Glenn Robson and GWA Group Limited [2015] NSWIRComm 9

THE APPLICATION

1. The employer application was in the following terms: The report [of Dr Gore] states that I have the physical capacity to perform the duties as a store person. I am able to lift up to 22.5 kg. I am able to reach and lift while reaching or bending under racks. I am at no more risk than any other worker provided that I work within my weight restrictions and follow the proper handling methods. There are no other modifications necessary for me to perform the tasks of a storeperson. I am not at an increased risk of accidents if I operate a forklift or other machinery because of my pain medication. That being the case, I request that the company reinstates me to my previous position as a storeperson for which I am fit. In the alternative, I request that I be reinstated in any other work in connection with the Wetherill Park facility for which I am fit which may include, but is not limited to, the following work: (a) Forklift operation; (b) Reach truck operation; (c) Cherry picking machine driving; (d) Picking tap orders; (e) Picking sanitary plastic orders; (f) Loading and unloading trucks with forklift; (g) Putting tap repack and credits back into stock; (h) Repack sinks; (i) Repack sanitary plastics; (j) Remove rubbish (housekeeping); (k) Remove cardboard; (l) Picking cherry picker orders; (m) Picking acrylic baths; (n) Labelling stock; (o) Assisting stock controller; and (p) Counting cycle and checking stock.
2. That application is possessed of some ambiguity. The primary application made is for reinstatement to "my previous position as a storeperson for which I am fit". The meaning of the phrase 'for which I am fit' is not identified within the application. However, the application is introduced by a preamble that the applicant has the physical capacity, as opined by Dr Gore, to perform the work of a storeperson subject to a 22.5 kilogram lifting restriction. When read as a whole, it is clear that the phrase should be understood as a reinstatement application to the position of a storeperson with a 22.5 kilogram lifting restriction. (The applicant's previous position as at the date of termination had a much more circumscribed lifting restriction.)
3. The application only referred explicitly to reinstatement as a storeperson simpliciter. However, it should be read, in my view, consistently with the expressed understanding of the employer application for three reasons. First, the employer application was annexed to the application. Secondly, the application does not provide reasons for the application per se but recounts, in narrative form, the making of the employer application. Thirdly, the applicant prosecuted his case before the Commission on the basis that his primary application was for reinstatement to the position of storeperson with a 22.5 kilogram lifting restriction.
4. In conformity with reading the applications together, the application must be read as seeking the alternative tasks listed in the employer application (although those alternatives are not expressed in terms in the application). Broadly speaking, that is consistent with the manner in which the application was prosecuted in these proceedings.
5. However, whilst the alternative presented in the employer application was global in the sense that it referred to "any other work", the case before the Commission was prosecuted by reference to the specific tasks listed in the employer application. I propose to treat the application on that basis.
6. As to that list of alternatives, the submissions of the applicant in the present proceedings were largely, although not entirely, directed to those components which constituted work as a forklift driver. It was not explained by the applicant how the components of the application in the remainder, all of which were, in substance, tasks within or elements of jobs, including those which loosely correlated to the 'light duties' he had performed before his dismissal, could constitute 'employment' in the respondent's warehouse as that word is used in the context of s 241(1) and (2) and s 243(2) and (3) of the WC Act (I will discuss this issue further below).
7. In that respect, it should be emphasised that the applicant did not specifically seek reinstatement to the light duties that he was performing immediately prior to termination (which work he was dissatisfied with at that time). I will consider whether the tasks listed in the employer application amount, in law, to "employment" for the purposes of Pt 8 of the WC later in this decision

RELEVANT LEGISLATION

1. Given the discussion of the principles and issues in the proceedings below, it is convenient to outline the relevant provisions of the WC Act presently: Part 8 Protection of injured workers from dismissal 240 Definitions (cf IR Act, s 91) (1) In this Part: Commonwealth industrial instrument means any award, workplace agreement or other agreement made under (or taken to have been made, or to have effect, under) the Workplace Relations Act 1996 of the Commonwealth. industrial organisation of employees has the same meaning as it has in the Industrial Relations Act 1996. reinstatement includes re-employment. State industrial instrument has the same meaning as industrial instrument has in the Industrial Relations Act 1996. (2) For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942. (3) For the purposes of this Part, a person is the employer of an injured worker only if the injury arose (either wholly or partly) out of or in the course of employment with that person. Note. For the purposes of comparison, a number of provisions of this Part contain bracketed notes in headings drawing attention ("cf IR Act") to equivalent or comparable (though not necessarily identical) provisions of the Industrial Relations Act 1996 (as in force immediately before the commencement of this Part). 241 Application to employer for reinstatement of dismissed injured worker (cf IR Act, s 92) (1) 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 apply to the employer for reinstatement to employment of a kind specified in the application. (2) The kind of employment for which the worker applies for reinstatement cannot be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury. (3) The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement. 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (cf IR Act, s 93) (1) If an 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 a reinstatement order. (2) An industrial organisation of employees may make the application on behalf of the worker. (3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed. 243 Order by Industrial Relations Commission for reinstatement (cf IR Act, s 94) (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. 244 Presumption as to reason for dismissal (cf IR Act, s 95) (1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured worker 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 Industrial Relations Commission that the injury was not a substantial and operative cause of the dismissal of the worker. 245 Disputes as to fitness - medical assessment (cf IR Act, s 96) (1) The Industrial Relations Commission may refer to an approved medical specialist 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 approved medical specialist is to submit a report to the Industrial Relations Commission in accordance with the terms of the reference. 246 Continuity of service of reinstated worker (cf IR Act, s 97) (1) If a worker is reinstated under this Part, the Industrial Relations Commission may order that the period of employment of the worker with the employer is taken not to have been broken by the dismissal. (2) However if the Industrial Relations Commission does so, the period between dismissal and the date of the application by the worker to the employer for reinstatement is not to be taken into account in calculating for any purpose the period of service of the worker with the employer.
2. The application of s 49 of the WIM Act will also be considered in the adjudication of the present proceedings. That provision is in the following terms: 49 Employer must provide suitable work (1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker. Maximum penalty: 50 penalty units. (2) The employment that the employer must provide is employment that is both suitable employment (as defined in section 32A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury. (3) This section does not apply if: (a) it is not reasonably practicable to provide employment in accordance with this section, or (b) the worker voluntarily left the employment of that employer after the injury happened (whether before or after the commencement of the incapacity for work), or (c) the employer terminated the worker's employment after the injury happened, other than for the reason that the worker was not fit for employment as a result of the injury. Note. See also Part 7 Chapter 2 of the Industrial Relations Act 1996 for provisions for protection of employment of injured workers.

THE ISSUES IN THE PROCEEDINGS (AND RELEVANT PRINCIPLES)

1. Part 8 of the WC Act is, in essence, a series of sequential and interconnected provisions concerning an injured worker (as defined in s 240(2) of Pt 8 of the WC Act) who is dismissed in consequence of the worker not being fit for work due to such injury. A failure by the former employer to immediately reinstate the injured worker in work of a particular kind specified in an application to the employer (or any other kind of employment with that employer that is no less advantageous) confers a right in the employee to apply to the Commission for reinstatement. The grant of such an application is governed, inter alia, by a requirement that the Commission is satisfied that the employee is fit for the kind of employment sought or arising for consideration under the application. (That requirement shall be described in a jurisdictional context below.)
2. In Bindaree Beef v Riley [2013] NSWCA 305 ('Bindaree Beef') (at [47]), Bathurst CJ (with whom Beazley P agreed) observed that it was "relatively clear" that the purpose of those provisions was to "provide a mechanism to assist an injured worker to return to work either in his or her previous position or such other position for which he or she is fit". In that respect, Boland J noted in Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 at [41] ('Chau') that Pt 8 of the WC Act was "beneficial legislation and should be construed as such".
3. The jurisdiction of the Commission under Pt 8 of the WC Act is enlivened in the event that each element of the jurisdictional criteria outlined in ss 241(1), 241(3) and 242(1) of that Act is satisfied.
4. First, an injured worker must have been dismissed because he or she was not fit for employment as a result of the injury received: s 241(1) of the WC Act. (An injured worker is defined, for present purposes, as a worker who receives an injury for which they are entitled to receive compensation under the WC Act or the Workers' Compensation (Dust Diseases) Act 1942: s 240(2) of WC Act. Correspondingly, a person is the employer of an injured worker only if the subject injury arose (either wholly or in part) out of or in the course of employment with that person.)
5. Secondly, that worker must have made an application to the relevant employer for reinstatement to "employment of a kind specified in the application" (see s 241(1) of the WC Act) and produced "a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement" in support of the same (see s 241(3) of that Act). Whilst the requirement to produce a medical certificate attesting to the requisite fitness constitutes what has been described as the "gateway" to the Commission's jurisdiction under Pt 8 of the WC Act, the certificate given by a medical practitioner for the purposes of s 241(3) is by no means conclusive of the application brought and, in particular, the resolution of whether the injured worker is fit for the purposes of s 243(2) and (3)(see Bell at [25] and [26]). That reasoning must be correct because to find otherwise would render ss 242 and 243 of the WC Act otiose as there would be no need for steps beyond the receipt of the medical certificate received with the employer application (see, also, Bell at [28]).
6. Finally, the jurisdiction of the Commission is activated when the employer does not immediately reinstate the worker "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)": s 242(1) of the WC Act.
7. It was common ground between the parties that each of the above elements was satisfied in the present proceedings. As such, no issue as to the presumption established in s 244 of the WC Act (as often found in cases of this kind) arose in this matter.
8. Under those circumstances, the Commission has the power, in an appropriate case, to make orders under subs (2) or (3) of s 243 of the WC Act.
9. The power of the Commission to reinstate an injured worker under s 243(2) of the WC Act has two limbs. The first limb is a power to compel the employer to reinstate the injured worker to "employment of the kind for which the worker has so applied for reinstatement" (which may be less advantageous than pre-injury employment). The second limb is referrable to the words appearing in the bracketed section of the provision, namely, "any other kind of employment that is no less advantageous to the worker": Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; (1999) 130 IR 1 ('Cansino') at 13.
10. The exercise of power under the first limb, so denoted, is circumscribed by the election made by the employee in his application to the employer (s 243(2)) and the requirement that the kind of employment sought by the employee cannot be more advantageous than that in which the employee was engaged when he first became unfit for employment due to injury (s 241(3)). The words "so applied" in s 243(2) have the effect of creating a nexus, grammatically, and in the context of ss 241 and 242, between the application made by the injured employee to their former employee pursuant to s 241(1) and the scope of the Commission's power to make an order under s 243(2): see also Cansino at 12 and Chau at [42].
11. It is not entirely clear what may constitute the scope of the second limb of the Commission's powers in this respect. It may be that an alternative outcome to that contained in the application to the former employer pursuant to s 241(1) may be advanced in the initiating process or during the course of proceedings or the Commission may identify the scope of a form of order conforming with the requirements of Pt 8 of the WC Act, provided the requisite notice of the intention to consider such an order is provided to the parties.
12. No issue arose under the second limb in this case. The application made pursuant to s 241(1) contained alternatives to the applicant's primary application of a storeperson with a lifting restriction. As earlier mentioned, no different application was, in substance, contained in the initiating process for these proceedings. The application, including the alternative outcomes sought if the primary application was unsuccessful, was prosecuted by the applicant in those terms in the proceedings before the Commission and was joined in issue in the proceedings.
13. It may be noted, at this juncture, that the applicant did not rely upon s 243(3)(a) as an avenue to seek reinstatement in the present proceedings. That confinement must be correct. Given the way in which the application was framed and prosecuted separate reliance upon that subsection would merely repeat the equivalent questions raised by the list of secondary positions expressly sought in the application. In short, the remedies sought by the applicant are encased in the employer application.
14. However, the applicant did rely upon the provision s 243(3)(b) to support reinstatement to the employment sought in the application. That contention might seem unnecessary as powers conferred by the first limb of s 243(2), as described above, appear wide enough to bring in such considerations under the application per se. Nevertheless, it must be recognised that reliance on this subsection broadens the consideration of the concept of 'availability' with respect to the kind of employment sought by the application, thereby explaining the potential efficacy of that course.
15. In the present proceedings the applicant is seeking reinstatement to employment with a restriction or limitation. There is a question raised as to whether that constitutes "employment of a kind" for the purposes of Pt 8 of the WC Act. However, I have proposed to adopt the approach outlined in Chau and Hofman v Penford Australia [2008] NSWIRComm 1026 ('Hofman').
16. In Chau, Boland J adopted what may be described as a broad view of "employment of the kind", so applied, by ordering reinstatement to the employment sought subject to a direction that the injured worker in that case be prevented from lifting above a certain limit. His Honour found that it was "arguable" that employment with such a restriction amounted to "employment of the kind" for which the injured worker has applied for reinstatement as the lifting restriction could not prevent him from carrying out the inherent requirements of the job in question.
17. Similar reasoning was adopted in Hofman at [61], upon which it would appear that the applicant relied, namely, the Commission may issue a reinstatement order with particular restrictions in the event that the applicant was deemed not fit for the position of storeperson (but may be fit for "employment of a kind").
18. I agree that it is arguable that the phrase can be interpreted in the above manner and, in the absence of any argument to the contrary, will proceed upon that basis.
19. The power of the Commission to issue an order for reinstatement upon either limb of s 243(2) of the WC Act is limited by the words "but only if the Commission is satisfied that the worker is fit for that kind of employment". The Commission may only reinstate the injured worker if they are fit for work of a kind specified in the application (or "any other kind of employment that is no less advantageous") (see Bindaree Beef at [49] and [56] and Cansino at 11). The same limitation exists with respect to making orders under s 243(3) (see the words "any other kind for which the worker is fit" therein; see also Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108; (2006) 151 IR 396 at [111]).
20. It follows from the manner in which the applicant brought his application (as discussed above) that, in the present case, the exercise of the Commission's power to issue a reinstatement order under s 243(2) is conditional upon the Commission being satisfied that the applicant is fit for employment of the kind for which he so applied in his application to his former employer pursuant to s 241(1). That conclusion is consistent with the manner in which the parties joined in issue in these proceedings.
21. The contest brought as to the applicant's fitness for the kind of work for which he applied thereby represents the first issue in the present proceedings.
22. A question immediately arises as to what the legislature intended by the expression "but only if the Commission is satisfied that the worker is fit for that kind of employment" in s 243(2) of the WC Act.
23. Authorities as to the meaning and operation of that expression are largely confined to a consideration of the nature of evidence which must be adduced in order to determine fitness, rather than the nature and degree of satisfaction required.
24. Some helpful observations, however, were made by Boland J, then President, in Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited [2008] NSWIRComm 157 ('Lawson'): 23 As earlier noted, s 243(2) of the Act provides that the 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. … 24 I do not see any barrier to the Commission accepting the medical certificates that have been tendered as evidence regarding Mr Lawson's fitness for work, either for employment of the kind for which he has applied for reinstatement or the employment referred to in s 243(3). The Act does not state how it is that the Commission is to be satisfied that a worker is fit for the kind of employment he or she seeks. Although it may be accepted that fitness would need to be determined on a proper basis, that does not necessarily exclude medical certificates as evidence of fitness. Whilst it is not the best evidence, in the present case the medical certificates are the only evidence before the Commission as to Mr Lawson's medical condition and fitness to perform work. I have no basis for questioning the veracity of these certificates. 25 There has been no evidence of a medical kind adduced by the respondent that would throw doubt on what the certificates say about Mr Lawson's fitness for work. Dr Anderson was Mr Lawson's treating doctor over a considerable period of time, providing certificates from at least 2002. One may readily accept that Dr Anderson was most familiar with Mr Lawson's medical condition and, accordingly, what were the appropriate limitations to be placed on his capacity to perform work. As the applicant submitted, the respondent has been prepared, without exception for a number of years, to accept Dr Anderson's opinion regarding Mr Lawson's fitness for employment. It is somewhat inconsistent with that acceptance to now be contending the medical practitioner's opinion should not be regarded as proof of Mr Lawson's capacity to perform certain work.
25. Thus, it is clear the determination as to fitness for employment "must necessarily be made on the basis of medical evidence" (Cansino at 13(16)), although such evidence is not restricted to that provided to the employer in the original request for reinstatement (see Bell at [29]). Further, the Commission may determine fitness on the basis of documentary medical evidence alone (see Lawson) at [24]).
26. Neither party made submissions as to the meaning of the word 'satisfied' in the phrase "but only if the Commission is satisfied that the worker is fit for that kind of employment".
27. In my view, by the subject phrase the legislature left to the Court the duty of assessing its own satisfaction.
28. The standard of persuasion required in a civil proceedings, such as the present one, is to be found in the principles stated in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw'), as now embodied in s 140 of the Evidence Act 1995. The following extract of the judgment from Dixon J in Briginshaw will suffice to demonstrate the relevant principles in this respect (at 361-362): … The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. …
29. Hence, the issue of whether the applicant is fit for the kind of employment sought in his application (or any other kind of employment) must be determined to the reasonable satisfaction of the Commission as that concept is understood in the common law.
30. There is nothing in the nature in the cause of action or subject matter of these proceedings or gravity of the matters under consideration which would require that assessment to be undertaken with the more stringent standard of proof contemplated by Dixon J in the abovementioned passage or in s 140(2) of the Evidence Act. Satisfaction will be determined in this case upon the balance of probabilities.
31. I consider that the correct approach in determining whether the Court is satisfied an applicant is 'fit' for the kind of employment to which consideration is directed in proceedings brought under s 243(2) of the WC Act is that stated in the aforementioned passage from the judgment of Dixon J in Briginshaw. I would add my concurrence, for the purposes of determining 'satisfaction' under that subsection, with the observations of Adams J in Robertson v Police [1957] NZLR 193 at 195 where his Honour stated: The mind of the Court must be "satisfied" - that is to say, it must arrive at the required affirmative conclusion - but the decision may rest on the reasonable probabilities of the case, which may satisfy the Court that the fact was as alleged, even though some reasonable doubt may remain. If the probabilities, when considered in the light of all such doubts as may arise with regard to them, do in fact persuade the Court, that is, in my opinion, all that is necessary in order to entitle the Court to say that it is "satisfied" of the fact.
32. The converse would follow if the requisite level of persuasion was not available upon the evidence in the proceedings.
33. Before leaving the question of fitness under this heading, it is important to note the following observations of Bathurst CJ (with whom Beazley P agreed) in Bindaree Beef: 65 …In considering this question the Commission would, in my opinion, be required to take into account the question of whether or not the worker could safely perform that type of employment. Failure to do so, in my opinion, would constitute error…
34. Thus, considerations of occupational health and safety are relevant in assessing the applicant's fitness to be reinstated to the work so applied.
35. The second issue in the proceedings concerns whether employment of the kind sought by the applicant was available. Some short reflection as to authorities bearing upon that question is also desirable.
36. The following observations were made in Cansino (at 13) as to the former iteration of s 243(3) of the WC Act (Pt 7 of the Industrial Relations Act 1996): (18) The provisions of s94(3) raise questions as to who bears the onus of establishing whether the employer has employment of the kind so specified in s94(2) available. Given the nature of the orders which may be made under s94(2) and the resultant burden of any order under s94(3) being on the employer, it would seem logical that such onus should fall on the employer. (19) Section 94(3) creates two further alternative bases for the exercise of discretion, but in either case the Commission is required to find that the employee is fit for the alternative employment which is the subject of the order. Again, fitness would appropriately be determined by reference to relevant medical evidence. (20) The first alternative set out in para (a) of s94(3) is employment of a kind that the employer has available but which is less advantageous to the employee. That raises the question of what is meant by employment of a kind that is so "available". Given the contrast with the words used in s94(3)(b), this would appear to be a reference to work in the nature of particular tasks which can be undertaken in a structured manner consistent with the manner in which the employer deploys staff in the context of the operations of the employer's undertaking. If this be correct, as we think it is, then in determining whether employment of that kind is available one is to have regard to the employer's organisational structure and the way in which the employer operates. That is, one excludes, in considering what work is available for the purpose of s94(3)(a), the possibility that the employer may have to rearrange the manner in which it operates and deploys its staff in order to accommodate any order made. That this is so must follow from the description of the kind of work which is the subject of an alternative order in s94(3)(b). (21) Section 94(3)(b) refers to employment of a kind which the Commission considers the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation). That accommodates employment of a kind not currently available and involves a consideration of the position of the employee in terms of physical capacity and underlying expertise, experience, qualifications etc, as well as the ability of the employer to make work of that kind available. In that latter regard, the use of the word "reasonably" would accommodate financial cost to the employer as well as any dislocation, interruption or interference with the manner in which the employer conducts its undertaking and the manner in which the employer deploys its staff; in addition, the usefulness to the employer of the work so arranged to be performed is a relevant consideration.
37. To this may be added the observation of Boland J in Chau as follows: 48 The word "available" in s 243(3) does not mean, "a pre-existing specified position designated by the employer which is vacant": see IGA Distribution Pty Ltd v Moses (No 2) [2002] NSWIRComm 96; (2002) 114 IR 307 and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108; (2006) 151 IR 396. The word "available" is to be taken to mean "another position was of avail to, capable of being used by, or at the disposal or within reach of, the employer - whether or not it was vacant at the time": see Riley at [107]; Lindsay Brothers at [28].

