Fouad v Hillsbus Co Pty Ltd [2025] NSWIRComm 1061

(4) The following Terms of Reference apply to referral to the medical assessor(s):

(b) the Transport for NSW Medical Assessment for Public Passenger Vehicle Drivers;

(c) the Application for Reinstatement of Injured Worker filed 22 May 2025 (and annexures thereto);

(d) annexures 1 - 2, and 4 - 11 to the affidavit of Thanh Tran affirmed 26 June 2025 and marked Exhibit "Hillsbus 2" in Industrial Relations Commission proceedings 2025/197884; and

(e) your assessment of the Arlette Fouad's condition and function at an in-person assessment

in your opinion, is Ms Arlette Fouad sufficiently recovered from her work-related injuries such that she is fit for employment as a bus driver with Hillsbus?"

(5) The documents to be provided to the medical assessor(s) are:

(b) the Transport for NSW Medical Assessment for Public Passenger Vehicle Drivers;

(c) the Application for Reinstatement of Injured Worker filed 22 May 2025 (and annexures thereto);

(d) annexures 1 - 2 and 4 - 11 to the affidavit of Thanh Tran affirmed 26 June 2025 and marked r "Hillsbus 2" in proceedings 2025/197884; and

(6) In accordance with s 325 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), the medical assessor(s) is to provide to the parties, the Industrial Relations Commission, and the President of the Personal Injury Commission a medical assessment certificate, in the form approved by the President of the Personal Injury Commission, and the medical assessment certificate is to:

(a) set out details of the matters referred for assessment, including the dispute as to whether Ms Arlette Fouad is sufficiently recovered from her work-related injuries such that she is fit for employment as a bus driver with Hillsbus;

(b) certify as to the medical assessor's assessment with respect to those matters;

(c) set out the medical assessor's reasons for that assessment; and

(d) set out the facts on which that assessment is based.

(7) The substantive matter is listed for directions at 4:00 pm on 13 August 2025 by AVL.

(8) In the event that as at midday on 15 August 2025, any disagreement remains between the parties about the form of the certificate to be provided pursuant to Order 6, Hillsbus Co Pty Ltd must inform the Industrial Relations Commission in writing by 4pm on that day of the substance of the disagreement and the parties' positions on the issue and the Industrial Relations Commission may list the matter for further directions and/or may refer the matter to the President of the Personal Injury Commission for his determination as to the form of the certificate.

EMPLOYMENT AND INDUSTRIAL LAW - Industrial Relations Commission - Notice of motion seeking an order pursuant to s 245 of the Workers Compensation Act 1987- whether a dispute exists as to the worker's condition or fitness for employment - if so, whether the Commission should exercise its discretion to refer - orders made to refer dispute as to worker's fitness to medical assessor(s)

Compensation Court Repeal Act 2002 (NSW)

Industrial Relations Act 1996 (NSW)

Industrial Relations Further Amendment Act 2006 (NSW)

Workers Compensation Act 1987 (NSW), ss 242, 243, 245

Workplace Injury Management and Workers Compensation Act 1998 (NSW), Ch 7, Pt 7, ss 4, 319, 321, 321A, 324, 325

Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305

Glenn Robson and GWA Group Limited [2015] NSWIRComm 9

Jenkins v Secretary of the Ministry of Health on behalf of Nepean Blue Mountains Local Health District [2023] NSWIRComm 1045

Merlo v Everly Howison Pty Ltd [2025] NSWPIC 236

New South Wales Legislative Assembly, Parliamentary Debates (Hansard)

New South Wales Legislative Council, Parliamentary Debates (Hansard)

Hillsbus Co Pty Ltd (Respondent/Applicant on the motion)

SegelovTaylor Lawyers (Applicant/Respondent on the motion)

1. This decision concerns a notice of motion filed on 26 June 2025 by the respondent in the substantive proceedings, Hillsbus Co Pty Ltd ("Hillsbus") ("Motion").
2. Ms Arlette Fouad, the applicant in the substantive proceedings, is seeking reinstatement of employment pursuant to s 242 of the Workers Compensation Act 1987 (NSW) ("WC Act"). Hillsbus asks the Commission to refer a dispute as to Ms Fouad's fitness for employment to a medical assessor to assess in accordance with s 245 of the WC Act, prior to the arbitration of the substantive proceedings. Ms Fouad resists this referral on various grounds, including that no "dispute" has been established by Hillsbus.
3. For the reasons set out below, I am satisfied that there is dispute as to Ms Fouad's condition or fitness for employment and that I should exercise my discretion to make orders to refer this dispute to a medical assessor to be assessed as provided by Pt 7 of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM Act" or "1998 Act").

The parties' written material and the proposed orders

1. The Motion, as filed, sought that the Commission make orders in the following form:

"In accordance with section 245 of the Workers Compensation Act 1987, the Applicant be referred to a medical assessor to assess the Applicant's fitness for employment."

1. The motion was heard before me on 24 July 2025.
2. At the hearing of the motion, Hillsbus read two affidavits of Thanh Tran affirmed 26 June 2025 and relied on written submissions filed on 18 July 2025 ("ROS") and written submissions in reply filed on 22 July 2025 ("RRS").
3. Ms Fouad relied on an affidavit of David Stuart Taylor sworn on 22 July 2025 and written submissions filed 22 July 2025 ("AOS").
4. Ms Fouad strongly resisted the Commission making orders referring a dispute as to her fitness for a medical assessment. However, Annexure "B" to the AOS are orders Ms Fouad proposed the Commission make if it determined that Ms Fouad should be referred for a medical assessment ("22 July Proposed Orders"). These orders were in the following terms:

"1. The Applicant, Arlette Fouad, is to be referred to a medical assessment pursuant to s.245 of the Workers' Compensation Act 1987 (NSW) in respect of the following matter:

(a) Whether the Applicant is fit to work as a bus driver.

