MultiServ Australasia Pty Ltd v Stephens and Employers Mutual Limited [2009] SAWCT 30

4

The worker is employed by MultiServ Australasia Pty Ltd ("the employer"). The employer has lodged separate notices of dispute with respect to each of RRTW Plans number 15, 17 and 18. Each notice asserts that the goal of the plan to return the worker to his pre-injury employment with the employer is unreasonable. Further grounds of dispute are raised in relation to Plans 15 and 17, namely that they are invalid due to their having been backdated,[1] and on the basis of a lack of consultation (with respect to plan 17).

5

The periods encompassed by each of plans 15 and 17 ended some months ago.[2] The compensating authority has questioned whether the Tribunal has jurisdiction to make an order, if so minded, varying the terms of RRTW Plans 15 and 17 in these circumstances.[3] That question does not arise with respect to RRTW Plan 18 as it is still current, its duration being for the period from 25 June 2009 to 25 September 2009.[4] Given that the determination now made is delivered before the expiration of RRTW Plan 18, and that I have decided to dismiss the notice of dispute with respect to that plan, it may not be necessary that I deal with the jurisdictional issue with respect to the earlier plans, but I have done so nevertheless as appears later in these reasons.

6

The provision in question in relation to each of the disputed plans is that which appears under the section of the plan headed "Rehabilitation and return to work plan goal". The goal of each plan is to "Achieve a safe, durable and timely return to ... Pre-injury employer, pre-injury employment, ie same job, same employer".[5]

7

The issue as to whether the disputed provision is unreasonable was put in the following way in the agreed statement of issues:

•

whether, having regard to the extent of the worker's disability and his incapacity for work, the worker was likely to be able to return to all, or a substantial proportion of, his pre-injury duties as a diesel mechanic;

•

whether it is reasonable to impose on the employer an obligation to provide duties to the worker with the goal of returning the worker to his pre-injury employment as a diesel mechanic, and if not, then what obligation or obligations should be substituted with respect to each plan;

•

whether it is reasonable to impose on the employer an obligation to provide duties to the worker in the workshop as it did prior to the worker's shoulder surgery in October 2008, and if not, then what obligation or obligations should be substituted with respect to each plan.[6]

8

The disputed plans were established on 22 December 2008, 20 April 2009 and 26 May 2009 respectively. Accordingly, there was an accumulating range of information available to the compensating authority as each plan was established. Nevertheless, the fundamental issue is whether it was unreasonable for any of the plans to adopt the goal of a return to pre-injury employment, given the information which was available or, in the contention of the employer, should have been available, from the time of the last shoulder operation in October 2008. The question as to whether each of the disputed plans is unreasonable is considered in this broad context.

9

A question arises as to what is ultimately contemplated by the goal of a return to "pre-injury employment". The first point in the statement of issues set out above raises the question as to whether the worker is likely to be able to return to all or "a substantial proportion of" the pre-injury duties. The issue so expressed assumes that the return to work as a diesel mechanic may involve permanent modifications to the full range of pre-injury duties. The RRTW Plans in dispute are all premised upon the assumption that there will be permanent restrictions on certain work activities, which is consistent with previous RRTW Plans over the period 2003 - 2008. The fact that the disputed plans have been established on this basis is not surprising, for as will become apparent, there can be no dispute on the medical and rehabilitation evidence that the worker is permanently restricted with respect to the range of activity in which he can engage with his right arm and shoulder, and that there are some aspects of his pre-injury duties which he either cannot do at all or would be strongly advised to avoid for fear of aggravation.

10

For the most part, the submissions of the employer appeared to accept that the issue was to be determined in the context that the "pre-injury employment" in question was that of a diesel mechanic with some modifications. In its opening the employer put the issue in this way: whether the worker can perform the duties of a diesel mechanic to a sufficient extent for it to be reasonable to impose an obligation on the employer to make such duties available, and whether it is reasonable to embark on a graduated RRTW Plan for this purpose.[7] In its closing submission, the employer adopted the question as raised in the statement of issues and submitted that on the medical evidence, if one took into account the nature of the work to be done, even if restricted to 80% of the full range of duties, the work was not suitable employment.[8]

11

However, later in its closing submissions, the employer appeared to contend that the "pre-injury employment" to which a return is contemplated must mean the pre-injury employment the worker was contracted to do before the injury. The implication of this submission is that the issue is whether it was unreasonable for RRTW Plan 18 to include the goal of a return to the full range of pre-injury employment duties without modification. If this is the issue, the evidence as to the worker's current and future restrictions would overwhelmingly support the employer's case. In my view however, the issue cannot be limited in this way.