NATURE OF EMPLOYMENT AS A STOREPERSON WITH THE RESPONDENT

1. A Task Analysis Report prepared by On Track Injury Consulting ('On Track') on 7 February 2012 detailed the tasks required in the distribution warehouse where the applicant worked and the physical requirements thereof.
2. The warehouse was described as "many aisles of structured racks" extending from floor to ceiling upon which bathroom and kitchen fittings were stacked. The stock was said to include, inter alia, basins/sinks and tap ware, baths and shower bases, toilet suites and bidets, hardware and accessories. The weight of those items ranged from "minimal to 55 kilograms plus".
3. The report described the various tasks required in the workplace and the physical requirements of the same. The applicant gave evidence in his affidavit sworn 15 April 2014 that he undertook the following tasks over the course of his employment with the respondent (although, as will be later discussed, he was limited to specific tasks or light duties as a result of his injuries at various times): 1. Pallet picker: The worker selects a picking list and uses a forklift to select stock from the shelves to fill the customer order. The physical requirements of driving the forklift include constant sitting, frequent spinal rotation and constant bilateral shoulder flexion. The worker is also required to manually lift and carry stock of various weights on a frequent basis, including individual lifts of 35 kilograms on an "occasional to frequent basis" and up to 55 kilograms for a two man lift. Such manual handling may also include bending and reaching to retrieve the stock, frequent standing, squatting, spinal flexion/extension, occasional lateral flexion/extension of the spine and frequent unilateral/bilateral shoulder flexion/extension. (It may be noted that the applicant denied that the duties of a pallet picker involved bending.) 2. Credits/Returns: The worker repackages goods that have been returned for re-sale. This task involved occasional spinal flexion/extension, frequent unilateral/bilateral shoulder flexion/extension and frequent lifting and carrying of light to heavy loads. 3. Cycle count: Workers are required to walk around the distribution warehouse and check that stock is placed in the correct location on shelving. This involves constant standing, walking and frequent bilateral shoulder flexion/extension. 4. Floor picking: The worker selects a picking list where all items weigh under 10 kilograms (i.e. tapware and accessories) and, using a trolley, manually collects the order. Whilst this was characterised as "light duties", it involved constant walking/standing, frequent unilateral/bilateral shoulder flexion/extension, occasional abduction of the shoulder, and frequent lifting and carrying of light loads. 5. Warranty Labelling: The worker consults a packing list, taking items off a trolley, labels them and returns them to the trolley which is then pushed to the packing bench. The items handled in this task are minimal to light weight (5 kilograms or less). The task involves occasional to frequent spinal flexion/extension, constant unilateral/bilateral shoulder flexion/extension and frequent lifting and carrying of light loads. 6. Stock picker aisles: The worker undertakes picking of small items, replenishing those items and housekeeping. The task involves driving the stock picker as well as manual handling which requires occasional lifting and carrying of light loads, occasional spinal flexion/extension and frequent unilateral/bilateral shoulder flexion/extension. 7. Returns: The worker uses a scanner to find the appropriate location for an item which has been returned to the warehouse and then returns the item to that location. The task involves frequent bilateral shoulder flexion/extension, frequent spine flexion/extension and frequent lifting of light loads. 8. Receiving: The worker will utilise a forklift to place stock which has been delivered in the appropriate location for picking. This task was described as "predominantly sedentary", as it involves constant sitting on the forklift. It also involves constant bilateral shoulder flexion, frequent spinal rotation and occasional spinal flexion/extension.
4. Photographic examples of the forklifts used in the warehouse were provided with the report and demonstrated that the term 'forklift' was used above to designate both sit on and stand on vehicles. The applicant described the use of such forklifts as "part" of his position as a storeperson.
5. A more concise summary of the workplace was provided by Dr Tania Rogers who attended the warehouse on 1 November 2012 for the purposes of preparing an independent medical assessment of the applicant. She described the workplace in similar terms to those detailed above, and noted that the "warehouse appeared clean and well ordered". As to the aforementioned tasks, Dr Rogers explained that workers were rotated between floor and pallet picking, although the latter made up the majority of the work.
6. Dr Rogers stated as follows: Due to the fragile, heavy, breakable nature of the goods being picked and packed, it is a requirement that the piles of stock are kept level. Employees cannot rotate pallets until they are at the very bottom of the pile. Therefore is it [sic] part of the inherent requirements that employees will have to reach in and under shelves to move boxes. The weight of the baths is up to 55 kg but is mostly 40 kg. The biggest toilet pan is said to weigh 40kg and is a two man lift.
7. The doctor noted that, although workers could ask for assistance when picking, there was a "cultural resistance" against doing so.
8. The respondent tendered evidence that a storeperson would or could be required to perform any of the aforementioned tasks. The requirement for cross functional ability of such employees was described as necessary for the efficiency and cost competitiveness of the employer's logistics operation. As will be discussed later, it was submitted that this requirement was of increased importance to the respondent's business due to a present downturn in profits and consequential cost-cutting programme.
9. The respondent's contention aligns with the confirmation by the applicant that he undertook all of the above duties over the course of his employment as a storeperson (noting that, at various times during his recovery he was limited to light duties such as Credits/Rework and warranty labelling).

Pre-Termination History of Employment and Workplace Injuries

1. On 21 December 1992, the applicant commenced employment as a storeperson with James Hardie Industries at their Huntingwood site. Following a series of changes in the ownership of the bathroom products distribution centre in which he worked, the respondent became the applicant's employer in March 1997. In 2000, the applicant was promoted to Supervisor/Leading Hand at that location.
2. On 12 October 2005, the applicant sustained a back injury whilst lifting cartons containing brass taps from a pallet to a trolley. Upon his evidence, the applicant experienced a "twinge" of pain in his lower back but continued to complete the task. He attended work the following day, but left after a short time due to the persisting pain. He was taken to an Occupational Therapy practice and was referred for physiotherapy that afternoon. The applicant reported that the pain worsened after physiotherapy. He attended upon Dr Gore who certified him unfit for work.
3. The applicant lodged a report of his back injury with the respondent on 13 October 2005. Workers compensation liability was accepted by the respondent with respect to that injury.
4. Dr Gore continued to certify to the applicant's incapacity for a period of approximately 16 months, over which time he received workers compensation payments.
5. While on workers compensation leave, the applicant was transferred to the respondent's Wetherill Park site as an Experienced Storeperson Forklift Driver. The applicant returned to his pre-injury duties at that location in February 2007 "with minor modifications to his work practice" in accordance with a Return to Work Plan prepared by Smart Rehabilitation on 16 February 2007.
6. On 19 February 2007, Dr Gore issued a WorkCover certificate with respect to the applicant's back injury which stated that he was fit for pre-injury duties from 17 February 2007 (with minor modifications as stipulated in his return to work plan). Those modifications were not outlined therein. This was followed by certificates in the same terms on 27 February 2007 and 2 April 2007.
7. On 20 February 2007, the respondent sent the applicant a letter noting that, as he had been cleared to undertake pre-injury duties, it had the expectation that he would competently fulfil that role. The letter stated: Should you exacerbate or re-injure yourself we will have no option other than to consider alternate duties within the company. Failing this the company will review your employment status where termination may be considered.
8. On 17 April 2007, only three weeks after he resumed duties, the applicant sustained a right shoulder injury and aggravated his back injury whilst performing picking duties. The applicant described that a carton he was reaching for on the second level of racking became caught and caused a "severe jarring/wrenching" injury. He lodged a report with the respondent in respect of that injury.
9. The applicant attended upon Dr Gore who certified that he was unfit for work from the day of injury until 2 May 2007. Under the heading 'Diagnosis' the doctor particularised both the shoulder injury and the aggravation of the applicant's back injury. Workers compensation liability was accepted by the respondent in respect of that injury.
10. From May 2007, the applicant was certified fit by Dr Gore for suitable duties three days per week, which restricted him to lifting a maximum of five kilograms, no repetitive bending and no lifting above 30 degrees with his right arm. Again, the diagnosis on the certificate referred to both his back and shoulder injuries.
11. The applicant returned to work in the Credits/Return or Rework section of the warehouse on 2 May 2007. Mr Declan O'Hara, the respondent's National Logistics Manager, testified for the respondent to the effect that during this period the applicant required regular breaks for pain management whilst at work and reported intermittent exacerbations of his back and shoulder injuries resulting in various periods of leave. That evidence was supported by three WorkCover medical certificates issued by Dr Gore, dated 28 August 2009, 17 September 2009 and 2 October 2009, which certified the applicant unfit for work on 28 August 2009 and from 17 September to 20 October 2009. Those certificates each cited a diagnosis relating to both the applicant's back and shoulder injury, as well as an adjustment disorder. That evidence was disputed by the applicant, who contended that the breaks he required during that time were exclusively as a result of his shoulder injury, no doubt in conformity with the explanation offered by Dr Gore as to why his January 2012 report differed so markedly from that issued on 6 May 2013 (which will be discussed below). I consider Mr O'Hara to be a reliable and forthright witness, but the applicant not to be so. I prefer Mr O'Hara's evidence supported, as it is, by the medical evidence.
12. On 2 July 2007, a complying agreement was reached between the applicant and the respondent's insurer pursuant to s 66A of the WC Act in respect of the applicant's back injury. The applicant received $7,500 based upon an assessment of 6 per cent whole person impairment ('WPI') of the lumbar spine.
13. On 9 June 2009, Dr W G D Patrick, surgeon and medico-legal specialist, provided a report on the progress of the applicant's back injury to Firths Compensation Lawyers ('Firths') who were retained by the applicant. It appears that the doctor was not requested to report on the applicant's shoulder injury at that time.
14. Dr Patrick recorded "significant continuing symptoms and signs at both thoracic and lumbar spine". The report stated: I believe that as a consequence of his work-related injuries, he is now permanently incapacitated for the full range of his pre-injury duties He may be regarded as being permanently incapacitated for physical work involving heavy lifting/carrying, frequent bending, prolonged stooping or working in awkward situations, or work involving being on his feet for long periods of time, handling a lot of steps/stairs or ladderwork. He is not able to sit or be in the one position for more than short periods. He presents as well motivated.
15. The above restrictions were described as "a consequence of his work-related injuries". Dr Patrick concluded that the applicant had 15 per cent WPI "resulting entirely" from his back injury.
16. On 1 July 2009 the applicant was moved into an administrative role at the Wetherill Park distribution centre after the respondent formed the view that he was unproductive in the Credits/Return department. In that role, the applicant supported the establishment of the Enterprise Resource Planning system which principally involved the implementation of a new computer system.
17. On 1 February 2011, Professor George Murrell performed surgery on the applicant's right shoulder. He was unfit for work for six weeks after the surgery at which time he returned to work on light duties.
18. On 6 July 2011, the applicant was referred to Approved Medical Specialist ('AMS'), Dr David Crocker, for assessment of his back injury. The doctor was requested to examine the applicant's thoracic and lumbar spine and determine the applicant's WPI. Dr Crocker made an assessment of 12 per cent WPI (5 per cent WPI of the thoracic spine and 7 per cent WPI of the lumbar spine) (totalling a further 6 per cent WPI than the earlier determination upon which the complying agreement was based). He issued a MAC which described the applicant's back injury as resulting in "chronic pain presentation referable to the regions of the thoracic and lumbosacral spine with reported associated pain extending to the right buttock and right lower limb". Dr Crocker certified that the applicant had reached maximum improvement as to his back injury and that the above impairment was, therefore, permanent.
19. On 15 August 2011, the Workers Compensation Commission ('the WCC') provided certification of a determination-consent order from an arbitrator, Mr Michael McGrowdie. The determination was as follows: 1 Award for the applicant in the sum of $15, 000 pursuant to section 66 in respect of a 12% WPI (Thoracic spine - 5%; and, Lumbar spine - 7%) as a result of injury on or about 12/10/2005 and being in accordance with the MAC dated 06/07/2011 of AMS Dr David Crocker, with the Respondent to have credit for the sum of $7,500 previous paid by the Respondent pursuant to a Complying Agreement signed by the Applicant on 02/07/2007 in respect of a 6% WPI (Lumbar spine) as a result of the injury on or about 12/10/2005, leaving $8,000 as the sum to be paid. 2 Award for the Applicant in the sum of $12,000 pursuant to section 67 in respect of pain and suffering. 3 The Respondent will pay the Applicant's costs as agreed or assessed.
20. The applicant was examined again by Dr Patrick on 22 September 2011, but on this occasion the focus was his shoulder injury. He opined that the applicant was "limited now in what he is able to do" and would be "on permanent light duties for life". He reported that the applicant remained on "permanent restricted light duties" partly as a result of his previous back injury. The doctor stated that, although the applicant was "currently trying to work 40 hours per week", he needed to take leave from work when his symptoms were more severe. It was not recorded whether the symptoms mentioned were related to the applicant's shoulder or back.
21. On 29 November 2011, the respondent engaged On Track to manage the applicant's return to work. On Track prepared the Task Analysis Report to which I earlier referred on 7 February 2012. Many of the tasks outlined therein were well above the applicant's reported capacities at that time, particularly with respect to his lifting restriction.
22. The applicant underwent shoulder surgery for a second time on 20 December 2011 due to persistent pain. He resumed work on 6 February 2012, performing suitable light duties including warranty labelling. Although the applicant had significant restrictions (including a maximum lifting capacity of five kilograms), he suggested at that time that he was capable of performing a broader range of duties than those to which he had been assigned.
23. On 9 January 2012, On Track sent Dr Gore a series of questions in regard to the applicant's back injury. By his responses, dated 18 January 2012, Dr Gore stated that, while the applicant's condition had not "reached maximum medical improvement", he would not "ever return to his pre-injury position of storeman". Commenting upon the latter answer, the doctor cited "ongoing pain and limitation of movement" in relation to the applicant's back and shoulder injuries.
24. A second set of questions was sent to Dr Gore on 18 April 2012. On Track noted that, according to the respondent, the applicant had "on occasions called in sick for work, advising that his meds that he has taken on the day, prevents him from driving". In Dr Gore's response, dated 1 May 2012, the doctor listed the medications that the applicant was taking and opined that he could drive but "should avoid heavy machinery". Dr Gore opined that the applicant would "probably" be taking the medications for the rest of his life.
25. On Track requested that Dr Gore confirm specified work capacity restrictions as to the applicant's back injury. It may be inferred from that request that Dr Gore had previously certified to those restrictions (although no WorkCover medical certificates were in evidence before the Commission for the relevant time period). Dr Gore confirmed the following restrictions: 1. No lifting over 5 kgs 2. No running/jumping/stair climbing 3. Not to stand & sit for periods exceeding 30 to 40 mins 4. No repetitive back bending
26. The above represented the applicant's medical restrictions at the date of his termination.

