Jenkins v Secretary of the Ministry of Health on behalf of Nepean Blue Mountains Local Health District

DECISION

1. This is an application brought by Kevin Jenkins pursuant to s 242 of the Workers Compensation Act 1987 (NSW) (WC Act) seeking reinstatement as a wardsperson with the Nepean Blue Mountains Local Health District, that his employment be regarded as continuous and that he be paid back pay from 11 May 2021, being the date he first applied to the Respondent to be reinstated on the basis that he was fit for pre-injury injuries.
2. The Applicant commenced employment with the Respondent as a wardsperson in July 2002, initially on a casual basis. After around 18 months' service the Applicant was employed on a full-time basis. On 28 November 2016 the Applicant injured his lower back when he helped nursing staff move a patient in the intensive care unit who weighed approximately 130kg. He saw his general practitioner the following day and ultimately lodged a workers compensation claim which was accepted by the Respondent's insurer, Employers Mutual Limited (EML).
3. The Applicant was unable to work for a period of 14 months. He then returned to work for two days a week and by late 2017, five days a week, but only on light duties. During that period the Respondent trialled the Applicant in other roles but was not satisfied with his performance in those roles.
4. In May 2020 the Respondent formed a view that the Applicant could not fulfil the inherent requirements of his substantive role due to his compensable injury and notified him that he was to be terminated from his employment on medical grounds. The Applicant was terminated from his employment with the Respondent on 16 July 2020.
5. The Applicant initially challenged the decision to terminate him by lodging an unfair dismissal application in this Commission. Commissioner Webster heard the application in March and April 2021 and dismissed the application on 11 March 2022.
6. On 29 March 2021 the Applicant's treating doctor, Dr Valentin Tioukavkin, issued a medical certificate certifying that the Applicant was fit for pre-injury duties. On 11 May 2021 the Applicant's union representative made an application to the Respondent pursuant to Part 8 of the WC Act, for the Applicant to be reinstated. The Respondent denied the application; however, the Applicant did not pursue the matter further at that time.
7. In September 2021, while awaiting a decision in respect of his unfair dismissal claim, the Applicant completed a supervised 'Work Related Activities Program' (WRAP) with a rehabilitation firm called Results Exercise Therapy. A report was issued by Results Exercise Therapy dated 30 September 2021 (WRAP Report) which the Applicant considers indicated that the Applicant had capacity for pre-injury duties. Some four and half months later, on 19 February 2022, Dr Tioukavkin issued a further work capacity certificate certifying the Applicant as fit for pre-injury duties.
8. On 5 April 2022, a few weeks after the Commission declined to grant the Applicant relief in respect of his unfair dismissal claim, the Applicant again applied to the Respondent for reinstatement, relying on the two certificates of Dr Tioukavkin and the WRAP Report. The Respondent refused the application on 13 April 2022. For reasons discussed below the Respondent took issue with aspects of each of the three documents submitted with the reinstatement application and was, and remains of the view, that despite the three documents, the Applicant is not in fact fit for pre-injury duties and should not be reinstated.
9. The present application was filed with the Commission on 21 April 2022.
10. As explained in more detail below, I have to decide, pursuant to s 243(2) of the WC Act, whether I am satisfied that the Applicant is fit for employment with the Respondent as a wardsperson, and if so, whether, in my discretion, I should order that he be reinstated to that role. For the reasons set out below, I am satisfied that the Applicant is fit for employment with the Respondent as a wardsperson and should be reinstated. However I do not consider that the Applicant's period of employment should be taken not to have been broken by the dismissal and the Applicant should only be paid an amount by way of compensation for lost remuneration which equals the amount he would have received from 26 October 2022 to the date of the reinstatement order, less any amount received in respect of workers compensation and other remuneration for the provision of his personal services.

Legal Principles

1. Before outlining the evidence relied upon by the parties, my findings in light of the evidence and my consideration of the parties' submissions, it is helpful to explain the statutory scheme upon which the present application is based and how aspects of the scheme, relevant to the present application, have been judicially interpretated and applied.
2. Part 8 of the WC Act allows an 'injured worker', who is dismissed because he or she is not fit for employment as a result of an injury for which they are entitled to receive compensation under the WC Act or under the Workers Compensation (Dust Diseases) Act 1942 (NSW) (commonly referred to as a 'compensable injury'), to subsequently apply to their employer, within two years of their dismissal, to be reinstated, and if the employer refuses to reinstate them, to apply to this Commission for an order that they be reinstated.
3. As Bathurst CJ in Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305; 85 NSWLR 350 observed at [47] (with Beazley P agreeing), the purpose of Part 8 of the Act "is 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." As Stanton C explained in Lorelle Hillman v NSW Trains [2017] NSWIRComm 1056 at [175]: "Part 8 of the Act is "beneficial legislation and should be construed as such": Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 at [41] per Boland J."
4. Sections 241- 246, found within Part 8 of the WC Act, are relevant in this proceeding. They provide: 241 Application to employer for reinstatement of dismissed injured worker (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 (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 (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 (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 (1) The Industrial Relations Commission may refer to a medical assessor any dispute as to the worker's condition or fitness for employment to be assessed as provided by Part 7 of Chapter 7 of the 1998 Act. (2) The medical assessor is to submit a report to the Industrial Relations Commission in accordance with the terms of the reference. 246 Continuity of service of reinstated worker (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.
5. The process by which an application to this Commission for reinstatement is to be made and determined was helpfully described by Walton J, President, in Glenn Robson and GWA Group Limited [2015] NSWIRComm 9 at [23] - [26]: 23. 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. 24. 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. … 25. 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]). 26. 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.
6. The references by Walton J to Bell are references to Terminals Pty Limited v NUW, NSW Branch (on behalf of Todd Bell) [2008] NSWIRComm 247; 182 IR 258 in which the Full Bench (Walton J VP, Grayson DP and Murphy C) said at [29]: 29 The discretion reposed in the Commission to make orders under s 243 is to be exercised in the light of medical evidence (Cansino supra) and that medical evidence must be that which is before the Commission at the time the application for orders is being heard and determined. It would make no sense for the Commission to be constrained from hearing and considering such evidence merely because it was not the same medical evidence (in this case a simple medical certificate from Dr Yung) forwarded to the employer in accordance with s 241 of the Workers Compensation Act (although clearly the report will be relevant to the determination of the application).
7. The reference to Cansino is a reference to Cansino v South Western Sydney Area Health Service (1999) 130 IR 1; [1999] NSWIRComm 355, in which the Full Bench considered predecessor legislation [1] that was relevantly in the same terms as Part 8 of the WC Act. At pages 11 - 14 of the authorised report the Full Bench set out 21 observations as to how the provisions of the predecessor legislation operated. The Full Bench recently endorsed those observations in respect of the operation of Part 8 of the WC Act, in Potter v Industrial Relations Secretary in respect of the Department of Regional New South Wales (No 2) [2023] NSWIRComm 1026 at [28]. It is unnecessary to set out all 21 observations here, however the following observations are relevant to the present proceedings: … (7) It is necessary for the person to "produce" (that is, show) to the former employer a certificate from a medical practitioner. The effect of the certificate, that is its general thrust, must be that the employee is fit to undertake the work as described by the employee when making application for reinstatement: s 92(3). (8) The person may apply to this Commission for a reinstatement order if he or she is not "immediately" reinstated to employment of the kind for which the person applied or to any other kind of employment that is no less advantageous to that person: s 93(1). (9) An application may be made on behalf of the employee by an industrial organisation of employees: s 93(2); and a reinstatement order may not be made, except in special circumstances, if the application was made more than two years after the dismissal: s 93(3). (10) Provided all of the pre-conditions outlined above are fulfilled this Commission is empowered to make orders of the kind and in the circumstances described in s 94, and in particular subss (2) and (3) thereof. (11) An order may be made reinstating the employee to either employment of the kind for which the employee has applied (which may be as or less advantageous than the pre-injury employment) or employment of any other kind that is no less advantageous to the employee than that applied for. In either case, and importantly, any such order can only be made if the Commission is satisfied the employee is fit for that kind of employment: s 94(2). (12) Whether and to what extent any such order is made under s 94 is discretionary and the section should not be construed as imposing a mandatory requirement upon the Commission to make such an order, subject, of course, to the discretion being exercised in a proper manner. So much is clear from the repeated use in the section of the word "may". (13) If the Commission is satisfied it is appropriate to make an order under s 94(2), the discretion reposes in the Commission as to which of the alternative courses it should adopt. In exercising discretion it would be necessary to do so on the evidence put before the Commission by the parties. … (16) A determination of fitness for employment as referred to in s 94(2) must necessarily be made on the basis of medical evidence. … (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.
8. I note that the prohibition on the Commission making a reinstatement order if an application was made more than two years after the dismissal, (as stipulated in s 93(3) of the predecessor legislation, and in s 242(3) of the current WC Act), relates to the time within which an application is made by the employee to the employer. There is no time prescription (or proscription) in s 242, or elsewhere in the WC Act, stipulating when an application may be made to this Commission for a reinstatement order. Nevertheless, I consider that delay in bringing such an application would be a matter that the Commission could consider when determining whether, in its discretion, a reinstatement order should be made and/or other relief under Part 8.
9. The breadth of the discretion conferred on the Commission by s 243 (previously s 94 of the IR Act) was considered by the Full Bench in Potter (No 2). In that matter, the Commissioner at first instance had declined to reinstate the appellant on the basis that the appellant would make unsubstantiated bullying and harassment type claims in the future and hence the respondent employer could not trust that the appellant would work harmoniously under supervision. The appellant asserted that the discretion provided in s 243 of the WC Act did not permit the Commission to consider matters unrelated to the appellant's capacity for employment. The Full Bench disagreed, holding at [58] - [59]: 58. Nothing in the purpose of Pt 8 of the WC Act, nor in the decisions of the Commission or the courts or other tribunals cited by the appellant, persuades the Full Bench that the discretion to be exercised by the Commission pursuant to s 243 of the WC Act should be constrained such that the Commissioner at first instance considered impermissible matters. That Pt 8 of the WC Act is beneficial and protective, does not preclude, in appropriate cases, consideration of the possible, probable or likely conduct of an employee if reinstated. That the purpose of Pt 8 is not to provide redress for the earlier dismissal, is again no answer to the broad discretion given to the Commission. 59. Clearly, there must be boundaries to the factors considered by the Commission. However, the matters taken into account by the Commissioner at first instance do not trespass outside employment matters, and the relationship of employers and employees. Such issues are the subject of the majority of matters before the Commission.
10. The Full Bench considered that its view was consistent with observations (12) and (13) of the Full Bench in Cansino, referred to above, and also the views expressed by the Full Bench expressed on page 19 of Cansino: In determining whether or not to make an order under s 94(2), his Honour was, in our opinion, entitled to take into account the history of attempts at rehabilitation undertaken by the respondent for the appellant including the rehabilitation regime itself, the manner in which the respondent conducted its operations and deployed its staff generally, the manner in which the respondent deployed its staff in the particular areas the subject of the appellant's application for reinstatement and such impact that any order made would have on the respondent either in the short term or long term. In that the provisions of Pt 7 of Ch 2 must be read as a whole and as providing a specific scheme for the protection of injured employees, it is not permissible to have regard to the provisions of s 94(2) without considering also the remaining provisions, including in particular s 94(3).
11. In reaching the view that when exercising the discretion in s 243 the Commission is permitted to consider matters beyond the employee's capacity for the subject employment, the Full Bench in Potter (No 2) explained, at [55]: …the capacity of an employee for employment is the gateway to the Commission exercising the discretion set out in s 243 of the WC Act. It therefore makes little logical sense that a discretion could be confined to re-considering a pre-condition to the exercise of that discretion.
12. Some further comment is required regarding the principles to be applied when determining whether, on the basis of medical evidence, an employee has established that he or she is fit for the employment for which reinstatement is sought, this being a matter of some importance in the present case.
13. First, I consider that the word "fit" wherever it appears in Pt 8 of the WC Act refers to the ability of the employee to undertake the specified employment in the face of their earlier compensable injury. It does not refer to their overall suitably for the employment or to their physical or psychological fitness for the specified employment unrelated to the compensable injury. This follows from the contextual use of the word in Pt 8, in particular in s 241(1), the purpose of Pt 8 of the WC Act as described by Bathurst CJ in Bindaree Beef and the Full Bench's observation (16) in Cansino that a determination of fitness for employment as referred to in s 94(2) (now s 243(2)) must necessarily be made on the basis of medical evidence. If the Commission considers, on the basis of medical evidence, that the employee is fit for the specified employment, the overall suitability of the employee for the specified employment, including their physical or psychological fitness for the employment in respect of matters unrelated to their compensable injury, is a matter that may be considered by the Commission when exercising its discretion whether or not to order reinstatement.
14. Secondly, any consideration of whether the worker is fit for the specified employment must include a determination as whether the worker can safely perform that type of employment: Bindaree Beef at [65] (Bathurst CJ). The risk the worker might pose to himself, and others, is a mandatory consideration when it comes to any assessment as to the worker's fitness for the specified employment.
15. Thirdly, while the Full Bench in Cansino clearly stated that "medical evidence" is required to base a determination of fitness for employment, the Full Bench did not elaborate further as to what might be encompassed by such description. It seems to me that many allied health practitioners, e.g. physiologists, may be qualified, depending on the circumstances, to opine as to a person's fitness for specified employment, perhaps more so depending on the nature of the employment, than might a general practitioner or other medical practitioner. In my view, what is required is a suitable expert opinion which confirms that the worker is fit for the specified employment and which alone or together with other evidence, satisfies the Commission that the worker is so fit. It is not the role of the Commission to undertake an assessment of the worker's fitness itself, in the absence of medical evidence, by reference to lay evidence. It is not for the Commission to compare the asserted tasks required to be undertaken by the worker with lay accounts of what the worker can or cannot do.
16. That said, lay evidence may bear upon whether the Commission accepts the expert opinion. For instance, if an expert expresses the view that a worker is fit for the specified employment, but persuasive lay evidence is led that he or she is not so fit (e.g. eye witness accounts of the worker's capabilities), the Commission may not be satisfied that the worker is fit for the employment for which reinstatement is sought. Or, the medical evidence may express the view that the work is fit for the specified employment, but there are aspects of the evidence that inherently raise doubts. Those doubts may be resolved by reference to lay evidence.
17. As noted above, while a medical certificate attesting to the requisite fitness produced to the employer is a pre-requisite to imbue the Commission with jurisdiction under Pt 8 of the WC Act, the certificate given by a medical practitioner for the purposes of s 241(3) is not necessarily conclusive of the employee's fitness. Nevertheless, it will constitute evidence to which the Commission may refer. The weight, if any, to be given to such a certificate will depend on all the circumstances of the case. If no doubt is cast upon the veracity of such a certificate, the Commission may readily be satisfied, without more, that the employee is fit for the specified employment and may then move to consider whether reinstatement is appropriate in the circumstances.
18. This was the view taken by Boland J, President, in Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited [2008] NSWIRComm 157 at [24] and [25]: 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.
19. On the other hand, if the evidence establishes that there is a reason to question the medical certificates, the Commission may not be satisfied, without more, that the employee is fit to perform certain work. Such certificates constitute both hearsay and opinion evidence. While pursuant to s 163 of the Industrial Relations Act 1996 (NSW) the Commission is not bound by the rules of evidence and may inform itself on any matter in any way it considers to be just, consistent with that prescription, the Commission is entitled to give bare medical certificates - and any other hearsay and opinion evidence - reduced weight, particularly in circumstances where the maker of the statement of opinion is not called to give firsthand evidence of their opinion. If there is a basis for the Commission to doubt the veracity of the opinion expressed, which may include for instance, an absence of evidence that the expert understood the tasks that the employee had to perform in the specified role or the admission of lay evidence which throws doubt on the opinion expressed, and the employee has not otherwise led persuasive evidence that he or she is fit to perform the work, and/or the respondent has led contrary, more persuasive evidence, the employee may fail to discharge his or her burden of satisfying the Commission that, on the balance of probabilities, he or she is fit for employment as alleged.
20. In making the above remarks I had regard to the helpful observations of Walton J, President, in Glenn Robson and GWA Group Limited, at [48] - [54]: 48. 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. … 49. 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. 50. 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. 51. 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. 52. The converse would follow if the requisite level of persuasion was not available upon the evidence in the proceedings. 53. 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… 54. Thus, considerations of occupational health and safety are relevant in assessing the applicant's fitness to be reinstated to the work so applied.
21. Lastly, s 243(2) mandates that the Commission be satisfied that the worker is fit for the specified employment before making any order for reinstatement. The use of the present tense clearly indicates that the Commission must be so satisfied at the time of making a reinstatement order and need not be satisfied that the worker was so fit at any other time, including at the time the worker made application to his erstwhile employer to be reinstated. This is an issue to which I will return below.