12

One obvious reason is that it would be contrary to the position jointly adopted in the statement of issues and contrary to the manner in which the proceedings were conducted by the parties. Further, it would be contrary to what I discern as the intent of the provisions of the Act and the relevant regulations.

13

The objects of the Act include that the rehabilitation and compensation scheme provide for the effective rehabilitation of disabled workers and an early return to work whilst maintaining a reasonable balance between the interests of employers and the interests of workers.[9] Rehabilitation programmes and plans are intended to facilitate this object, and are established in the context of the employer's underlying duty under s 58B of the Act to provide suitable employment for a worker who is able to return to work. That employment must be employment for which the worker is fit, and subject to that qualification, it must be employment that is "...so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity".[10]

14

The overriding obligation is to provide suitable employment, and in circumstances where it is reasonably practicable to do so, this may involve the provision of employment in the pre-injury position for which the worker was employed with duties appropriately modified. The obligations which might be imposed by rehabilitation programmes or plans must be understood in this light.

15

The standards and requirements with respect to RRTW Plans under the Workers Rehabilitation and Compensation (Rehabilitation Standards and Requirements) Regulations 1996 ("the Regulations") are consistent with this approach. Under reg 5, any RRTW Plan must have as its objective the return of the worker to suitable employment at the same or nearly the same level of remuneration.[11] It must have other specific objectives not inconsistent with this which are appropriate to the circumstances and which must include one of the four objectives set out

in reg 5(c)(ii).[12] One of those objectives is "the worker's return to the pre-injury employment with the pre-injury employer", which is the objective now in dispute.

16

Regulation 3 provides that "pre-injury employment" means "the form of employment which an injured worker performed immediately before the occurrence of a compensable disability to which a programme or plan relates".

17

This is an expansive definition in the sense that "the form of employment" would appear to encompass more than if the specified meaning was "the employment" or the "duties of employment" performed immediately before injury. It is correct, as the employer contended, that a broad definition is necessary because otherwise some of the alternative objectives would not make sense, for example, that there be "a return to pre-injury employment but with a different employer". In such circumstances the duties to which the worker returned under a RRTW Plan necessarily could not be the same as those done before injury.

18

However, if the broad meaning to be given to "pre-injury employment" in this context applies to one of the objectives, it must apply equally to the others, including that adopted in RRTW Plan 18. This is consistent with the fact that the employer is obliged to provide "suitable employment" as noted above. Further, the provisions of reg 5(e)(ii), which allow a plan to require a pre-injury employer to provide or undertake employment or workplace modifications in order to achieve a worker's return to work, support the notion that a return to pre-injury employment may encompass pre-injury duties appropriately modified.

19

Accordingly, in considering the goal of the disputed plans, I take the view that an objective which may be adopted under the plan includes that of a return to the pre-injury employment of a diesel mechanic, suitably modified to take into account the worker's permanent restrictions. Whether provisions of a particular plan with this objective are unreasonable or not will depend, among other things, on whether the extent of the restrictions and the nature of the modifications which it is proposed the employer should provide or undertake mean that it is not reasonably practicable for the employer to provide such employment.

20

Another matter which can be conveniently addressed at this stage is whether, in order to establish its case that the disputed plans are unreasonable, it is necessary for the employer to establish that one of the other objectives in reg 5(c)(i) is appropriate. The compensating authority contended that before the goal of a return to pre-injury employment with the pre-injury employer could be excluded, the employer was obliged to present evidence of the suitability of the other objectives, which it had not done.

21

I do not accept this submission. It is not up to the employer to prepare a RRTW Plan for the worker. That is the obligation of WorkCover Corporation under the Act. The Corporation must consult with the employer in this regard and consider a range of other matters before determining what obligations should be imposed under a plan. The employer has no control over this process. All that an employer need establish under s 28B is that a provision of the plan imposes an unreasonable obligation upon it. It is not necessary that it demonstrate what reasonable alternative rehabilitation options are available as part of this process.