Termination

1. On 4 May 2012, Mr O'Hara informed the applicant that the respondent could no longer offer him suitable duties. He was provided with a letter to that effect.
2. In the letter Mr O'Hara noted that "the GWA group has been operating in recent times in an extremely difficult market and that there have been widespread redundancies across the Group as a result". He stated that there was, thereby, "an increasingly critical need to ensure that all our departments are performing to their maximum efficiency and securing their maximum productivity outcomes".
3. Mr O'Hara concluded that it was time for "an urgent review of the health and safety realities" of the applicant's situation. In particular, he stated that there was a need to form a considered view as to whether the applicant could ever return to his full pre-injury duties as a storeperson. In that respect, Mr O'Hara particularised two medical reports which indicated that the applicant would never be able to return to that position (namely, the 6 July 2011 report of Dr Crocker and Dr Gore's 18 January 2012 responses to On Track).
4. The applicant was given 10 days in which to supply medical evidence demonstrating when he would be fit to return to pre-injury duties. In the interim, he was directed to take leave with full pay. As the applicant could not obtain medical evidence until his next appointment with Professor Murrell, which was scheduled for 18 June 2012, he was allowed 5 weeks in which to obtain the requisite medical evidence. On 18 June 2012, Professor Murrell opined that the applicant had an "excellent" outcome from his second shoulder surgery and was able to "return to full duties".
5. On 26 June 2012, Mr O'Hara issued the applicant with a termination notice, asserting that the incapacity occasioned by the applicant's back injury was not temporary and prevented him from carrying out the inherent requirements of his pre-injury duties. It was concluded that the respondent could no longer retain the applicant in his position and would terminate his employment effective 31 July 2012 (providing five weeks' pay in lieu of notice).
6. Mr O'Hara explained that the decision was based upon the information provided by Dr Gore on WorkCover Medical Certificates, the ongoing WorkCover certificates "regarding your back", the findings of Dr Crocker and the applicant's incapacity to return to pre-injury duties. He stated: In relation to your back injury we note your condition has been deemed stable and permanent by an AMS and you were paid out for that injury by the Worker's Compensation Commission. There seems to be no question regarding what appears to be your permanent disability in regards to that injury as confirmed also by Dr Uday [Gore]'s report of 9th January 2012. I note that you have declined the request by the insurer to have an IME with respect to your back injury prognosis.
7. No reference was made as to the applicant's shoulder injury, save to note that the applicant was afforded extra time in order to obtain an opinion from Professor Murrell.