The Evidence

1. The following facts are not in dispute: 1. The Applicant first injured his lower back in or around 1986 when he was unloading 225 litre drums from a van, while working at the Department of Main Roads as a labourer. The Applicant was off work for a period of time, received workers compensation and ceased employment with the Department of Main Roads. 2. The Applicant injured his lower back again in 1998 while working at the Duxton Hotel as a kitchen steward. Again, he was off work for a period of time, received workers compensation and ceased employment with the Duxton Hotel. 3. The Applicant commenced employment with the Respondent on 10 July 2002 as a casual wardperson. He commenced full time employment after 18 months. 4. In or around July 2003 the Applicant was cautioned by the Respondent after he adjusted equipment providing oxygen therapy to a patient. 5. On or around 21 March 2006 the Applicant provided the Respondent with a letter from Dr John Cosgrove dated that same day which read as follows: "Mr Kevin Jenkins is currently being treated with medication that induces sedated type effects, which would prohibit Kevin from working on a night shift roster." 1. On 17 June 2008 a patient the Applicant was transporting in a wheelchair suffered a fall after exiting the wheelchair, requiring him to be taken to the emergency department to be checked out. 2. On or around 12 September 2011 the Applicant provided the Respondent with a medical certificate signed by Dr Cheam and dated 12 September 2011 which certified that Mr Jenkins: " … is on medication that induces sedated type effects. This would prohibit Kevin from working on night shifts." 1. On 11 November 2012 the injured leg of a patient the Applicant was transporting in a wheelchair was knocked and dislodged as they exited an elevator. 2. On 25 August 2014 the Applicant provided the Respondent with a medical certificate signed by Dr Tioukavkin on 14 August 2014 which stated: "Kevin W Jenkins has a medical condition and medication that he has to take and would benefit from working shifts no later than 1030pm." 1. On or around 22 December 2014 the Applicant provided the Respondent with a medical certificate signed by Dr Tioukavkin on 22 December 2014 which stated: "Kevin W Jenkins has a medical condition and has to take a medication that would make him unsafe to work a night shift." 1. On 16 March 2016 the Applicant provided the Respondent with a medical certificate signed by Dr Tioukavkin on 12 March 2016 which stated: "Kevin W Jenkins has a medical condition and has to take a medication that would make him unsafe to work a night shift." 1. On 28 November 2016 the Applicant injured his back when he helped nursing staff move a patient in the intensive care unit who weighed approximately 130kg; 2. The Applicant saw his general practitioner, Dr Tioukavkin on 29 November 2016 and on 1 December 2016 Dr Tioukavkin signed a WorkCover NSW - Certificate of Capacity, certifying that the Applicant had no current work capacity for the period 29 November 2016 to 15 December 2016. 3. The Applicant lodged a workers compensation claim in respect of the back injury suffered on 28 November 2016, which was accepted by EML, and the Applicant did not work at all for a period of 14 months, from 29 November 2026 to 24 March 2017 inclusive. He gradually returned to work for 2 days a week until he had capacity for some work, 5 days a week, 8 hours per day. 4. In late 2017 until early 2018 the Applicant was trialled to return as a wardsperson on light duties. This placed too much strain on the Applicant's injury and was not suitable. Thereafter, as detailed further below, he was trialled in various other roles, but the Respondent considered he did not perform adequately in those roles, particularly those which involved contact with the public. 5. On 6 November 2018 the Applicant attended an independent medical examination conducted by Dr Min Fee Lai who opined, in a report of the same date, that the Applicant had a 12% whole person impairment and that the Applicant "is unable to return to his work as a wards man in the future". 6. On 31 January 2019 the Applicant entered into a "Complying Agreement for Whole Person Impairment" pursuant to a 66A of the WC Act pursuant to which he received compensation of $27,037.50 on the basis of the opined expressed in Dr Lai's report of 6 November 2018. 7. On 11 February 2019 the Applicant commenced suitable duties in the Short Term Equipment Service (Allied Health) based at Lemongrove campus. 8. On 1 July 2019 the Applicant commenced a trial placement as an Emergency Clerk (Administration Officers Level 3) in the emergency department at Nepean Hospital. 9. On 6 August 2019 the nurse manager of the emergency department where Mr Jenkins had been placed, escalated concerns regarding Mr Jenkin's skills, work ethic and overall performance, as a result of which he returned, on 19 August 2019, to complete suitable duties in the Short Term Equipment Service at Lemongrove. 10. For the period 6 January 2020 to 28 February 2020 the Applicant undertook a trial placement as a Ward Clerk at Nepean Hospital. The unanimous evaluation of the Applicant following the trial was that the Applicant "was unable to complete basic tasks and failed to meet specific standards of most, if not all tasks" and consequently he was deemed unsuitable for frontline customer service roles. 11. The Applicant was on leave from around late February 2020 to 9 April 2020. On returning from leave he was allocated suitable duties in the wardsperson department at Nepean Hospital. 12. On 16 July 2020 the Respondent, by letter of the same date, terminated the Applicant's employment on the basis of his inability to complete the inherent requirements of his position and return to pre injury duties and the Respondent's continued inability to find the Applicant suitable alternate employment. 13. On 4 August 2020 the Applicant commenced unfair dismissal proceedings against the Respondent in the Commission. 14. On 1 February 2021 Dr Tioukavkin issued a Certificate of Capacity which included the following diagnosis: "Multilevel herniations and stenosis most marked on the R L5/S1" and which indicated that the Applicant had a lifting/carrying capacity of up to 20kg and that he required a break after 5 minutes of standing and after 20 minutes of walking. [2] 15. On 9 February 2021 EML referred the Applicant to "Rehabilitation Services by Altius" to determine his functional capacity for the purpose of determining work capabilities and his vocational options. A vocational assessment was completed on 15 February 2021 and a functional capacity assessment was completed over 25 and 26 February 2021. A Vocational Assessment Report (VAR) and a Functional Capacity Assessment Report (FCAR) were completed on 8 March 2021 and provided to EML on or around the same day. 16. The VAR recommended that suitable employment options for the Applicant were various driving jobs, e.g., forklift driver, delivery driver, and truck driver. The VAR included the following: "Mr Jenkins reported that he experienced 5 out of 10 pain." "Mr Jenkins advised that he experiences dull pain as well as "shooting pain that radiated down the right side of his body to his toes." "Mr Jenkins is currently certified for a lifting capacity of up to "20 kgs" as per Certificate of Capacity dated 01.02.21 issued by Treating Physician, Dr Valentin Tioukavkin." "Mr Jenkins reported that he was only able to stand for a duration of 5-minutes until he starts to feel uncomfortable. He indicated that he had to walk to relieve the dull pain in his back." "Mr Jenkins reported that he mainly had difficulty mobilising up the stairs. He reported that he experienced radiating pain in the back of his legs." "Mr Jenkins reported that he was able to lift up to 20kg for a certain period. He reported that he asked for assistance for any lifting over this weight." "Mr Jenkins reported that he had trouble sleeping due to his back injury. He reported that he woke up at least three times every evening. He advised that he had to get up for a walk to the bathroom to relieve the pain." "Mr Jenkins reported his short-term memory had been impacted by his anti-depressants. Mr Jenkins explained that he often forgot what he was doing with tasks. He reported that his long-term memory had not been impacted." 1. The VAR also noted that the Applicant was taking 100mg of desvenlafaxine daily to manage his depression. 2. The FCAR set out information regarding the Applicant's work capacity by reference to the occupations identified in the VAR, that is, driving occupations. It repeated much of the information in the VAR but also included the following: "Work Capacity ● Frequent Sitting up to 45 minutes ● Occasional Standing up to 30 minutes ● Frequent Forward Reaching and Overhead Reaching ● Occasional Unilateral Kneeling for 30 seconds ● Occasional Squatting ● Frequent Static Balance ● Constant Dynamic Balance ● Walking up to 30 minutes ● Occasional Stair Climbing up to 2 flights ● Occasional Ladder Climbing ● Normal Grip Strength ● Normal Manual Dexterity ● Occasional Floor to waist lifts to 22.5 kilograms ● Occasional Waist height lifts to 20 kilograms ● Occasional Chest to overhead lifts to 12.5 kilograms ● Occasional Bilateral carrying up to 24 kilograms ● Below waist Pushing and Pulling up to 60 kgs" … "Injury Recovery Timeframes … As Mr Jenkins has not undergone any treatment since 2018, he is at a greater risk of re-aggravating his compensable injury due to his lack of physical conditioning and obese body mass index. Furthermore, the inherent requirements of the identified Vocational options for Mr Jenkins [being forklift driver, truck driver and delivery driver] require manual handling which accounts for the necessity of increasing Mr Jenkins work conditioning and functional strength through a tailored Exercise Physiologist program. The current guidelines also suggest an Ergonomic assessment to be beneficial to ensure that the work tasks do not unnecessarily stress the spine. This also attributes to the recommendation of conducting an Ergonomic Assessment in his Truck/Forklift to ensure that he is working safely and set up ideally. If necessary, changes to the seat can be arranged as well as appropriate lumbar support to mitigate the risk of aggravating Mr Jenkins' compensable injury." … "Current Medication Name Purpose Dosage/Frequency Desvenlafaxine Anti-Depressant Medication 100mg/Once daily Ibuprofen Pain medication 400mg/Three times daily Targin Pain medication 2.5mg/Twice daily Xarelto Blood thinner 10mg/ Once daily Daviobet Psoriasis 50/500 Gel Past Medical History and co-morbidities ● Mr Jenkins recalled had had Appendicitis when he was a child, which required surgical intervention. ● Mr Jenkins reported he required surgery in 2007 for a bowel obstruction. ● Mr Jenkins reported he had Respiratory Failure in August 2007 which required hospitalisation for two weeks. Mr Jenkins advised he takes an anticoagulant medication daily to prevent a secondary episode." … "Current Status Symptoms: ● Mr Jenkins reported he was "pretty much back to normal" and on average experiences a 3/10 pain on the VAS scale regarding his compensable injury. Mr Jenkins recalled that in the last four months he has really improved and reported reduced difficulty with varying movements and tasks that placed his spine under load. ● Mr Jenkins did report radiculopathy particularly radiating down his right leg to his lower extremity. Mr Jenkins advised that this occurs when he has sat in uncomfortable chair for an extended period or when he "steps the wrong way." Self-reported capacity/activities: ● Mr Jenkins reported nil difficulties carrying out activities of daily living or conducting domestic/self-care tasks. ● Mr Jenkins informed that he has a 15-20 kg lifting capacity and can conduct static standing for "short periods". Mr Jenkins advised that he has difficulty sustaining this action if he is on concrete floors for long durations." … Summary of Performance Mr Jenkins demonstrated reduced range of movement in bilateral hip flexion, abduction, adduction, medial and lateral rotation…. Mr Jenkins self-reported referred right neural symptoms experienced when he "steps the wrong way or sits on an uncomfortable seat for long periods", Rehabilitation Services by Altius conducted the straight leg raise to determine onset of symptoms. Mr Jenkins experienced neural symptoms at 35° of passive hip flexion with the left lower limb. Mr Jenkins advised this was a "shooting pain" that was referred form his left gluteal musculature. Mr Jenkins experience neural symptoms at 25° of passive hip flexion with the right lower limb. Mr Jenkins (sic) symptoms intensified with the ankle dorsiflexed, where he reported it to be a "radiating pain" from his right buttock to run along the posterior chain. ,,,, Mr Jenkins did not complete the entire Chester cardiovascular tolerance test. He ceased the test towards the latter stages of level two, finishing at 3 minutes and 42 seconds. As Mr Jenkins did not complete the test, Rehabilitation Services by Altius are unable to determine his cardiovascular fitness in comparison to the norms for his age group. However, given the observed signs of increased perspiration, heavy respiration, as well as needing to cease the test prematurely, it is likely Mr Jenkins' cardiovascular fitness is poor due to whole body deconditioning and lack of regular exercise…. … Rehabilitation Services by Altius contacted Mr Jenkins on 02.03.2021 to determine if he had experienced any symptoms or difficulties following the assessment. Mr Jenkins reported that he was "doing okay" and following the assessment he took Nurofen to assist with his symptoms. Mr Jenkins recalled his symptoms eased the next day and he had nil concerns regarding how he was feeling following the assessment….. Rehabilitation Services by Altius also advised that given his performance at the Functional Capacity Evaluation he does have the capacity to work for 8 hours/day x 5 days / week in a suitable role, however, needs to ensure he improves his physical health to mitigate aggravating his compensable injury. Mr Jenkins advised he was "just wanting to get back out there and work again" and needs to find work to support his family." 1. On 15 March 2021 Dr Tioukavkin issued another Certificate of Capacity (15 March Certificate). It repeated the information contained in the Certificate issued on 1 February 2021 and indicated that Mr Jenkins had "capacity for some type of employment from 8 March 2021 to 7 April 2021 for 8 hours/days 5 days/week." The box "fit for pre-injury duties" was not ticked or crossed. The 15 March Certificate also contained the following information under the heading "Management Plan for this Period": "analgesia including ibuprofen 400mg prn, Rivaroxaban 10 mg daily for PE". 2. The Applicant's unfair dismissal case was part heard on 24, 25, 26 and 28 March 2021. 3. On 29 March 2021 the Applicant had a consultation with Dr Tioukavkin who then issued another Certificate of Capacity (29 March Certificate). This Certificate indicated that the Applicant was fit for pre-injury duties and consequently the section setting out his "Capacity" was not completed. The 29 March Certificate also recorded under the heading "Management Plan for this Period": "analgesia including ibuprofen 400mg prn, Rivaroxaban 10 mg daily for PE". 4. The hearing of the Applicant's unfair dismissal case concluded on 29 April 2021 and judgment was reserved. 5. On 11 May 2021 the Applicant made an application, with the assistance of the Health Services Union (HSU), to be reinstated to his substantive position as a wardsperson and provided the Respondent with a copy of the 29 March Certificate. On the same day he also commenced the WRAP with an organisation called "Results Exercise Therapy". That programme continued through until 28 September 2021. 6. On 8 June 2021 Mr Greg Driver, Manager, Workforce Services and Performance for the Respondent sent an email to the HSU advising that the Respondent did not agree to reinstate the Applicant. In that email, which was tendered in the Applicant's case, Mr Driver stated: "I have reviewed the medical certificate in respect of Mr Jenkins. I also note that a medical certificate was issued on 9 April 2021 [not in evidence] indicating Mr Jenkins was fit for preinjury duties regarding suitable employment options being truck driver, delivery driver and forklift operator, as part of a vocational assessment. In the unfair dismissal proceedings Mr Jenkins own evidence indicated that he is (sic) still has some health issues i.e. shooting pain when he moves a certain way and ongoing pain management. So the District has considerable difficulty in accepting that he is fit and has the capacity to safely perform the inherent requirements of his preinjury duties." 1. On 30 September 2021 Mr Mark Hills, an exercise physiologist with Results Exercise Therapy, issued the WRAP Report, a copy of which was sent to Dr Tioukavkin. The WRAP Report indicated that at the completion of the program, on 28 September 2021, the Applicant's medical status was "Pre-injury duties (increased capacity)" with nil restrictions. It also indicated that the Applicant had the following work capacity: Lifting/Carrying - Floor to Waist: 25kg - 12 reps of 25 kg Waist to Shoulder: 25 kg - 12 reps of 25kg Weighted carrying: 25kg - 25kg for 50 metres Postural tolerances Sitting: unrestricted Standing: unrestricted Walking: unrestricted Driving: - 60 -90 minutes Repetitive reaching 24 reps of 15kg 24 reps of 25kg Pushing/pulling 24 reps of 30 kg 30 reps of 30 kg Repetitive Squatting 30 reps The WRAP Report also stated: Activities of Daily Living During the WRAs [work related activities] Initial Assessment (performed on 23 April 2021), Mr Jenkins reported that he paces all yard chores to avoid symptom exacerbation. Mr Jenkins stated that his wife has to assist him with placing on / taking off his shoes and socks due to back pain. At program completion, Mr Jenkins stated that he is coping with all household and yard chores. Mr Jenkins advised that his ability to take shoes and socks on/off is improving. … Recommendations 1) Mr Jenkins to continue exercising independently in order to maintain the gains achieved and to minimise the risk of re-injury and aggravation in the future …. The WRAP Report also recorded that at the start of the program (ie. In May 2021): "Mr Jenkins demonstrated significantly reduced core/gluteal strength due to the chronic nature of his injury." … "Mr Jenkins demonstrated reduced squat depth and step-up tolerances…. Mr Jenkins demonstrated incorrect manual handling technique." Nowhere in the WRAP Report does it make clear that Mr Hills understood what the Applicant's pre-injury duties were or even that Mr Hills knew that he held the role of wardsperson prior to his injury. Mr Hills records that the Applicant is unemployed and "consistently job seeking". 1. From 8 November 2021 to 20 December 2021 the Applicant was contracted by Hays Recruitment to Bingo Industries to perform work as a waste sorter and labourer. According to the Applicant this involved sorting waste, cleaning of the warehouse, and other labour-intensive tasks. No other details were provided as to the nature of the tasks the Applicant was required to perform in his role and the engagement only lasted six weeks. 2. On 19 February 2022 the Applicant had a tele-health consultation with Dr Tioukavkin. Dr Tioukavkin issued another Certificate of Capacity (19 February Certificate) which indicated that the Applicant was fit for pre-injury duties. The Certificate, like the 15 March Certificate and the 29 March Certificate also recorded that Mr Jenkins was taking "ibuprofen 400mg prn, Rivaroxaban 10 mg daily for PE". 3. On 11 March 2022 the Commission dismissed the Applicant's unfair dismissal application. 4. On 5 April 2022 the HSU on behalf of the Applicant again applied to have the Applicant reinstated and provided copies of the 29 March Certificate, the 19 February Certificate and the WRAP Report to the Respondent in support of the application. 5. On 13 April 2022 Mr Greg Driver on behalf of the Respondent, sent an email to the HSU advising that the Respondent did not agree to reinstate the Applicant. In that email, which was tendered in the Applicant's case Mr Driver stated: 1. Mr Jenkins made application for reinstatement before the NSW Industrial Relations Commission and on 11 March 2022, the Commission gave its Decision and dismissed his application. 2. The WorkCover NSW - certificate of capacity, dated 19 February 2022 is not signed by Mr Jenkins. 3. The certificate also indicates that Mr Jenkins is still taking medication. 4. The Work-Related Activities Program (WRAP) Summary Report dated 30 September 2021, indicates that Mr Jenkins (sic) ability "to take his shoes and socks on and off is improving." Having regard to these issues and other comments on the documents you have provided which indicate that Mr Jenkins is not fully fit, the District has decided not to reinstate him as requested. 1. On 21 April 2022 the Applicant filed his application for reinstatement. 2. On 25 April 2022 the Applicant was contracted by Complete Recruitment Solutions to Elf Farms Supplies as a labourer. His statement of duties included: i. Working in the blocking area, lifting bags of compost up to 25 kgs and placing them onto pallets. ii. Collecting excess compost and shovelling it into wheelbarrows. iii. Assisting when spawning, filling the sworn hopper with the correct amount of spawn applied evenly (respirator to be worn). iv. Communicating with the tunnel filler about the fuel height to ensure that there will be no shortages or leftovers. v. Cleaning/washing the tunnel after emptying. vi. High-pressure cleaning of all machinery and concrete floors in both halls. vii. Operate mobile blender. 1. As at the date of the hearing the Applicant was continuing to work around four days a week, on a casual basis, for Elf Farm Supplies. 2. On 15 June 2022 the Applicant attended a medical examination performed by Dr John Sheehy in connection with the conciliation of the matter. The report arising from that examination was not admitted into evidence as it was subject to settlement privilege. 3. On 10 October 2022 (in circumstances which are discussed in detail below), the solicitors for the Respondent wrote to Dr John Sheehy requesting he examine and report upon the Applicant and provided Dr Sheehy with background information and numerous documents. The letter of instruction provided to Dr Sheehy was the product of negotiation with the HSU on behalf of the Applicant, although the HSU did not ultimately endorse the whole of the letter as sent. 4. On 11 October 2022 the Applicant was examined by Dr Sheehy. 5. On 26 October 2022 Dr Sheehy issued a report regarding the Applicant to the Respondent (Sheehy Report) which relevantly contained the following information: INTRODUCTION … My report is based on the history provided by Kevin Jenkins, the appropriate clinical examination and the documentation provided. HISTORY … I note that at the present time he is working in a farm stacking boxes of mushroom compost and pulling tarps that weigh approximately 40kg into a 40m tunnel. There has been no symptoms of back pain or leg symptoms during this activity. He has also been undertaking activities involving lifting 25 kg blocks and pallets containing 55 of these blocks for the past six months and he wants to go back to work as a wardsman because he desires to help people. … PAST HEALTH He has had a DVT and an appendicectomy and a pulmonary embolus. MEDICATIONS He is on anti-coagulants as a consequence of his pulmonary embolus and DVT and uses mood elevators. He uses no analgesics as there is no pain. EXAMINATION On examination, straight leg raising was 80° bilaterally. Tone and power in the legs were normal as were the reflexes. He has a normal range of spinal flexion and extension and there was no pain elicited on spinal movement. In respect to the questions you ask: (a) On the adequacy and sufficiency of any treatment obtained by Mr Jenkins as contributing to his asserted recovery form 29 March 2021, as assessed by his general practitioner, Dr Tioukavkin. He has recovered well from his previous low back injuries. … (b) Please identify what treatment and self- management techniques Mr Jenkins has received and undertaken since the supervised work-related activities program in September 2021 to minimise the risk of re-injury or exacerbation of injury. He continues in a gentle exercise programme. He has been continuing to undertake repetitive lifting and bending. (c) On whether Mr Jenkins is fit to safely perform his full pre-injury duties as a wardsperson. He is safe to perform the full duties as a wardsperson having reviewed the documentation provided as to the duties that a wardsperson undertakes. (d) If Mr Jenkins is fit to safely perform his full pre-injury duties as a wardsperson, without any risk of relapse, injury, exacerbation, aggravation of existing medical conditions. It is unlikely he would experience a relapse or reinjury, exacerbation or aggravation of his existing medical condition as he has been working for more than six months in heavy labouring position without difficulty. (e) If Mr Jenkins is fit to safely perform his full pre-injury duties as a wardsperson whether him doing so may give rise to a risk to the health and safety of himself, other members of staff and patients. His work as a wardsperson will not give rise to harm and safety of himself or other members of staff and patients for the above-mentioned reasons. (f) Please indicate whether Mr Jenkins is fit to safely perform his full pre-injury duties as a wardsperson having regard to his other health conditions such as DVT and depression as referred to above or any other health conditions disclosed by Mr Jenkins during the appointment on 11 October 2022. He does take anti-coagulants as a consequence of his DVT and pulmonary embolus and is on mood elevating medication but these medications will not interfere with his ability to work as a wardsperson. On examination he has a normal range of spinal movement which was pain-free, there was no physical limitations on examination that would indicate an inability to work as a wardsman. 1. On 28 October 2022 the solicitor for the Respondent, Mr Gardener, wrote to the organisation which had helped arrange the Sheehy Report, Medicins Legale, in the following terms: We note that Dr Sheey invites us to contact him should you (sic) require further information or clarification of this report. Our client does require further information and clarification. In particular, our letter of instruction required Dr Sheehy to: Please provide reasons for each of your opinions, including their factual bases and detail assessments conducted (including any functional capacity assessment) in forming your opinions. If for any reason you are unable to answer any of the above questions within the bounds of your expertise, please specify the appropriate specialist for referral to answer such questions. We also note that Dr Sheehy is a neurosurgeon by specialisation and our client wonders on what basis occupational safety opinions have been provided in relation to Mr Jenkins, a person who from 29 July 2018 had 84 weeks of incapacity and was assessed as having a permanent 12% whole person impairment, has now recovered from a permanent impairment and is functionally safe and fit, and unlikely to be of risk of reinjury when working a rotating roster as a wardsperson at Nepean Hospital? Please confirm whether Dr Sheehy is prepared to provide a report as requested for no extra charge. There is no evidence of any reply being received to this email. 1. On 7 November 2022 Dr Tioukavkin issued a medical certificate which stated: "Mr Kevin W Jenkins (DoB: 17/06/1961) is fit for preinjury duties as a words (sic) person without any modifications or adjustments. He is fit for a 24 hour rotating roster." 1. The Applicant suffers from depression and takes a drug called desvenlafaxine, a brand name for which is Pristiq, to treat it and he has been on that drug for a long period of time. It is this drug that caused Dr Tioukavkin and other doctors to issue medical certificates stating that it was unsafe for the Applicant to work on night shifts. Up until around July 2021 the Applicant took 100mg daily, but around that time reduced the dosage to 50 mg daily.