2. The assessor is to provide a Medical Certificate, in the form approved by the President of the Personal Injury Commission, and in accordance with s.325 of the Work Injury Management and Workers Compensation Act 1998 (NSW)

3. The parties confer and advise the Commission within seven days of these orders on the name of any agreed medical assessor.

4. In the event the parties cannot agree on the name of any medical assessor, the Commission will approach the President of the Personal Injury Commission and seek the nomination of an approved assessor."

1. At the commencement of the hearing, Mr Mclean appearing for Hillsbus, proposed the following alternative orders which he referred to as a "consent position": Tcpt 24 July 2025 p 3 at 30:

"1 The Applicant, Arlette Fouad, is to be referred to a medical assessment pursuant to s.245 of the Workers' Compensation Act 1987 (NSW) in respect of the following matter:

(a) Whether the Applicant is fit to work as a bus driver.

2 The assessor is to provide a Medical Certificate, in the form approved by the President of the Personal Injury Commission, and in accordance with s.325 of the Work Injury Management and Workers Compensation Act 1998 (NSW), which is to:

(a) set out details of the matters referred for assessment, and

(b) certify as to the medical assessor's assessment with respect to those matters, and

(c) set out the medical assessor's reasons for that assessment, and

(d) set out the facts on which that assessment is based.

3 The parties confer and advise the Commission within seven days of these orders on the name of any agreed medical assessor.

4 In the event the parties cannot agree on the name of any medical assessor, the Commission will approach the President of the Personal Injury Commission and seek the nomination of an approved assessor."

1. At the end of the hearing, I directed that Hillsbus file and serve further alternative proposed orders and that Ms Fouad have the opportunity to provide a written response to the further alternative proposed orders.
2. The orders filed by Hillsbus on 25 July 2025 are:

"1 Pursuant to s.245 of the Workers' Compensation Act 1987 (NSW), the Applicant is to be referred to a medical assessment in respect of whether the Applicant is fit for employment as a bus driver with the Respondent.

2 The parties are to confer and advise the Personal Injury Commission within seven (7) days as to the name of any agreed medical assessor(s) to whom the Applicant is to be referred.

3 In the event the parties have not agreed on the name of any medical assessor(s) within seven (7) days, the Personal Injury Commission will, in accordance with s.321 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act), refer the matter to the President of the Personal Injury Commission for referral to an approved medical assessor(s) nominated by the President.

4 The referral to the medical assessor will be on the following terms:

Having regard to:

(a) the CDC Job Task Analysis for a Bus Driver;

(b) the Transport for NSW Medical Assessment for Public Passenger Vehicle Drivers;

(c) the Application for Reinstatement of Injured Worker filed 22 May 2025 (and annexures thereto);

(d) the matters set out in the affidavits enclosed with this referral (and the annexures thereto); and

(e) your assessment of the Applicant's condition and function at an in-person assessment,

in your opinion, is the Applicant fit for employment as a bus driver with the Respondent?

5 The documents to be provided to the medical assessor are:

(a) the CDC Job Task Analysis for a Bus Driver;

(b) the Transport for NSW Medical Assessment for Public Passenger Vehicle Drivers;

(c) the Application for Reinstatement of Injured Worker filed 22 May 2025 (and annexures thereto);

(d) the affidavits of Arlette Fouad dated 5 June 2025 and 10 July 2025, and of Thanh Tran dated 26 June 2025 (and the annexures to each); and

(e) your assessment of the Applicant's condition and function at an in-person assessment,

6 In accordance with s 325 of the 1998 Act, the medical assessor is to provide a medical assessment certificate, in the form approved by the President of the Personal Injury Commission, and is to:

(a) set out details of the matters referred for assessment;

(b) certify as to the medical assessor's assessment with respect to those matters;

(c) set out the medical assessor's reasons for that assessment; and

(d) set out the facts on which that assessment is based."

1. Ms Fouad's solicitor responded to the 25 July Proposed Orders by letter dated 28 July 2025.

1. The Commission's power to refer Ms Fouad for assessment is derived from s 245 of the WC Act which states:

245 Disputes as to fitness - medical assessment (cf IR Act, s 96)

(1) The Industrial Relations Commission may refer to a medical assessor any dispute as to the worker's condition or fitness for employment to be assessed as provided by Part 7 of Chapter 7 of the 1998 Act.

(2) The medical assessor is to submit a report to the Industrial Relations Commission in accordance with the terms of the reference.

1. Part 7 of Ch 7 of the WIM Act as referred to in s 245 of the WC Act relevantly provides:

319 Definitions

In this Act -

medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim -

(a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),

(b) the worker's fitness for employment,

(c) the degree of permanent impairment of the worker as a result of an injury,

(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,

(e) the nature and extent of loss of hearing suffered by a worker,

(f) whether impairment is permanent,

(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.

...

321 Referral of medical dispute for assessment

(1) A medical dispute (other than a dispute concerning permanent impairment of an injured worker) may be referred for assessment under this Part by a court, the Commission or the President, either of their own motion or at the request of a party to the dispute. The President is to give the parties notice of the referral.

