged in the hospital since that time. Consequently, on Friday, 20 July, 2007 Mr Diaz lodged an application under S.242 of the 1987 Workers Compensation Act (formerly Part 7, Protection of Injured Employees [Ss.91 to 100], of Chapter 2, Employment, of the 1996 Industrial Relations Act), seeking his reinstatement in employment or, alternatively, monetary compensation in lieu thereof.

2 The matter was allocated to me and I set it down for a conciliation and directions hearing on Wednesday, 22 August, 2007 and mentions on Wednesday, 19 September, 2007 and Wednesday, 17 October, 2007. Conciliation failed to settle the matter. I programmed Mr Diaz's application for arbitration, setting the matter down for further mentions for that purpose on Thursday, 20 December, 2007 and Thursday, 17 January, 2008. On Wednesday, 26 March, 2008 I conducted an inspection at the Fairfield Hospital and the hearing of the matter was convened before me on Thursday, 27 March, 2008, Friday, 28 March, 2008 and Wednesday, 30 April, 2008.

3 Mr Eistis represented Mr Diaz, calling him to give evidence in the hearing. Mr Eistis has primarily pressed for Mr Diaz's reinstatement to his former position in the hospital kitchen and believes that the current restrictions imposed on Mr Diaz by his medical condition should not preclude him from work (light duties) in the kitchen or, as an alternative, in some other part of the hospital, eg as a ward clerk or as an assistant in the hospital pharmacy or some other administrative area of the hospital. The inspection on Wednesday, 26 March, 2008 extended from the kitchen, the staff cafeteria, the areas where cleaning services and hospital maintenance are supervised and the pharmacy, areas in which Mr Eistis believes Mr Diaz may be still be gainfully employed, despite his injury.

4 Mrs Clark represented the SSWAHS and Fairfield Hospital in the hearing. She called five witnesses to give evidence in the hearing: Ms Shubjeet Kaur, the manager of food services for the hospital (and presently the acting director of hotel services), Ms Gail Miner, the SSWAHS injury management co-ordinator, Mr Ross Girdler, one of Mr Diaz's rehabilitation providers, and Ms Helen Goulden, formerly the human resources manager at Fairfield Hospital (but now performing that work at Bankstown Hospital). Mrs Clark submitted that there was no work available in the hospital for Mr Diaz, having regard to the restrictions flowing from his current medical condition. She asserted that the hospital had no other option other than to terminate his services and to engage him in work in the hospital would be contrary to the hospital's obligations under the 2000 Occupational Health and Safety Act to provide him with a safe working environment.

5 In 2006 there was an amendment to the Workers Compensation Act. In terms of S.241 (formerly S.92 of the State IR Act):

"(1) If an injured employee is dismissed because he or she is not fit for employment as a result of the injury received, the employee may apply to the employer for reinstatement to employment of a kind specified in the application.

(2) The kind of employment for which the employee applies for reinstatement cannot be more advantageous to the employee than that in which the employee was engaged when he or she first became unfit for employment because of the injury.

(3) The employee must produce to the employer a certificate given by a medical practitioner to the effect that the employee is fit for employment of the kind for which the employee applies for reinstatement."

The word "reinstatement" in that context has a wider meaning than is given it in proceedings initiated under Part 6, Unfair Dismissals [Ss.83 to 90] of the State IR Act. By virtue of S.240(1) of the Workers Compensation Act, a "reinstatement" is expanded to include "re-employment" (provided that, in terms of S.241(2), the position for which the injured worker applies is not more advantageous than the position he had formerly occupied - an issue which has emerged as particularly relevant in this hearing).

6 Further, S.242 (formerly S.93 of the State IR Act) provides as follows:

"(1) If an employer does not reinstate the employee immediately to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), the employee may apply to the Commission for a reinstatement order.

(2) An industrial organisation of employees may make the application on behalf of the employee.