Consideration

1. It is not in dispute that the jurisdiction of the Commission to make an order reinstating the Applicant is enlivened as each element of the jurisdictional criteria outlined in ss 241(1), 241(3) and 242(1) of the WC Act is satisfied: Mr Jenkins was dismissed because he was not fit for employment as a result of the injury he received on 28 November 2016; Mr Jenkins has produced to the respondent employer two certificates given by a medical practitioner to the effect that he is fit for employment as a wardsperson, being employment of the kind for which he applies for reinstatement; and the respondent employer did not reinstate Mr Jenkins immediately to employment as a wardsperson. Mr Jenkins made two applications to be reinstated: both were made within two years of his dismissal. His application to this Commission was made a week after the Respondent refused his second application to it to be reinstated.
2. Pursuant to s 243(2) the Commission can only make an order for reinstatement if it is satisfied that the worker is fit for the kind of employment for which the worker has applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker). Satisfaction that Mr Jenkins is fit for employment as a wardsperson, in the face of his back injury that, as at 16 July 2020 had rendered him unfit for that role, is therefore the first matter I must resolve.

Satisfaction as to fitness for employment as a wardsperson

1. As noted above at paragraphs [25] to [29] above, expert evidence, alone or in combination with other evidence, is required to satisfy the Commission that the worker is fit for the specified employment.
2. The Applicant relied on the following medical evidence: 1. the 29 March Certificate; 2. the WRAP Report; 3. the 19 February Certificate; and 4. the Sheehy Report.
3. I set out below the approach I took with respect to each item of evidence and explain why, on balance, I am satisfied that the Applicant is fit for employment as a wardsperson.
4. Neither party called a medical practitioner or other expert to give evidence viva voce. Consequently, I must resolve the question of fitness without the capacity to evaluate apparent conflicts and inconsistencies in the documentary medical evidence by oral testimony from the experts who produced that evidence.