(2) The parties to the dispute may agree on the medical assessor who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the President is to choose the medical assessor who is to assess the dispute.

(3) The President may arrange for a medical assessor to assess the dispute outside the State -

(a) if requested by a party to the dispute, or

(b) with the consent of the parties to the dispute.

(4) In deciding whether to make an arrangement under subsection (3), the President must consider the following -

(a) the interests and wishes of the parties to the dispute,

(b) the nature and complexity of the dispute,

(c) if the arrangement is necessary for the timely and cost effective assessment of the dispute,

(d) other matters the President considers relevant.

...

324 Powers of medical assessor on assessment

(1) The medical assessor assessing a medical dispute may -

(a) consult with any medical practitioner or other health care professional who is treating or has treated the worker, and

(b) call for the production of such medical records (including X-rays and the results of other tests) and other information as the medical assessor considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and

(c) require the worker to submit himself or herself for examination by the medical assessor.

(2) If a worker refuses to submit himself or herself for examination by the medical assessor if required to do so, or in any way obstructs the examination -

(a) the worker's right to recover compensation with respect to the injury, or

(b) the worker's right to weekly payments,

is suspended until the examination has taken place.

(3) This section extends to the assessment of a medical dispute in the course of an appeal or further assessment under this Part.

(4) A medical assessor hearing the appeal or who is assessing the matter by way of further assessment has all the powers of a medical assessor under this section on an assessment of a medical dispute.

...

325 Medical assessment certificate

(1) The medical assessor to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment.

(2) A medical assessment certificate is to be in a form approved by the President and is to -

(a) set out details of the matters referred for assessment, and

(b) certify as to the medical assessor's assessment with respect to those matters, and

(c) set out the medical assessor's reasons for that assessment, and

(d) set out the facts on which that assessment is based.

(3) If the President is satisfied that a medical assessment certificate contains an obvious error, the President may issue, or approve of the medical assessor issuing, a replacement medical assessment certificate to correct the error.

(4) A medical assessor is competent to give evidence as to matters in a certificate given by the assessor under this section, but may not be compelled to give evidence.

Can and should the Commission make an order pursuant to s 245 of the WC Act?

1. Neither party could provide me with any authority in which the Industrial Relations Commission had made orders exercising its power to refer any dispute as to the worker's condition or fitness for employment to be assessed pursuant to s 245 of the WC Act.
2. Ms Fouad points out correctly in the AOS at par 6:

"6. The provisions of Part 7 of Chapter 7 are complex and do not fit well with s.245 of the WCA Act. There is a paucity of case law regarding s 245 particularly as to the threshold for a dispute, the process to be undertaken, the extent to which it binds the IRC, and the availability of appeals (including, if applicable, the appeal rights and to whom they are directed)."

1. The AOS refer to his Honour Justice Basten's decision in Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305, and his Honour Justice Walton's decision in Glenn Robson and GWA Group Limited [2015] NSWIRComm 9.
2. In Bindaree Beef, Basten JA said at [101]:

"The only express requirement with respect to an order for reinstatement is that the Commission be satisfied that the worker is "fit for that kind of employment": s 243(2). Somewhat curiously, if there is a dispute as to fitness, the Industrial Relations Commission may refer the dispute to an "approved medical specialist" for assessment pursuant to Ch 7, Pt 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW): Workers Compensation Act, s 245. How those provisions could operate is by no means clear: they deal with disputes between a "claimant" and a person on whom a claim is made: see s 321, definition of medical dispute in s 319. However, a "claimant" in Pt 7 is defined to mean "a claimant for work injury damages": s 311. These provisions do not fit comfortably together."

1. In Glenn Robson and GWA Group Limited, Walton J, President, referred to the comments of Justice Basten set out above and expanded on them, saying at [163]:

"I share those concerns and would add one further observation. Section 245(1) of the WC Act provides a power to refer to an AMS any dispute as to a worker's condition or fitness for employment. That provision mirrors s 321(1) of the WIM Act, although it is not entirely clear whether this Commission may act on its own motion in such a referral as is contemplated in s 321(1) of the WIM Act. The difficulty emerges with the closing words of s 245(1) of the WC Act, which provide, in substance, that the medical dispute will be assessed as provided by Pt 7 of Ch 7 of the WIM Act. Whilst a medical dispute for the purposes of s 321(1) of the WIM Act is defined in s 319 of that Act to incorporate a claim made with respect to, inter alia, a worker's fitness for employment (see s 319(b)) the preponderance of the provisions of Pt 7 are devoted to the assessment of impairment, a concept which, as I will discuss below, does not sit comfortably with assessments as to capacity as will be required for determining fitness under Pt 8 of the WC Act. Sections 322, 322A and 323 each concern the degree of permanent impairment. Section 325 provides for the provision of a medical assessment certificate, which certificate is conclusively presumed to be correct, but only in relation to matters concerning the degree or proportion of permanent impairment (see s 326(1))."