22

Five volumes of trial books were tendered. They contain an extensive range of materials, mostly relating to the medical treatment, rehabilitation processes and job suitability assessments over the period since July 2003, shortly after the worker's first operation. In addition, the worker and a number of witnesses gave evidence by way of written statements and oral evidence as detailed below.

23

I consider that all witnesses endeavoured to give a truthful account of events as they recollected them. There is no direct conflict in the evidence, although some of the witnesses have different views as to certain matters. One such matter concerned the extent to which the worker was able to carry out some of his pre-injury duties as a diesel mechanic during 2006 - 2007 before suffering a relapse necessitating a reduction in duties and a further operation in October 2008. I refer to this further below.

24

I accept the evidence of the worker generally but have reservations as to some aspects of it. The worker has a significant emotional investment in being able to return to his trade. He has been employed as a diesel mechanic all his working life, and justifiably takes pride in his achievements and skills in this regard. It is clearly important to his psychological well-being and self-esteem that he be able to continue to work as a diesel mechanic. He is highly motivated in this regard and I have no doubt he will put up with ongoing pain and discomfort in order to do so. The question remains however as to whether the worker's ambition exceeds the reality of what he can achieve. Contemporaneous records over the course of the rehabilitation process suggest that at times he was having more difficulty with the return to work process than his evidence now indicates. There may be an element of unconscious reconstruction in the worker's evidence as to the extent of his recovery and work capacity in the past. Thus caution is required in considering his evidence as to the range of tasks he might be able to do in the future.

25

The overview of evidence set out below is necessarily only a summary of key events. I accept this evidence unless otherwise stated or as clarified in specific findings I make.

The worker's employment and duties as a diesel mechanic

26

The worker is now 51 years of age. He undertook an apprenticeship with BHP Co Ltd as a motor mechanic from 1975 to 1978. He then worked for BHP as a qualified mechanic until made redundant in December 1992, when BHP outsourced the manual handling of steel to the employer. The worker then commenced working in the same capacity for the employer, initially being employed as a leading hand on dayshift but then, for family reasons, taking up work on rotating shifts.

27

The operations previously conducted by BHP have since been taken over by OneSteel. The work now done by the employer for OneSteel, in broad terms, involves materials handling and transportation of product, and metal recovery. The nature and organisation of that work, and the composition and structure of the employer's workforce, would appear not to have changed to any relevant degree from the time of the worker's first attempts at rehabilitation to the present.

28

The employer has a total of just over 100 employees who work a variety of shifts including day shift, night shift and twelve hour shifts. There are thirteen workshop staff including seven or eight diesel mechanics, four on permanent day shift and the others on twelve hour shifts. The employer deploys a fleet of 30 to 40 vehicles in the materials handling operation. These include prime movers, large items of mobile plant used to carry product and other items,[13] forklift and bucket loaders, trailers and various other items of plant and equipment.[14]

29

The worker said his pre-injury work as a diesel mechanic involved the following:[15]

•

The "main job" was the maintenance, service and repair of large vehicles including loaders, dump trucks and straddles - generally there were two to three services scheduled each day which were carried out in the workshop. Each service on average took three to four hours.

•

In addition to scheduled servicing, there was the need to attend as required to machinery breakdowns in the field, where efforts were made to mobilise the machinery to move it to the workshop for further repair - at times extensive work in the field was required.

•

The use of a forklift from time to time during the course of workshop duties to lift and move wheels, brake drums and other heavy parts.

•

Servicing and repair of small items of plant and equipment such as Hilti guns, the air compressor and the lighting rig.

•

Maintaining, service and repair of items of fixed plant, including the metal recovery plant, the drop ball crane, the tagging hut and the cutting machine.