Post-Termination

1. The applicant has initiated various proceedings in different forums as a result of his injury and termination. As such, a substantial degree of medical evidence has accumulated post-termination.
2. In July 2012, the NUW lodged an application for unfair dismissal on behalf of the applicant with the Fair Work Commission ('FWC') (known, at that time, as Fair Work Australia). After what was described by Mr O'Hara as a "brief conciliation phone conference" on 30 July 2012, the application was withdrawn.
3. On 3 July 2012, the Workers Health Centre ('WHC') provided an Initial Assessment Report concerning the applicant's shoulder injury. The applicant reported, at that time, that he experienced sharp pain in his right shoulder when lifting weight above shoulder height. He also reported a variety of physical restrictions in activities such as sitting, standing, kneeling/squatting, driving, lifting and carrying (five to eight kilograms with his right hand) as well as domestic and leisure activities. His back injury was noted as a contributing cause to the restrictions relating to sitting, standing, kneeling/squatting and domestic and leisure activities.
4. The applicant chose to attend an independent functional assessment at Injury Assess as to his back and shoulder injuries. The assessment was performed by Dr Horace Ting on 4 July 2012. Although Dr Ting was qualified as an Occupational Therapist/Vocational Assessor, it should be noted that he is not a medical practitioner. The report arising from that assessment, dated 6 July 2012, was forwarded to the respondent.
5. In summary, Dr Ting's report stated that the applicant's "back movements were restricted in all directions", but that he was able to lift up to 20 kilograms "on an occasional basis" and required "a graduated physical conditioning program to upgrade his work tolerance for him to be able to perform his duties in the most extreme work situation". The applicant reported pain in the mid and lower back on the day of the assessment, but denied any increase in back or shoulder pain following the manual handling test. Dr Ting stated that the applicant had "significant physical restrictions" as well as psychological symptoms which would affect his employment, but found that he demonstrated "strong motivation and the physical capacity to do his job".
6. It should be noted that Dr Ting's assessment as to the applicant's physical capacity to perform the duties of a storeperson in the respondent's warehouse, particularly in respect of the clearance for lifting required, was expressly predicated upon the applicant's description of his former duties and their physical demands. That is an issue to which I will return later in this decision.
7. The applicant saw neurosurgeon Dr Simon McKechnie on 26 July 2012. He certified that the applicant's medication was resulting in "good pain control" and allowed him to "maximise his work capacity" without impacting his ability to perform his duties.
8. The applicant attended another functional assessment at the WHC on 8 August 2012 at the direction of the respondent's insurer. The assessment was performed by Ms Prinola Gurie, Senior Rehabilitation Consultant. Her report, dated 15 August 2012, stated that the applicant had "no functional limitations" and assessed his lifting tolerances at 20 kilograms on an occasional basis and 15 kilograms on a frequent basis. Lifting heavy objects (in excess of 20 kilograms) and incorrect lifting/bending were recorded as aggravating factors to his injuries. She made the following recommendation: Based on Mr Robson's description of his pre-injury duties, he has demonstrated that he has the functional capacity to perform these duties.
9. The description of the duties of a storeperson provided by the applicant to Ms Gurie was not recorded in her report, but it is tolerably clear that he indicated that a lifting restriction of 20 kilograms would allow him to perform the same.
10. Those conclusions as to work capacity may be contrasted with the significant limitations confirmed by Dr Gore immediately prior to the applicant's termination and, in particular, the lifting restriction of 5 kilograms, as well as the applicant's previous assessment at the WHC which had occurred only one month earlier.
11. On 17 July 2012, Dr Patrick examined the applicant for the third time. On 28 September 2012, he provided a report addressing the applicant's back and shoulder injuries to Firths, who represented the applicant in proceedings in the WCC. The report noted as follows: He does continue with significant ongoing back symptoms at both thoracic spine and lumbar spine and he has developed some limp left leg as a consequence of some left lower limb sciatica. He has to be careful with his back all the time. … Resulting from his workplace injuries of 13 October 2005, Mr Glenn Robson continues with 15% Whole Person Impairment … Resulting from injuries sustained on or about 17 April 2007 (right shoulder), Mr Glenn Robson has 2% Whole Person Impairment.
12. On 6 August 2012, Dr McKechnie reviewed the applicant. He noted that, in his view, the applicant's "current medication should have no significant impact on his work capacity and safety". Drawing upon the functional capacity evaluation provided by Dr Ting of Injury Assess, he stated: He has already had a functional capacity evaluation which confirms that he is able to safely lift 20 kg on an intermittent basis and perform all duties as described as a store person with GWA bathrooms and kitchens. I would agree that he is fit for his pre-injury role with a 20 kg lifting restriction.
13. On 24 August 2012, the applicant requested to be reinstated. It is apparent that the respondent did not extend an offer to reinstate the applicant, although there was no evidence before the Commission that the applicant's request was expressly declined. On 11 September 2012 the respondent was notified that the NUW had lodged an Application for Reinstatement of Injured Worker with the Commission.
14. On 29 September 2012, Firths made two claims in the WCC on behalf of the applicant for further lump sum compensation and weekly benefits from 7 January 2006 to 30 June 2012 based upon a report, dated 28 September 2012, arising from the aforementioned review of the applicant by Dr Patrick on 17 July 2012. In particular, the claims were for further deterioration due to his injuries to the 12 per cent WPI already compensated (3 per cent WPI for his back and 2 per cent WPI for his shoulder). In relation to his back injury a further $4,500 was claimed pursuant to s 66 of the WC Act and $3,000 pursuant to s 67 of that Act. As to the shoulder injury, a further $2,750 was claimed pursuant to s 66 of the AC Act. The claims also sought costs as agreed or assessed.
15. On 4 October 2012 the respondent's insurer issued a notice under s 74 of the WIM Act disputing the applicant's claim for further lump sum compensation. Ultimately, on 7 March 2014, the respondent was ordered by the WCC to pay the applicant the sum of $6,000 in respect of a further four per cent WPI attributable to his back injury and $3,000 in respect of pain and suffering.
16. On 9 October 2012, the applicant underwent an independent medical assessment by Dr Rogers (to which I have previously referred in describing the nature of employment as a storeperson with the respondent). That assessment was undertaken with respect to both the applicant's back and shoulder injuries at the referral of On Track on behalf of the respondent.
17. Dr Rogers found that the applicant had demonstrated a functional ability to lift 20 kilograms in a controlled environment with the load kept close to his body, but noted the following: The functional assessments do not assess his ability to reach and lift while reaching or bending under racks, which is a requirement at this workplace as the heavy and fragile nature of the goods does not allow for pallets to be rotated. I think that Mr Robson would be a significant risk of aggravating his back injury if he is lifting and reaching/ bending at the same time.
18. In the above circumstances, she suggested that a "limit of 10-15 kgs may be reasonable". Alternatively, it was noted that the applicant could undergo "further functional assessment to test his ability to perform such manual tasks on a repetitive basis".
19. Additionally, Dr Rogers recorded the applicant's self-reported limitation of 60 minutes for sitting.
20. Dr Rogers also suggested that there was a risk to other employees if the applicant was unable to take the weight of an item during a two person lift (noting that some of the items in the distribution centre, which she had visited for the purposes of the assessment, were above the applicant's self-reported lifting capacity even if assisted by another employee).
21. On 10 December 2012, the applicant commenced work sorting parcels and cartons with Australia Post by way of a subcontracting arrangement through Le & Anne Pty Ltd. He subsequently left that position on 30 May 2014 for reasons which were variously contested by the parties. In the present proceedings the applicant contended that he left in order to pursue full time employment opportunities whilst, on the respondent's view, his departure was due to his incapacity to perform the role in light of his injuries. As will be later discussed, the parties adopted alternative views before the WCC.
22. On 22 January 2013, the NUW advised the Commission of its request to discontinue the reinstatement of an injured worker claim and reserved the right to re-lodge a fresh claim. It appears from the evidence before the Commission in the present proceedings that that decision was made in order to obtain certification from a medical practitioner (rather than an allied health professional) that the applicant had the capacity to perform his pre-injury role.
23. The applicant was reviewed by Dr McKechnie on 4 February 2013. On 6 February 2013 he reported the following to Dr Gore: He has asked me whether he can increase his lifting restriction to 22.5 kg which I understand would make it easier for him to return to his pre-injury duties. As this is only a 10% increase it would be reasonable to attempt this in my opinion. Initially however he should be observed and to try to lift this weight under the direction of a therapist in a controlled environment such as a gym. If he is able to do this without trouble then, if you are in agreement, his lifting restriction could increase but I would be adamant that it should increase no further.
24. On 19 March 2013, Mr Jason Connolly of ASAP Physiotherapy provided a WRAP discharge report for the applicant. It noted that he was managing his job with Australia Post, which involved repetitive lifting of boxes weighing up to 20 kilograms. The applicant was able to lift up to 20 kilograms from floor to shoulder height during supervised sessions "without concern", which was understood by Mr Connolly to be the required lifting capacity of the applicant's pre-injury position.
25. As noted above, on 6 May 2013, Dr Gore sent the NUW a report concerning the applicant's fitness for pre-injury duties. That report was presented in question and answer form (reflecting, it would appear, questions sent by NUW). It does not appear that a physical assessment was undertaken by the doctor for the purposes of that report.
26. Dr Gore opined in his report that the applicant could safely perform all of the duties of a storeperson "since he has been cleared by Dr Simon McKechnie his Neuro Surgeon for his back. This is based on his physiological weight limits of 22.5 kgs based on his assessment". When asked about whether the applicant could perform a specific set of pre-injury duties, including pallet picking, pallet bench, floor picking and loading containers, he answered that "[b]ased on his recovery now and his multiple assessments done so far he should be able to perform the above duties". Dr Gore stated that "no specific modifications" would be required based upon the assessments of Dr McKechnie, Dr Rogers, Ms Gurie and Mr Nattai Borges (a physiotherapist).
27. Dr Gore provided the following response when asked why he had informed On Track on 18 January 2012 that the applicant would never return to his pre-injury position: The advice given by me was based on his clinical condition at that time and that his symptoms and signs were very slow in progression since the onset of the injury. Therefore it was difficult to be certain about return to pre-injury duties. Secondly he was recovering from a work related injury involving his right shoulder. At that stage he was not made fit for pre-injury duties by Prof. Murrell with reference to his shoulder. The shoulder injury was impacting the recovery form [sic] the back injury.
28. As to the effects of the applicant's pain medication Dr Gore stated as follows: Mr. Robson has been using these medications for a long time for his chronic back pain. He has had no specific side effects relating to drowsiness or poor coordination. Though in the product information it has been mentioned that drowsiness could be a potential problem; in this individual case there has been no reported episodes. Mr. Robson has been informed about these problems before initiating these medications and has been himself very cognizant about the same. There is no clear sate in the literature about this as well to my knowledge. Dr. Rogers has made similar notations in her letter about this matter.
29. Finally, Dr Gore stated that the applicant was "at no more risk than any other worker as far as O H & S guide lines are followed". In that respect, whilst noting that bringing weights as close to the body as possible when lifting would reduce the risk of injury, Dr Gore said that would also be possible for the applicant to lift 20 kilograms where the load could not be kept close to his body (citing the report of Dr Ting).
30. The employer application was made by the applicant on 31 May 2013. In support of that application the applicant enclosed a report from Dr Gore, certifying that he was fit to perform the duties of a storeperson, subject to a lifting restriction of 22.5 kilograms. The applicant stated: Dr Gore recently assessed my fitness for work. I have attached a copy of this report. The report states that I have the physical capacity to perform the duties as a store person. I am at no more risk than any other worker provided that I work within my weight restrictions and follow the proper handling techniques. There are no other modifications necessary for me to perform the tasks of a storeperson. I am not at an increased risk of accidents if I operate a forklift or other machinery because of my pain medication. That being the case, I request that the company reinstates me to my previous position of storeperson for which I am fit.
31. The applicant asked that, in the alternative, he be "reinstated in any other work in connection with the Wetherill Park facility for which I am fit…", listing several functions which it was asserted fell into that category (as outlined above).
32. By letter dated 11 June 2013 from Mr O'Hara, the respondent denied that request. Mr O'Hara stated that the grounds for that decision included: i. there are no vacancies within the distribution centre at Wetherill Park; ii. the report attached by you from Dr Gore is inconsistent with his own earlier reports and relies heavily on the views of other physicians - particularly those of Dr Simon McKechnie - whose letters also need to be provided and assessed; iii. the request seems completely at odds with the assertions made on your behalf by Firths solicitors, in correspondence of 29th September 2012, that you are subject to permanent impairment.
33. He concluded: On that basis, I still hold a genuine fear that even if a position existed for you, there would be an unacceptable level of risk to yourself and others in the workforce were you to return on unrestricted duties.
34. Following that denial, on 4 July 2013, Mr Derrick Belan of the NUW wrote to the respondent on behalf of the applicant in order to provide further details in support of his request for reinstatement. Mr Belan's letter noted that the stated lack of vacancies at the Wetherill Park distribution centre "is not the relevant test for the reinstatement of an injured worker. Rather, the test is whether there is a position available or if it can be reasonably made available". It was contended that, in the case that a replacement storeperson had been employed that employee should have been informed that the applicant may be entitled to be reinstated pursuant to the WC Act.
35. Mr Belan noted that "the primary aspect for consideration is whether the applicant is fit to return to work, not the interaction between the permanent impairment guidelines and [his] condition at the time". As to the alleged inconsistency between Dr Gore's reports, Mr Belan stated that Dr Gore gave a "logical and credible explanation for his different, more recent and therefore accurate opinion".
36. The letter included the report from Dr McKechnie and a copy of a physiotherapy assessment performed by Mr James MacCann, a physiotherapist at ASAP Physiotherapy. That assessment stated that as at 22 May 2013 the applicant demonstrated the ability to perform a series of tasks including two sets of 10 repetitions lifting 22.5 kilograms from floor to waist height, waist to chest height and floor to chest height.
37. Mr Belan concluded that the "evidence provided to you clearly shows that he is fit to perform all of the duties of a storeperson". Hence, there was said to be "no basis on which you can hold a genuine fear of an unacceptable risk…". Further, as to any such risk, he stated that the NUW "do not regard the existence of Occupational Health obligations as providing, in itself, a justification for you to remove injured workers from your workforce".
38. On 15 July 2013, by way of a letter from Mr O'Hara, the respondent again declined to reinstate the applicant. The letter stated "we remain firmly of the view that reinstatement is not appropriate". Mr O'Hara also noted the following: We can confirm further that there was no recruitment to replace Mr Robson and that, since he last worked, there have been approximately 150 positions made redundant at GWA Group. We would also consider an "adamant" weight restriction of 22.5 kg maximum, inconsistent with the safe discharge of a store person's full range of duties.
39. On 29 July 2013, Dr Patrick wrote a report to Firths which stated, inter alia, that the applicant had ongoing intermittent back pain, difficulty with heavy lifting and carrying, and that it was easy for him to aggravate his back. He stated as follows: He does continue now with significant ongoing permanent partial work incapacity in that he is not fit for work of a physical/manual nature which involved heavy lifting/carrying, frequent bending, prolonged stooping or working in awkward situations. He needs to avoid activities which might result in significant jolting/jarring to the spine. I believe he is not fit to lift more than 10 kg an [sic] probably 8 kg would be more appropriate. He should not be lifting any weights at all above shoulder height. He would be fit for suitable lighter preferably part-time work in a sympathetic work environment, not involving, or minimising abovementioned activities.
40. He regarded the applicant's condition as "stabilised" and maintained his earlier assessment of 15 per cent WPI for the back injury and 2 per cent WPI as a result of the shoulder injury.
41. Some two weeks later, on 16 August 2013, the NUW filed the present application.
42. On 17 September 2013, orthopaedic surgeon Dr Peter Holman, an AMS, examined the applicant. He issued a MAC on 30 September 2013 which stated that the applicant had 16 per cent WPI. Whilst the report did not address incapacity, the doctor noted that the applicant's back pain was constant, with no significant change in the preceding three to four years, and that the pain was aggravated by activities such as bending. Dr Holman recorded that the applicant "complained of increasing thoracic and lumbar back pain at the extremes of movement". The report also noted that the back injury aggravated a pre-existing degenerative disc disease.
43. On 8 November 2013, the applicant made a claim in the WCC for work injury damages in reliance upon Dr Holman's report. The application noted that as a result of the applicant's injury he was unable to return to pre-injury duties. The respondent's insurer paid an additional 4 per cent WPI on 21 April 2014.
44. On 26 November 2013 the applicant attended Procare Injury Management ('Procare') for the purposes of a vocational assessment, whereupon forklift driver, storeperson and delivery driver were identified as suitable employment options.
45. The applicant attended further appointments with Procare on 13 February and 4 April 2014, at which time he turned down offers of employment due to the hourly rate offered or the fact that they were not full time. The applicant also noted that he was required to give four weeks' notice to Australia Post where he was working at the time.
46. Around that period, as Mr O'Hara deposed, the respondent "posted a disastrous half yearly result, whereby net profit fell 89%". He stated that the respondent has since undertaken a "severe cost cutting programme, resulting in some additional 20 redundancies in April 2014 within the Bathroom & Kitchens operations". This was supported by an announcement dated 8 October 2014 from the respondent of a phased exit from manufacturing of vitreous china and plastics in Sydney and Adelaide and the attendant redundancy of approximately 10 per cent of its Australian workforce, including 88 redundancies at the Wetherill Park site.
47. By letter dated 13 June 2014, the applicant was contacted by Ms Kristen Bennett of Employers Mutual (the respondent's insurer). Ms Bennett stated that a work capacity assessment was being undertaken from which a decision would be made in accordance with s 43(1) and s 44A of the WC Act. She continued: Based on the assessment carried out so far the work capacity decision will likely result in a cessation of your current weekly compensation payments. However as advised in our conversation today, you will be given 3 months notice from the date of our decision letter prior to any change to your current weekly compensation payments taking effect.
48. This was followed by a letter dated 7 July 2014, which constituted notice of the work capacity decision and outcome under s 54(2)(a) of the WC Act. Ms Bennett stated: In accordance with Section 38(4) of the Workers Compensation Act 1987, I am required to conduct a work capacity assessment during the last 52 weeks of the second entitlement period to determine whether you are entitled to weekly payments of compensation after the expiry of the second entitlement period… This notice has been provided to explain the work capacity decision that has been made pursuant to Section 43(1) of the Workers Compensation Act 1987, and to provide notice under Section 54(2)(a) of the Workers Compensation Act 1987 for the resulting reduction to your entitlement to weekly compensation payments following the expiry of the weekly compensation entitlements in the second entitlement period.
49. Under the heading 'Work Capacity Decision', the following decisions were outlined: • While you do have a present inability to return to your pre-injury employment, you are able to work in suitable employment and therefore have a current work capacity as defined by section 32A of the Workers Compensation Act 1987. • You currently have capacity to work 38 hours per week. • You have not returned to work.
50. Suitable employment as defined by s 32A of the WC Act was said to include forklift driver, storeman and delivery driver. The basis for that conclusion was not explained.
51. The applicant was found not to meet all of the requirements of s 38(3) of the WC Act and was not, therefore, entitled to compensation at the expiry of the second entitlement period. In the result, payments were to cease on 16 October 2014 (presuming ongoing medical certification was provided until that time). The applicant's entitlement to medical and related expenses was to cease 12 months from that date (16 October 2015).
52. The reasons given for that decision cited the WorkCover certificate of Dr Gore received on 31 May 2014, which, upon Ms Bennett's record, stated that the applicant has a "partial capacity for work 8 hours per day 5 days per week, with a lifting restriction of 21.5kg". (A certificate of capacity issued by Dr Gore on 30 May 2014 which certified the stated lifting restriction, was in evidence before the Commission, but it did not make reference to appropriate hours.) The letter also noted the 12 per cent WPI assessment of Dr Crocker in July 2011.
53. On 17 June 2014, the WCC issued a Certificate of Determination concluding that the respondent was required to pay the applicant weekly benefits of varying amounts between $85 and $504 from 17 June 2006 to 26 May 2012 plus costs (with credit for any payments made during those periods).
54. On 24 June 2014, the applicant sustained a knee injury after a fall at his residence. He was engaged as a storeperson/forklift driver on 26 June 2014 by labour hire company Manpower Services Aust Pty Ltd ('Manpower'), but left work prior to the completion of his shift after feeling pain in his injured knee. The applicant attended upon Dr Gore that day who advised him not to return to work until he received medical clearance. The applicant saw an orthopaedic surgeon, Dr Jonathon Herald, who referred him to physiotherapy. On 6 August, he again saw Dr Herald and was issued with a clearance to return to work. The applicant deposed that he was subsequently engaged by Manpower to work several shifts in August and one in September 2014.
55. On 18 July 2014, Firths served a pre-filing statement upon the respondent which alleged that the back injury was caused by their breach of an implied term of the applicant's contract or their duty of care or both. Under the heading 'Particulars of Disabilities', that statement listed pain, stiffness and restriction of movement in the lumbar and thoracic spine, difficulty sitting for long periods of time, difficulty in lifting and carrying heavy objects, inability to fully bend, "back pain can be easily aggravated", difficulty in undertaking heavy household duties and, ultimately, an "inability to return to pre-injury duties". As earlier foreshadowed, the statement also noted that it was due to "his significant ongoing symptoms" that the applicant had "no option but to give up his work with Australia Post". The applicant's claim was disputed by the respondent as of 19 August 2014, on the basis that they did not accept liability for negligence.
56. By a medical certificate dated 25 July 2014, Dr Gore certified that the applicant had "a medical condition" and was unfit for work from that date until 8 August 2014. The nature of that condition was not explained in the certificate. That was the most recent medical certificate tendered in these proceedings.
57. On 29 September 2014, Dr Gore issued a WorkCover Certificate of Capacity for the period 22 September to 22 October 2014, which indicated that the applicant had "capacity for some type of employment" over that time, but, in contrast to the 6 May 2013 report, did not expressly certify him fit for pre-injury duties. However, it was maintained that, based upon the advice of Dr McKechnie, the applicant had a physiological lifting limitation of 22.5 kilograms. That certificate represents the most recent medical evidence received by the Commission in these proceedings.

Applicant

1. Mr A Barwick, solicitor for the applicant, made oral and written submissions which, when taken together, may be summarised as follows: 1. The applicant should be reinstated as a storeperson pursuant to s 243(2) of Pt 8 of the WC Act, subject to a 22.5 kilogram lifting restriction. The medical evidence that the applicant is fit for pre-injury duties is, in substance, "not contradicted". 2. In the alternative, the applicant should be reinstated to another kind of employment which is no less advantageous (pursuant to s 243(2) of Pt 8 of the WC Act). It is submitted, in that respect, that the applicant may be reinstated as a forklift driver. The evidence demonstrated that such work is undertaken in the respondent's warehouse and the medical evidence supports the view that the applicant is fit for that work. Further, he is appropriately qualified and licensed to do so. 3. If, however, having considered those options, the Commission does not deem it appropriate to issue a reinstatement order pursuant to s 243(2), it should reinstate the applicant under s 243(3)(b) to a storeperson position with the stated lifting restriction which the respondent can reasonably make available. In that respect, contrary to the apparent submission of the respondent, the words of s 49 of the WIM Act should not be imported as a test into the WC Act where they are not present. 4. The stated lifting restriction does not undermine reinstating the applicant to his former position because the position may be undertaken in a "modified" manner whereby the applicant is able to adhere to his medical limitations, such as by seeking assistance from colleagues when required to lift heavy items (see Hofman). Such modification is contemplated by the legislation in circumstances where an employee may be returned to a part time role in order to undertake rehabilitation. 5. As to the medical evidence, it must be recalled that the present proceedings are concerned with identifying, at the date of hearing, "what the possible reinstatement options are, what employment is available, or can be made available, and whether the applicant is fit for that type of work" (rather than whether the applicant's termination was fair or lawful). In that respect, the Commission should focus upon the medical evidence from the time that the application was made, which records a lifting restriction of 22.5 kilograms. 6. As to the availability of employment, the respondent bears the onus of establishing that there are no positions available for the applicant (see PSA obh Peter Riley v Workcover Authority of NSW [2006] NSWIRComm 108). The respondent has not discharged that onus and, in fact, the evidence "is against the bald assertion there is no suitable employment available". The applicant's position was not made redundant and there have not been other redundancies in the warehouse. To the contrary, five or six casuals are employed there and employees routinely perform overtime. 7. Further, the continuing employment of Mr Sprod, who has had a permanent lifting restriction (namely a 20 kilogram maximum lifting capacity and 10 kilogram above shoulder height lifting capacity) since his shoulder injury in 2007 contradicts the respondent's assertions that all storepersons must be fit for all aspects of the work. 8. Thus, the respondent is simply reluctant to reinstate an employee "who has restrictions with respect to their full work capacity". The applicant was dismissed not because of a lack of work but because of an unwillingness on the part of the respondent to provide work to him. In that respect, Mr O'Hara indicated that the applicant had had a 'long run' after his injuries. It should be noted that the legislation provides no limit for how long an employer must provide suitable duties. 9. As to the concurrent claims made by the applicant in the WCC: 1. There is no rule which prevents the applicant from prosecuting the present application before finalising other claims. 2. The present proceedings address a separate set of legal rights to those claimed in the WCC such that there is "no inconsistency" between the proceedings nor are they predicated upon a different basis. Firstly, the medical propositions put forward in the WCC are not to the effect that the applicant is totally incapacitated. He does have a permanent partial incapacity (namely, his lifting restriction), for which he has sought compensation, but at no time has the applicant asserted that he was unfit for work. The respondent seeks to conflate the concept of impairment with incapacity in an effort to demonstrate that the applicant's WCC claim undermines his assertion that he is fit to return to employment with the respondent. That is to engage in a "serious category error" as impairment and incapacity are two discrete concepts and one does not necessarily inform the other. Secondly, as noted above, in the present proceedings the Commission must consider the applicant's current fitness for work, in the context of reinstatement which would take effect prospectively, whereas the WCC proceedings related to the difference in past earnings. Thus, although there is a tension in the legislation, it clearly accepts that sometime after termination a worker's capacity may improve, as is the case with the applicant. The applicant is able to seek the relief that he is entitled to at specific stages. Finally, the jurisdiction of the Commission under Pt 8 of the WC Act is not limited to returning the applicant to his pre-injury position and, as noted above, a modified position is available if it is deemed to be more appropriate by the Commission. 3. The insurance company cut off his payment because they now believe him to be capable of earning his previous remuneration in suitable employment. 1. By this application the applicant also seeks 'back pay' pursuant to s 243(4) of the WC Act, which would run from 31 May 2013 when the applicant requested to be reinstated (although it is conceded that weekly workers compensation payments would be brought into account when calculating such an amount) and continuity of service (including for the purposes of calculating accrued leave entitlements).