1. The AOS also refer to Commissioner McDonald's decision in Jenkins v Secretary of the Ministry of Health on behalf of Nepean Blue Mountains Local Health District [2023] NSWIRComm 1045, in which the Commissioner noted these difficulties and that she had not needed to determine the operation of the section saying at [75]:

"Basten JA expressed reservations about the practical operation of s 245 of the WC Act in Bindaree Beef at [101], which reservations were endorsed and expanded upon by Walton J, President, in Glenn Robson and GWA Group Limited at [161] - [163]. Those concerns, which I share, but need not repeat here, were discussed during the directions hearing. Ultimately the Respondent, to its credit and consistent with its obligations under s 56 of the Civil Procedure Act 2005 (NSW), opted to try and reach a consent position with the Applicant, whereby the Applicant would agree to attend a medical examination voluntarily, and the consulting doctor would be provided with an agreed letter of instruction."

1. I accept that by incorporating by explicit reference Pt 7 of Ch 7 of the WIM Act into the wording of s 245 of the WC Act, the Parliament intended the Industrial Relations Commission to exercise its power under this section in a manner akin to a referral by the Personal Injury Commission or a court under s 321 of the WIM Act. Ms Fouad's case does not involve a dispute concerning permanent impairment; consequently, s 321 of the WIM Act is the machinery by which the Commission's referral for a medical assessment is to be given effect and any other provisions of Pt 7 dealing with permanent impairment[1] will not apply.
2. Nevertheless, the provisions do not sit comfortably together and exercising this power "as provided by Part 7 of Chapter 7 of the 1998 Act", as their Honours noted in Bindaree Beef and Glenn Robson and GWA Group Limited, is not necessarily straightforward.
3. Ms Fouad says that if the Commission accepts that none of Hillsbus's evidence challenges her fitness for work then there is no real and genuine dispute, and that as there is no dispute, the Commission does not have jurisdiction and cannot make an order referring her to a medical assessment.
4. Ms Fouad says that if the Commission determines that there is a dispute and therefore there is jurisdiction, then the Commission should not exercise its discretion to make an order for referral.

Is there a dispute as to Ms Fouad's condition or fitness for employment?

1. In order for me to make an order pursuant to s 245 of the WC Act to refer a matter for assessment there must be a "dispute as to the worker's condition or fitness for employment". These terms are not defined in the WC Act or the WIM Act. However, "medical dispute", which is used in s 321 of the WIM Act, is defined in ss 4 and 319 as set out above at [14].
2. Ms Fouad has not identified any authority on the meaning of the term "dispute" as that term is used in s 245 of the WC Act.
3. Ms Fouad submits that the dispute must be "real and genuine": AOS par 9. Ms Fouad says in the AOS:

"9. ... The notion of a dispute is fundamental to Australian industrial law, at least until the introduction of WorkChoices. For a dispute to exist, there must be a real and genuine, dispute intended to be pressed by any appropriate means. Where the demand is not genuine there can be no disagreement for there is in truth nothing to disagree about."

(Footnotes omitted)

1. The Macquarie Dictionary Online defines the noun "dispute" as: _"_argumentation; verbal contention; a debate or controversy; a quarrel".
2. I accept that the ordinary meaning of dispute is that there is a contest about an issue and that approach is supported by the definition of dispute in the Macquarie Dictionary.
3. Section 245 of the WC Act was inserted by the Industrial Relations Further Amendment Act 2006 (NSW) ("Amending Act"). The Explanatory Note[2] and the Second Reading Speech[3] make it clear that the purpose of the Amending Act was to transfer the previous s 96 out of the Industrial Relations Act 1996 (NSW) ("IR Act"), but retain the same operation.
4. The language of "dispute" was in the original text of the IR Act. The Second Reading Speech of the Industrial Relations Bill 1995[4] says of the whole part:

"The existing provisions have been the subject of some judicial criticism and the bill has been redrafted to state more clearly the powers of the commission in this area and to make some appropriate changes to assist injured workers."

1. The language of "under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998" in s 245, and previously in s 96 of the IR Act, was introduced by the Compensation Court Repeal Act 2002. There is nothing in the Second Reading Speech[5] for the Compensation Court Repeal Act 2002 that clarifies the meaning of "dispute" in what was s 96 and now s 245 of the WC Act.
2. While the word "dispute" is used in other contexts in the IR Act, there is nothing in the legislation or its history that suggests a departure from the proper approach to establish what is meant by "dispute as to the worker's condition or fitness for employment" by using orthodox principles of statutory construction, starting with the ordinary meaning of the words considered in the context of the Act in which they appear.
3. The broader statutory context also tends against a narrow or technical definition of dispute. Section 243 of the WC Act allows the Commission to reinstate a worker only if the Commission is satisfied that the worker is fit and then, at s 245, the Parliament has expressly provided for a mechanism to assist the Commission with that assessment in the event the question of fitness is in contest. I agree with Hillsbus that the fact that the Parliament has provided for that mechanism suggests a narrow or technical construction of the term dispute is not warranted.
4. Ms Fouad says that the medical evidence, from her treating general practitioner, is that she has recovered fully from her injury and there is no genuine challenge to that evidence. Ms Fouad submits that Hillsbus has not filed any evidence that contradicts the medical certificates submitted by her and none of Hillsbus's evidence is evidence relevant to the central question which is whether she is currently fit for work. It is, at best, evidence of why Hillsbus would want to assess her "in terms of both her capacity and driving skills". However, a desire to have a person evaluated is not the same as probative evidence of a lack of capacity or fitness. Consequently, there is no "real and genuine" dispute.
5. Hillsbus submits that the Commission could not be satisfied, by the medical certificates provided by Ms Fouad, "that the general practitioner had a considered understanding of the functional capacity [Ms Fouad] required in order to perform her role with the Respondent, and indeed to do so safely": ROS par 16. Thus, the Commission should exercise its discretion to order a medical assessment: ROS par 22.
6. Ms Fouad says in the AOS:

"10. If there were competing medical reports, for example, it would be clear that a dispute existed. However, conversely, if evidence from both parties pointed in a single direction, it would not be appropriate for the Commission to contend the existence of a dispute, merely on the submission of one party.