The 29 March Certificate

1. The 29 March Certificate and the 19 February Certificate both expressed an opinion that the Applicant was fit for pre-injury duties. The Certificates on their face did not indicate that Dr Tioukavkin knew what the Applicant's pre-injury duties were. As noted above, Dr Tioukavkin was not called by the Applicant to give evidence. The extent of Dr Tioukavkin's training, study and experience are unknown.
2. When the Applicant tendered the Certificates, I provisionally ruled that the certificates would only be admitted as evidence that they were documents provided to the Applicant and/or the Respondent and/or EML by Dr Tioukavkin and not as evidence of the truth of the opinion expressed therein. The Applicant's counsel had opposed this ruling, by reference to the approach Boland J had taken in Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited (see paragraph [28] above). However, unlike in that case, there was no evidence before me that Dr Tioukavkin was the Applicant's treating doctor 'over a considerable period of time' or at all, or that Dr Tioukavkin's certificates had been accepted by the Respondent or its insurer, EML, 'over a number of years' or at all, as expressing an accurate opinion of the Applicant's level of fitness.
3. I did, however, give the Applicant leave to ask the Applicant some questions in examination in chief regarding Dr Tioukavkin's role as his treating doctor. Those questions and the Applicant's answers to them, were as follows: Q. Mr Jenkins, you have your largest statement there. Can you go to page 79. You see in the right‑hand bottom corner there's a stamp that provides the details of Dr Valentin Tioukavkin. Who is that doctor? A. He's my compensation doctor. Q. You might have to speak up a bit, Mr Jenkins. How long has he been your compensation doctor? A. Six years plus. Q. For that six‑year period, what types of certificates did he provide you in relation to your workers' comp claim? A. Certificates you have in front of you. Q. Is that a reference to page 78 which is WorkCover New South Wales Certificate of Capacity? A. That's correct. Q. When you received those certificates from the doctor, what did you do with them? A. I gave it to my employer.
4. In the circumstances, I accept all Certificates issued by Dr Tioukavkin as evidence of the Applicant's fitness. However, for the reasons which follow neither Certificate, even when considering other available evidence, satisfy me that the Applicant was in fact fit for work as a wardsperson as at the date of the Certificates.
5. In respect of the 29 March Certificate, only two weeks earlier, on 15 March 2021, Dr Tioukavkin had issued the 15 March Certificate, which was tendered in evidence by the Respondent, in which he had certified that the Applicant only had capacity for "some type of employment": from 8 March 2021 to 7 April 2021 - a period of time which encompassed 29 March 2021. The 15 March Certificate indicated that the Applicant was taking 400mg of ibuprofen as needed and under the heading 'Capacity' contained the following information: Lifting/carrying capacity - up to 20 kg Sitting tolerance - as tolerated Standing tolerance - as tolerated Pushing/pulling ability - as tolerated Bending/twisting/squatting ability - as tolerated Driving ability - as tolerated Other - if sedentary duties for 5 mins breaks with standing and walking every 20 minutes.
6. The Applicant was cross examined regarding the discrepancy between the 15 March Certificate and the 29 March Certificate: Q. And do you realise now that that medical certificate of 15 March 2021 is inconsistent with the medical certificate of 29 March 2021? A. I would say this certificate was a safeguard, just a safeguard for the doctor. It wasn't a reflection of the true physical ability of me. Q. All right. So are you suggesting your doctor is prepared to sort of issue whatever certificate‑‑ A. No. Q. ‑‑you're ‑ you want him to? A. No. No. No. He purely done it to protect me ‑ protect ‑ as a safeguard. COMMISSIONER Q. Sorry, which one is the safeguard? A. 15th. Q. The 15th. GARDNER Q. When you say, "safeguard", so you could still claim workers compensation; is that what you're suggesting? A. No, it was the risk of further injury. Q. So you admit that you're at risk of further injury as at‑‑ A. No. It was a precaution. I don't admit it.
7. A bit later in cross examination the solicitor for the Respondent suggested to the Applicant that the 29 March Certificate concerned the Applicant's fitness to be employed as a truck driver, rather than his fitness for work as a wardsperson. While some of his responses suggest this could have been the case, the Applicant ultimately rejected the proposition.
8. It remains entirely unclear to me why Dr Tioukavkin issued two contradictory medical certificates. The Applicant's explanation that one of them - apparently the earlier one - was issued as a 'safeguard', only serves to cast doubt on the reliability of both certificates. In the absence of Dr Tioukavkin being called to explain the discrepancy between the two certificates I am not satisfied, on the basis of the 29 March Certificate, that the Applicant was fit for work as a wardsperson at that date.
9. I am fortified in this view by other evidence which makes me doubt the accuracy of the 29 March Certificate, in so far as it purports to contain a view as to the Applicant's fitness for work as a wardsperon.
10. Evidence as to the tasks a wardsperson employed by the Respondent is required to undertake was given by various witnesses and was the matter of some contest between the parties. In particular, Mr Mark Jay, the Deputy Divisional Secretary of the HSU's Public Health Team, who, from 2001 through to 2018 was employed as a health and security assistant with a wardsperson component in the South NSW Local Health District, took issue with evidence given by Kylie Lawton, Acting Patient & Facility Logistics Manager, for the Respondent, as to the nature of the tasks Mr Jenkins would be required to perform as a wardsperson with the Respondent.
11. In light of the contest, and for the purposes of considering the reliability of the medical evidence, I consider that the 'Position Description' for a wardsperson employed by the Respondent which was annexed to the statement of David Holmes, Employee/Industrial Relations Manager for the Respondent, and the 'Job Demands Checklist' attached to that Position Description, accurately set out the role's key requirements. I also consider that paragraph 48 of the letter of instruction to Dr Sheehy dated 10 October 2022 also accurately set out the role's key requirements, as the evidence showed that this paragraph was authored by the Respondent's solicitor and was the product of negotiation with the HSU and no objection was taken by the HSU to its inclusion in the letter as sent.
12. The 'Job Demands Checklist' under the heading 'Physical Demands', recorded the following, among other requirements: Standing - remaining standing without moving about to perform tasks - Frequent Walking - Floor type: even/uneven/slippery, indoors/outdoors, slopes - Constant Climbing (stairs/ladders) - Ascend/descend stairs, ladders, steps - Occasional Lifting/Carrying - Light Lifting & carrying: 0 - 9 kg - Frequent Lifting/Carrying - Moderate lifting & carrying: 10 - 15 kg - Occasional Lifting/Carrying - Heavy lifting & carrying: 16 kg & above - Occasional Pushing/Pulling/Restraining - Using force to hold/restrain or move objects toward or away from the body - Frequent
13. Paragraph 48 of the letter of instruction to Dr Sheehy dated 10 October 2022 contained the following table of the "work related performance criteria of the wardsperson role": Task-title Physical demands Comments Continuous pushing / pulling patients (beds) requiring 25-33kg of initial force (no patient) // 46 -52 kg force with 120 kg load on bed The push /pull force was assessed using a calibrated force gauge. Continuous walking for up to 20-30 mins for the completion of one job (reported to be required to complete 5-20 jobs per day) Walking throughout a shift was reported to be 20-25 km. Transporting patients (beds) Continuous bilateral grasping of bed During the assessment, 1 job was assessed to be walking up to 2.5km. Occasional bending to reach below waist height (900mm) to adjust guardrails Distance between wards, units and towers vary between 1 - 3 km (walking) Occasional hip flexion and lower limb use (unilateral / bilateral) to apply or release brake Occasional requirement to push / pull bed through incline /decline of up to 150m on concrete Transporting patients (wheelchair) Electronic wheelchair requires < 5kg of force to push / pull Standard wheelchair requires 20-30kg of force, depending on weight of patient Continuous walking for up to 30 minutes (average length of job) - reported to be required to complete 5-20 jobs per day Sustained bending /squatting occasionally (1 - 2 mins) Patient transfers Sustained forward reach occasionally (up to 2-3 mins) Wardsperson can request assistance to help with transferring patient to / from bed Transferring, supporting or assist lifting patient of patient weighing up to 100kg (rare) Bilateral grasping of limbs or body to assist with guiding body to /from bed or wheelchair Frequent ambulation over even ground surface Constant dynamic standing Cleaning equipment Occasional bending and squatting Frequent bilateral should forward reaching between waist (900mm) and should height (1300mm), flexion between 45-90 degrees Frequent uni/bilateral grasping, sustained Pushing /pulling up to 5kg force for up to 50m Transporting equipment Lifting from bench to trolley (900mm to 300-900mm) up to 10kg Frequent bilateral should forward reaching between waist (900mm) and shoulder height (1300mm) Frequent ambulation over even ground surface Continuous seated posture, sustained for task duration This can also be sustained standing Maintain medical files (when required) / Administration Frequent, sustained neck flexion Frequent keying and mousing, Frequent uni/bilateral wrist extension (dominant hand) Frequent uni/bilateral forward reach between waist (900mm) and should height (1300mm)

1. Based on the above, it seems clear that, at the least, the role of wardsperson involves a lot of standing, and a lot of walking. While one transportation job might involve up to 30 minutes walking, many transportation jobs would be required in a single day. According to Ms Lawson, due to the opening of a new 14 -storey hospital tower at Nepean Hospital on 12 May 2022, a wardsperson would "often walk more than 30,000 steps per shift, approximately 24 kilometres per shift". This was disputed by Mr Jay, but it was information included in the letter of instruction given to Dr Sheehy. Further, frequently lifting of weight of up to 9-10kg was required as well as frequent pushing / pulling patients in beds which required 25-33kg of initial force if there was no patient in the bed and up to 46-52 kg initial force if a patient weighing 120kg was in the bed.
2. On 15 February 2021 (42 days before the 29 March Certificate was issued) the Applicant has been vocationally assessed, resulting in the VAR and on 25 and 26 February 2021 (31 days before the 29 March Certificate was issued) the Applicant had been functionally assessed, resulting in the FCAR. The FCAR proceeds from the premise that the Applicant was seeking employment as a driver. There is no reference in either report to the Applicant's capacity for work as a wardsperson. One or both of these reports had indicated: 1. that the Applicant was still experiencing back pain that radiated down the right side of his body to his toes and resulted in him have trouble sleeping; 2. that the Applicant was only able to stand for 5 minutes before feeling pain in his back (c.f. the FCAR which indicated he could stand, occasionally, for up to 30 minutes) 3. that the Applicant had difficulty mobilising upstairs (c.f. the FCAR which indicated he could stair climb occasionally up to 2 flights); and 4. that the Applicant could walk for up to 30 minutes.
3. The FCAR also recorded that the Applicant was taking 400mg of ibuprofen three times daily, and 2.5mg of Targin twice daily, for pain. The Applicant confirmed in cross examination that Targin is an opiod based medicine. He also suggested that he had become dependent on the drug and he was only taking it 'because I was coming off it' - he was not taking it for pain. However, even if this were true, it does not explain why he was taking 1200mg of ibuprofen a day. The weight of evidence supports a finding that as at late February 2021 the Applicant was still experiencing not insignificant pain associated with his back injury and still had some difficulties standing and walking for periods of more than 30 minutes.
4. Giving the proximity of the vocational and functional capacity assessments to the issuing of the 29 March Certificate, and the consistency of the assessments with the 15 March Certificate, which indicated that the Applicant was not fit for pre-injury duties, could only stand for very short periods and needed a break after 20 minutes of walking, for a period through until 7 April 2021, I do not understand, in the absence of any explanation from Dr Tioukavkin, why Dr Tioukavkin certified the Applicant as being fit for pre-injury duties on 29 March 2021.
5. There is a further matter. As recorded at paragraph [32(35)] above, the Applicant had apparently given evidence in his unfair dismissal proceedings that he still had some health issues, including shooting pain when he moved a certain way and still had ongoing pain management. (The decision in the unfair dismissal proceedings was not tendered in evidence and I have not had regard to it. I discuss this further below.) In cross examination the Applicant accepted that he saw his general practitioner a lot in March 2021 - possibly as many as six times - and obtained one or more prescriptions for pain medication, which supports an inference that he was indeed suffering ongoing health issues including pain, arising from his compensable injury, in or around late March 2021.
6. In cross examination the Applicant also agreed with a proposition put by the solicitor the Respondent to the effect that he was not fit at the time of his unfair dismissal case. To be fair to the Applicant, he may have been referring to when he filed the unfair dismissal application in 4 August 2020, rather than the hearing of the application in March 2021, however, two months later, in May 2021, when the Applicant started the WRAP, he had "reduced core/gluteal strength", "reduced squat depth and step-up tolerances", paced "all yard chores to avoid symptom exacerbation" and his wife had to assist him with placing on/taking off his shoes and socks "due to back pain." While he explained in cross examination that his wife assisted him in this task as he was too overweight at the time, rather due to back pain, and that he told Mr Hills it was due to back pain as he was too embarrassed to say the real reason, I do not believe this was the case in the face of the other evidence.
7. In short, the evidence is not sufficient for me to be satisfied that, as at 29 March 2021 the Applicant was fit for work as a wardsperson.

The WRAP Report

1. The WRAP Report, which was prepared on 30 September 2021, after the Applicant had undertaken the WRAP from 11 May 2021 to 28 September 2021, is not sufficient for me to be satisfied that as at 30 September 2021 the Applicant was fit for work as a wardsperson. As noted in paragraph [32(36)] nowhere in the WRAP Report does it make clear that Mr Hills, the author of the report, understood what the Applicant's pre-injury duties were or even that Mr Hills knew that the Applicant held the role of wardsperson prior to his injury. I was unable to infer from other evidence that Mr Hills was aware of the nature of the Applicant's pre-injury duties.
2. The purpose of the WRAP was not to assess the Applicant's fitness for pre-injury duties. As stated in the first paragraph of the report: "The purpose of the referral was to increase strength/endurance throughout the lower back to facilitate an upgrade in his Certificate of Capacity (COC) and maximise functional tolerances."
3. While the front title page of the WRAP Report states: "Work Capacity Outcome - Pre-injury duties" in the body of the report, under the heading "Work/Medical Status - Program Completion (28/09/21)" the report states: "Medical status … Pre-injury duties (increased capacity)", which suggests that the program had resulted in the Applicant increasing his capacity for some kind of work-related activities, but he was not yet at 'full capacity'. Without the benefit of oral testimony from Mr Hills I cannot be sure what was meant by the words 'Pre-injury duties (increased capacity)".
4. For completeness I note that the information contained in the WRAP Report appears to indicate that the Applicant, as at the date of the report, was able to lift and carry weight in conformity with the requirements of the wardsperson role, and was able to sit, stand and walk unrestricted, although his pushing /pulling capacity may have been a little under what is required when pushing/pulling a patient in a bed. However, as I explained in paragraph [25], it is not for me to make an assessment as to whether an applicant is fit for the work for which reinstatement is sought. That assessment must be undertaken by a suitably qualified expert and for the reasons already explained I do not accept that the WRAP Report expresses an opinion that the Applicant, as at the date of the report, was fit for the role of a wardsperson.

The 19 February Certificate

1. The 19 February Certificate, even when considered with other evidence, does not satisfy me that the Applicant was fit for the role of a wardsperson as at that date, for two reasons.
2. First, as the Applicant explained in cross-examination, the certificate was issued following a tele-health consultation with Dr Tioukavkin. It is questionable whether such a consultation would have justified Dr Tioukavin certifying, as he did, that he had "examined this patient". In any event, the lack of a physical examination seriously calls into question the opinion expressed in the Certificate. There was no evidence of the Applicant having been physically examined by Dr Tioukavkin during the period 29 March 2021 through to 19 February 2022.
3. Secondly, the 19 February Certificate indicates that the Applicant was continuing to take 400mg of ibuprofen as required for pain associated with his injury, as he was when he was certified by Dr Tioukavkin as not being fully fit for pre-injury duties.
4. Without the benefit of oral testimony from Dr Tioukavkin or other evidence that would indicate that Dr Tioukavkin had assessed, in person, the Applicant's physical state on or around 19 February 2022, and in circumstances where the Applicant was continuing to take pain medication for his injury, the 19 February Certificate does not satisfy me that the Applicant was fit for employment as a wardsperson as at that date.
5. I have had regard to the fact that the WRAP Report had indicated that the Applicant had demonstrated some functional capacity consistent with the requirements of the role of wardsperson, however it was prepared over four months earlier so does not satisfy me that, as at 19 February 2022, the Applicant was fit for pre injury duties as certified by Dr Tioukavkin.
6. I have also had regard to the fact that from 8 November 2021 to 20 December 2021 the Applicant was contracted by Hays Recruitment to Bingo Industries to perform work as a waste sorter and labourer. However, this fact does not assist in satisfying me that the Applicant was fit for employment as a wardsperson at 19 February 2022 given the lack of information as to exact nature of the tasks performed by the Applicant, combined with the lack of an explanation as to why the engagement came to an end on 20 December 2021.