Respondent

1. Mr R J De Meyrick, of counsel for the respondent, made oral and written submissions which, when taken together, may be summarised as follows: 1. In all of the circumstances, the Commission should dismiss the application as the applicant is not fit for his pre-injury duties or any other role in the respondent's warehouse. In any event, no such positions are available or can reasonably be made available by the respondent. 2. An employee may not be reinstated unless they are fit for work on the basis of medical evidence (see Cansino at [11] and [16]). 3. The respondent terminated the applicant's employment due to his very poor prognosis for returning to pre-injury duties. Following termination, reports were issued by Dr Ting and Ms Guthrie to the effect that the applicant could lift up to 20 kilograms on an "occasional basis". It must be noted that those reports were not made by medical practitioners and were based upon functional assessments undertaken in controlled environments with an element of self-reporting. The reports appear to have been adopted in the views subsequently expressed by Dr McKechnie and, in turn, by Dr Gore. This led to a sudden increase in the applicant's lifting capacity as recorded by Dr Gore from five to seven kilograms to 20 kilograms (albeit with significant caveats, including to avoid repetitive back bending work). 4. Despite the "mysterious" increase after termination, the most recent report of Dr Gore is still not a medical clearance upon which one would be comfortable returning the applicant to employment as a storeperson. Even the most recent certificates of capacity issued by Dr Gore cannot be read as unequivocal certifications of fitness for pre-injury duties or even modified duties. The medical evidence also reveals substantial restrictions in other areas, such as lifting above shoulder height, driving, sitting and standing. 5. Thus, the medical evidence suggesting that the applicant is fit for his pre-injury duties, such as it is, is "a little bit flimsy". In that light, the Commission should not be satisfied that the applicant is able to lift more than approximately five kilograms, particularly as any certifications attesting to higher limits are attended by substantial caveats or qualifications. Upon such evidence, the Commission cannot be satisfied on the balance of probabilities that the applicant has the ability to perform his pre-injury role. 6. Further, the evidence advanced in favour of the applicant's capacity is substantially contradicted by other medical evidence. For example, the report of Dr Rogers reveals that the applicant's lifting tolerances would need to be assessed over a longer period to ensure that he could apply them in a vocational setting without putting himself or others at risk. She suggested that, in that context, a lifting restriction of 10-15 kilograms was more reasonable for the applicant. 7. The evidence in support of the applicant's capacity is further contradicted by the material served by the applicant to support his WCC claims. The MAC issued by independent AMS, Dr Croker, in July 2011 reported that the applicant had a 12 per cent WPI and could not touch his knees because of pain. The medico-legal specialist, Dr Patrick, consistently reported that the applicant suffered a 15 per cent WPI, and certified an 8 to 10 kilogram lifting restriction as recently as 29 July 2013. Dr Holman, the second AMS, reported a worsening of the applicant's condition in September 2013 and an assessment of 16 per cent WPI. That evidence cannot be reconciled with Dr Gore's 6 May 2013 report, and should be preferred over it. 8. In summary, the opinion that Dr Gore expressed in his 6 May 2013 report should not be accepted as it represented an unexplained "sharp u-turn" from the medical opinion he provided to the respondent prior to termination. The doctor's sudden and dramatic about-face was only supported by functional assessments which were performed by allied health professionals in controlled environments. Those assessments involved an element of self-reporting as to the duties and capacities of the applicant. In that sense, the report of Dr Gore was based on "a static controlled lift on a one off basis" which cannot be applied to circumstances of "repeated lifting, twisting bending etc in a workplace" such as the respondent's warehouse. Thus, upon the report of Dr Rogers, which is consistent with other significant reports from AMS's and a medico-legal specialist, the Commission cannot be satisfied that the applicant can "properly and safely perform the duties of a storeperson or even a modified storepersons role". 9. Further, the statements made by and on behalf of the applicant in the WCC are inconsistent with his account and the medical evidence relied upon to support the present application. The applicant was in receipt of workers compensation benefits as a result of attesting and providing evidence to the effect that he had at least a partial incapacity for work. He recounted a profound and permanent set of restrictions and asserted an inability to perform pre-injury duties. He also alleged that his incapacity forced him to leave his work with Australia Post. The applicant did not explain these inconsistencies under cross-examination and gave "rather unsatisfactory evidence" in that respect. Similarly, the assertion that the applicant's medication does not affect him is in contrast to the reports that he took several days off work claiming that he could not drive as a result of his painkillers. 10. Whilst the respondent accepts that there is a distinction between incapacity and impairment, in this case the applicant's impairment, as it has been reported, amounts to incapacity to undertake the role of storeperson. 11. It should also be noted that the applicant had not returned to full pre-injury duties when he was dismissed due to incapacity. 12. In the light of the above evidence it would be difficult for the Commission to accept the applicant's assertions as to his capacity and it could not be concluded that he is fit for employment with the respondent. 13. Further, it is clear that occupational health and safety matters are not irrelevant to the question of the applicant's reinstatement: Bindaree Beef at [65]. In that respect, the Commission should not make a reinstatement order if, as in the present case, it is more likely than not the injured worker will suffer a relapse if returned to duty (see Robinson v Commission of Police [2014] NSWIRComm 35 at [135] and [138]). 14. The applicant submitted that he could be reinstated to alternative work, but did not identify a suitable position in that respect. Instead he merely listed a series of tasks which he asserts he can do. It must be recalled that the subject workplace is structured such that every storeperson is required to do all tasks, some of which involve lifting items above 35 kilograms on a frequent basis. It is clear that the applicant is plainly not able perform all of the tasks required of a storeperson, and the respondent cannot employ him to undertake an alternative set of tasks which do not amount to a position per se. 15. The continued employment of Mr Sprod does not alter that conclusion, as he has a limitation only on very heavy lifting (30 kilograms) but is otherwise fit and able to manage the job. His evidence also confirmed that "lifting, bending and stooping" are a routine part of a storeperson's work. 16. Even if the applicant were fit for employment with the respondent, the respondent has demonstrated that no such employment is available. When considering reinstatement, the legislation seeks to balance the interests of the employee and the employer. Thus, it does not impose an obligation on employers to create positions that do not exist. 17. In that respect, the comments of Basten JA in Bindaree Beef describing s 243 of the WC Act as a provision which places obligations on both employees and employers are apposite. His Honour noted the requirements of s 49 of the WIM Act in support of his analysis as follows: 97 The applicant's case, at least in this Court (and it was not suggested that it was otherwise before the Commission) was that the composite precondition to the exercise of jurisdiction involved two elements, namely (a) that the worker was not fit for employment, and (b) that the cause of the unfitness was the injury. The applicant accepted that the worker was fit for his employment, in the sense that he was physically able to carry out the work (with a degree of accommodation), but only at risk of further aggravation of his injury. It was the obligation of the employer to avoid a risk of aggravating his existing injury which motivated its action. It was on this basis that it sought to treat the reference to "the injury" in s 244(2) as a shorthand for the composite phrase "not fit for employment as a result of the injury". In other words, the applicant said that if it could establish that the termination of the employment, despite being founded on the injury suffered by the worker, did not result from a belief that he was "not fit for employment", it had successfully rebutted the presumption and removed the precondition for the application for reinstatement. … 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 be 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. It may be readily accepted that the obligation to provide a modified job is subject to a test of reasonable practicality when an injured worker seeks reinstatement, as it is when undergoing rehabilitation (particularly given that the above provision would immediately become relevant once the employee was reengaged). Section 49 of the WIM Act should thus be borne in mind when considering s 243 and, in particular, s 243(3). In that respect, consideration of what employment an employer may reasonably make available must be based on what is, in fact, available at the workplace (as opposed to an obligation to create jobs or to employ people in unproductive roles) and must draw attention to, inter alia, the economic constraints on employers. 1. Finally, a reinstatement order is discretionary and "one should not construe the legislation as mandating a requirement on the Commission to make an order, even if the relevant facts are satisfied" (see Cansino at [12]). In this case, the Commission should not exercise its discretion to provide a remedy to an applicant who has brought two inconsistent claims in different forums. The "fundamental contradiction" between the case brought by the applicant in these proceedings and that advanced in the WCC, particularly with respect to the applicant's assertions as to his fitness to return to his pre-injury role which are "completely at odds" with his claim for damages in reliance upon suffering significant impairment as a result of his injuries, stands against the Commission exercising its discretion in his favour.

Is the applicant fit for work as a storeman, subject to a lifting restricting of 22.5 kilograms, at the respondent's Wetherill Park warehouse?

1. Whilst the parties placed some dependence upon the evidence of the applicant and Mr O'Hara in this respect, reliance was primarily placed upon the opinions of medical practitioners and allied health professionals in the form of reports or certificates produced in relation to these proceedings or in WCC proceedings. (As earlier mentioned, I will return to the relevant aspects of their evidence as it bears upon this question.)
2. A preliminary observation should be made in relation to these reports and certificates. No viva voce, expert evidence was led from any medical practitioner or allied health professional. In the result, the Commission must resolve the question of fitness without the capacity to evaluate apparent conflicts or inconsistencies in such evidence by expert testimony. It is in that relatively unsatisfactory context that a determination must be made as to whether the Commission is satisfied that the applicant is fit, in the case of his primary contention, for employment as a storeperson at the Wetherill Park warehouse of the respondent, subject to a lifting restriction of 22.5 kilograms (or, as in the alternate case brought for the applicant, whether he is fit to perform the duties of a forklift driver or the other tasks that he contends he is fit to perform at the warehouse, noting that a question has arisen as to whether the specification of particular tasks fits within the meaning of "kind of employment" for the purposes of s 243 of the WC Act).
3. For completeness, I note that neither party applied for the Commission to refer any dispute as to fitness for employment to an AMS pursuant to s 245(1) of the WC Act. In the absence of such an application, or accompanying submission as to just how such a procedural step may be accomplished in law, I consider such a referral to be inappropriate.
4. In Bindaree Beef, Basten JA expressed reservations as to the operation of s 245 of the WC Act as follows at [101]: … Somewhat curiously, if there be 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.
5. 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)).
6. The evidence from medical and other health professionals as to the applicant's fitness falls into two distinct periods. The first concerned his capacity for work in various positions at the warehouse throughout the period of his employment up to the point of his dismissal as an injured worker for lack of fitness for employment as a storeperson. Naturally, those reports concerned the capacity of the applicant to return to work, when injured, or to perform various work upon his return, after rehabilitation and/or recovery. Some of those reports sustained the applicant's initial claims in the WCC. The ultimate medical reports in this period featured in the employer's decision to dismiss the applicant.
7. The second class of medical and other health professional reports concerned reports prepared for the purposes of workers compensation proceedings or the present proceedings
8. The history of those reports is set out in detail earlier in this decision. A brief overview will assist in the development of these considerations.
9. The applicant commenced employment with the predecessor to the respondent in 1992. He sustained a compensable back injury on 12 October 2005 which rendered him unfit for work until 19 February 2007. On 17 April 2007, he received a fresh work injury to his right shoulder and aggravated his pre-existing back injury. From May 2007, he returned to work with significant restrictions as to his movement and capacity to lift weight.
10. In June 2009, the applicant was reviewed on the second occasion by Dr Patrick (who saw him for the first time in October 2006). The doctor was concerned only with the applicant's work-related back injury and, in particular, the continuing symptoms associated with both thoracic and lumbar spine. The doctor opined that the applicant was "now permanently incapacitated for the full range of his pre-injury duties". Further, the doctor considered that he was permanently incapacitated for physical work involving heavy lifting, carrying, frequent bending, prolonged stooping, working in awkward situations or work involving being on his feet for long periods of time. The doctor also noted that the applicant could only sit for 45 minutes at a time.
11. It is important, as the applicant emphasised, to distinguish in considering medical reports of this kind between opinions expressed as to impairment in the case of proceedings for compensation and reports concerning capacity. There is no doubt that Dr Patrick ultimately reached conclusions as to impairment, but the findings to which I have referred plainly involve a consideration, upon the examination of the applicant, of his capacity to work. Dr Patrick made no observations as to lifting restrictions in that report.
12. In July 2011, Dr Crocker, whose speciality was in occupational medicine, issued a MAC which, for the purposes of proceedings under the WC Act, concerned an assessment of degree of permanent impairment. The doctor undertook a physical examination of the applicant and directed his attention to the thoracic and lumbar spine. The doctor reported the applicant as having chronic pain referrable to those areas of the body and a disc bulge at T7/8 level. Mild disc protrusions are also reported at L4/5 and L5/S1 levels. The doctor expressed various opinions as to WPI.
13. Dr Patrick reviewed the applicant again on 22 September 2011, but on this occasion the assessment was made with respect to his shoulder injury. The doctor opined that the applicant would remain on "permanent restricted light duties for life", noting, however, that this was "partly because of his previous back injury".
14. On 9 January 2012, Dr Gore responded to a series of questions from On Track as to the applicant's back injury. The doctor stated that the applicant would not return to his pre-injury position as a storeperson due to "ongoing pain and limitation of movement" citing both his back and shoulder injuries.
15. A supplementary set of questions was sent by On Track with respect to the applicant's medication. Dr Gore replied on 18 April 2012 to the effect that the applicant would require the medication for the rest of his life and that he should avoid using or operating heavy machinery, although he could drive. The doctor confirmed that, as a result of his back injury, the applicant was not to lift over five kilograms, run, jump, climb stairs, stand or sit for periods exceeding 30 to 40 minutes, or engage in repetitive back bending.
16. It is evident from the above medical evidence that the applicant was severely limited in terms of his capacity for work as a result of his back injury. His doctors were, at that time, certifying that those limitations would continue into the future.
17. As at 18 June 2012, however, the applicant was certified fit to "return to full duties" with respect to his shoulder injury by Professor Murrell.
18. Upon the above evidence, and the reasons for dismissal advanced by the respondent, the applicant was terminated solely in consequence of the limitations arising from his back injury rather than his shoulder injury.
19. There was a range of evidence from medical and other health professionals which was issued after the applicant's termination. Of central importance, in that respect, was the 6 May 2013 report of Dr Gore upon which the applicant relied in the present proceedings. That report was written some 12 months after the report to On Track which was a precursor to the applicant's dismissal. There is plainly a divergence between the two opinions expressed by Dr Gore as to the capacity of the applicant which he attempted to explain in his report of 6 May 2013. I will return to this explanation later in this analysis.
20. Numerous other reports (earlier referred to in this decision) were received during the post termination period upon which the parties variously relied in support of their contentions as to the applicant's capacity for the kind of work that he sought in his application. I will consider those reports, chiefly those of Drs McKechnie and Rogers, by reference to the abovementioned report of Dr Gore.
21. I pause at this juncture to note that the applicant contended that the assessment as to capacity is to be made at the time of the application, but the appropriate time is at the time of the determination made by the Commission based on the evidence before the Commission both in the form of reports or opinions and as to other evidence bearing upon the capacity of the applicant: see Bell at [28].
22. Having considered the evidence advanced in the proceedings, I am not satisfied that the applicant is fit for the work of a storeperson at the respondent's warehouse, even with a lifting limit of 22.5 kilograms as sought in his application. I have reached that conclusion for the following reasons: 1. The medical and allied health professional reports in evidence before the Commission supporting a conclusion that the applicant is fit for work as a storeperson with a lifting restriction of 22.5 kilograms, when properly analysed, must be treated with significant caution as to the opinions expressed to that effect for work at the respondent's warehouse in Wetherill Park. In particular, the report of Dr Gore upon which the application centrally relied cannot, in my view, be accepted as unequivocal verification that the applicant was fit for that employment due to the following factors: 1. Upon proper analysis, the report of Dr Gore (as well as the of Dr McKechnie upon which it was based) must be understood as confined to a certification that the applicant can lift up to 22.5 kilograms in a static lift (in conformity with the description of the subject duties provided by the applicant). The reports of Dr Ting, Ms Gurie and Mr Borges, which are variously referred to in the reports of Drs Gore and McKechnie, are attended by the same limitation. 2. In any event, the reports as to a lifting capacity of 22.5 kilograms are attended by qualification which should prevent an unequivocal acceptance that the applicant is fit to lift that weight in the respondent's warehouse. 3. Dr Gore does not satisfactorily explain the swift and significant shift in his medical opinion post termination. 1. The evidence in favour of the applicant's capacity, such as it is, is contradicted by other medical evidence produced in or in association with workers compensation claims or the applicant's rehabilitation which suggests that the applicant is not fit to perform the work of a storeperson at the respondent's warehouse and, further, that an attempt to undertake such work may aggravate the applicant's back injury. Some of that evidence post-dates the medical reports relied upon in support of the application. 2. The evidence given by the applicant during the course of cross-examination and, in particular that going to his claims in the WCC, is also supportive of a negative conclusion being formed as to his being fit for work as a storeperson at the respondent's warehouse in Wetherill Park with a lifting restriction of 22.5 kilograms.
23. I shall elaborate upon these reasons below, commencing with factor (a) underpinning the first of these reasons.