(3) The Commission may not make a reinstatement order, except in special circumstances, if the application was made more than two years after the injured employee was dismissed."

And in terms of S.243 (formerly S.94 of the State IR Act):

"(1) The Commission may, on such an application, order the employer to reinstate the employee in accordance with the terms of the order.

(2) The Commission may order the employee to be reinstated to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), but only if the Commission is satisfied that the employee is fit for that kind of employment.

(3) If the employer does not have employment of that kind available, the Commission may order the employee to be reinstated to employment of any kind for which the employee is fit, being:

(a) employment of a kind that is available but that is less advantageous to the employee; or

(b) employment of a kind that the Commission considers that the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation).

(4) If the Commission orders the employee to be reinstated, it may order the employer to pay to the employee an amount stated in the order that does not exceed the remuneration the employee 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."

7 S.244 (formerly S.95 of the State IR Act) reverses the onus of proof that a dismissal was caused by the injury, viz:

"(1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured employee was dismissed because he or she was not fit for employment as a result of the injury received.

(2) That presumption is rebutted if the employer satisfies the Commission that the injury was not a substantial and operative cause of the dismissal of the employee."

8 Mr Diaz was born in Chile and he immigrated to Australia in 1988. He is married and is 55 years of age. He commenced employment as a hospital assistant in the kitchen of Fairfield Hospital in the middle of 1999, firstly on a casual basis but within several weeks he was appointed as a permanent employee. There are presently 14 hospital assistants engaged in the hospital kitchen. Their work involves a full range of kitchen duties, eg. food preparation, washing up, stacking plates and trays, stores and general cleaning. After patients have had their meals, used plates are brought into the kitchen, stacked and lifted by the kitchen staff into a dish washer. Food is prepared for meals on clean plates (cold) on a conveyor by the kitchen staff according to the directions given by a cook, stacked on trolleys and subsequently heated for distribution to patients throughout the hospital wards. Adjacent to the kitchen is a staff cafeteria. One employee is engaged there for three periods each day - breakfast, lunch and dinner.

9 As Mrs Clark submitted in the hearing, much of the work in the hospital kitchen is repetitive (for instance, food preparation on the conveyor and stacking trays). Some of it involves kneeling and squatting (for instance, obtaining material from shelfs below waist level), lifting and carrying weights (for instance, stacking plates into the dishwasher or onto trolleys) and hand and arm movement (for instance, mopping the floor and sweeping). Originally when Mr Diaz was engaged in the hospital kitchen, it was possible to assign employees to designated positions and in that manner, much of the type of work which presents difficulties for Mr Diaz may be avoided. That is apparently no longer the case. There are now no designated positions in the kitchen, as such, and each employee is required to perform the full range of duties.

10 Ms Kaur indicated in an affidavit which formed the basis of her evidence in this hearing that:

"...at the time of my appointment as manager of food services at the hospital, all occupants of the patient services assistant positions (Hospital Assistant Grade II) in Food Services rotate through the various roles and functions to be performed in the kitchen. I have not changed this arrangement as I consider this roster arrangement works well and is of benefit to all of the patient service assistants. This rotation is planned by the use of a roster arrangement and each role and function has a list of designated tasks to be performed. The rotation arrangement allows the patient services assistants to have a variety of tasks in food services and ensures that there is an equitable distribution of the roles and functions to be performed in the department. It is acknowledged that the patient services assistant serving in the cafeteria are also required to work inside kitchen if short staffed as patients are priority to the cafeteria.

Each of the patient services assistant positions has a large component of repetitive functions to perform in undertaking all of the duties of the positions. As employees in food services rotate, they are required to perform the whole of the functions of the position to which they are rostered and therefore are required to be physically capable of performing those functions.... In my opinion, it is not possible to segregate some of the 'lighter' functions of the positions to create a new position, as it would not be possible to gainfully employ a person in that position for the whole of the shift or even the majority of the shift and the remainder of the positions would have to perform a higher proportion of the 'heavier' functions. There are activities like dishwashing and plating meals which needs a set number of staff to perform the task. By creating a 'lighter' position, it will not be possible to perform those activities like dishwasher which needs four staff to perform the process..."