11. In respect of Mrs Fouad, all the probative evidence points in one direction. Her evidence is complete (this is not a case where there is complexity around some reduction or limitation of capacity, or ongoing effect of an injury). The medical evidence, from her treating general practitioner, is that she has recovered fully from her injury. That position is supported, again without qualification, by Mrs Fouad's own affidavit, as well as her evidence that she now regularly drives buses on a volunteer basis for her church.

12. There is no genuine challenge to that evidence. Mr Tran's evidence to the extent it is admissible, is little more than conjecture and hearsay. Mr Tran is not a doctor, and, so far as his affidavit indicates, he has never met Mrs Fouad, or, other than potentially at a high level, been involved in her case. His evidence is:

(a) That he has reviewed documentation and spoken to other employees of the Respondent about Mrs Fouad's case, although he does not provide more detail on the document he reviewed or the discussions he had;

(b) That Mrs Fouad suffered an injury in 2019. She provided over a 4-year period medical certificates as to her reduced or non-capacity. The certificates were provided by her treating general practitioner, Dr Moussad (para 14);

(c) In addition to seeing a general practitioner, Mrs Fouad also saw specialists (para 15);

(d) While absent from work in 2020 and 2021 (ie 4 years ago) Mrs Fouad suffered mental health complications (para 16);

(e) That Hillsbus were advised by Allianz, the insurer, that the treating general practitioner had been resistant and uncooperative (para 17). No documents or other material on which this evidence is based have been provided;

(f) At some time during her workers' compensation cover, Mrs Fouad's medication was reviewed, and a risk of "significant physical/psychological dependence" to prescription opioids was identified. This concern was also held by an Injury Management Consultant in 2022. No documents or other material on which this evidence is based are provided;

(g) Mrs Fouad was cleared as fit for some duties from 6 May 2023, and her employment terminated on 23 May 2023 (paragraphs 19 and 21);

(h) On 16 June 2023, Allianz advised that Mrs Fouad had settled a CTP claim in respect of the injury and accordingly, no further workers' compensation payments were to be made (para 20).

13. None of this evidence is relevant at all to the central question which is whether Mrs Fouad is currently fit for work.

14. Paragraph 22 of the Tran Affidavit is under the heading "Ms Fouad's current capacity". He says that Hillsbus is not satisfied that she is fit to return to work because:

(a) It has been six years since she performed work for the respondent, and for four of those years she was certified as not having the capacity to work. This does not indicate her current level of fitness;

(b) The speed of her recovery between May 2023 and August 2024 is quick;

(c) There is a lack of detail in Dr Moussad's certificates;

(d) The volunteer work she does as a bus driver is different from working on a full-time basis.

15. At paragraph 23, Mr Tran notes that bus drivers operate buses and have a significant responsibility for public safety. He says that "The Respondent will also require Mrs Fouad to undergo an in-bus assessment where her driving abilities are assessed". It is not clear whether he suggests that this should occur before any order for reinstatement or after. In any event, it is not controversial that Hillsbus would have, once she was reemployed, the same rights to test and assess Mrs Foaud's skill and capacity as it does any other driver, provided that it does not exercise those rights punitively, in retaliation for this application.

16. None of these factors is evidence that Mrs Fouad is not fit. They are, at best, evidence of why an employer would want to assess Mrs Fouad in terms of both her capacity and driving skills. However, a desire to have a person evaluated is not the same as probative evidence of a lack of capacity or fitness.

17. Hillsbus did not respond to either letter issued by the Applicant seeking reinstatement. They did not, and have never proposed that the Applicant attend an IME they have organised. They did not request any further details regarding the applicant's condition.

18. The reinstatement of injured workers process contemplates the possibility of contested medical evidence. A tool the Commission has, where this occurs, is to refer an applicant for an assessment under s.245. However, the s.245 process is not one that should be used to create such conflict, or to resolve concerns of an employer that the employer took no steps to address or deal with though normal means.

19. Hillsbus say they are "not satisfied" that Mrs Fouad is fit to work. Respectfully, that is not a relevant consideration. Hillsbus has not led any evidence that could provoke the Commission to reject the uncomplicated evidence provided by the treating doctor and Mrs Fouad. In these circumstances, there is no genuine 'dispute' that would enliven the Commission's jurisdiction to make an Order under s.245 of the WRA."