Caution as to Medical reports advanced by the applicant in support of his fitness for work

The Reports of Drs Gore and McKechnie

1. Although the respondent couched its submissions as to the report of Dr Gore in fairly circumspect terms, it was tolerably clear that the thrust of the contention was to the effect that the opinion expressed therein was constructed in order to aid reinstatement. That contention arose in part from what were said to be irreconcilable inconsistencies in the medical and allied health professional reports. I will return to the significant shift in the opinion of Dr Gore and the contrary opinion as to the applicant's fitness expressed by other doctors in expanding upon factor (c) of my first reason and my third reason below which respectively accept there is substance in the respondent's submission as to irreconcilable inconsistencies (via Dr Gore's report) and cogent contradictory evidence as to the applicant's fitness to work as a storeperson in the respondent's warehouse, such as the reports of Dr Patrick.
2. However, I do not consider the reports of Dr Gore of 6 May 2013 and Dr McKechnie of 6 February 2013 upon which the applicant depended may either be dismissed as mere constructs at the behest of the applicant or declared entirely irreconcilable with other medical opinion, particularly that of Dr Rogers.
3. As will be developed below, however, some reconciliation derives from the fact that, when properly analysed, the report of Dr Gore only addressed the applicant's capacity to perform a vertical lift in a controlled environment with the load kept close to his body. Dr Gore's report does not, in that sense, concern the applicant's capacity to lift up to 22.5 kilograms in the specific vocational setting of the respondent's warehouse (despite the broad statement certifying to that capacity in the report). In fact, as Dr Rogers is the only medical practitioner to report upon capacity in that context (to which I will later turn), the apparent inconsistencies, to a large degree, dissolve.
4. The 6 May 2013 report issued by Dr Gore prima facie confirmed the proposition that the applicant was fit to perform the duties of a storeperson at the respondent's warehouse in Wetherill Park. However, as I will find, the certification therein does not, in substance, operate in that manner as it was predicated upon a lifting restriction which was, in itself, confined by a particular premise or circumstances (which is dealt with in detail below).
5. In his report, Dr Gore answered the question "Can Mr. Robson now safely perform all of the duties of a store person?" in the affirmative, by reference to a "physiological weight limit" of 22.5 kilograms. His affirmative response appears to have been based entirely upon the fact that the applicant had "been cleared" by Dr McKechnie to lift up to 22.5 kilograms (assuming, it would seem, that that lifting capacity would enable the applicant to perform all of the duties of a storeperson).
6. In order to properly analyse the report of Dr Gore it is necessary to examine the foundation for the opinion expressed therein. As noted above, Dr Gore relied on the opinion of Dr McKechnie, but he also cited the reports of Drs Rogers and Ting, Mr Borges and Ms Gurie. (The doctor also relied upon Professor Murrell in relation to the applicant's shoulder which is not relevant for present purposes.)
7. The reports of Drs McKechnie and Rogers are of critical importance (although I will also discuss the aforementioned reports made by allied health professionals during the course of my analysis of those opinions). Although those reports appear to present a similar conclusion as to the applicant's capacity, the respondent focused upon the report of Dr Rogers as demonstrative of inconsistency. Whilst there is inconsistency in those reports, it arises, as noted above, in consequence of the predication of the reports upon different frames of reference or premises (rather than direct conflict as contended by the respondent).
8. It is necessary, at this juncture, to explain those frames of reference. Two types of lifting are discussed in the aforementioned reports: first, straight vertical lifts performed in a controlled environment with the load kept close to the body (in accordance with strict occupational health and safety lifting techniques) and, second, lifting in the nature of manual handling where the load cannot be kept close to the body (which, as Dr Rogers noted, may be "due to the shape of the object or due to the need to reach while lifting"). For convenience, the former shall be hereafter referred to as 'static lifting' and the latter 'dynamic lifting'. Dr Rogers stated that the circumstances of dynamic lifting, particularly reaching and bending, occasioned a significant increase in the biomechanical load on the applicant's spine. None of the evidence before the Commission challenged her report in that respect, although, as I will discuss, the applicant submitted that his work as a storeperson at the respondent's warehouse did not require him to undertake lifts adopting such procedures (which I will reject below).
9. Both Drs McKechnie and Rogers certified that the applicant could lift 20 kilograms in various static lifts up to shoulder height (Dr McKechnie raised that limit to 22.5 kilograms in his third report). That was also the basis for the aforementioned allied health professional assessments which underpin the report of Dr McKechnie and are cited by Dr Gore. However, upon proper analysis, Dr Rogers' report may be contrasted with those reports, including that of Dr McKechnie, as she significantly circumscribed that lifting restriction in the context of the dynamic lifting required in the respondent's warehouse (having undertaken an independent functional assessment of the applicant as well as an assessment of the subject workplace). The reports of Dr McKechnie (and the allied health professionals) do not consider the applicant's lifting capacity for a dynamic lift.
10. Before embarking upon an analysis of those reports, it is important to make two further preliminary observations.
11. First, the aforementioned reports relied upon by the applicant invariably predicated their analysis of capacity upon whether the applicant had the capacity to lift 20 kilograms (the third report of Dr McKechnie dealt with the matter in a slightly different way as discussed below). There can be little doubt that the tests were hinged upon that weight range based upon the report provided by the applicant that he required that level of physiological functionality in order to return to work as a storeperson in the respondent's warehouse.
12. In that respect, the report of Dr Ting referred to a 20 kilogram lifting capacity expressly on the basis of the description of the duties of a storeperson as reported by the applicant. That is, the applicant reported that he was only required to lift up to 20 kilograms to perform the duties of a storeperson (and was not required to do so on a constant or continuous basis). The applicant also reported that his duties only required him to lift up to 20 kilograms 20 per cent of his working day in the most extreme situations.
13. Whatever may have been the applicant's expectation, in that respect, the capacity to lift 20 kilograms was not, on the evidence, sufficient to undertake the full range of duties of a storeperson. In particular, it is inconsistent with the reports of On Track and Dr Rogers which demonstrated that items weighing in excess of 20 kilograms were stored in the warehouse and lifted by storepersons and that some of those items weighed up to 55 kilograms, thus exceeding that lifting restriction, even if lifted by two storepersons.
14. Secondly, as noted above, the applicant asserted in his affidavit that, contrary to the Task Analysis Report of On Track, the position of storeperson in the respondent's warehouse did not require a worker to "bend to reach into where the stock is located" in order to perform the required lifts. (It may be noted that Dr Ting reported that the applicant stated that he was not required to perform lifts in "confined spaces or awkward positions" as I will later discuss.)
15. The applicant's conviction that no dynamic lifting was involved in the work of a storeperson at the respondent's warehouse was maintained in the evidence in the proceedings, even with respect to the performance of pallet picking duties.
16. The evidence in these proceedings revealed that it was inherent in the duties of a storeperson engaged in pallet picking that lifts were undertaken whilst bending (which is incorporated into the expression 'dynamic lifting' to which I earlier referred). That may be contrasted to a static lift which, in those circumstances, cannot readily be transferred to an environment of manual handling.
17. As to that issue, Dr Rogers, in particular, reported that bending was a necessary element of the position of storeperson due to the layout of the warehouse and the nature of the items stocked. That view was again in conformity with the report of On Track and, in addition, the evidence of Mr Sprod who opined that bending and reaching were part of a storeperson's role.
18. As noted above, the applicant disputed the evidence from the report of On Track in that respect (stating that he did not agree with their assessment that workers may have to bend to reach into where stock is located when performing the duties of a storeperson). Although he was not cross-examined on that evidence, it is difficult to accept for a number of reasons. Firstly, there is no reason that On Track would have been in error about that, and only that, element of its functional analysis of the respondent's warehouse. Secondly, the requirement of bending was confirmed by the report of Dr Rogers (who observed the work firsthand), which the applicant did not challenge in that respect. Thirdly, the applicant's evidence did not, in general terms, withstand rigorous testing.
19. As to the last reason, it should be noted that the applicant was an argumentative and evasive witness. In cross-examination, he often avoided answering the questions asked and was at times illogical or inconsistent in the answers that he did provide. For example, he sought to explain away inconsistent medical evidence by confining it to his shoulder injuries or his impairment when non-medicated. I accept that he harbours a commitment to return to work, but he was plainly acting, in his evidence, as a protagonist in his own case.
20. I turn now to the third report of Dr McKechnie (referenced by Dr Gore on 6 May 2013).
21. Whilst Dr McKechnie saw the applicant on 4 February 2013, he does not seem to have based the opinion expressed in his subsequent report on any physical examination of the applicant but rather, in my view, upon two external sources and, more indirectly, upon his second report.
22. As to the first source, Dr McKechnie stated that the applicant was lifting 20 kilograms at "the physiotherapist without trouble". That seems to be a reference to the applicant's attendance upon ASAP Physiotherapy and, in particular, the 3 December 2012 report of exercise physiologist Mr Borges, in which he discussed the applicant's capacity to lift a 20 kilogram weight. It is plain that that testing was done on his capacity to perform static lifts as the "supervised work related activity sessions" described by Mr Borges include only repetitions of 20 kilogram lifts of various heights (from floor to chest height being the maximum). There was no discussion of dynamic lifting capacity in Mr Borges' report.
23. As to the second source, Dr McKechnie's report also referred to "an occupational health assessment by a physician". It appears that this was a reference to the assessment undertaken by Dr Rogers, as she was the only physician who undertook a detailed assessment of the applicant and the workplace proximate in time. (The only other report of a physician from that time in evidence before the Commission is the 28 September 2012 report of Dr Patrick. Dr Patrick reviewed the applicant for the third time on 17 July 2012, but the resulting report was medico-legal in nature and does not fit the description of the report referenced by Dr McKechnie. Further, Dr Patrick expressed the view that whilst the applicant's shoulder had improved, he had significant ongoing back symptoms in the thoracic and lumbar spine as well as a consequential limp in his left leg. As noted earlier, he opined that the applicant had 15 per cent WPI as a result of his back injury. He certainly did not clear the applicant to lift 20 kilograms.)
24. It may be recalled that Dr Rogers report conformed with the physiotherapy assessment in the sense that she opined that the applicant could lift 20 kilograms in a static lift, but she made clear that when undertaking dynamic lifting the load that the applicant was able to lift was significantly reduced and attended by other restrictions. If Dr McKechnie was referring to Dr Rogers' report it is not clear why he did not acknowledge (or recognise) the apparent discrepancy as to the nature of the lifting discussed by Mr Borges and Dr Rogers.
25. It is apparent that the third source of Dr McKechnie's opinion was his earlier (second) report. The third report is quite short and seems necessarily sequential in nature. Further, the doctor referred in the context of his certification of 22.5 kilograms to that estimate of capacity as being "only a 10% increase". Clearly, he was referring to an increase over the prior clearance of the applicant to lift 20 kilograms in the second report.
26. The second report, or, more particularly, the foundations upon which it was based, must be seen then as underpinning the opinion formed by Dr McKechnie in his third report.
27. Before turning to an assessment of the second report, however, it must also be noted that the third report was subject to a substantial qualification as to the applicant's capacity to lift 2.5 kilograms above 20 kilograms which is the second factor necessitating a cautious approach to Dr Gore's report. In his report Dr McKechnie suggested that he was pressed to increase the applicant's lifting restriction to 22.5 kilograms from his prior certification of 20 kilograms. It is evident that the doctor was reluctant to do so. The highest he would state was that the applicant could "attempt" to lift that weight but should initially be observed by a therapist in a controlled environment. If the applicant was able to do that, it was said that the lifting restriction could increase to 22.5 kilograms but Dr McKechnie was "adamant that is should increase no further". There is nothing in the evidence to suggest that the applicant did undertake such attempts to lift 22.5 kilograms in a controlled environment with a therapist. Thus, the significant qualification upon which Dr McKechnie's certification was based has not been met.
28. In the second report, Dr McKechnie made a broad statement as to the applicant's capacity, namely, that he could "perform all duties as described as a store person with [the respondent]". As earlier mentioned, that opinion seemed to be predicated upon the applicant's assessment of what capacity was required for storepersons at the respondent's warehouse and, of course, the doctor's assessment that he could lift 20 kilograms.
29. The evidence in these proceedings reveals that, even if the applicant could lift 20 or 22.5 kilograms, the doctor's opinion was an overstatement, given the lifting requirements in the respondent's warehouse. However, given that the present application was subject to a lifting restriction of 22.5 kilograms that flaw would seem to be of little consequence. (For completeness I observe that, to the extent that the application purports to seek relief upon the basis that the applicant could "safely perform all of the duties of a storeperson" (that is, without any lifting restriction) it must be refused as, on the medical evidence, he is not fit to lift all weights, even with assistance, in the respondent's warehouse.)
30. Hence, the question arises 'what was the basis for the opinion formed by Dr McKechnie in his second report?'.
31. Dr McKechnie did not state that his opinions were based upon an examination or observations of the applicant. Rather, it was evident that his opinion was derived from his receipt of a report concerning a "functional capacity evaluation" that had been undertaken, which Dr McKechnie stated confirmed that the applicant was "able to safely lift 20 kilograms on an intermittent basis". Although Dr McKechnie did not specifically identify the author of that evaluation, it may be inferred, given the timing and the content thereof, that it is a reference to the aforementioned report of Dr Ting.
32. Hence, Dr Ting's report was, in essence, the foundation for the opinion expressed in Dr McKechnie's report. That report, as I will develop below, was, as earlier mentioned, devoted to performing a static lift assessment.
33. It follows that Dr McKechnie's second report, and by logical connection his third report, is, when properly analysed, attenuated by its dependence upon such functional assessments. That conclusion must undermine the veracity of the report as a means of attesting to the capacity of the applicant to lift in the respondent's warehouse because, as I have found, the work of a storeperson in the respondent's warehouse involves dynamic lifting. Dr Rogers' report reveals how this degrades the lifting capacity of the applicant or, more specifically, his fitness to carry out the work so described.
34. The following aspects of Dr Ting's report confirm that the certification therein was made with respect to static lifting: 1. Based upon his assessment the applicant was "able to carry 20kg close to his body for short distances" (of further interest, it was noted that "his hands shook when he held the weight out in front of his body"). 2. Dr Ting recorded that the applicant stated that a storeperson "was not required to lift in confined spaces or awkward positions involving the trunk and the shoulders". 3. The functional testing performed by Dr Ting was described as "repetitive bilateral lifts of 20 kg from floor to chest level". 4. Dr Ting did not record any functional testings which required the applicant to perform activities such as lifting whilst bending or reaching.
35. It should be observed that the frequency by which the applicant could lift 20 kilograms as opposed to absolute physical capacity to do so is not particularly relevant in this context as the question is whether the applicant is fit to engage in the employment sought via his application. That must mean the applicant should be fit to lift the weights in question in the circumstances in which they are required to be lifted in the workplace. It might be noted, however, that Dr McKechnie, in apparent conformity, it would seem, with Dr Ting, only cleared the applicant to lift that weight occasionally. (It was not explained why Dr McKechnie replaced the term "occasional", which Dr Ting employed to describe the frequency with which the applicant could safely lift 20 kilograms, with "intermittent" and what, if anything, that alteration meant.) That assessment by Drs McKechnie and Ting would not seem to sit comfortably with the applicant's own assessment that he would be required to lift 20 kilograms for one fifth of the time he worked as a storeperson.
36. The above described limitations do not infect the report of Dr Rogers.
37. In substance, Dr Rogers' contemporaneous report as to the applicant's fitness to perform the duties of a storeperson at the respondent's warehouse is uncontradicted as it is the only assessment by a medical practitioner which is predicated upon an assessment of capacity based upon the actual duties performed in the respondent's warehouse.
38. Dr Rogers shared the view that the applicant could lift 20 kilograms in a controlled environment, yet she contextualised that opinion by noting that, in the circumstances of manual handling (such as that which forms part of the duties of a storeperson in the respondent's warehouse), a limit of 10-15 kilograms "may be reasonable". Alternatively, the doctor suggested that the applicant could undergo further functional assessments designed to test his ability to perform such manual tasks on a repetitive basis as he would if performing the duties of a storeperson in the respondent's warehouse. Although it was not specified whether such an assessment would be required to take place in the respondent's warehouse or in a controlled environment, it was clear that they would need to focus upon dynamic lifting in the nature of the work undertaken at that workplace. As a result, Dr Rogers certified, in effect, that the applicant could not perform work as a storeperson in the respondent's warehouse at Wetherill Park with a lifting restriction of 20 kilograms (or higher).
39. In my view, Dr Rogers' estimate of the appropriate lifting limitations of the applicant should be preferred both because she was the only physician to make an assessment which tailored or adapted to the subject workplace and because her views are entirely consistent with other concurrent reports, to which I will turn shortly.
40. It may be emphasised, in light of the above discussion, that, contrary, perhaps, to the submission of the respondent, I do not wish to suggest that Dr Gore was doing anything other than using his medical expertise professionally in order to provide the report sought by the NUW in light of, inter alia, the self-reporting of the applicant of the duties performed by storepersons at the respondent's warehouse. Rather, the analysis simply undermines the reliability of his medical opinion in the circumstances where the Commission is required to evaluate whether the applicant is fit for the kind of employment which he has elected in his application, a consideration which necessarily entails such an assessment being made against the background of the actual work environment in which the work in question will be performed.
41. That necessarily leads to an important additional consideration arising from Dr Rogers' report as to the applicant's fitness to return to work as a storeperson at the respondent's warehouse subject to a lifting restriction of 22.5 kilograms. In Dr Rogers' report she expressed the view that the applicant would present "a significant risk of aggravating his back injury if he is lifting and reaching /bending at the same time", which, as noted above, was "a requirement at this workplace". The doctor also found there would be a risk to others if the applicant was unable to bear the necessary load in a two-man lift (noting that some items in the warehouse exceed his lifting limit even if lifting with a colleague).
42. That evidence raises significant occupational health and safety risks in regard to the applicant's medical restrictions in the context of performing the duties of a storeperson subject to a lifting restriction of 22.5 kilograms in the respondent's warehouse at Wetherill Park. The suggestion that the applicant would be at risk of re-aggravating his injury if he returned to work must be taken into account in considering "whether the worker is fit for the kind of employment in question" (see Bindaree Beef at [65]), particularly in circumstances where the medical evidence purporting to certify the applicant as fit for work must be doubted in the subject vocational setting. In that respect, Dr Rogers' lower estimation of the appropriate lifting restriction and her evidence as to the requirement of bending in the warehouse takes on heightened significance.
43. For completeness, two other reports which were advanced in support of the applicant's contention that he is fit to return to employment as a storeperson with the respondent suffer from a similar limitation.
44. First, the 8 August 2012 report of Ms Gurie stated that the applicant had the functional ability to perform the duties of a storeperson. However, as Ms Gurie expressly noted, that conclusion was based upon the applicant's description of the relevant duties. In that context, Ms Gurie certified that the applicant could lift 20 kilograms on an occasional basis and 15 kilograms on a frequent basis. That certification, whilst broadly conforming to the lifting capacity attested by Drs Gore, McKechnie and Ting was, in substance, more consistent with the report of Dr Rogers for two reasons. First, given that the applicant estimated that some 20 per cent of lifting undertaken by a storeperson was in the higher weight range, it would seem that Ms Gurie's certification was, in truth, to the effect that 20 kilograms was not suitable in the respondent's workplace and that the 15 kilogram limitation may have been more applicable. Secondly, Ms Gurie noted that bending could aggravate the applicant's back injury. She did not, therefore, certify that the applicant could safely lift up to the stated lifting capacity in the context of dynamic lifting. Thus, Ms Gurie's report reflects the distinction between static and dynamic lifting identified in the above analysis and must be understood, in conformity with the aforementioned reports of Drs Gore, McKechnie and Ting, as an attestation of the applicant's capacity to perform a static lift of up to 20 kilograms in a controlled environment.
45. Secondly, on 19 March 2013, Mr Jason Connelly of ASAP Physiotherapy issued a report which stated that the applicant had the demonstrated capacity to lift weights up to 20 kilograms from floor to shoulder height in supervised sessions. Mr Connelly stated that he understood that weight to represent the "required lifting capacity of his pre-injury role". Again, it is clear that that conclusion was based upon the applicant's description of that role. Thus, Mr Connelly's report does not take the evidence higher than certifying that the applicant can lift 20 kilograms in a static lift in a controlled environment.