11 On Wednesday, 12 June, 2002 Mr Diaz sustained an injury to his right shoulder when he attempted to open the door of a refrigerator in the hospital kitchen which had become stuck. He was absent from work for approximately one week at that time and undertook light duties upon his return to work for a brief time - approximately one week, according to Mr Diaz. But he continued to suffer a slight pain from his right shoulder thereafter and had physiotherapy for approximately one month.

12 On Tuesday, 16 September, 2003 Mr Diaz developed a pain in his right shoulder while washing the kitchen floor with a mop. The pain persisted. He consulted his general practitioner and was referred to two orthopaedic surgeons. Early in 2004 he had arthroscopic surgery to his right shoulder. Because in the intervening period he had tended to favour his injured right shoulder he had overused his left shoulder and surgery to it was also required.

13 Upon Mr Diaz's return to work, he was subsequently placed on light duties for four hours, five days each week up to Friday, 13 August, 2004 when he was informed that the hospital has declined to continue his employment on the basis that there was no work available to him in the hospital, consistent with his medical condition. He has received workers compensation payments since that time and has indicated in his evidence that he has been applying for work but has to date been unsuccessful in that respect. He believes that when he informs prospective employers of his injury, they tend to avoid employing him because of that fact.

14 Mr Girdler, one of the rehabilitation providers to whom he was referred, believed that Mr Diaz was only "...going through the motions..." in seeking other jobs. Mr Girdler also formed the impression that Mr Diaz's commitment to rehabilitation was "...not very strong...", with poor attendance of the sessions with him and failure to appear at such sessions at short notice, regarding the options for work given to him, essentially telephone work, as demeaning. Mr Girdler reported on Thursday, 30 November, 2005 that:

"...I presented the vocational goals recommended by the vocational assessment to Mr Diaz as options which were within his physical restrictions and for which there was strong labour market demand. Mr Diaz reported he did not want to work as a telemarketer or in any similar telephone-based work and would prefer to work in other occupations, including work as a cleaner or return to suitable duties with his pre-injury employer.

I reminded Mr Diaz that no suitable duties were available from his pre-injury employer and that most of the duties of a cleaner would be physically inappropriate for him. Mr Diaz pointed out that telephone-based work was a low status job and that his qualifications allow him entry into higher-status clerical positions. As Mr Diaz was working as a kitchen hand at the time of his injury and his qualifications are not current, I repeated that, from a labour market perspective, it is far more likely that Mr Diaz could secure work as a telemarketer (or similar)..."

Mr Diaz dismissed Mr Girdler as a rehabilitation provider and he also dismissed another rehabilitation provider appointed for him. He does not believe that they were assisting him but simply providing him with guidance for any future job interviews which he did not really need.

15 What then are the restrictions imposed on him by his injury? A report dated Tuesday, 7 January, 2005 following a medical assessment of him for workers compensation purposes by Dr Brian Noll concluded that:

"...in my opinion he is fit to resume suitable duties at work. It would be appropriate for him to avoid repetitive or strenuous overhead activities in the longer term. In my opinion he would be able to lift weights up to at least 5kg below shoulder height at present and this limit could probably increase to 10kg over the next few months..."

On Tuesday, 23 November, 2004 Dr Jerome Goldberg, one of Mr Diaz's attending orthopaedic surgeons, gave this prognosis of Mr Diaz's medical condition with respect to his claim for workers compensation:

"...The patient's prognosis is good. His right shoulder should improve over several more months with exercises and physiotherapy. His left shoulder is likely to get better with non-operative treatment. Even however with successful surgery on the right side, the patient will never have a normal shoulder and will always have some discomfort with heavy lifting and repetitive and/or overhead work. Mr Diaz will suffer from a small amount of permanent disability but one cannot make this assessment until his condition stabilised which will take several more months. The patient's future earning capacity may be prejudiced by the fact that he sustained the...injury and there may be a permanent interference with his quality of life..."