1. Hillsbus says that Ms Fouad's submissions on the genuineness of the dispute misapprehend the strength of her evidentiary case.
2. Ms Fouad has filed, but not read, two affidavits from herself the first of which attaches medical certificates from the same general practitioner, Dr Akram Moussad. The two medical certificates from Dr Moussad are also attached to the affidavit of Mr Taylor which was accepted into evidence for the Motion.
3. Ms Fouad has not filed nor tendered any medical report from any general practitioner or a specialist. Other than the medical certificates, no written evidence from the general practitioner, Dr Moussad, who has issued the certificates that are annexed to Ms Fouad's statement, has been filed and no summons to give evidence has been issued to Dr Moussad or any other doctor.
4. Hillsbus submits that even if the medical certificates are accepted into evidence for the arbitration, which Hillsbus will object to on hearsay grounds, their content is insufficient to satisfy the Commission that it should exercise its discretion to reinstate.
5. Hillsbus submits that there is no evidence filed which will satisfy the Commission that Dr Moussad, had any understanding or instruction as to what the relevant role of a bus driver at Hillsbus entails, having regard to both the safety of the worker and the broader public with whom a bus driver would necessarily interact.
6. The first medical certificate is dated 23 August 2024 and says Ms Fouad is fit for full time employment without any reference to any particular type of employment. The second certificate is dated 19 May 2025 and says that Ms Fouad is fit for work as a bus driver.
7. I agree with Hillsbus that I should exercise appropriate caution to ensure that there is a sound evidentiary basis to form a view as to whether Ms Fouad is fit to perform her pre-injury role. Central to this is the "safety critical nature" of the role and that reinstatement of a driver after an extended period of absence due to injury who is not fully recovered may have "potentially catastrophic" consequences: ROS at pars 14 and 17.
8. I am not persuaded that it is necessary in every case for there to be "any dispute as to the worker's condition or fitness for employment" in order for the Commission's jurisdiction to be enlivened, that a respondent must establish a dispute between its medical evidence and the worker's medical evidence. However, that may be necessary or appropriate in some cases.
9. Such a process would require that in a case like this, that the respondent engage and pay for a medical assessor perhaps without the co-operation of the worker, just so that it could tender its own medical reports which contradict the applicant's evidence in order to establish a "real and genuine" dispute before the Commission, simply so that the applicant could be referred to another medical assessment by order of the Commission and paid for by the respondent. The inefficiencies of such a process are obvious and I do not accept this was the Parliament's intention.
10. On the basis of the evidence accepted in the hearing of the Motion and Hillsbus's submissions on the substantive application for reinstatement, I am satisfied that Hillsbus has explicitly raised, and put in issue, the question of Ms Fouad's fitness for employment. Further, I am satisfied, to the extent this is necessary, there is a real and genuine dispute between the parties as to Ms Fouad's fitness for employment to work safely as a bus driver. This is sufficient to establish the Commission's jurisdiction to make a referral to a medical assessor pursuant to s 245 of the WC Act.

Should the Commission use its discretion at this time to refer Ms Fouad for a medical assessment?

1. Ms Fouad submits that if the Commission finds that it has jurisdiction, as I have done, then the Commission should not use its discretionary power to make an order under s 245. Ms Fouad says that such an order would cause significant delay to the proceedings. Ms Fouad submits in the alternative, that the Commission should defer its decision as to whether to refer her for a medical assessment until the arbitration of the substantive proceedings.[6]
2. Ms Fouad identified four specific prejudices to her as a result of any delay occasioned by her being referred for a medical assessment. First, the extra expenses to be incurred: AOS par 22. Second, as she is currently unemployed, that her financial position will worsen: AOS par 30. Third, that the "possibility of future back pay is not a genuine alternative to the receipt of wages on a regular basis": AOS par 23. Fourth, that, since at least 15 May 2025, she "had prepared her case on the basis that she was relying upon the medical evidence as filed.": AOS par 24.
3. I accept that if I order that a medical assessment should take place then it is likely that the results of the medical assessment will not be available until after the dates that are programmed for the hearing of the substantive matter. I also accept that if the results are not available, or an assessment is not possible before the arbitration of the substantive proceedings, then it is likely the parties, and particularly Ms Fouad, will suffer the prejudice of a delayed or bifurcated hearing.
4. Consequently, I accept that if I were to order that Ms Fouad be referred for a medical assessment this would likely delay the substantive proceedings and that the period of that delay is, at this time unknown, and could be significant.
5. I accept that Ms Fouad will suffer prejudice in these circumstances. There will be additional time, effort and expense incurred by all parties. Some of this prejudice can be mitigated such as by back pay, but the effects and costs of the delay on an unemployed applicant are relatively greater than on a corporate employer. These cost and delay are matters weighing against my exercise of discretion.
6. However, I agree with Hillsbus that the Commission must have the "requisite state of satisfaction" before exercising its discretion under s 243 of the WC Act to reinstate a worker.
7. For the purpose of deciding whether to exercise my discretion to refer Ms Fouad for a medical assessment, I have assumed that the material filed by the parties will all be accepted into evidence in the substantive proceedings, noting that it will be subject to cross-examination and re-examination. I have also assumed that no further evidence will be filed.
8. Given the possible safety issues that would arise if Ms Fouad were unable to fulfil all of the duties and safety aspects of her role, I consider that in order to achieve the requisite state of satisfaction to reinstate I would be greatly assisted by a medical assessment undertaken in accordance with the statutory scheme. While it is of course possible, I do not think it is likely, that I would form a different view about the utility of a medical assessment following the arbitration in the substantive proceedings.
9. On the basis of the evidence before the Commission, I do not accept that Ms Fouad will be put to any significantly greater expense if I were to order an assessment before the substantive hearing rather than after.
10. Additionally, Hillsbus has indicated that if a medical assessment is conducted, and if there is the requisite state of satisfaction that Ms Fouad can safely perform her work, there will be no opposition by Hillsbus to a reinstatement order; Tcpt 16 July 2025, p3 at 45-48. This is a matter weighing strongly in favour of referring Ms Fouad for assessment now rather than delaying a referral or a decision on the referral until after the arbitration in the substantive proceedings. It could result in an overall reduction in the parties' costs and time.
11. Ms Fouad submits that Hillsbus is responsible for the delay which will be occasioned by any order for referral because Hillsbus, despite having the opportunity, had not raised this motion earlier and this should weigh against Hillsbus: AOS par 24.
12. I do not accept that Hillsbus can be held responsible for an unreasonable delay nor can it be seriously criticised for the time in which it filed the Motion. Hillsbus filed the Motion on 26 June 2025, 34 days after the Application was filed. Further, Hillsbus urged the Commission to list the Motion with the hearing of the substantive Application which would have mitigated against some of the prejudice in terms of cost although I note that parties' respective positions on when the Motion should have been heard have reversed since the directions hearing on 16 July 2025. In any event, a medical assessment will assist the Commission, and not necessarily Hillsbus.
13. Ms Fouad also submitted that an order under s 245 is a serious step and is more far-reaching than a medical assessment of her. Ms Fouad submits in the AOS par 32:

"32. A referral for assessment is a serious step. The referral process is not simply one in which the Commission requires Mrs Fouad to be assessed. The process in Part 7 of Chapter 7 is more far-reaching. It includes, for example:

(a) The assessor has a statutory entitlement to consult with any other medical practitioner or health care worker who is treating or has treated Mrs Fouad (s.324(1)) and to call for the production of such medical records (including X-rays and the results of other tests) and other information as the medical assessor considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her (s.324(2))

(b) require the worker to submit himself or herself for examination by the medical assessor (s.324(3))

(c) for some purposes, the opinion of the Assessor is conclusively presumed to be correct (see s.326);

(d) the assessor cannot be compelled to give evidence (s.325(4))

(e) there are limited rights of appeal or review from a decision of the Assessor. What are we trying to say here?"

1. Ms Fouad submits that each of these factors weighs against the Commission making orders referring her for a medical assessment and the Commission should not exercise its discretion lightly: AOS par 33.
2. I accept Ms Fouad's submissions that referring Ms Fouad for a medical assessment is a serious step which has serious consequences, and that I must understand what the statutory scheme requires. However, I am not satisfied that the seriousness of the step weighs against me exercising my discretion to make such an order in these circumstances.
3. On the basis of weighing the matters put to me by the parties, in particular those set out above, I am satisfied that a medical assessment will assist me in determining whether reinstatement should be ordered in Ms Fouad's circumstances.

1. Ms Fouad made a number of submissions at the hearing, in the AOS about the deficiencies in the orders sought by Hillsbus in the Notice of Motion, and the final submissions received 28 July 2025.
2. I have limited my consideration in this decision to the terms of the 25 July Proposed Orders.
3. The orders must identify "what questions [a]re being asked, and what type of response is being sought": AOS par 36. The 25 July Proposed Orders do this.
4. Ms Fouad's submits that the orders are required to comply with the language used in s 245 of the WC Act: AOS par 39. The 25 July Proposed Orders do this.
5. Ms Fouad's response regarding the 25 July Proposed Orders maintains that the dispute is ill-defined and the Terms of Reference do not provide sufficient guidance for the parties or the President to determine what area of specialisation the assessor should have.
6. For the reasons set out above, I do not accept that the "dispute" is ill-defined. The "dispute" is whether Ms Fouad is sufficiently recovered from her work-related injury/ies such that she is fit for employment as a bus driver with Hillsbus Co Pty Ltd. This will be reflected in the orders of the Commission.
7. Turning to whether the Terms of Reference provide sufficient guidance for the parties or the President to determine what area of specialisation the assessor(s) should have, I have taken the use of the "Terms of Reference" by Ms Fouad in this instance to mean the content of order 4 of the 25 July Proposed Orders.
8. It is useful to consider another of Ms Fouad's submissions concurrently with this issue. Ms Fouad notes that the proposed Terms of Reference, by including the affidavit material of Mr Tran, would elevate his evidence to a status that is not appropriate. While Mr Tran's affidavits were both admitted into evidence for the purposes of the Motion, I agree that Mr Tran's evidence should not be provided to the medical assessor. However, I do consider that annexures 1 - 2, and 4 - 11 to Mr Tran's affidavit should be provided to the medical assessor(s) to understand Ms Fouad's workplace injury/ies. This material will also assist the parties and if necessary, the President of the Personal Injury Commission, to determine the appropriate specialisation of the medical assessor.
9. I do not consider that affidavits of Ms Fouad should be provided to the medical assessor(s) as they have not yet been read. However, Ms Fouad will be able to explain her circumstances to the medical assessor(s) when they meet at the in-person assessment.
10. The inclusion in the 25 July Proposed Orders of "your assessment of the Applicant's condition and function at an in-person assessment" as a document to be provided to the medical assessor in proposed order 5 appears to be an error. I have not included this.
11. In the letter from Ms Fouad's solicitor replying to the 25 July Proposed Orders there was no comment about the inclusion of the CDC Job Task Analysis for a Bus Driver and the Transport for NSW Medical Assessment for Public Passenger Vehicle Drivers, both of which have been provided to the Commission and Ms Fouad. In my view, these documents may assist the medical assessor(s).
12. I consider that the Terms of Reference, including the documents to be provided as set out in my Orders below, provide sufficient guidance for the parties or the President to determine what area of specialisation the assessor(s) should have.
13. Ms Fouad submitted "that while different terms, the Certificate referred to in the WIM Act is in fact a report, and that any Order should expressly require that the information be provided in accordance with approved form": AOS par 40. The 25 July Proposed Orders require that the information is expressed in a form approved by the President of the Personal Injury Commission. For clarity, I have included the terms of the "dispute" in the relevant order. However, there does remain some uncertainty as to "a form approved by the President". In the process adopted under s 321 of the WIM Act, a referral to a medical assessment would be remitted to the President for referral and it would be he who would determine the assessor(s) and the form of the certificate: see Merlo v Everly Howison Pty Ltd [2025] NSWPIC 236. While I note the statutory requirement for the President to approve the form, it is important not to lose sight of the purpose of the certificate which is to set out whether the medical assessor(s) in their expert view has assessed Ms Fouad as sufficiently recovered from her work-related injuries such that she is fit for employment as a bus driver with Hillsbus. The parties can make their own enquiries as to the form used by the Personal Injury Commission over the next few days while seeking to resolve between them the name of the assessor(s). If there is no agreement between the parties about this matter then the Commission may refer the question of the form of the certificate to the President of the Personal Injury Commission for determination.
14. Otherwise, I have adopted the terms of the 25 July Proposed Orders with some modification, including to reflect that these are orders of the Industrial Relations Commission and not the Personal Injury Commission and to provide clarity as to the matter in dispute and the content of the certificate to be provided.