A shift in the medical opinion of Dr Gore

1. Before discussing the reports which support the conclusions of Dr Rogers (which actually post-date those of Drs Gore and McKechnie), I must address the third factor necessitating a cautious assessment of Dr Gore's report, namely, the earlier reports of Dr Gore which stand in contrast to the subject report and the doctor's failure to satisfactorily account for the substantial and swift change in his opinion.
2. The second question posed by the NUW in Dr Gore's 6 May 2013 report was "Why did you inform On Track Injury Consulting on 18 January 2012 that Mr. Robson will never return to his pre-injury position?". It is plain that the doctor was asked that question given his earlier (and, at that time, recent) reports of significant ongoing restrictions which were inconsistent with the application.
3. Those inconsistencies were also underlined by medical certificates issued by Dr Gore prior to and immediately after the applicant was terminated which, within a space of less than one month, shift from a 5-7 kilogram lifting restriction on 25 June 2012 to a 20 kilogram lifting restriction on 9 July 2012 with respect to his back injury (the latter citing the removal of shoulder injury restrictions by Professor Murrell). The doctor also issued a 'final' WorkCover certificate on that date which stated that the applicant was fit for pre-injury duties.
4. Dr Gore advanced two related explanations for the changes in lifting (and movement) restrictions occasioned by his 6 May 2013 report (the second partly in elaboration of the first).
5. First, Dr Gore stated that his earlier view was based upon the applicant's clinical condition at the time and the very slow progress he experienced. That explanation did not, however, satisfactorily describe how or why the "slow progression" altered with resultant significant improvement in less than six months.
6. There was evidence in the proceedings which disclosed that the applicant was attending upon a physiotherapy clinic and engaging in stretching to assist with "symptom management". However, it was not suggested that such exercises caused the applicant's apparent rapid improvement, nor could it be readily accepted that they would, in all of the circumstances, resolve his back injury as described by physicians such as Dr Patrick. Nor was there evidence of other rehabilitative steps which may explain that improvement.
7. Of further concern is that to the applicant made claims in the WCC after the termination of his employment to the effect that he continued to suffer from significant impairment due to his back injury (to which I will return later).
8. Dr Gore's second reason, namely, that at the time of his earlier report the applicant was not yet fit for pre-injury duties due to his shoulder injury, does, on its face, go some way to explaining the change. In essence, the applicant's shoulder injury was said to have been impacting upon his recovery from his back injury. However, that explanation is difficult to reconcile with his previous reports, given that Dr Gore's January report, for example, was predicated upon the applicant's back injury and made no mention of his shoulder injury.
9. The applicant's second shoulder operation occurred in December 2012 and he had made a full recovery according to Professor Murrell by June 2013. At no point until June had the shoulder injury been identified as the basis for incapacity, other than as a result of aggravating the applicant's back injury. All of the WorkCover certificates issued by Dr Gore in evidence from January up until June, for example, expressly concern the applicant's back injury. The 9 July 2012 certificate of Dr Gore states that the applicant should "avoid repetitive back bending work", which suggests that the back injury continued to present problems for the applicant. Further, as noted above, Dr Patrick continued to report severe back limitations even after the shoulder injury had been resolved.
10. It may be accepted that the resolution of the applicant's shoulder injury would result in an improvement in his capacity to perform the work of a storeperson. However, the certification that his shoulder had healed in June 2012 does not satisfactorily explain the apparent resolution of the applicant's back injury a short time later such that the applicant was able to resume the full duties of a storeperson at the respondent's warehouse subject to a lifting restriction of 22.5 kilograms, particularly as the applicant's back injury was consistently reported by his physicians (both before and after the report) as more severe, at least in terms of WPI. It may also be noted that neither of the reports of Drs McKechnie and Ting, upon which Dr Gore's report was based, addressed or explained the apparent rapid progression of the applicant.
11. The above discussion represents the reservations that I have about the report of Dr Gore upon which the applicant relied. In summary, the report was predicated upon the applicant's description of the duties of a storeperson at the respondent's warehouse, which were inaccurate in regard to the required lifting capacity and the requirement of bending, such that the certification therein must be confined to a certification of lifting the stated weight in a static lift, the lifting capacity certified by Dr McKechnie which was adopted by Dr Gore was subject to substantial qualification, and the doctor did not satisfactorily explain the swift and significant shift from his previous medical opinion.
12. One final piece of evidence was advanced by the applicant to support his contention that he was fit to perform the work of a storeperson at the respondent's warehouse. The applicant gave evidence to the effect that he currently suffered "no pain whatsoever" when he was medicated. I do not accept that evidence. It will be recalled that I found the applicant to be an unreliable witness. Such is the case in this context, as the substantial body of medical evidence which I have outlined above, much of it describing the applicant's reports of his pain, casts doubt upon his assertion in that regard.

Contraindicative Medical Reports

1. I turn now to the second reason that I have formed the view that the applicant is not fit for the work to which he applied to be reinstated, namely, the substantial body of evidence tendered in these proceedings to demonstrate that the applicant was not fit to perform the duties of a storeperson at the respondent's warehouse.
2. I will not repeat the above consideration of the report of Dr Rogers, save to emphasise that, upon that analysis, that report stands against reinstating the applicant to work as a storeperson with the respondent. Further, it should be noted that, although the report was issued before the subject reports of Drs Gore and McKechnie, it was authored after the applicant's shoulder was cleared by Professor Murrell and Dr Gore.
3. The report of Dr Patrick, dated 29 July 2013, was the fourth that he issued since June 2009. In that report Dr Patrick concluded that the applicant had a "significant ongoing permanent partial work incapacity in that he is not fit for work of a physical/manual nature which involves heavy lifting/carrying, frequent bending, prolonged stooping or working in awkward situations". The doctor recommended that the applicant would be fit for "suitable lighter preferably part time work in a sympathetic work environment, not involving, or minimising abovementioned activities". As a result, Dr Patrick opined that the applicant could lift up to 10 kilograms, but that 8 kilograms would probably be more appropriate, and that no weights should be lifted above shoulder height. Dr Patrick suggested that "with his ongoing significant symptoms and permanent restrictions [work options and opportunities] will be very limited". Consistently with his previous report, Dr Patrick opined that the applicant had 15 per cent WPI as a result of his back injury.
4. The most recent medical report in evidence before the Commission was, as noted above, the MAC issued by Dr Holman on 30 September 2013. Although that report was concerned with determining the applicant's impairment, rather than incapacity, and must, therefore, be viewed in that light, it is nonetheless significant. I note, in that regard, the importance of MACs for the purposes of the WIM Act (see s 326).
5. Dr Holman recorded that the applicant reported constant pain in the thoracic and lumbar spinal regions, and intermittent pain radiating down his left leg, which had continued with no significant change in the last three to four years. That pain was said to be aggravated by activities, particularly bending. The ongoing symptoms prevented the applicant from engaging in domestic duties such as vacuuming or washing, as he could no longer carry "a full basket of wet washing". Dr Holman assessed the applicant to have 16 per cent WPI on the basis of his back injury which was said to occasion "permanent aggravation of pre-existing degenerative changes" in the thoracic spine. It should be emphasised that the report was also made after the applicant's shoulder injury was resolved (and, indeed, acknowledges the same).
6. A further issue in the evidence before the Commission should be noted. The most recent WorkCover certificate of capacity provided by Dr Gore in these proceedings does not certify that the applicant is fit for pre-injury duties per se. Rather, it states that the applicant "has capacity for some type of employment", citing the "physiological limit of lifting 22.5 kg". It is not explained if, or why, the doctor had resiled from the earlier view that such a restriction would allow the applicant to return to pre-injury duties.

Other evidence relevant to the question of fitness

1. The third reason that the Commission cannot be satisfied that the applicant is fit for work at the respondent's warehouse is, in my view, the evidence advanced by the respondent in support of its contention that the applicant was not fit for work. Chief amongst that evidence was that concerning the applicant's contentions in the WCC which does not sit comfortably with the proposition that he sought to advance in the present case.
2. Some allowance might be made for the fact that there is a tension between what was sought in those proceedings and the applicant's attempts to secure employment. However, it must be given some weight because of the glaring inconsistencies not explained in the applicant's evidence, namely, his assertions (both directly and via his lawyers) that he maintained permanent partial incapacities which were said to prevent him from returning to work with the respondent and, in fact, from working in other employment at the same time as he contended in these proceedings that he was fit for employment as a storeperson subject to a lifting restriction of 22.5 kilograms in the respondent's warehouse at Wetherill Park.
3. In the present proceedings, the applicant sought to explain the concurrent, and seemingly inconsistent, claims as relating to distinct periods of time. That is, the applicant contended that his other claims related exclusively to historical impairment, whereas the present application concerned prospective reinstatement. That explanation cannot be accepted as the applicant's claims for historical impairment were supported by contemporary medical evidence which also necessarily bore upon the question of his present capacity for work. That evidence, which suggested that the applicant remained unfit for work as a storeperson, is contraindicative of reinstatement under Pt 8 of the WC Act.
4. Mr Barwick also drew a distinction between impairment and incapacity in an effort to explain the contradictory proceedings. Whilst I agree, as the respondent conceded, that it is appropriate to draw a distinction of that nature, it is also correct that many of the reports of medical practitioners and allied health professionals before the Commission in these proceedings not only concern the applicant's impairment but also directly addressed consequential incapacity for work as a storeperson.
5. Reliance upon that distinction is further undermined by a pre-filing statement dated 18 July 2014 which Firths, the applicant's lawyers in the WCC proceedings, sent to the respondent's insurers which, under the heading 'Particulars of Future Economic Loss', stated that "the Plaintiff is permanently incapacitated for the type of employment he was undertaking with the Defendant". Thus, the applicant contended, very recently (and after he made the application in the present proceedings), that he was not only impaired but permanently incapacitated for the type of employment to which he is seeking reinstatement in the present proceedings.
6. Of course, the respondent is also running what is, in substance, a contradictory case in different proceedings. That may be seen to diminish the force of this factor. However, as the present proceedings are concerned with the question of the applicant's fitness for work with the respondent, it is the doubt cast upon his assertions of capacity by his WCC claims and the evidence advanced in support of those claims that is of particular concern to the Commission in this context. Additionally, it is not clear that the respondent contented that the applicant was fit to return to work as a storeperson with the respondent (as opposed to being fit to return to some form of employment with an alternative employer).
7. Also of concern is the applicant's departure from his work with Australia Post and his apparent prevarication about the reason for the same. As noted above, the applicant contended in the present proceedings that he left that work in order to seek other, more permanent employment. That evidence, like much of his other evidence, is attended by some doubt. It was directly contradicted by the abovementioned pre-filing statement, which stated that "as a result of his significant ongoing symptoms, the Plaintiff had no option but to give up his work with Australia Post on or about 30 May 2014", after some six months of working 18 hours per week.
8. In conclusion, for the foregoing reasons, namely, the evidence in support of the applicant's fitness must be viewed with caution, a substantial body of evidence suggests that the applicant is not fit and the applicant's statements in other forums attest to his incapacity, I am not satisfied that the applicant is fit perform work as a storeperson, subject to a lifting restriction of 22.5 kilograms, in the respondent's warehouse at Wetherill Park.

Is the Applicant Fit for Work as a Forklift Driver at the Respondent's Wetherill Park Warehouse?