16 A medical certificate dated Monday, 12 February, 2007 from Dr Goldberg ultimately clears him for work, with some restrictions, viz:

"...Mr Diaz...feels he can return to a different job description, which I am happy for him to do but I have recommended that he permanently does not lift more than 5 kilograms and does not do any repetitive or overhead work. I have given him a certificate to clearly indicate this. Provided these restrictions are adhered to, then I am happy for the patient to return to whatever duties in whatever capacity he wants..."

And a report provided by Dr Goldberg on Monday, 12 February, 2007 for the purposes of determining Mr Diaz's superannuation entitlements concludes that, whilst Mr Diaz is still able to be employed in some type of paid occupation, he will never be able to be employed in his normal occupation, ie his previous job, due to his incapacity.

17 Mr Diaz's attending medical practitioner - Dr K T Lai - also provided a letter on Tuesday, 18 September, 2007 to the following effect:

"...Mr Diaz was seen on Tuesday, 18 September, 2007 and alleged that he has been declined reinstatement to kitchen hand duties. He should be able to be re-trained to perform clerical duties with the following restrictions: no lifting more than 5kg, no repetitive and overhead work with upper limbs. Please kindly give this your due consideration and to facilitate his rehabilitation..."

There are therefore clearly three restrictions for Mr Diaz's employment in the hospital or elsewhere: (i) no lifting of weights over 5kg, (ii) no repetitive work and (iii) no lifting his arms above his head. Mr Diaz claims that he can now lift his arms above his head and demonstrated his ability to do so when he gave his evidence in this hearing. But I must rely on the advice of the medical practitioners, albeit that some of it is now dated.

18 The SSWAHS has concluded that because of those restrictions imposed on Mr Diaz's employment there is no work suitable to Mr Diaz in the Fairfield Hospital. Mr Kaur concedes that at present there is one employee with weight restrictions engaged in the kitchen. She may not lift weights in excess of 5kg but she is assisted in that respect by other staff members in the kitchen. However, Ms Kaur pointed out that there was no restriction on her in the performance of repetitive work and Ms Kaur believes that would produce a problem for Mr Diaz in continuing to work in the kitchen that does not arise with the other employee. Ms Kaur claimed that it would be "...hard to manage..." Mr Diaz in working in the kitchen.

19 There is a common law duty of care imposed on all employers to provide a safe working environment for all of his employees. That duty of care is owed to each individual employee and all the circumstances concerning that particular employee, including any infirmity he may have, must be borne in mind by an employer [Paris v. Stepney Borough Council (1951) AC 367 at p.375 and 380]. If an injured worker is not medically fit for any of the types of work which an employer has available, he would be in breach of his duty of care if he retained him in such employment. S.8(1) of the Occupational Health and Safety Act, reinforces that duty of care and places a statutory obligation on employers to that extent.

20 The primary submission of Mr Eistis is that Mr Diaz be reinstated to his former position in the hospital kitchen and he highlighted the fact that there was already an employee engaged in the hospital kitchen with weight restrictions imposed on her (but not any restrictions on repetitive work). But it is clear to me, based on the medical evidence available to me in this hearing and what I observed in my inspection of the hospital on Wednesday, 26 March, 2008, that because of Mr Diaz's injury he would no longer be able to effectively perform the work in the hospital kitchen in which he was originally employed. Nor does it appear that work as a hospital cleaner would be suitable for him. There are 38 cleaner positions in the hospital but that work is also repetitive, involves lifting weights from time to time in excess of 5kg and requires the employee to frequently raise his arms above his head. I note in particular that on Tuesday, 13 September, 2003 Mr Diaz aggravated his injured shoulder when he was performing routine cleaning duties - washing the kitchen floor with a mop.