30

Mr Heald is the employer's current maintenance superintendent, and who is involved in the day to day running and planning of the workshop area. He confirmed that the majority of a diesel mechanic's work involves the scheduled servicing and maintenance of heavy vehicles in the workshop area or of fixed plant or other equipment, with the balance of work involving unscheduled work principally being repairs of breakdowns in the field.[16] The servicing is carried out every 250 hours of operation, with special additional services taking place at greater hourly operational landmarks. Some vehicles operate almost continuously, and are thus serviced more frequently than others. The servicing of mobile equipment takes place in the workshop area. A range of other work is undertaken in this context, such as forklift driving and "housekeeping" of the workshop.

31

The nature of the work has been described in various job assessments as involving "medium to heavy" work, with the worker and Mr Heald putting a different emphasis on the extent of the heavy work and the extent to which it might involve the worker in activity to which medical restrictions apply.

32

In July 2001, the worker injured his right shoulder when using a spanner to tighten a nut on a piece of equipment known as the "skull notcher".[17] The worker completed an incident notification report shortly afterwards, but despite ongoing pain and discomfort in the right shoulder, he took no other action and did not seek immediate medical attention. He continued to carry out his full range of duties.

33

However by early June 2003 the extent of the worker's increasing pain and disability led him to consult his general practitioner Dr Neoh. She certified him to be totally unfit for work for two days and fit for modified duties to the end of the month. He was to avoid using his right arm above head height and carrying weights above head height.[18] During all periods of partial incapacity since this time, modifications of this nature have been in place, although often to a more prescriptive effect. Dr Neoh recommended physiotherapy and referred the worker to an orthopaedic surgeon Dr Bain. The worker submitted a worker's compensation claim on 5 June 2003 which was accepted.

34

Dr Bain saw the worker on 30 June 2003. Investigations revealed a tear to the subscapularis tendon of the right shoulder and a subluxation of the long head of the biceps. Dr Bain carried out a right shoulder arthroscopy involving repair to the damaged tendon. The worker was certified as totally unfit for work until 20 October 2003, and after that as fit for modified duties on a very limited basis.[19] The employer was not able to provide any duties at that stage given the extent of the worker's restrictions.

35

The worker returned to work in February 2004, initially for two hours a day three days a week, and with restricted use of the right arm and no weight lifting above two kilograms.[20] The worker was limited to day shift hours only in light of the employer's policy that employees on restricted duties should not perform rotating shift work due to the limited assistance then available. The limitation to day shift work has remained since that time and will continue with respect to any further work which the worker might do for the employer.

36

Dr Bain reviewed the worker on 25 February 2004 and noted that he presented with a "frozen shoulder" and that a CT scan demonstrated degenerative changes within the shoulder joint. Dr Bain's expectation was that the worker should remain on very light duties. He was not then able to predict when the worker could return to normal duties, with the prognosis being guarded.[21]

37

The worker's hours gradually increased over the following months to five hours a day five days a week by May 2004, subject to continuing restrictions. Contemporaneous rehabilitation records refer to differences in medical opinion as to whether the worker could ever return to the duties of a diesel mechanic.[22]

38

The worker was assessed by Dr Meegan in May 2004. Dr Meegan noted the worker to have said there had been "little improvement" since surgery. He recorded a history of restricted movement and pain in the right shoulder, with pain being aggravated by reaching, overhead activity, and heavy and repetitive lifting. Dr Meegan also recorded a recent complaint by the worker of left shoulder pain. It was further noted that the worker complained of restrictions on activities of daily living and recreational pursuits.

39

The worker was cross-examined as to this record and did not disagree with most of it. He said however, that there had been "a little improvement" in his condition by that time, but not as much as he had hoped. He agreed that he had ceased recreational activities, such as motorcycle riding, darts and eightball. However, he said this was not because he was prevented from engaging in such activities on account of pain and disability, but because of the stigma attached to being seen in public participating in such activities whilst on compensation.[23]

40

The employer contended that this explanation for ceasing recreational activities was somewhat improbable, and that it is an example of evidence which indicates that the worker was minimising the extent of his past disability and incapacity. I agree with the employer's submission to the extent that, in my view, the worker's evidence with respect to the history recorded by Dr Meegan demonstrates some degree of unconscious reconstruction which tended to downplay the extent of his past disability.