The Sheehy Report

1. The content of the Sheehy Report was summarised at paragraph [32(48)] above. In short, in Dr Sheehy's view, as at 11 October 2022 when he examined the Applicant, was that the Applicant had recovered from his previous low back injuries; was safe to perform the full duties as a wardsperson; it "is unlikely that he would experience a relapse or reinjury, exacerbation or aggravation of his existing medical condition"; and his work as a wardsperon will not give rise to harm and safety (sic) of himself or other members of staff and patients."
2. The Respondent opposed the admission into evidence of the Sheehy Report for a variety of reasons. Before I explain the approach I took to the Sheehy Report, it is helpful to explain the circumstances by which the Sheehy Report came to be created and then tendered, by the Applicant, in evidence.
3. As noted in paragraph [32(44)], on 15 June 2022 the Applicant attended a medical examination performed by Dr John Sheehy in connexion with the conciliation of the matter. I ruled that the report of that examination was privileged and could not be adduced in evidence as it was a document that had been prepared in connexion with an attempt to negotiate a settlement of a dispute: s 131(1)(b) of the Evidence Act 1995 (NSW). Counsel for the Applicant argued that the report fell with the exception provided in s 131(2)(g), however I rejected that argument for reasons that appear in the transcript.
4. The Applicant's evidence in chief was filed on 15 September 2022, before the Applicant's examination by Dr Sheehy on 11 October 2022. Such evidence did not include Dr Sheehy's report of 15 June 2022. While it seems the Applicant did not have a copy of the report at the time of filing his evidence, the report was, in any event, subject to settlement privilege.
5. At a directions hearing held before me on 29 September 2022 at the request of the Respondent, two weeks before the Respondent's evidence in chief was due to be filed, the Respondent pressed me to make a direction that the Applicant attend a medical examination with a Dr Jenner, that it had arranged for the Applicant to attend the following week. It transpired that the Applicant was refusing to attend the appointment because the Respondent was refusing to provide a copy of the letter of instruction to be given to the doctor, together with copies of the background material to be provided to the doctor. (The Applicant was also refusing to attend a separate appointment with a psychiatrist, but the Respondent ultimately did not press for this to occur.)
6. At the directions hearing, (the transcript of which was tendered in evidence by the Applicant), I indicated that I did not consider I had the power to direct the Applicant to attend a medical examination, but instead I invited the Respondent to make an application pursuant to s 245 of the WC Act for me to refer the dispute as to the Applicant's fitness for employment to a medical assessor for assessment and report.
7. Basten JA expressed reservations about the practical operation of s 245 of the WC Act in Bindaree Beef at [101], which reservations were endorsed and expanded upon by Walton J, President, in Glenn Robson and GWA Group Limited at [161] - [163]. Those concerns, which I share, but need not repeat here, were discussed during the directions hearing. Ultimately the Respondent, to its credit and consistent with its obligations under s 56 of the Civil Procedure Act 2005 (NSW), opted to try and reach a consent position with the Applicant, whereby the Applicant would agree to attend a medical examination voluntarily, and the consulting doctor would be provided with an agreed letter of instruction. It was agreed that the doctor would not be Dr Jenner, who had already been sent a letter of instruction which was not approved by the Applicant. The Applicant ultimately attended an examination by Dr Sheehy and a letter of instruction, which was largely but not completely approved by the Applicant, was sent to Dr Sheehy by the Respondent's solicitors.
8. It is important that I note at this juncture, that it was made clear during the directions hearing by the solicitor for the Respondent, Mr Gardener, that the purpose of the proposed medical examination was to enable the Respondent to obtain expert evidence upon which it proposed to rely, as the following excepts from the transcript demonstrate: GARDENER: The matter was previously before Commissioner Webster when directions were issued initially, including a reasonably generous timeframe for the filing of expert evidence. We're now at the point where the applicant has filed his evidence, and I think that was done on 13 September this year. We are now, the respondent, two weeks into our timetable whereby, in essence, we need to have the applicant available for an independent medical examination. So the timetable for the respondent was given an extended basis to allow for expert evidence of a medical nature, because we were in this jurisdiction where an assessment has to be made about fitness of the applicant to return to his job as a wardsperson. … ….We've relisted the matter out of concern that the respondent, on its current timetable, may be prejudiced if - in terms of getting its evidence ready in time - if the applicant is not planning to turn up to this appointment. … But we're now needing this with some urgency and so that we can complete our evidence within the timetable in time, we need the applicant to turn up to this appointment next week.
9. As the directions hearing wore on and concerns were expressed as to whether the Commission could or would direct the Respondent to attend a medical examination, the solicitor for the Respondent changed tack somewhat and submitted that the Respondent was seeking the report as a "model litigant", and that what the representatives of the Respondent were trying to do was: "…because we have a duty to try and assist the Commission to reach that action [i.e. a view as to whether the Applicant is fit], we were doing that at our expense to assist in getting a full range [of opinions] - and mind you, it was also for the purposes of a dispute that exists between the parties where, if for example, the parties are satisfied about a body of evidence then the dispute may go away. So it was an attempt to resolve the matter early as well. Unfortunately if Mr Jenkins - and I accept that we can't compel him to turn up to this, but it's disappointing if he doesn't because it doesn't help us reach a level of satisfaction to reach agreement…."
10. I make the following observations regarding the above submissions. First, there is no duty on an employer, be it a model litigant or otherwise, to assist the Commission to be satisfied as to whether an applicant for reinstatement is fit for employment of the kind for which reinstatement is sought. As discussed above, the applicant bears the burden of satisfying the Commission that he or she is so fit. What the respondent must do, after seeing the evidence upon which the applicant intends to rely and if it remains unprepared to reinstate the applicant (in this case, mindful of its obligations as a model litigant), is make a forensic decision as to whether it needs to lead evidence to counter the evidence as to fitness to be relied on by the applicant. That may or may not include medical evidence. A view may be taken by the respondent that the applicant has not 'come up to proof', to use the colloquial expression, and that consequently there is no need for the respondent to lead any evidence, or that while it may assist to lead some lay evidence, there is no need to lead any medical evidence.
11. If the respondent takes the view that the applicant is likely, on the basis of the medical evidence, with or without other lay evidence, to satisfy the Commission that he or she is fit for the specified employment, the respondent may decide that it would like to have the applicant medically examined and a report prepared, on the basis that a report opining that the applicant is not fit, would obviously assist the respondent's case. However, if the report confirms the applicant's fitness, commissioning such a report may prove to be somewhat of a forensic gamble, as it is more than likely, for reasons that I will now explain, that the report will be obtained and relied upon by the applicant. I might add however, that another option available to the respondent in those circumstances (particularly if the respondent is a model litigant, as is the case here) is not to contest the applicant's fitness, but to focus on the other circumstances that may exist to support a case that the Commission, in its discretion, should not reinstate in the applicant.
12. As was discussed during the directions hearing on 29 September 2022, save for referring the worker for a medical assessment pursuant to s 245 of the WC Act, the Commission has no power to compel an applicant for reinstatement to attend a medical examination. Part 23 of the Uniform Civil Procedure Rules 2005 (NSW), which allows for a Court to order a party to attend a medical examination, does not apply to proceedings in the Industrial Relations Commission: r 1.5 and Sch 1 of UCPR. This being the case, a respondent must rely upon the applicant's agreement to submit to an examination, although if the applicant unreasonably refuses to attend, it may be possible for the respondent to have the proceedings stayed.
13. In Clarke v Martlew [1973] QB 58, Lord Denning M.R. had to decide whether a defendant, who sought to have a plaintiff in a personal injuries case medically examined, was obliged to provide a copy of the resultant report to the plaintiff, such that, until the defendant agreed to providing a copy, the defendant was not entitled to have the proceedings stayed until the plaintiff attended the examination. There was no provision in the court rules at that time, which entitled a defendant in a personal injury case to have a medical examination of the plaintiff, however, as Lord Denning explained at p 62: But the courts hold that justice may often require that the defendant should be able to have a medical examination. So by a series of cases starting with Edmeades v. Thames Board Mills Ltd. [1969] 2 Q.B. 67 and ending with Lane v. Willis [1972] 1 W.L.R. 326, the courts have held that if a plaintiff unreasonably refuses to be medically examined at the request of the defendant, then his action will be stayed until that medical examination is held. That is only fair to the defendant. He should be able to check the plaintiff's condition and his injuries so as to be able to assess the damages properly.
14. I note in passing that the Respondent in the present matter did not apply to have the proceeding stayed pending the Applicant attending a medical examination.
15. The defendant in Clarke v Martlew argued that the report to be prepared following the medical examination was like a proof of a witness and that it was privileged from disclosure unless privilege is waived. Lord Denning, a p 63 regarded this argument as "unsound": It is the defendant who seeks a privilege - he seeks to have a medical examination of the plaintiff - and I do not think he should have this privilege unless he is prepared to act fairly by it. Fairness requires that he should show it to the plaintiff. In all the cases where the courts have allowed the defendant to have a medical examination of the plaintiff - and ordered a stay until it is given - it has been assumed that the defendant will show the report to the plaintiff. In Lane v. Willis [1972] 1 W.L.R. 326 the defendant undertook to do it. … The net result of it all is that, if the defendant, as no doubt he does, wishes to have the plaintiff medically examined, that is a privilege to him. If he is seeking to have the action stayed for that very purpose, then it is only reasonable anal just that, as a further condition, he ought to make available the doctor's report to the plaintiff.
16. The views of Lord Denning were endorsed, albeit in a different context, by Higgins J in Deacon v Australian Capital Territory [2001] ACTSC 8; 147 ACTR 1 at [117] - [120], although Blackburn CJ many years earlier, in Neill v Commonwealth (unreported, 1982, ACTSC, BC 8200148, 9 September 1982), did not take the same approach. In granting a stay in circumstances where a plaintiff claiming damages for personal injury refused a medical examination by the defendant's doctor except on condition that a copy of the doctor's report be furnished, Blackburn CJ said: "It may be arguable that all medical reports, whether to be used at the trial or not, should be discoverable on both sides. But until that is the rule, I do not think that the plaintiff's attitude is fair."
17. However, I note that the editors of the NSW Civil Handbook 2022 (Lawbook Co 2022) at [r23.2.80] and [r23.4.90], cite Clarke v Martlew and Deacon v Australian Capital Territory in the context of the power given to the Court to make an order for medical examination in r 23.4, and state in both paragraphs: "As a matter of fairness, the defendant should disclose to the plaintiff any report of the examination."
18. There is no sub-rule in Part 23 which mandates the disclosure of any report of a court ordered medical examination, nevertheless an order was made for the defendant to serve a copy of such a report on the plaintiff in KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's Hospital Westmead and Anor [2010] NSWSC 891 and in PL by her tutor TL v Dunstan [2020] NSWSC 297. In Wells by his tutor McGuffog v Hunter New England Local Health District [2018] NSWSC 1877 the defendant, who sought and obtained an order for a medical examination under r 23.4, undertook to provide copies of all reports produced in respect of the examination. I note that the defendant in that case was also a model litigant.
19. Master Harper in David Ernest Birch v Sparke Away Pty Limited (ACN 104 170 247) and Australian Postal Corporation trading as Australia Post [2008] ACTSC 27; 2 ACTLR 78; and Gray J in Smith Management Concepts Pty Ltd t/as Bernadette's Cafe and Restaurant v Khanh Van Truong [2006] ACTSC 16 and Louise Peta Lambert v ACT Nursing Services Pty Ltd [2007] ACTSC 86; 1 ACTLR 172 considered Clarke v Martlew in the context of claims under the Workers Compensation Act 1951 (ACT). It is unnecessary to go into any detail in respect of those cases; it suffices to say that both Master Harper and Gray J concluded that the procedure set out in the Workers Compensation Regulation 2002 (ACT) for the employer's insurer to require the claimant to undergo medical assessment, obliged the insurer to provide a copy of the resultant report to the worker and that such obligation removed any confidentiality attached to the communication such that no privilege attached to the report.
20. I observe that ss 73, 119 and 126 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and reg 41 of the Workers Compensation Regulation 2016 (NSW) oblige the employer or insurer to provide copies of any relevant report in their possession (supportive of its position or not), including those resulting from a medical examination of the worker at the direction of the employer, in circumstances where an employer or insurer decides to dispute liability in respect of the claim, or any aspect of the claim; to discontinue or reduce payments; or to confirm on review an original decision to dispute liability or discontinue or reduce payments. It seems to me that the scheme reflects the view taken by Lord Denning that it only fair that if the employer/insurer/defendant is in dispute with the injured applicant, and requires the applicant to be medically examined, that they provide a copy of any report arising from the examination of the applicant.
21. While there is no legislative requirement for the respondent to serve or otherwise provide a copy of a report produced in respect of a medical examination which an applicant for reinstatement has agreed to attend at the request of the respondent, as a matter of fairness and consistent with the scheme of the workers compensation scheme in New South Wales, I consider that the respondent should make such a report available to the applicant. I consider that this applies a fortiori when the respondent is a model litigant, given the obligation of such a litigant to act with complete propriety, fairly and in accordance with the highest professional standards.
22. The second observation to be made concerns Mr Gardener's submission that the report to be obtained was to be used in an "attempt to resolve the matter early". This submission was developed further at the hearing into an argument that the Sheehy Report was subject to settlement privilege and so could not be adduced in evidence. I also discuss this further below, but is suffices to observe at this juncture that while I accept that it is possible that a medical report could help resolve the matter, so much could be said of all kinds of evidence garnered by a respondent in every case - strong evidence in support of the respondent's case may bring the applicant to the settlement table, while strong evidence in support of the applicant's case may result in the respondent reconsidering its position. The fact that proposed evidence may assist to resolve a matter does not make that proposed evidence privileged. To be privileged the communication or document must be directed at arranging or bringing about a settlement, (see Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190 at [115] - [122] and Coastal Service Centres Pty Limited v United Petroleum Pty Limited [2020] NSWSC 1870 at [47]) and not directed at proving a party's case.
23. In any event, following extensive discussion and argument at the directions hearing on 29 September 2022, and a further directions hearing on 6 October 2022, the Applicant agreed to attend a further medical examination arranged by the Respondent if agreement was reached as to the content of the letter of instruction and the documents to be provided to the expert. It is also clear, from subsequent correspondence sent by the Applicant's representative to the Respondent's solicitor, that while the Applicant understood that the report was likely to be evidence upon which the Respondent would rely, (as the Applicant considered that he already had sufficient evidence to make out his case), he also considered that in circumstances where he was co-operating in the production of such a report, that the report was some kind of joint report such as would be produced following an independent medical examination (IME) undertaken pursuant to Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW); and that the report could assist in resolving the dispute. The Applicant's representative's email to the Respondent's solicitor of 30 September 2022 makes this clear: Mr Jenkins does not believe that further medical evidence is required in his case. He is content to rely on the evidence filed. It is your client which wishes further medical evidence. Mr Jenkins has only entertained your client's suggestion that further evidence be obtained because you have suggested on a number of occasions, including yesterday that such evidence may resolve the dispute without needing to wait for a hearing. …. As to choosing the medical practitioner I understand it is not uncommon for parties to agree on the appropriate examiner. This is reflected in Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 at s 321. I also note that the State Insurance Regulatory Authority has issued guidelines which apply to workers compensation matters which deal with the circumstances where independent medical examinations are necessary. Part 7 of those guidelines are a useful resource on how IME's should be conducted. A copy is attached.