21 Mr Diaz has very strict restrictions imposed on him by the assessments by medical practitioners and the hospital must rely on them. It appeared to me in his evidence that Mr Diaz accepted that work in the kitchen would no longer really be an option for him. In fact, in a statement he provided on Monday, 13 November, 2006 concerning his workers compensation he had this to say:

"...I do not believe that I would be able to perform my pre-injury duties on a full or part time basis because I am unable to perform repetitive and prolonged activities using my shoulders and arms and I am unable to lift any more than 5kg. I would be unable to perform activities as a cleaner because such activities require the repetitive and prolonged use of both my shoulders and arms in mopping, vacuuming and similar activities..."

22 But is there other work available in the hospital to which Mr Diaz could reasonably be assigned? As Mr Eistis emphasised in his submissions, the hospital is a large employer and having regard to the size of the hospital workforce and the range of work available in the hospital, I would expect that the hospital would be able to accommodate some employment opportunities for Mr Diaz.

23 As I indicated in my unreported decision of Thursday, 16 November, 2006 in Moukahal v. Star Track Express Pty Limited [Matter No.IRC 2813 of 2005 at p.18]:

"...If other work is available for an injured worker to perform...I believe that it would constitute an unfairness to the injured worker that he is not given the opportunity to perform such work [ Urban v. Uncle Bens of Australia Pty Limited (1997) 78 IR 70 at p.72]. An employer may still be able to accommodate an injured worker in employment with some medical restrictions on performance. For instance, in Big W Stores v. Donato (1994) 58 IR 239 the Full Bench of the Commission (Fisher P, Cullen J and Sheils CC) dismissed an appeal by an employer against an order of reinstatement at first instance for an employee injured at work but, nevertheless, in the opinion of the member of the Commission hearing the matter, capable of performing the bulk of the range of duties of his position...."

There is a clear obligation on any employer to ensure that any employee injured in the course of his employment still receives proper rehabilitation and the opportunity, if it exists, to be integrated into the workforce at a level and performing work consistent with his medical condition.

24 Later in Moukahal v. Star Track Express Pty Limited (at p.21), I commented on the extent of that obligation, as I saw it:

"...It goes without saying that an employer should reserve to itself the right to appoint the best person for any vacant position. But...the test under Part 7 is not whether the injured employee is the best person for the job but simply whether he is suitable for it at all. To that extent I believe that the policy (for injured workers) is to give preference in employment to an injured worker over another employee who, in the assessment of the employer, may have been the better applicant [ Urban v. Uncle Bens of Australia Pty Limited at pp.74 to 77]. To my mind, the correct approach is akin to the position where at one time absolute preference was given to trade unionists over non-unionists at the point of employment, provided they were suitable for the work in question - S.129B of the 1940 Industrial Arbitration Act [the Preference of Employment Case (1977) AR 458] or the similar preference given to persons competent for the work in question who had been members of the armed forces during the Second World War - S.20(4) of the 1940 Act..."

25 In that respect Bauer J of the former State Industrial Commission explained the position in the following manner in his unreported decision of Thursday, 17 October, 1991 in Tyrrell v. State Rail Authority [Matter No. 493 of 1990 at pp.18 and 19], viz:

"...The aim of rehabilitation, if such consideration be relevant to the issues of construction raised, must surely be to integrate workers into the workforce at a type of work that 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 co-operate 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…"

The Court of Appeal of the State Supreme Court (Kirby P, Sheller and Meagher JJA) in State Rail Authority of New South Wales v. Bauer (1994) 55 IR 263 considered the matter further and Sheller JA, with whom Kirby P and Meagher JA agreed, endorsed that proposition by Bauer J [ Mitchell v. Macquarie Health Service (1996) 67 IR 107 at p.112].