41

The worker was on leave for two months from June 2004. On his return to work a case conference was held on 19 August 2004. It was considered that there had been little improvement in his condition since February 2004. The employer proposed that the goal of a return to work as a diesel mechanic be deferred for the next nine months, as it considered there was an inadequate range of suitable duties in the workshop. It suggested that in the meantime the worker be assigned to duties involving the operation of various machines and equipment which had not been part of his pre-injury duties. This caused considerable conflict.[24]

42

One of the contentious jobs was the operation of the "skull notcher", a device used to assist in the disposal of residual lumps of steel and slag called "skulls", which collected in the blast furnace after the processing of molten metal. Each skull had to be broken up so that residual metal could be retrieved and recycled. The skull notcher, which was a gas cutter utilising two oxyacetylene torches, was used to cut slices into the skulls, after which they were taken to the drop ball crane and broken up to enable the retrieval of molten metal. The operator would sit in the control cabin and direct the operation of the cutting device by use of a number of levers.

43

The worker objected to this proposal. Although he accepted that he was physically capable of doing the work, he considered it to be a dirty, isolated, unskilled and demeaning job, normally allocated only to the low skilled and low paid employees, or employees with injury disabilities. He asserted that the request that he carry out such work caused him to experience an elevation in blood pressure, and to suffer from anxiety and chest tightness. He attended on Dr Neoh in this regard, and she certified him unfit for this work.[25] Some other jobs were also proposed, including that of tallyman and crane operator. They were considered unsuitable for various reasons.[26]

44

In October 2004 the worker submitted a compensation claim for hypertension which he alleged was caused by an anxiety condition flowing from the employer's request that he operate the skull notcher.[27] In August 2005 the compensating authority accepted that condition as a sequelae to the original injury and allowed the claim for medical expenses only.[28]

45

The worker was reviewed by Dr Bain on 30 September 2004. He considered the "frozen shoulder" condition was resolving, that the worker had made significant progress, and that he could perform workshop activities for six hours a day whilst avoiding heavy or repetitive lifting or use of the arms above head height and lifting of weights greater than 20 kilograms using both hands. Dr Bain considered that the worker could progressively increase his activities.[29]

46

It appears that the employer acquiesced in the worker's return to the workshop as from 13 December 2004 on five hours a day, with the goal being a return to eight hours a day by January 2005.[30] A RRTW Plan was prepared with this goal.[31] The worker says that from that time he gradually increased his work capacity to the extent that he returned to full-time work on at least 80% of his pre-injury duties as a diesel mechanic, the ongoing limitations being that he not lift heavy weights greater than 20 to 25 kilograms, and that he avoid constant overhead work.[32] It appears that the full-time return to work was achieved as from 10 January 2005.[33]

47

The worker continued to suffer from right shoulder problems and consulted Dr Neoh on a number of occasions over the next six months. It appears that he had up to ten days off in January 2005 on account of his shoulder pain, but also in part because the employer wanted him to cease work whilst awaiting further diagnostic tests. He had a further eight days off work up to the end of June 2005.[34] The records show that by May/June 2005 there was concern about crepitus of the right shoulder, or as the worker described it, "mild grinding".[35]

48

The worker said that despite these problems he was coping quite well despite some pain and continued to work full-time on 80% of his pre-injury duties. He decided to see Dr Bain again however, not because there had been any specific incident which caused a sudden worsening of his condition, but because he wished to investigate his options as to further treatment which might improve his condition.[36]

49

He saw Dr Bain again on 20 June 2005. Dr Bain noted improvement in the range of movement of the shoulder, but because of continuing discomfort and weakness with respect to certain activities, he recommended a further shoulder arthroscopy. The worker continued working until certified totally unfit for work on 9 August 2005 shortly before he underwent the recommended operation.

50

I find on the above evidence as follows:

•

that the worker returned to work in mid-February 2004 on graduated duties commencing at two hours a day three days a week with a range of significant restrictions with respect to the use of his right shoulder;

•

that the goal as shown in the earliest RRTW Plan in evidence[37] was that the worker return to his pre-injury employment with the pre-injury employer although an anticipated time frame does not appear to have been initially specified on account of ongoing uncertainty as to the prognosis and the need for further treatment;

•

that ultimately after the worker's condition improved by late 2004 upon resolution of a "frozen shoulder" condition, a goal of a return to eight hours a day on modified pre-injury duties was set in December 2004 and was achieved in accordance with the then current RRTW Plan by January 2005;

•

that from that time until mid-August 2005, although under considerable difficulty in the latter stages due to ongoing pain and limitation of movement in the shoulder, the worker was able to carry out approximately 80% of his pre-injury duties as a diesel mechanic.