24. The State Insurance Regulatory Authority's guidelines referred to in the email were tendered in evidence and refer to the fact that the worker can request a copy of the IME report as well as documents that were provided to the IME and that a copy of the report will be provided to the worker's nominated treating doctor. Again, this reflects the 'fair' approach advocated by Lord Denning and the scheme of the workers compensation legislation generally.
25. The Respondent's solicitor did not dispute in subsequent correspondence, that the examination to be conducted and the report to be prepared by Dr Sheehy, was in the nature of an IME.
26. Thus, while it is clear that the purpose of obtaining Dr Sheehy's report was for the Respondent to obtain evidence in support of its case, it is also clear that there was an assumption or expectation on the part of the Applicant, which was not disabused by the Respondent, that the Applicant would be provided with a copy of the report.
27. A draft of Dr Sheehy's Report was prepared on or about 20 October 2022. The final version was dated and sent to the Respondent's solicitor on 26 October 2022. A copy was not forwarded by the Respondent's solicitor to the Applicant's representative.
28. The Respondent filed its evidence on 18 November 2022. It did not include Dr Sheehy's Report. Consequently, on 22 November 2022 the Applicant issued a Summons to Produce to Dr Sheehy requiring production of his report, together with a copy of an earlier report he had prepared in connexion with conciliation. In response to the Summons Dr Sheehy provided a copy of his reports directly to the Applicant's representative as well as producing documents to the Commission. When the Summons was returned before the Registrar on 30 November 2022 the Registrar granted general access to all parties. So far as I am aware the Respondent did not oppose the access order and no application was made for the copy of the reports sent directly by Dr Sheehy to the Applicant's representatives to be returned to it.
29. During the Applicant's closing submissions, after both parties had closed their cases, it became apparent that Dr Sheehy had in fact provided the Applicant's representative and the Commission with a draft of his report, which was dated 20 October 2022 and not the final version which was sent to the Respondent's solicitor, which was dated 26 October 2022. I discuss this development further below, but note for present purposes that the only substantive difference between the draft and final reports was the inclusion of the date of the examination of the Applicant and a variation to the date of the report.
30. The draft version of the Sheehy Report and the letter of instruction was annexed to Mr Jenkin's reply statement made and filed on 2 December 2022.
31. At the hearing the Respondent objected to the admission into evidence of Dr Sheehy's draft report and the letter of instruction on the basis that: 1. it was a document prepared in connection with an attempt to negotiate a settlement of a dispute and so should not be adduced in evidence in conformity with s 131 of the Evidence Act 1995 (NSW); 2. it was not relevant as it was not "replying to anything in the Respondent's case"; 3. because Dr Sheehy was not being called.
32. At no time did the Respondent submit that the Sheehy Report was subject to client legal privilege, legal professional privilege or any other form of privilege, save for settlement privilege. Had such a submission been made I would have rejected it for the reasons set out in paragraph [81] to [89] above.
33. For reasons I have already partially canvassed in paragraph [90] above, I do not consider that the Sheehy Report was subject to settlement privilege. The report was obtained to provide potential evidence. The Applicant had already seen Dr Sheehy in June 2022 as part of the conciliation of the matter and a report for that purpose had been prepared. The matter had not settled despite that report being obtained. I ruled that Dr Sheehy's June report was protected by settlement privilege. However, in circumstances where: 1. a 'settlement report' had already been obtained a few months earlier; 2. the respondent requested the Commission's assistance in having the Applicant attend a medical examination two weeks before its evidence was due; and 3. the statements of Mr Gardener at the commencement of the directions hearing on 29 September 2022 to the effect that the purpose of the examination was to 'complete' the Respondent's evidence, I did not consider that the Sheehy Report was subject to settlement privilege.
34. I also rejected the submission that the Sheehy Report was not relevant on the basis that it did not reply to the Respondent's case, as the opinions expressed in the report are plainly relevant to the question of whether the Applicant is fit for employment as a wardsperson.
35. However, in circumstances where: 1. the report was not served as part of the Applicant's evidence in chief; 2. was served as part of the Applicant's reply evidence only five days before the hearing; and 3. Dr Sheehy was not called by the Applicant, I was concerned with the fairness of permitting the Applicant to rely on the report.
36. I inquired of Mr Gardener what prejudice his client would suffer in circumstances where it was aware of the report and its content. Mr Gardner submitted: "…there is a question of prejudice in the sense that we're not able to question the maker of the report. We had many questions, and in fact the suggestion that the letter of instruction is a complete list of questions is not the case. We are prejudiced because we can't advance the serious questions we have for that maker. If it was to be allowed we would be submitting that due weight should be given to the fact that it can't be tested. It's not our evidence. It's not our witness. Can't test it. But if the maker was available we would have many, many questions to ask.
37. There are some difficulties with this submission. The Respondent did not require Dr Sheehy to be available for cross examination. The first time the Applicant had notice that Dr Sheehy was required for cross examination was at the hearing. I acknowledge that the Respondent only became aware that the Applicant proposed to rely on the report on a few days before the hearing and only had two business days to require Dr Sheehy for cross examination, but still no such request was made. Moreover, given that the Respondent had an obligation as a matter of fairness to share Dr Sheehy's report with the Applicant, all the more so given its status as a model litigant, the situation it found itself in at the hearing was one of its own making. Had the Respondent shared Dr Sheehy's report at the time it was received it could have advised the Applicant at the same time that if the Applicant proposed to rely on the report, Dr Sheehy would be required for cross examination. It is difficult for the Respondent to complain of unfairness when the Respondent had itself acted unfairly by not providing Dr Sheehy's report to the Applicant, in circumstances where the Applicant had attended to be examined by Dr Sheehy at the Respondent's request.
38. During the hearing I ruled that I would admit the report as evidence of the Applicant's fitness, but I indicated that I was inclined to give the report limited weight in the absence of Dr Sheehy being called. However, I granted the parties leave to put on additional evidence about the circumstances giving rise to the report, in support of any argument as to the weight I should give the report. The Applicant took advantage of that leave and filed in Court on the second day of the hearing a statement of Andrew Gallagher, the officer of the HSU with carriage of the matter on behalf of the Applicant, which detailed the circumstances by which the Sheehy Report came to be prepared, and which annexed the transcript of the directions hearing on 29 September 2022. I have already outlined the circumstances by which they report came about above.
39. The Respondent chose not to file any evidence (although see paragraph [120] below), but instead filed in Court a document headed "Respondent's Submissions on Provisional Ruling of Admissibility." In those submissions the Respondent repeated the objections already made, but also made further submissions.
40. The Respondent submitted that the Sheehy Report was of no probative value in circumstances where the Applicant alleged that he was fit from 11 May 2021 and that he should be reinstated with backpay and service entitlements from the date and Dr Sheehy only examined the Applicant in October 2022. Such submission appears to misapprehend the decision I have to made. I have to determine if the Applicant is fit for the specified employment. The Sheehy Report, prepared a little less than two months before the hearing is, at least prima facie, probative of the issue I have to determine.
41. The Respondent also submitted that the Sheehy Report was not admissible as an expert report as "at common law an expert cannot give an opinion on the ultimate question or issue in dispute", which was what Dr Sheehy had done.
42. As Einstein J explained in Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1077; 50 NSWLR 640 at [33], an explanation of the ultimate issue rule is not easy. After examination of relevant authorities, his Honour concluded at [36]: Notwithstanding the uncertain nature of the rule, its core component concerns evidence of an expert as to the satisfaction or not of a standard which has legal effect. Thus, the rule would encompass evidence that a certain person had been, in the opinion of the witness, 'negligent.'
43. In the present matter the ultimate issue is whether the Applicant should be reinstated, not whether the Applicant is fit for work as a wardsperson. I may only make an order for reinstatement if I am satisfied that the worker is fit for that kind of employment. Even if I am so satisfied, I may, in my discretion, decide not to make a reinstatement order. Thus, any opinion evidence of an expert that he or she is satisfied that the Applicant is fit for work as a wardsperson, does not, of itself, have any legal effect. In any event, as canvassed above, the authorities state that such an expert opinion that the applicant is fit is a necessary pre-requisite to my reaching the required level of satisfaction.
44. The Respondent's submission also ignores s 80 of the Evidence Act 1995 (NSW) which provides that opinion evidence may not be excluded simply because it is about an ultimate issue. While s 163 of the Industrial Relations Act provides that the Commission is not bound by the rules of evidence, I would be more inclined to follow the rules of evidence set out in the Evidence Act, than those provided by the common law.
45. The most persuasive submission made by the Respondent was that the report did not accord with the letter of instruction which asked the doctor to fully disclose his reasoning for the opinions expressed and did not meet the basic requirements of expert evidence at common law or comply with the principles espoused by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85]. See also Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 (at 604 [37] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
46. It is the case that Dr Sheehy's Report fails to comply in a number of respects with the principles set out in Makita and Dasreef with respect to the requirements of s 79 of the Evidence Act. First, the report does not contain particulars of the training, study or experience by which the expert has acquired specialised knowledge which qualifies him to express opinions as to the Applicant's fitness to work as a wardsperson following his lower back injury. All that is known is that Dr Sheehy practises as a neurosurgeon. However, it must be assumed that the Respondent considered Dr Sheehy to be suitably qualified to provide an opinion as to the Applicant's fitness, in circumstances where it instructed Dr Sheehy. It is the case that Dr Sheehy was not the Respondent's 'first choice', and that it was, in a sense, forced to consult Dr Sheehy due to the position adopted by the Applicant, nevertheless the Respondent proceeded to instruct Dr Sheehy. The complaints now made by the Respondent as to Dr Sheehy's qualification, must be viewed in light of the fact that Dr Sheehy provided a report that was not favourable to the Respondent's case.
47. Nevertheless, as the High Court reiterated in Dasreef at [37], s 79 requires that the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. It is fair to say that it is somewhat difficult to discern how Dr Sheehy's opinion is based, wholly or substantially, on his specialised knowledge as applied to the facts assumed or observed. For instance, when asked for his opinion on "whether Mr Jenkins is fit to safely perform his full pre-injury duties as a wardsperson" Dr Sheehy opined: "He is safe to perform the full duties as a wardsperson having reviewed the documentation provided as to the duties that a wardsperson undertakes." Such opinion does not explain how and why that his training, study or experience as a neurosurgeon, enabled him to form the view that the Applicant could undertake the said duties, or what facts he assumed or observed to arrive at that opinion. When asked if Mr Jenkins is fit to safely perform his full pre-injury duties as a wardsperson, without any risk of relapse, reinjury, exacerbation, aggravation of existing medical conditions" Dr Sheehy responded: "It is unlikely that he would experience a relapse or reinjury, exacerbation or aggravation of his existing medical condition as he has been working for more than six months in a heavy labouring position without difficulty." Such opinion, without more, appears to be no more than a lay opinion, without any foundation upon the doctor's specialised knowledge.
48. I also accept the Respondent's submission that the Sheehy Report does not address in any satisfactory way those facts which may be inconsistent with the doctor's view, in particular the assessment by Dr Lai (which was included in the materials briefed to Dr Sheehy) that the Applicant has suffered a 12% whole person permanent impairment.
49. That said, I consider that I am entitled to infer to some degree, particularly in circumstances where I am not obliged to apply the rules of evidence, that where a medical practitioner has expressed a diagnostic opinion in his or relevant field of specialisation, that he or she has applied their specialised knowledge in reaching that opinion. As the High Court also said in Dasreef at [37]: That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying "specialised knowledge" based on his or her "training, study or experience", being an opinion "wholly or substantially based" on that "specialised knowledge", will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.
50. While Dr Sheehy did not describe his qualifications and experience, it is common knowledge that a neurosurgeon specialises in the treatment and management that affect the brain, spine and nervous system. The Applicant had suffered a spinal injury. Dr Sheehy reported that he had examined the Applicant, that he had reviewed extensive documentation provided with the letter of instruction including various MRIs and their related reports and documents which disclosed the Applicant's earlier back injuries, the reports of other doctors including Dr Lai's report of 6 December 2018 and the WRAP. As already observed, the Respondent (not the Applicant) sought an opinion as to the Applicant's fitness, and I consider it would not have done so if it did not consider that Dr Sheehy was qualified to give such an opinion.
51. Nevertheless, the deficiencies in the Sheehy Report combined with the inability of the Respondent to cross examine Dr Sheehy, (despite this being a circumstance it could have avoided for the reason set out in paragraph [105]) serve to raise some doubt regarding the views expressed in the report.
52. There is a final matter to note in respect of Dr Sheehy's Report. As already discussed, it became apparent during closing submissions that the Applicant had relied upon and tendered a draft of Dr Sheehy's Report, rather than the finalised report. Upon realising this, Mr Gardener applied to reopen the Respondent's case to tender the final version of the report dated 26 October 2022, together with the email sent by Mr Gardener on 28 October 2022 after receiving the report to Medicins Legale, the content of which is set out in paragraph [32(49)]. The documents were admitted without objection.
53. Mr Gardener did not, when tendering the documents, seek a ruling such as would be made under s 136 of the Evidence Act, that the use to be made of the report tendered be limited to establishing that a further report was prepared after the draft report of 20 October 2022 and not for evidence of the truth of the opinions contained therein. In circumstances where the Respondent ultimately tendered the Sheehy Report in its case, without limitation, I would be entitled to disregard the Respondent's objections to the Sheehy Report. However, the purpose of tendering the email of 28 October 2022 with the report was to show that the Respondent was not satisfied with the report and sought clarification as to the basis or bases for the opinions expressed in the report. In the circumstances I have not regarded the Respondent's tendering of the Sheehy Report to be an admission that it accepts the views expressed therein to be accurate.
54. In all the circumstances, I accept the Sheehy Report as evidence that the Applicant was fit to work as a wardsperson from at least 11 October 2022. However, as already explained, the deficiencies in the Sheehy Report combined with the inability of Respondent to cross examine Dr Sheehy in respect of those deficiencies, caused me to have doubts regarding the views expressed in the report.