26 Mr Diaz emphasised in his evidence in the hearing his clerical, computer and administrative skills and his vocational assessments seem to me to be directed to that area of employment. He claimed that he had practiced on a computer at home and believed that he could competently handle the use of a computer for lengthy periods of time. Mr Diaz recorded in his statement of Monday, 13 November, 2006 over his workers compensation claim that:

"...I have also applied for office/clerical type work but to date have not been successful in obtaining any interviews. I do not believe that I would be able to use a computer for any lengthy period of time insofar as it would require repetitive and prolonged use of my arms which I am unable to perform due to the pain in both my shoulders..."

27 In Riley v. WorkCover Authority of New South Wales (2006) 151 IR 396 the Full Bench (Wright J - President, Boland J and Connor C) took the view (at p.420) that before a finding can be made as to whether the dismissal was harsh, unreasonable or unjust, there has to be a full and transparent consideration by the Commission as to whether there was a position available that was suitable for the employee, given the medical restrictions imposed, because if such suitable position was available a finding that the dismissal was not harsh, unreasonable or unjust may not be open. Whether there was such a position actually available does not mean that the position has to be vacant but whether there was a position "...capable of being used by, or at the disposal or within the reach of the employer - whether or not it was vacant at the time...". Fairfield Hospital is far from being a small employer and I would expect that it would be in a better position than most employers to accommodate some employment for Mr Diaz notwithstanding his injury.

28 As I indicated earlier in this decision, the inspection on Wednesday, 26 March, 2008 also extended to some areas of the hospital administration - cleaning services, maintenance and the pharmacy. The administrative officer for the maintenance section is engaged only on a part-time basis - five days in each fortnightly cycle - and would not be available for Mr Diaz if he continued to seek full-time employment. The pharmacy distributes medications and staff are employed to assist in that process. Pharmacy assistants are required to lift boxes of medication, stack them and remove them from storage, but it is my perception that the amount of heavy lifting in the pharmacy would not be great - certainly not as great as in the kitchen. The inspection did not extend to examine any work of ward assistants but I am informed by Ms Goulden in her evidence that such work also involves some repetitive computer keyboard operations and placing and retrieving files which would involve stooping and bending. Not excessively so, I would think.

29 Ms Goulden rejects the clerical work for Mr Diaz because she believes that all such work would involve keyboard operations and some filing, ie repetitive work, bending and stooping. But, in my opinion, insufficient attention was directed to that area by the SSWAHS. Clerical and administrative areas of employment appears to me to be the emphasis of the vocational advice Mr Diaz received. If he was being directed towards work involving the telephone, I would expect that a relatively large hospital would also be an area of possible employment for Mr Diaz. Mr Girdler's evidence in this hearing seems to be implying that when he interviewed Mr Diaz he threw cold water on any suggestion of work with a telephone, claiming that it was demeaning. He gave me no such impression in this hearing. Perhaps he has changed his mind in that respect. But, whatever the position, that now seems to be the area in which he may now most appropriately be engaged within the hospital administration.

30 What does still presents some barriers to Mr Diaz's re-engagement at the hospital in such clerical or administrative work, is the effect of Ss. 241(2) - and 243(3)(a) - which authorise only reinstatement in employment to a position that is no "...more advantageous to the employee than that in which the employee was engaged when he or she first became unfit for employment because of the injury...". Mr Eistis pointed out in his submissions that the restrictions imposed by Ss.241(2) and 243(3)(a) were to ensure only that the injured worker was not reinstated into a position "...more advantageous..." which was not necessarily the same thing as a position with a higher remuneration. But to my mind, the two concepts are synonymous. A position with a higher remuneration would clearly be "...more advantageous..." to the injured employee. That must mean that the legislative provisions must always act against any employee in a lower paid position and limit his opportunities for reinstatement in employment. But, whilst an employer may still be in a position to reach an agreement to provide an injured worker with employment in a better paid or more advantageous position, I consider that the legislation has the effect of providing no compulsion on him to do so.