1. I turn now to the applicant's alternative contention that he should be reinstated to the position of forklift driver (or provided forklift duties as described in the alternative application) pursuant to 243(2) of Pt 8 of the WC Act.
2. No medical evidence was advanced to directly address the applicant's capacity to operate a forklift. In particular, the 6 May 2013 report of Dr Gore does not attest to the applicant's capacity to be reinstated as a forklift driver.
3. It follows that, with respect to that component of the application, the applicant did not provide: 1. A medical certificate to the effect that he was fit for employment as a forklift driver with his employer application, or 2. subsequent medical evidence to attest to his fitness in that respect (either with the application or during the course of submissions).
4. Those considerations alone are fatal to this aspect of the application. However, for completeness, I shall briefly discuss some other elements bearing upon this question.
5. It appears that the only evidence before the Commission which may support the applicant's contention that he was fit for employment as a forklift driver was a letter from the respondent's insurer, Employers Mutual, dated 7 July 2014. In that letter Employer's Mutual adopted an assessment made by Procare on 26 November 2013 to the effect that the applicant had the capacity to perform work as a forklift driver (although that was not directed specifically to such employment at the respondent's warehouse). The assessment itself was not, however, in evidence before the Commission and the letter from Employers Mutual did not disclose the basis for the determination that the applicant could operate a forklift (save for noting that, at that time, the applicant possessed the requisite licenses). In any event, as noted above, the Commission must be satisfied on the basis of medical evidence that the applicant is fit for the subject employment (Cansino at 13(16)), not upon the basis of a non-medical assessment of that nature.
6. Further, I note that there is some medical evidence before the Commission which reflects adversely upon the applicant's fitness to operate a forklift.
7. First, the applicant has consistently reported difficulty with sitting, standing and driving for extended periods of time. The advice of Dr Gore on 18 April 2012, immediately prior to the applicant's termination, was that he was "Not to stand & sit for periods exceeding 30 to 40 mins". At no time was that limitation expressly removed or an explanation provided for the applicant's apparent improvement.
8. To the contrary, the applicant informed Dr Rogers in October 2012 that he could not sit down for more than 60 minutes at a time. More recently, Dr Holman recorded on 30 September 2013 that the applicant experienced "increasing back pain with prolonged standing and prolonged sitting". He reported that he could not drive for periods exceeding two hours. After that time, the applicant was said to develop "increasing back pain and stiffness" and had to "stop, get out and stretch". Those limitations were reflected in the pre-filing statement made in relation to a damages claim on 18 July 2014, which noted, inter alia, that the applicant had difficulty sitting for prolonged periods.
9. Although there was some variation in the amounts of sitting, standing and driving that the applicant was reportedly able to tolerate, it is clear from his pre-filing statement that some restriction remains current. In that context, it appears that the applicant would require significant modifications to the position if reinstated as a forklift driver, most obviously provision for taking regular breaks to relieve the increasing pain in his back. No evidence was advanced before the Commission as to how such modifications might be accommodated (although it is likely that any changes in work practice would have an effect on whether employment of that kind was available or could reasonably be made available).
10. In addition, it was not clear in the application, and was not clarified during the course of proceedings, whether the alternative duties sought were intended to be circumscribed by a lifting restriction of 22.5 kilograms or some lower limit.
11. Secondly, some issue was raised about the ongoing use of pain medications by the applicant in the context of driving and/or operating heavy machinery.
12. On 18 April 2012, On Track advised Dr Gore that the applicant had called in sick for work due to his medications preventing him from driving. In response to a series of questions about such occasions, Dr Gore stated that the applicant could drive but "should avoid heavy machinery". He stated that the applicant would probably require the medications for the rest of his life.
13. In his 6 May 2013 report Dr Gore stated that, although the medications used by the applicant are associated with drowsiness and poor coordination, the applicant has experienced "no reported episodes". Given the earlier reports of the applicant stating that he was unable to drive to work, that response is not strictly accurate. Nor could it be characterised as a direct response to the question asked of him, namely, whether the use of 'Jurnista' placed the applicant at an increased risk of accidents if he were to operate a forklift or other machinery.
14. In her 9 October 2012 report, Dr Rogers discussed the effects of the applicant's medication in considering whether he was fit to perform pre-injury duties and what risk would arise if he returned to that role. She noted as follows: Firstly Mr Robson is on Jurnista, which is a morphine derivative and has the potential to cause drowsiness. The patient information indicates that patients should not drive, operate machinery or do hazardous work until they are sure that they are not affected by drowsiness. …I am not aware of any studies which have specifically evaluated the effects of chronic opioid therapy on work safety, in particular safe operation of forklifts. Therefore I am not able to state with any certainty, based on the lack of evidence in the literature that Mr Robson would not be at increased risk of accidents if he continues to take Jurnista and operate forklifts and other potentially dangerous machinery.
15. In contrast, Dr McKechnie reported on 6 August 2012 that the medication that the applicant was taking at that time "should have no significant impact on his work capacity and safety". That report did not identify what those medications were.
16. Thus, the applicant's treating doctor, Dr Gore, and his neurosurgeon, Dr McKechnie, appear to share the view that his medication should not impede the safe performance of duties involving the operation of a forklift. However, it was only Dr McKechnie that gave the applicant a clearance that his medications should not impact upon his capacity to work (albeit attended by the qualifier "significant"). Drs Gore and Rogers, in contrast, expressed some reservations and both raise issues as to the risks associated with operating heavy machinery. In the absence of a clearer medical view, it seems to me that the applicant's medications pose a real barrier to him performing work as a forklift driver as their use may result in side effects which would expose the applicant and his colleagues to risks to their safety at work in the event that he was operating heavy machinery of that kind.

Is the Applicant fit for the Other Tasks to which he Applied to be Reinstated?

1. The applicant identified some other tasks to which he contended he could be reinstated.
2. Before considering his fitness for those tasks, however, it is necessary to make some introductory remarks as to the kind of employment to which an injured worker can seek to be reinstated under the WC Act.
3. The judgment in Cansino demonstrates that the expression 'reinstatement' in Pt 8 of the WC Act is a reference to the restoration of work, albeit modified by the form of the application. (Section 243(3)(b), in contrast, is concerned with employment of a kind not currently available at the subject workplace and "involves a consideration of the position of the employee in terms of physical capacity and underlying expertise, experience, qualifications etc., as well as the ability of the employer to make work of that kind available": Cansino at 14.)
4. It would strain the language of s 243 of the WC Act for the provision to be construed such that an applicant may be reinstated to something which constitutes no more than a mere element or component of what may represent a position or job in a particular workplace (including light duties in a particular area) such that the task or duty does not resemble a job or employment known at that particular workplace. The use of the expressions "fit for employment" in s 241(3), "employment of the kind" and "that kind of employment" in ss 241(3), 242(1) and 243(2) are distinct from "employment of a kind" under s 243(3)(b) which suggests that reinstatement pursuant to that provision may involve adjustment to the manner in which the employer conducts its undertaking and deploys its staff: Cansino at 14. However, reinstatement must nevertheless be meaningful reengagement within the position sought (namely, storeperson) within the employer's operations as connoted by the retention of the word "employment" in s 243(3)(b). In that sense, whilst an injured worker may seek to be reinstated to a modified position, that position must still constitute employment such that it comprises some combination of tasks which constitute the work of a storeperson, not merely individual elements thereof. (Thus, the medical evidence advanced in a case under Pt 8 of the WC Act may be meaningless unless cast in terms of employment, albeit in a modified form.)
5. Each task listed in the employer application was merely a component of the duties of a storeperson and cannot represent "employment" per se. Thus, regardless of his fitness, or otherwise, to perform the tasks listed in the employer application, the applicant could not be reinstated to that work under Pt 8 of the Act as it does not constitute employment for the purposes of s 243(3)(b).
6. In any event, no medical evidence was specifically directed to his capacity to perform the tasks listed. The Commission could not, therefore, be satisfied of his fitness for those duties.
7. Hence, for present purposes, even if it were accepted that the applicant would be fit for some of the tasks identified (at least if performed in a modified manner), which has not been demonstrated on the evidence, he could not be reinstated to the same under Pt 8 of the WC Act as they do not amount to employment for the purposes of that Act.

The Availability of the Employment to which the Applicant Applied

Application pursuant to s 243(2) of the WC Act

1. As earlier identified, the second issue which arose in the present proceedings concerned the availability of the employment to which the applicant applied or whether such employment could reasonably be made available by the respondent.
2. The applicant submitted that he was terminated not due to a lack of available work, but because the respondent was no longer willing to accommodate his restrictions. He brought evidence that the respondent continued to employ, at the date of hearing, a number of casual workers, and that workers sometimes performed overtime. It was contended that this indicated an "unwillingness" on the part of the respondent to reinstate the applicant, notwithstanding the availability of storeperson positions. The applicant noted, in that respect, that that the legislation provided no time limit for the provision of suitable duties by an employer.
3. I propose to commence this analysis with an assessment of availability under s 243(2) of the WC Act in conformity with the application. It may be recalled that the applicant did not seek reinstatement pursuant to s 243(3)(a) of the WC Act in the present proceedings since, as noted above, that provision acts as a counterpoint to s 243(2) in the context of the present application.
4. In that respect, the respondent contended that there were no storeperson positions currently available and, in particular, that work was not available to a storeperson with the applicant's lifting restriction due to the structure of the business.
5. The respondent contended that, as storepersons were employed to undertake any and all tasks required in the warehouse, the respondent did not have the capacity to reinstate the applicant as he could not perform all of those tasks and the respondent could not alter those arrangements to accommodate his restrictions. (That submission also, of course, answers the applicant's proposed alternative list of tasks which, as I have noted, did not amount to employment for the purposes of the WC Act in any event.)
6. The respondent relied primarily upon the evidence of Mr O'Hara in order to demonstrate that employment as a storeperson necessarily required the ability to perform all tasks in the warehouse and not simply the capacity to perform a selection thereof. Mr O'Hara stated, in that respect, that "every employee is required to do every task within the workplace". That was described by Mr O'Hara as "cross functional ability" and was said to be necessary for the efficacy, efficiency and cost competitiveness of its logistics operation within the business. That contention was consistent with some elements of the applicant's own evidence, whereby he reported undertaking a number of tasks in his pre-injury position as a storeperson, including forklift driving which he described as a "part" of that role. In any event, I accept the evidence of Mr O'Hara, in this respect, both because of the reliability of his evidence and because of its conformity with some of the medical or allied health professional evidence which described the operations of the respondent's workplace. Hence, the above description represents, to use the phrase adopted in Cansino at 14, "the manner in which the employer deploys staff in the context of the operations of the employer's undertaking".
7. It was clear on the evidence before the Commission that the applicant could not perform the full range of duties of a storeperson within the respondent's warehouse in conformity with the deployment of staff at that workplace. As earlier discussed, the applicant's lifting restriction would plainly prevent him from lifting some of the items in the warehouse, given that some items exceed that weight and may be in excess of his lifting restriction even if undertaking the lift with another storeperson. Nor can the applicant consistently engage in lifting requiring bending as previously discussed. Upon that evidence, the applicant cannot perform "every task" that may be assigned to a storeperson.
8. The applicant submitted, however, that the continued employment of Mr Sprod provided an example of an employee undertaking the position of storeperson without being able to perform the full range of tasks. Mr Sprod's employment might have indicated that employment (that is, employment subject to restrictions) was available (or could reasonably be made available) in circumstances where the applicant could not perform all of the tasks required if his medical limitations were equal to the applicant's. However, the evidence before the Commission in the present proceedings demonstrates that the applicant's capacity is significantly more circumscribed than Mr Sprod's. Whilst Mr Sprod gave evidence that his current lifting restriction was 20 kilograms, the respondent tendered medical evidence in the form of a report from Mr Sprod's surgeon, Dr Nicholas Smith, to the effect that as at 7 October 2009 (some 18 months after he returned to work from shoulder surgery) Mr Sprod was lifting all weights up to 30 kilograms in the respondent's warehouse. That lifting capacity would enable Mr Sprod to perform the full range of lifts in the warehouse (albeit with assistance for items exceeding that weight). Neither party adduced further evidence in support of their respective contentions as to Mr Sprod's lifting capacity. In any event, it was clear that, unlike the applicant, Mr Sprod did not possess limitations in respect of bending, reaching, sitting and standing. Additionally, Mr Sprod, in contrast to the applicant, was able to be returned to pre-injury duties, which he has apparently been successfully performing for some time. In those circumstances, his continued employment does not undermine the respondent's description of the organisational model nor its contention that there is no work available particularly where modifications are required.
9. Thus, having "regard to the employer's organisational structure and the way in which the employer operates", as is required by authority (see Cansino at 14), there is no storeperson position available under s 243(2) of the WC Act for the applicant particularly with his stated lifting restriction (or with a lower lifting restriction which, as I have found above, may better represent his capacities).

Application pursuant to s 243(3)(b) of the WC Act

1. The question remains, however, assuming his stated level of fitness (per application), whether the respondent could reasonably make employment available under s 243(3)(b) of the WC Act.
2. Before commencing the availability consideration of that issue, it should also be noted that the respondent made submissions as to the correct test for availability which drew upon the obiter comments made by Basten JA in Bindaree Beef concerning s 49 of the WIM Act which I have earlier extracted. Whilst his Honour's observations as to the existence of obligations on both employees and employers in the context of reinstatement are, with respect, undoubtedly correct, I cannot accept the submission of the respondent to the extent that it seeks to import a test from a provision of the WIM Act as a de facto test in the present proceedings under Pt 8 of the WC Act. There is no reason to substitute words like "suitable" and "reasonably practical" for those present in the provision. In fact, there is the great danger of inadvertently importing a condition into s 243 of the WC Act which is simply not available upon a proper reading of that Act.
3. Nevertheless, it may be readily accepted that the test in s 243(3)(b) of the WC Act, specifically, "employment of a kind that the Commission considers that the employer can reasonably make available for the worker", implies a requirement to consider the circumstances of the employer in making such an order for reinstatement, including the financial and business impact reinstatement would have (see Cansino at 11 which suggests that "financial cost to the employer" is one such consideration).
4. Bearing the above discussion in mind, the relevant principles suggest that, despite no employment being available under s 243(2) in accordance with the respondent's organisational structure or work method, employment can be made available under s 243(3)(b) if those arrangements may be adjusted pursuant to that provision.
5. In my view, the respondent again discharged the onus that such employment could not be reasonably made available.
6. Evidence was tendered from Mr O'Hara as to the respondent's financial situation and organisational changes, chiefly the cessation of manufacturing bathroom products at the Wetherill Park site, in order to support the proposition that it would be difficult to reinstate the applicant as a storeperson due to a lack of positions available and the necessity of each employee operating at maximum capacity. That evidence included, inter alia, documents attesting to the cessation of manufacturing at Wetherill Park and consequential redundancies of a significant proportion of the workforce.
7. Mr O'Hara also gave evidence that there had been no increase in warehouse staff since the applicant's departure and, in fact, there had been attrition of staff. He also reported that, due to the aforementioned restructure, the warehouse now had "more functionality, [but] less staff".
8. As I have earlier noted, Mr O'Hara was a witness of credit. Additionally, the financial evidence he presented was not disputed. The only true contest raised by the applicant, in that respect, was the ongoing employment of casual workers in the warehouse (which Mr O'Hara indicated the respondent was in the process of reducing). The existence of casuals in a workforce which is static or shrinking does not, in this case, undermine the financial impost that would be put upon the respondent were the applicant reinstated.
9. In my view, the above evidence demonstrated that the respondent was not in a position to employ another storeperson (particularly a storeperson with the applicant's limitations).
10. Finally, it should be noted that the applicant did not apply for reinstatement to specific light duties in the present proceedings (save the reference to a variety of tasks discussed above). For example, he did not apply to be reinstated to the work he was doing immediately prior to his termination which was primarily warranty labelling. Thus, the manner in which the applicant relied upon s 243(3)(b) of the WC Act was confined to reinstatement as a storeperson and did not amount to an application for light duties. That confinement may perhaps represent recognition of the employer's circumscribed capacity to employ those with significant restrictions.
11. In all of the circumstances and upon the above evidence of the respondent, I accept that there is no employment of the kind sought by the applicant available under s 243(3) of the WC Act or that which can reasonably be made available for the applicant pursuant to s 243(3)(b) of that Act. In the present circumstances, in my view, accommodating the applicant in the limited work for which he is fit would occasion substantial disruption to the respondent's present manner of operations. In that context, its "unwillingness" to reinstate the applicant is not unreasonable.

CONCLUSION

1. In conclusion, the applicant is not fit for the kind of employment specified in the application. In particular, I find that the applicant is not fit for employment as a storeperson subject to a 22.5 kilogram lifting restriction in the respondent's warehouse at Wetherill Park, nor is he fit for employment as a forklift driver at that site. As earlier noted, no other kind of employment within the employer's operations has been identified from the evidence in the proceedings for which he is fit. Given that the applicant's back injury significantly restricts his lifting capacity and capacity for movement, his impairment is inconsistent with the safe performance of the above described employment.
2. In any event, employment of the kind sought is not available within that workplace under s 243(2) of the WC Act and cannot be reasonably made available by the respondent pursuant to s 243(3)(b).
3. Given that conclusion, it is unnecessary to address the respondent's submissions as to the exercise of the Commission's discretion.

ORDERS

1. The Commission makes the following order: 1. The application by Glenn Robson filed on 16 August 2013 is dismissed.

Amendments 26 March 2015 - Paragraph numbering corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2015