51

The worker underwent the further operation on 16 August 2005. This involved synovectomy, which removed inflamed tissue in the shoulder, a debridement, and further repair of the subscapularis tendon. Dr Bain certified him to be totally unfit for one month, fit for one handed duties for the next two months, and then fit for light duties for a further two months. As at August 2005 Dr Bain considered that it was unlikely the worker would ever be able to return to his full pre-injury duties.[38]

52

The worker said that following this surgery he returned to the workshop on a graduated basis, and "after some time" was able to perform "almost the whole range of my duties without difficulties",[39] although he continued to lose "odd days" on account of shoulder pain. The time frame in this regard is unclear.

53

The worker returned to the workshop on graduated duties on 21 November 2005 initially on four hours a day, with the goal of returning to eight hours a day by January 2006 subject to ongoing restrictions.[40] Dr Bain reviewed the worker on 25 January 2006, and noted that the worker had returned to office work by this stage. Dr Bain suggested that he continue on such duties for the time being, and noted that although the worker was fit for full-time work, he should continue under permanent restrictions as to heavy, repetitive or above head height activities.[41]

54

The evidence of Mr Quinn, which is referred to in more detail below, was that the worker returned to full-time work carrying out 80% of normal diesel mechanic duties in about February 2006.[42] I doubt that such a return took place quite so early. Other records indicate that by May 2006 the worker was carrying out modified duties assisting other diesel mechanics.[43] Even so, it seems there was an ongoing issue at that stage as to the extent to which the duties carried out by the worker were meaningful and productive, as he maintained, or of very limited utility given the ongoing restrictions and the unsuitability of many of the tasks in the workshop, as the employer maintained.[44] This is also indicated by the pessimistic view as to the worker's long-term ability to carry out his then modified duties following a functional capacity evaluation in August 2006.[45]

55

When Dr Bain saw the worker again on 22 September 2006, he noted that there had been some improvement since March 2006 and that the worker had been able to return to most activities and was back at work "doing the greater majority of his duties". Dr Bain recommended that the worker progressively increase his activities as comfort allowed. He was of the view then that there was a permanent 15% loss of function of the right shoulder.[46] In a report to the compensating authority dated 24 November 2006, Dr Bain recommended that the worker avoid lifting more than 10 kilograms or engaging in heavy or repetitive above the head activities, and expressed the view that he would never be able to return to full unrestricted duties.[47]

56

The tasks that the worker said he had to avoid once he was on full-time modified workshop duties included the repetitive climbing and descending of ladders on the straddle, changing steel cables on the drop ball crane, repetitive heavy lifting of objects, and using a sledge hammer for prolonged periods. He said he was able to work with his arms above shoulder height, although not for prolonged periods, and would use a step ladder when needed in order to get into a comfortable working position. He said he was able to service all of the fixed plant, although he sometimes required assistance. The worker said he continued to do some breakdown work, and believed he could do up to 90% of that work, although most of it was assigned to other mechanics. [48]

57

Despite the restrictions on the range of his activities, the worker asserted that there was enough meaningful and productive work for him to do in the workshop, and that he was able to carry out up to 80% of his pre-injury duties. He did not believe that the need to cater for his restrictions was causing any disruption or inconvenience to the employer.

58

There is other evidence apart from that of the worker which supports his assertion in this regard. This evidence came from two witnesses called by the worker being Mr Quinn and Mr Adams.

59

Mr Quinn was employed by the employer for a period of fifteen years up to 30 June 2007, initially as an operator, then as operations supervisor, and from October 2005 as maintenance superintendant.[49] The worker reported to Mr Quinn in his supervisory position from October 2005.