31 A Grade II Hospital Assistant, Mr Diaz's substantive position, currently receives an annual salary of $35,643.00 ($683.10 per week) under the terms of the State Health Employees Award. By comparison, a Grade I Pharmacy Assistant has an annual salary of $38,466.00 ($737.20 per week). Administrative positions in hospitals are covered by the terms of a separate State award - the Health Employees Administrative Staff (State) Award. The clerical position for the maintenance department is remunerated as a Level II Administrative Officer under the Health Administrative Staff Award - with a salary range from $39,891 per annum ($764.50 per week) in the first year to $41,2934.00 per annum ($738.40 per week) for the second and subsequent years. All of those positions would fall out of the range in which I may direct the SSWAHS to engage Mr Diaz because of the operation of Ss.241(2) and 243(3)(a).

32 But there is also the classification of Level I Administrative Officer (ward assistant) under the Health Administrative Staff Award which is defined in Clause 1, Definitions and Work Level Statements, as follows:

"...These positions are established for undertaking routine clerical work. An employee at this level may be a trainee with no previous experience. Work is performed under close supervision requiring the application of basic skills and routines such as providing receptionist services, straight forward collating, collecting and distributing, carrying out routine checks by simple comparisons, maintaining basic records, mail procedures, obtaining or providing information about straight forward matters and routine user maintenance of office equipment.

Work performed is within established routines, methods and procedures. The work which it is envisaged would come within this level would require the exercise of any one or more of the skills set out below: operate personal computers, printing devices attached to personal computers, paging system, calculator..."

33 It appears to me that Mr Diaz's injury would not preclude him from performing that type of work, especially since the vocational goals set for him suggested work on the telephone which would be the type of work referred to in Level I. The salary range for Level I is as follows:

First year 649.20 33,974 Second year 676.60 35,304 Third year 703.00 36,682 Fourth year 720.40 37,589 Fifth year and thereafter 738.40 38,529

34 Ms Clark indicated in her submissions that Mr Diaz's length of service in the hospital already would place him in the highest level in that salary range - $38,529.00 per annum or $738.40 per week. But to my mind, there is no reason why the hospital would be obliged to pay him at that level. Mr Diaz may be appointed to such work at the first (or second) year level which would not offend Ss.241(2) and 243(3)(a). Whilst Mr Diaz may have in excess of five years of employment with the hospital, the work of a ward assistant would still be relatively new to him and I do not believe that he would necessarily be entitled to a higher salary level from the outset.

35 Nor do I believe that a graded salary for Mr Diaz which ultimately may take him beyond what he would previously have earned as a hospital assistant really constitute a "...more advantageous..." position for him. His progression to the higher grades would only be contingent upon his satisfactory completion of the work allocated to him.

36 Ms Clark pointed out in her written submissions that the SSWAHS:

"...is not obliged to create a position to suit Mr Diaz's specific needs. Therefore any application for re-employment should also be dismissed..."

But to use the language of the Full Bench in Riley v. WorkCover Authority of New South Wales (at p.420) there would still be a range of ward assistant positions "...capable of being used by, or at the disposal or within the reach of the employer...". That is the proper test to apply. Ms Clark also indicated in her written submissions that all administrative positions in the hospital have repetitive tasks. That is no doubt true but I do not regard repetitive clerical work as the same thing as other repetitive tasks of a more physical nature and I consider that the hospital administration will be able to provide clerical work to Mr Diaz as a ward assistant at Level I within the restrictions imposed by medical advice concerning his injury.

O R D E R 1. The Sydney South West Area Health Service of the Department of Health shall reinstate Mr Ricardo Diaz in employment at Fairfield Hospital as a ward assistant [Administrative Officer, Level I under the Health Em-ployees Administrative Staff (State) Award].

2. This order shall take effect on and from Friday, 23 May, 2008.

Diaz, Ricardo applicant Girdler, Ross rehabilitation provider Goulden, Helen human resources manager Kaur, Shubjeet manager of hospital food services Miner, Gail injury management co-ordinator

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