1. I am satisfied that there is dispute as to Ms Fouad's condition or fitness for employment and that I should exercise my discretion to make orders to refer this dispute to a medical assessor to be assessed as provided by Pt 7 of Ch 7 of the WIM Act.

(1) Pursuant to s 245 of the Workers Compensation Act 1987 (NSW), the dispute as to whether Arlette Fouad is sufficiently recovered from her work-related injury/ies such that she is fit for employment as a bus driver with Hillsbus Co Pty Ltd is referred to a medical assessor or assessors.

(2) The parties must confer and advise the Industrial Relations Commission within seven (7) days of the date of this decision as to the name of any agreed medical assessor(s) to whom the dispute as to the fitness for employment of Arlette Fouad is to be referred and the form of the certificate to be provided by the medical assessor(s) pursuant to Order 6.

(3) In the event the parties have not agreed on the name of any medical assessor(s) within seven (7) days, the Industrial Relations Commission will, in accordance with s 321 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), refer the matter to the President of the Personal Injury Commission for referral to an approved medical assessor(s) nominated by the President.

(4) The following Terms of Reference apply to referral to the medical assessor(s):

"Having regard to:

(a) the CDC Job Task Analysis for a Bus Driver;

(b) the Transport for NSW Medical Assessment for Public Passenger Vehicle Drivers;

(c) the Application for Reinstatement of Injured Worker filed 22 May 2025 (and annexures thereto);

(d) annexures 1 - 2, and 4 - 11 to the affidavit of Thanh Tran affirmed 26 June 2025 and marked Exhibit "Hillsbus 2" in Industrial Relations Commission proceedings 2025/197884; and

(e) your assessment of the Applicant's condition and function at an in-person assessment

in your opinion, is Ms Arlette Fouad sufficiently recovered from her work-related injuries such that she is fit for employment as a bus driver with Hillsbus?"

(5) The documents to be provided to the medical assessor(s) are:

(a) the CDC Job Task Analysis for a Bus Driver;

(b) the Transport for NSW Medical Assessment for Public Passenger Vehicle Drivers;

(c) the Application for Reinstatement of Injured Worker filed 22 May 2025 (and annexures thereto);

(d) annexures 1 - 2 and 4 - 11 to the affidavit of Thanh Tran affirmed 26 June 2025 and marked Exhibit "Hillsbus 2" in proceedings 2025/197884; and

(e) a copy of this decision.

(6) In accordance with s 325 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), the medical assessor(s) is to provide to the parties, the Industrial Relations Commission and the President of the Personal Injury Commission a medical assessment certificate, in the form approved by the President of the Personal Injury Commission, and the medical assessment certificate is to:

(a) set out details of the matters referred for assessment, including the dispute as to whether Ms Arlette Fouad is sufficiently recovered from her work-related injuries such that she is fit for employment as a bus driver with Hillsbus;

(b) certify as to the medical assessor's assessment with respect to those matters;

(c) set out the medical assessor's reasons for that assessment; and

(d) set out the facts on which that assessment is based.

(7) The substantive matter is listed for directions at 4:00 pm on 13 August 2025 by AVL.

(8) In the event that as at midday on 15 August 2025, any disagreement remains between the parties about the form of the certificate to be provided pursuant to Order 6, Hillsbus Co Pty Ltd must inform the Industrial Relations Commission in writing by 4pm on that day of the substance of the disagreement and the parties' positions on the issue and the Industrial Relations Commission may list the matter for further directions and/or may refer the matter to the President of the Personal Injury Commission for his determination as to the form of the certificate.

12 August 2025 - Amendment made to case title - removal of Applicant's first name.

13 August 2025 - Minor amendments made on the coversheet, and in [10], [14], [22], [76] and [79].

[1] Which is dealt with in s 321A.

[2] Explanatory Note, Industrial Relations Further Amendment Bill 2006 (NSW).

[3] New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 24 October 2006 at 3292.

[4] New South Wales Legislative Council, Parliamentary Debates (Hansard) 23 November 1995 at 3850.

[5] New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 28 May 2002 at 2113.

[6] New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 28 May 2002 at 2113.