Conclusion as to Fitness for Employment as a Wardsperson

1. To use the words of Adams J in Robertson v Police [1957] NZLR 193 at 195 (cited by Walton J, President, in Glenn Robson and GWA Group Limited at [51]) I must be "satisfied" that the Applicant is fit for work as a wardsperon, that is to say, I must arrive at the required affirmative conclusion, based on the reasonable probabilities of the case, 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 me, that is all that is necessary in order to entitle me to say that I am "satisfied" that the Applicant is fit for employment as a wardsperson.
2. The Sheehy Report goes part of the way toward satisfying me. If there were no medical evidence attesting to the Applicant's fitness I could not be satisfied. However, there is such evidence and although for the reasons discussed, some doubts do arise in respect of the opinion expressed, it is medical evidence attesting to the Applicant's fitness. Nevertheless, if that were all there was, I would not reach the required level of satisfaction. There is however, (unlike in respect of Dr Tiokavkin's certificates), some additional contemporaneous evidence which does cause me to be satisfied, on the balance of probabilities, that the Applicant was fit as required.
3. As at the date of the hearing the Applicant remained working at Elf Farm Supplies as a labourer, a position he commenced in 25 April 2022 (post his tele-consultation with Dr Tioukavkin on 19 February 2022). His duties include lifting bags of compost up to 25 kgs and placing them onto pallets, collecting excess compost and shovelling it into wheelbarrows, stacking boxes of mushroom compost, pulling tarps that weigh approximately 40kg into a 40m tunnel and other labour-intensive duties. This evidence was unchallenged.
4. The combination of the Sheehy Report and the evidence with respect to the Applicant's work at Elf Farm Supplies satisfy me that the Applicant is fit for work with the Respondent as a wardsperson. I consider that he has been so fit since at least 11 October 2022 when Dr Sheehy confirmed his fitness through an examination. It may be the Applicant was so fit earlier than 11 October 2022, but there was no medical evidence that would enable me to be satisfied that he was fit earlier than that date. I also should record that there was nothing arising from the cross examination of the Applicant or his evidence generally, that could be regarded as detracting from the evidence that the Applicant has been fit for work as a wardsperson since at least 11 October 2022.
5. In reaching my conclusion that the Applicant is fit for work with the Respondent as a wardsperson I have had regard to the Respondent's submission that that the Applicant cannot safely perform the work without a risk of relapse or aggravation of his injury; or that he would place the health and safety of patients or other staff at risk. The Sheehy Report expressly refutes this submission and there was no other evidence that indicated, as at the hearing date, that he posed such a risk.

Discretionary Factors

1. The Respondent submitted that even if I were to be satisfied that the Applicant is fit for employment as a wardsperson I should not exercise my discretion to make an order for reinstatement for a number of reasons, which reasons I shall now address.
2. First, the Respondent submitted that Commission had "already been satisfied that reinstatement was not appropriate as at March 2022 "given the efforts to redeploy him within the NBMLHD and the ongoing assistance that has been made available to him to find alternative employment after his dismissal."
3. As I have already recorded, the decision of the Commission in the Applicant's unfair dismissal case was not tendered in evidence in the proceeding and I have had no regard to it. (No party referred to the decision for the purposes of demonstrating a point of law.) Had the Respondent tendered the judgment I would not have admitted it to prove the existence of a fact that was in issue in that proceeding, consonant with s 91 of the Evidence Act. In any event, (to the extent I understand the Respondent's submission), even if the Commission found in those earlier proceedings that the Applicant was and remained unfit as at the time of the hearing in March and April 2021, to perform the work of a wardsperson and that reinstatement was not appropriate as suitable alternative work was unavailable and/or because the employer had made efforts to find him alternate employment, my decision, that I am not satisfied that the Applicant was fit to work to work as a wardsperson at any time earlier than October 2022, is consistent with that finding. As I said above in paragraph [126], it may well be that the Applicant was fit earlier than that date, but the evidence was simply not sufficient for me to be satisfied that he was fit for work as a wardsperson at an earlier date.
4. Secondly, the Respondent submitted that the Applicant should not be reinstated due to his prior poor performance issues (see Respondent's Submissions at [4]). This submission was not well developed in either the written submissions or in oral opening or closing submissions.
5. Some evidence was led, as set out in paragraphs [32(4)], [32(6)] and [32(8)] above, that the Applicant had been involved in three incidents involving the health and safety of patients over the course of his 18 year career with the Respondent. Save for the Applicant being cautioned in respect of the first incident, there is no evidence of any disciplinary action being taken against the Applicant in respect of his work performance or that any concerns had been raised regarding the Applicant's work performance as a wardsperson.
6. As set out in paragraphs [32(15)], [32(20)] and [32(21)] above, there was evidence that the Applicant had performed poorly during trials in alternate roles, conducted by the Respondent in an effort to find suitable employment for the Applicant consistent with its obligations under the Workplace Injury Management and Workers Compensation Act. It was submitted that those trials had revealed that the Applicant was not well suited to frontline customer service roles and that he had difficulty performing basic tasks and on that basis, I should not order the Respondent to reinstate the Applicant to role of wardsperson.
7. I accept that one of the 'Key Accountabilities' listed in the Position Description' for a wardsperson employed by the Respondent, which was annexed to the statement of David Holmes, is: 'To maintain courtesy at all times with all patients, visitors and staff". I also accept the evidence of Ms Lawton that "positive and courteous customer service is a key requirement of the role", as is the ability to provide timely, efficient and accurate service to patients, in relation to which there is little room for error. Good attention to detail is important.
8. However, the evidence led was not sufficient for me to find that the Applicant does not possess these or other attributes required to perform the role of wardsperson, a role he held successfully for 14 years prior to his injury. The evidence referred to in paragraphs [32(15)], [32(20)] and [32(21)] above was contained in an unsigned briefing note to the General Manager of Nepean Hospital dated 5 May 2020 which contained a recommendation that the Applicant's contract of employment be terminated on medical grounds due to his inability to return to pre injury duties and the inability to find suitable alternate employment with the Respondent. There was also an account in the FCAR of the Applicant reporting that he had struggled in the trials arranged for him by the Respondent, including that: "he struggled with using the computer programs… that he was not the right [fit] for a customer facing administrative role, further noting that he was told by colleagues that he had a problem with customer relationships…… Mr Jenkins reported that he felt like he had been "set up to fail", further indicating that "they ticked all the boxes" then dismissed him."
9. The only evidence given by the Respondent's witnesses as to the Applicant's performance was hearsay evidence given by Ms Lawton: "I received feedback from a manager regarding the trial job and suitable duties that the Applicant undertook was (sic) a ward clerk. This feedback was that the Applicant lacked customer service skills and was unable to perform the administrative tasks required of the role. As I was not in the position at the time, I can only provide the feedback that I was provided."
10. The Applicant's response to this evidence was: "… where my performance has been questioned I was going through a personal crisis and found it difficult to perform those duties. For my entire period of working as a wardsperson I never received a complaint for (sic) a patient or relatives about my demenour (sic) or customer service skills."
11. Even if were to be satisfied that the Applicant lacked the necessary customer service skills and was unable to perform the tasks required of the temporary roles he held in the Short Term Equipment Service, Emergency Clerk and Ward Clerk, I would require some evidence as to how those skills and tasks compared to those required as a wardsperson. There was no such evidence beyond a high level assertion that the role of wardsperson, like the trial roles, requires customer service skills. In the absence of more evidence I am not prepared to find that the customer service skills required when transporting a 'customer' are the same or similar to those required when dealing with a 'customer' in an administrative capacity.
12. Further, even if the evidence was sufficient for me to be concerned, due to inadequate customer service or other skills, as to the Applicant's overall suitability for the role of wardsperson, given the purpose of Part 8 of the WC Act I would be extremely loathe to approach the question of reinstatement on the basis that the Applicant carried some kind of burden to prove, essentially again, that he was a suitable candidate for the job. At the risk of repetition, as Stanton C explained in Lorelle Hillman the legislative purpose of Part 8 of the Act is to ensure that employees who have been dismissed as a result of an injury are able to return to work should they recover and become fit for meaningful work within two years of the dismissal. Part 8 is clearly beneficial legislation and should be construed beneficially by the Commission. Dismissal of an employee because they are not fit for employment as a result of an injury, does not entitle the employer to raise performance issues which were in existence prior to the employee being injured, but were otherwise unmanaged by the employer, as a basis for not reinstating the employee.
13. In other words, the employee cannot take advantage of the employee's injury by legitimately terminating them because they unable to complete the inherent requirements of the position due to their injury, but then refuse to reinstate the employee because it considers that the employee was not performing adequately in the role and would likely continue to not perform adequately in the role. This is consistent with the approach Stanton C took in Lorelle Hillman and his remarks at [204]: The test under Part 8 is whether the worker is suitable for the work of the kind sought taking into consideration that the Commission is satisfied the worker is medically fit for that work and not, as the respondent appears to contend, whether the applicant is the best candidate for the position as assessed through recruitment.
14. I hasten to add that I am not referring to a situation where there has a been a new development, post the injury, which has given rise to the employer regarding the employee as not being suitable for the role. This was the case in Potter v Industrial Relations Secretary in respect of the Department of Regional New South Wales [2022] NSWIRComm 1077 which was upheld on appeal in Potter (No 2). In the present matter, it is possible that the Applicant's failings in respect of his customer service skills and ability to complete tasks may be new, post injury, developments, however there is insufficient evidence for me to make this finding. On the contrary, the Respondent's submissions and its reference to the three patient safety incidents prior to the Applicant's injury, indicated that Respondent considered that the Applicant had been a poor performer prior to his injury and consequently it should not now be obliged to reinstate him.
15. In the absence of clear evidence that the Applicant has developed, post his injury, non-injury related impediments to the adequate performance of his role as a wardsperson, I am unpersuaded that I should not exercise my discretion in the Applicant's favour, given the beneficial and protective purpose of Part 8 of the WC Act.
16. For completeness, as has been mentioned above, it was recorded in the VAR in March 2021 that the Applicant had self-reported that he often forgot what he is doing when undertaking a task, due to short-term memory problems caused by his anti-depressant medication. However, Dr Sheehy specifically reported that the Applicant: "is on mood elevating medication but these medications will not interfere with his ability to work as a wardsperson." Further, as I discuss in the following paragraphs, the evidence shows that he reduced his anti-depressant medication in July 2021 from 100mg to 50 mg. In any event, the Applicant had been taking such medication from at least March 2006 (as evidenced by the medical certificate issued by Dr Crosgrove (see paragraph [32(5)] above), without any issue being raised as to his performance as a wardsperson.
17. Thirdly, the Respondent submitted that if the Applicant was reinstated there would be impacts on other staff and issues arising in respect of operational efficiency. This submission was based on the fact that prior to the Applicant's dismissal he had submitted medical certificates indicating that he should not work night shifts and according to Ms Lawton a wardsperson is required to work a rotating roster which includes a combination of any morning, afternoon and night shift. (The submission was also, somewhat contradictorily, based on the fact that the work to be undertaken was greater during night shift as there will generally be six wardsperson on night shift compared to fourteen during the day at Nepean Hospital and the Applicant would not be able to perform the tasks required during the night shift and this would put pressure on other staff members. My decision that I am satisfied that the Applicant is fit to perform the role of wardsperson disposes of this argument). As Ms Lawton explained: If the Applicant is reinstated and does not want to or is unable to work night shifts, this would be a concern for me as I am responsible for rostering wardspersons. As the staffing ratio is already reduced in the evening and the hospital can be very busy, not being able being able to roster a wardsperson on night shift negatively impacts operations and will burden the team with the additional workload. I am concerned this will detrimentally affect team morale in an already high intensity and serious work environment where team morale is important.
18. It appears in direct response to these expressed concerns, the Applicant obtained, on or about 7 November 2022, a medical certificate from Dr Tioukavkin which confirmed that the Applicant was fit to work a 24-hour rotating roster (see paragraph [32(50)] above), and attached this certificate to his reply statement.
19. In cross examination the Applicant confirmed that the medication that made it unsafe for him to work night shifts, as certified in earlier medical certificates, was desvenlafaxine, also known as Pristiq. He also confirmed that he continues to take Pristiq. On the face of it, Dr Tioukavkin's certificate of 7 November 2022, appears to contradict, without explanation, the earlier certificates issued, including by him. In the absence of Dr Tioukavkin being called to give evidence this apparent contradiction could not be explored with him.
20. However, the evidence also revealed that in or around July 2021 the Applicant reduced the dosage of the drug from 100mg a day to 50mg a day, which may explain why Dr Tioukavkin was able to certify, in November 2022, that the Applicant is fit to work a 24-hour rotating roster. The most recent evidence that the Applicant was not fit to work night shift was Dr Tioukavkin's certificate of 12 May 2016, issued before the change in dosage of desvenlafaxine.
21. I note that there was no evidence as to whether the Applicant was, or was not, working night shifts prior to his injury. If he was not working night shift, I reiterate my comments as to the inappropriateness of not allowing reinstatement because of a circumstance that existed prior to the injury. Further, if the Applicant was not working night shift, it somewhat undermines the Respondent's evidence that this is a critical aspect of the role. Needless to say, if he was working night shift, it supports the view expressed by Dr Tioukavkin in his certificate of 7 November 2022.
22. In the circumstances I am not persuaded that I should exercise my discretion to not make an order for reinstatement. I would note however, that having provided a certificate certifying that he is fit to work a 24-hour rotating roster, which self-evidently includes a night shift, if the Applicant were to subsequently request not to work night shift on medical grounds, the Respondent may well be justified, if working night shift is an inherent component of the role, to once again regard the Applicant as being unfit for the role, albeit for different reasons than were present in 2020. Of course whether this would entitle the Respondent to terminate the Applicant would depend on all the relevant circumstances.
23. Fourthly, the Respondent submitted that if the Applicant were to be reinstated it could impact adversely on the Respondent's workers compensation insurance premiums. The evidence in support of this submission was a bare statement by Mr Holmes that: "Any new compensable injury claimed by Mr Jenkins against NBMLHD are likely to impact NBMLHD's workers compensation insurance premiums." No foundation for this opinion was proffered and it was not clear that Mr Holmes had any specialised knowledge such as to overcome the general rule that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s 76 Evidence Act. I do not accept, particularly in circumstances where I am not persuaded, on the evidence that it is likely that the Applicant will suffer a new compensable injury such that I am satisfied that the Applicant is fit for employment as a wardsperson, that if the Applicant is reinstated it could impact adversely on the Respondent's workers compensation insurance premiums.
24. Lastly, the Respondent submitted that I should exercise my discretion and not reinstate the Applicant due to the delay in applying to the Respondent to be reinstated and/or the delay in making an application to this Commission under s 242 for an order that the Respondent reinstate him.
25. The Applicant first applied to the Respondent for reinstatement pursuant to s 241 of the WC Act on 11 May 2021, ten months after he was dismissed. Despite the application being rejected by the Respondent, the Applicant did not, at that time, apply to this Commission for a reinstatement order. The Applicant applied again to the Respondent to be reinstated on 5 April 2022, 21 months after he was dismissed. After the Respondent again rejected his application, the Applicant commenced pursuant to s 242 in this Commission on 21 April 2022.
26. As I have already observed above, s 242(3) provides that the Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than two years after the injured worker was dismissed. Both applications made by the Applicant to his erstwhile employer in this case, were made within two years. There is no time limit within which an employee, after being refused reinstatement, may apply to the Commission for a reinstatement order.
27. The Respondent, by reference to submissions made and the judgment delivered in the Applicant's the unfair dismissal proceedings, which were not in evidence, submitted that the delay in bringing these proceedings was caused by the Applicant bringing misconceived proceedings for unfair dismissal and consequently he should not now be granted relief in these proceedings. As the Respondent submitted in its written submission: "…the Applicant now expects the Commission to reward him for having 'hedged his bets' at the Respondent's expense with reinstatement and full back pay from 11 May 2021." No express argument was made that the Applicant was estopped in some way from bringing the proceedings and there is no material before me that would enable me to form any kind of view that the existence of the earlier proceedings has any bearing on the exercise of my discretion.
28. There is one matter however, that has given me cause to pause and consider whether the timing of the application made to this Commission, relative to the time when application was made to the employer for reinstatement, constitutes a basis for refusing relief. That matter is the fact that I am not satisfied, as at the dates the Applicant applied to the Respondent to be reinstated, that the Applicant was fit for employment as a wardsperson.
29. This is a matter I explored with counsel for the Applicant during closing submissions: COMMISSIONER: Tell me, do you because I think Mr Gardner submits that there's effectively a gateway to the jurisdiction. That is that at the time that the request for reinstatement was made which must be made within the two years of the dismissal and that's sort of the trigger point for this whole proceeding and you have to get through there, that you needed to be fit both then [-] because otherwise obviously the refusal to reinstate if it was established you weren't fit for the duties is obviously an appropriate decision [-] so you need to be both fit then and fit now while I'm satisfied on the evidence before me that you're fit now. SLEVIN: Not for the purpose of exercising the reinstatement power but it may be relevant to the question of back pay. COMMISSIONER: So you say that even if you weren't fit at the time that you made the request and the request was refused, I can still reinstate through s 242? SLEVIN: It's described in our submissions the various requirements to exercise the power. In other words, the question is simply, did an application get made for reinstatement to the employer, was it rejected, then an application could be made in this Commission. COMMISSIONER: Wouldn't that mean that pretty much every person who is dismissed following a workers compensation, a compensable injury, would as a matter of course apply for reinstatement within two years and then at any time in the future where they're actually better again, they make an application to this Commission? SLEVIN: I don't have anything to say about that, Commissioner, because that doesn't arise in this case. I don't want to invite you to make any findings for a general application. COMMISSIONER: It may arise in this case. I mean, if I were to find and I take what you say about well, there's two potential relevant entry points here because there was two distinct requests made, one in 2021 and one in 2022 both of which were within the two years of dismissal but if I was to find that in fact Mr Jenkins was not fit to undertake the duties, whatever the correct phrasing is at the time he made those applications, then the question kind of does arise because on your case you say, well, that doesn't matter, it doesn't matter that he wasn't fit then because I can still make an order for reinstatement, I still have the power to do that. Mr Gardner will submit to the contrary, I think but your interpretation does sort of give rise to a rather interesting position whereas I say, people could not be fit, make the application knowing it's going to be rejected because they're not fit but then come here and apply for relief later when they think they can establish which might be ten years hence. SLEVIN: And that no doubt would be relevant to the exercise of the discretion so I think that's the answer to it in a theoretical sense but I don't encourage you to make findings of general application unnecessarily because it is unnecessary in this case.
30. I respectfully agree with Mr Selvin. If a finding were made by the Commission in a s 242 proceeding that the Applicant was not in fact fit for the specified employment as at the date of making an application to the employer for reinstatement pursuant to s 241, and the application under s 242 for a reinstatement order had been made some considerable time after the application to the employer had been refused, at a time when the employee was able to establish their fitness, it would be relevant to the exercise of the Commission's discretion, particularly if the delay was in the order of two or more years. However, that is not the case here. I have not found that the Applicant was not fit on 11 May 2021 or on 5 April 2022 - I am simply not satisfied that he was fit. He may well have been, but the evidence does not satisfy me that he was.
31. I therefore do not consider that the timing of the filing of the present application has any bearing on the exercise of my discretion, nor does the fact, per se, that I am not satisfied that the Applicant was fit at the time he applied to the Respondent to be reinstated. The Applicant produced to the Respondent certificates given by a medical practitioner, as required by s 241(3), and while such certificates were not 'conclusive' (to use the description applied by Walton J, President in Glenn Robson and GWA Group Limited), they have not been shown to be false.
32. However, the fact that I am not satisfied that the Applicant was fit at any time prior to 11 October 2022 does have a bearing both in respect of the continuity of the Applicant's employment and the amount to be paid to the Applicant pursuant to s 243(4), colloquially referred to as 'backpay'. I will address those matters below.