60

Mr Quinn was aware that the worker had a shoulder injury and that by 2005 he had undergone two operations. He was aware of the limitations on the range of duties the worker could undertake as a result of his right shoulder problem. Accordingly, he allocated servicing work to the worker rather than breakdown work, because there were some aspects of breakdown work that the worker was incapable of doing. He said that the worker was also able to do necessary tasks on shut downs and planned maintenance except with respect to about half the duties required in maintenance of the metal recovery plant.[50]

61

Mr Quinn said that despite these limitations, the worker could do at least 80% of his duties as a diesel mechanic, and that the employer had enough servicing work that the worker was capable of doing inside the workshop within his restrictions and which was able to fill his day.[51] Mr Quinn was of the view that the worker was a productive employee to whom suitable work could be allocated without inconvenience or loss of efficiency. Mr Quinn said that work was allocated to the worker on the basis that it was within his capabilities and restrictions, and that he was expected to do the work within an appropriate time frame without needing to seek special assistance with respect to it.[52] Mr Quinn said that the worker did not ever refuse any duties allocated, and he did not recollect the worker complaining of any ongoing pain or disability, or going home because of it, or hearing of such problems through other sources.[53]

62

Mr Quinn's attention was drawn to a reference in a Rehabilitation Progress Report dated 29 June 2007 to the effect that the worker was then working on about 80% of normal diesel mechanic duties. He confirmed that this was an accurate statement with respect to that time.[54] Mr Quinn was unable to make any comment with respect to any later period as he left his employment on 30 June 2007 to take up another job.

63

Evidence was also given by Mr Adams, who worked full-time as a mechanic on day shift in the employer's workshop from January 2007 to October 2007. He was frequently assigned to duties with the worker, it being custom and practice that diesel mechanics would work in a team of two for safety reasons. He was aware that the worker had a shoulder injury and an ongoing compensation claim. He stated that nevertheless the worker applied himself to his duties "as hard as anyone else", doing the same duties as other employees. This work often involved handling heavy parts and tools. He did not recall the worker being shown any special favours in terms of the duties he was required to do.

64

Mr Adams observed that one of the jobs to which he was assigned with the worker at times involved changing wheels on trailers. This job involved using a forklift truck and lifting heavy parts and using tools, including rattle guns (some of which could weigh up to 15 kilograms), heavy wrenches and crowbars, the latter requiring the application of some degree of force when being used to loosen nuts.[55] Mr Adams himself would seek assistance with these sorts of tasks and with the lifting of heavy items. He said it was not unusual for a worker without an injury to require assistance.[56]

65

Mr Adams said the worker did not ever tell him that he needed help because of his shoulder disability. Nevertheless, Mr Adams was aware that the worker occasionally took time off work due to shoulder pain. He understood this to be the case due to references to his shoulder made by the worker (that is, his shoulder was "playing up on him").[57]

66

The record of days off work contained in the certificates of Dr Neoh shows that during 2006 and 2007, as opposed to 2005, the worker required much less time off. In 2005, the year of his second operation and subsequent prolonged total incapacity, the worker was certified totally unfit for work for a total of about 78 days.[58] By way of contrast, the total for 2006 was about eight,[59] and in 2007 about eighteen.[60]

67

I consider that Mr Quinn's evidence is reliable as to the above matters and I accept it. It is true, as the employer observed, that during the first part of 2007, the worker was having ongoing difficulties, as indicated by reference to his attendances on Dr Neoh. However, I do not consider it surprising that the worker did not report these matters to Mr Quinn, or that Mr Quinn's lack of knowledge in this regard detracts from the weight of his evidence. I also accept the evidence of Mr Adams as to the capacity of the worker during the time to which he referred.

68

I doubt that the worker's return to full-time work on 80% of the pre-injury duties of a diesel mechanic was as early as February 2006 as Mr Quinn suggested. It is not likely to have been achieved until about mid-2006, although there were ongoing difficulties, as indicated in the rehabilitation progress reports during the year, and the fact that the issue was still a matter for discussion and clarification as late as December 2006.[61] Further I find that the worker was not able to maintain this level of output for much more than a year, as it is apparent that his level of productivity dropped away at some stage after July 2007, which coincidentally was the time that Mr Heald took over as maintenance supervisor from Mr Quinn following the latter's resignation effective 30 June 2007.