Conclusion as to Reinstatement

1. For the reasons set out above I am satisfied that the Applicant is fit for employment as a wardsperson with the Respondent and that an order should be made that the Respondent be reinstated to that role.

Continuity of Employment and Backpay

1. Section 246 provides that if a worker is reinstated under Part 8 of the WC Act, the Commission may order that the period of employment of the worker with the employer should be taken not to have been broken by the dismissal, but if the 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 carve out of the period between dismissal and the date of the application by the worker for reinstatement for the purposes of calculating the worker's period of service is an acknowledgment by the legislature that a worker should not be treated as having been employed during a period when he or she, having been dismissed, was not available to work due to injury, or had otherwise not made themselves available to work with the employer by applying for reinstatement. By extension, if a worker, who has the onus of proving to the Commission's satisfaction that he or she is fit for the specified employment, does not satisfy the Commission that they were so fit as at the date of their application to the employer, they should not be entitled to have their period of service calculated from that date. In those circumstances the Respondent's refusal to 'reinstate the worker immediately' could be said to have been justified.
3. In this present matter the Applicant only proved, to my satisfaction, that he was fit for employment as a wardsperson from 11 October 2022, being the date he was examined by Dr Sheehy, over two years after his dismissal by the Respondent. I do not consider that the terms of s 246(1) permit me to make an order that the period of employment be taken not to broken other than from the dismissal date. That is, I can either make an order that the period of employment is taken not to have been broken by the dismissal, or not. I cannot order that the period of employment be taken to not to have been broken by the dismissal from say, 11 October 2022. Similarly, the terms of s 246(2) do not permit me to make an order specifying a date for the purposes of calculating the period of service of the worker with the employer. Sub-section 246(2) simply stipulates how the period of service is to be calculated if the Commission makes an order for continuity of service pursuant to s 246(1). In circumstances where I am not satisfied that the Applicant was fit for employment as a wardsperson as the date of his application to the Respondent to be reinstated, I am not prepared to make an order that the period of employment be taken not to have been broken by the dismissal.
4. At the risk of labouring the point, I reiterate that I have not found the Applicant was not fit when he applied, either on 11 May 2021 or 5 April 2022, to the Respondent for reinstatement. However, the evidence he provided to the Respondent on each occasion in support of his application, while sufficient to enter the jurisdictional gateway, was insufficient to satisfy the Respondent or me, that he was fit for the specified employment at the time of his application. This being the case, the Applicant is not entitled to have his employment with the Respondent regarded as being continuous. Indeed, as things have transpired, the Applicant is fortunate that the Respondent fought hard to have him examined by Dr Sheehy - had this not occurred the Applicant would have failed in obtain an order for reinstatement.
5. Similarly, the failure of the Applicant to satisfy the Commission that he was fit for employment at any time prior to 11 October 2022 bears upon his entitlement to backpay.
6. In the 'Respondent's Submission on Provisional Ruling of Admissibility' the Respondent sought to amend its written submissions of 10 November 2022 such the final paragraph of those submissions would read as follows: If the Commission considers it appropriate to order reinstatement, the Respondent submits in all the circumstances that it is not appropriate to order any back pay, or if the Commission considers some backpay as appropriate, It be from 10 October 2022 [the date of Dr Sheehy's draft report] or some later date (such as 2 December 2022 [the date the Sheehy Report was served on the Respondent]), taking into account: 52.1 the reasons advanced by the Applicant for delaying making this application; 52.2 the Applicant's reliance on the functional and work safety assessment evidence that does not support his submissions; 52.3 the vocational and functional assessments recommending that the Applicant perform different work at a different employer which has been performing; 52.4 the lack of evidence of his income and earnings since dismissal.
7. If an applicant's employment is not ordered to be continuous from the date of dismissal (subject to the s246(2) carve out) because the applicant has failed to establish to the Commission's satisfaction that he or she was fit at the time of applying for reinstatement, it may be not appropriate to order that any amount be paid to the worker pursuant to s 243(4). Section 243(4) is predicated on the notion that where the Commission orders the worker to be reinstated, the worker should only be compensated for the remuneration they would have received had they been reinstated 'immediately' upon making application to employer, subject to the worker having to account for any other remuneration received during the intervening period. That is, it is predicated on the principle that the employer ought to have reinstated the worker when they made an application to be reinstated and the worker should not be left out of pocket for the ensuing delay in their reinstatement.
8. If a worker does not satisfy the Commission that he or she was fit at the time they applied to the employer for reinstatement, their entitlement to backpay, at least from that time, must fall away. This view is consistent with the remarks made by Emmett AJA in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Justice [2015] NSWCA 386 at [63] (with emphasis added): Where an employer does not reinstate a worker and the worker applies to the Commission for a reinstatement order, the Commission has a discretion under s 243(1) as to whether or not to order the employer to reinstate the worker. No doubt, the capacity of the worker to earn is a factor that could be taken into account by the Commission. Further, that consideration (as well as the fact that the worker has recovered damages in respect of the injury that resulted in dismissal) would no doubt be taken into account, and perhaps should be taken into account, by the Commission in deciding whether to order the employer to make a payment of the kind contemplated by s 243(4). …
9. Upon careful consideration, I do not think my decision not to make an order pursuant to s 246(1) that the period of employment of the Applicant with the Respondent be taken not have been broken by the dismissal, entirely precludes an order under s 243(4) for backpay, however I consider that such an order should date only from the date when it could be said, in light of the findings of the Commission, that the Respondent should have reinstated the Applicant. As I will explain that date, in this case, was 26 October 2022.
10. As recorded above, the Sheehy Report, combined with the evidence regarding the Applicant's employment at Elf Farm Supplies, satisfied me that the Applicant is fit for wardsperson and has been so fit since at least 11 October 2022, when he was examined by Dr Sheehy. The evidence reveals that the Sheehy Report was first provided to the Respondent on or about 26 October 2022. That is the date, given my findings, that the Respondent ought to have reinstated the Applicant. I accept that as at that date the Respondent was not aware that the Applicant proposed to rely on the report to establish his fitness, however for the reasons discussed above, the Respondent had a duty as a matter of fairness, to provide the report to the Applicant and given its content, it could have reasonably anticipated that it would be relied upon by the Applicant.
11. I considered whether I should deny the Applicant backpay entirely in circumstances where the Applicant's evidence in chief did not satisfy me he was fit as required and where the Sheehy Report was obtained by the Respondent rather than the Applicant, in circumstances where the Applicant was not entirely cooperative. However, on balance I consider that the fair and just approach is to allow the Applicant an amount equivalent to what he would have earned, but for being dismissed, between 26 October 2022 and reinstatement at this ordinary rate of pay, less any amounts received as payment in respect of Workers Compensation or derived from the provision by the Applicant of personal services, whether pursuant to a contract for services or employment. I propose to make orders to allow this amount to be accurately determined, whereupon I shall an make order pursuant to s 243(4).
12. For completeness, I note that if the Applicant had have satisfied me that he was in fact fit as required when he first made his application to the Respondent for reinstatement on 11 May 2021, I would not have ordered backpay from that date given the almost 12-month delay in making an application to the Commission for a reinstatement order.

Conclusion and Orders

1. Without wishing to detract from all that I have said above, the reasons for my decision may be summarised as follows: 1. while I am satisfied that the Applicant was and is fit to perform the tasks required of him as a wardsperson on and from 11 October 2022, being the date he was seen by Dr Sheehy, I am not satisfied that he was so fit earlier than this date; 2. the Respondent has not persuaded me that there are other sound reasons why, in my discretion, I should not order the Applicant to be reinstated; 3. as the Applicant has not satisfied me that he was fit at any time prior to 11 October 2022 I do not propose to order that the period of employment of the Applicant with the Respondent be taken not to have been broken by the dismissal; and 4. I propose to make an order pursuant to s 243(4), following further steps being taken, that the Respondent pay to the Applicant an amount equivalent to what he would have earned, but for being dismissed, between 26 October 2022 and the date of reinstatement, at his ordinary rate of pay, less any amounts received as payment in respect of Workers Compensation or payments derived from the provision by the Applicant of personal services, whether by way of employment or otherwise.
2. At the conclusion of the hearing the Respondent reserved its position in respect of costs. I propose to make directions to allow the Respondent to make an application with respect to costs if it so wishes.
3. I make the following orders and directions: 1. The Nepean Blue Mountains Local Health District shall, by no later than 26 May 2023, reinstate the Applicant to his former position as a wardsperson. 2. The Applicant is directed to produce to the Respondent, by no later than 9 June 2023, copies of documents recording any and all income received by him in return for the provision of his personal services (whether by way of employment or otherwise) or by way of workers compensation, during the period 26 October 2022 to the date of his reinstatement, including but not limited to payslips or payment advices; bank statements and documents received from Employers Mutual Limited. 3. The Respondent is to inform the Applicant of the amount it calculates the Applicant would have earned, but for being dismissed, between 26 October 2022 and the date of reinstatement, at his ordinary rate of pay, less any amounts received as payment in respect of Workers Compensation or payments derived from the provision by the Applicant of personal services, whether by way of employment or otherwise, by no later than 16 June 2023. 4. The Respondent is to make any application with respect to costs by filing a notice of motion with an affidavit in support by 16 June 2023. 5. The parties are directed to confer regarding the amount that should be ordered to be paid to the Applicant pursuant to s 243(4) of the Workers Compensation Act 1987 (NSW) and the terms of proposed final orders. 6. The matter is to be listed on 23 June 2023 at 10.00am for the making of final orders or for further directions as the case may be. Janet McDonald Commissioner

Endnotes

1. Being the Industrial Relations Act 1996 (NSW), Ch 2, Pt 7.
2. The Certificate of Capacity dated 1 February 2021 was not tendered in evidence, but was referred to in the FCAR and VAR which were admitted in evidence.

Amendments 16 May 2023 - Correction made in Catchwords: 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: 16 May 2023