69

The deterioration in the worker's condition is evident by reference to the evidence and notes of Dr Neoh, and the PMCs she issued. She noted that the worker was "just coping with work" in July 2007 due to ongoing shoulder pain.[62] She felt it necessary to increase the restrictions on weight lifting, reducing the allowable weight from ten to five kilograms in July 2007,[63] which restriction continued for the most part for the rest of the year and beyond. Dr Neoh was concerned that the work was aggravating the worker's condition.[64] During this period a number of discussions took place as to a referral of the worker to an orthopaedic surgeon for a second opinion.

70

It appears that despite these restrictions the worker continued on modified duties in the workshop, although the extent of his ability to carry out 80% of his pre-injury duties must have deteriorated. That this is so appears consistent with the evidence of Mr Heald, whose recollection was that the worker was able to carry out only about 40% of the duties of a diesel mechanic.[65] This is likely to be correct with respect to the latter stages of 2007, and early 2008, up to the time when the employer removed the worker from workshop duties.

71

On 14 December 2007, during the time of the gradual deterioration in his condition, the worker was seen by the orthopaedic surgeon Mr Saies. This attendance was a result of the worker's request that Dr Neoh refer him for a second opinion. Dr Saies then indicated that the worker needed "modification of activity on a permanent basis", which "may mean a completely new job or alternatively finding ways to work around the current disability in his current job".[66]

72

In February 2008 the worker contracted dermatitis as a result of exposure to dust in the metal recovery plant. This resulted in periods of total and partial incapacity over the next six weeks or so, after which he continued with his modified duties in the workshop, although under increased restrictions. As from March 2008, the worker began to suffer increasing symptoms in his right shoulder, and intermittent pain and discomfort in the left shoulder, the latter problem having arisen from time to time before, as noted by Dr Meegan in the history taken by him some three years previously.

73

In about March/April 2008, the employer removed the worker from duties as a diesel mechanic, and directed him to perform other work including duties in the storeroom. The worker said that the reason for this change was not ever discussed with or explained to him,[67] and that since Mr Heald had taken over as workshop supervisor from Mr Quinn, he had been singled out and treated differently because of his shoulder disability.

74

Mr Heald denied the allegation of discriminatory treatment, and explained that the decision to change the worker's duties was taken because of the continuing deterioration in the worker's capacity, as indicated by the increasing restrictions placed upon his activities by Dr Neoh, and the amount of time off work on account of ongoing pain. The employer considered that the workshop duties were probably aggravating the worker's condition.[68]

75

The worker underwent a steroid injection to the right shoulder joint in May 2008. Dr Neoh further restricted his work capacity such that the worker was not to use his right arm at all except for writing and similar duties, and was to lift no more than 10 kilograms with his left hand. He was restricted to office work or supervisory work for four hours a day, five days a week, which by August 2008 had been reduced to three hours a day.[69]

76

In August 2008, the worker underwent a further ultrasound to his right shoulder. Dr Bain saw him again on 8 August 2008, and diagnosed a subacromial impingement related to the initial injury. The worker continued with duties in the store until 3 October 2008, when he underwent further surgery by Dr Bain.

77

In summary I find on the above material that:

•

the worker returned on duties for four hours a day in the workshop on 21 November 2005 with the goal of returning to eight hours a day by January 2006;

•

the goal was not achieved by the projected time but, whilst there were ongoing difficulties, was eventually achieved by about mid-2006, from which time the worker was undertaking full-time work in a productive manner at about 80% of his pre-injury diesel mechanic duties;

•

the worker's condition gradually deteriorated from mid-2007 to the extent that by the latter part of that year he was only carrying out about 40% of his pre-injury duties through until the time he was removed from those duties in March/April 2008.

78

Dr Bain performed a right shoulder arthroscopy on 3 October 2008 which involved a synovectomy and a capsulectomy, which involved cutting away some of the lining of the shoulder to try and improve the range of shoulder motion.[70] In a report dated 8 October 2008, Dr Bain stated that on the basis of the degenerative changes identified in the injured shoulder, it could be anticipated that further surgery would ultimately be required, and that at some point in the future, the worker was likely to require a shoulder replacement.[71]

79

On 3 November 2008 the worker attended a case conference with Dr Neoh, the rehabilitation consultant, and Mr Thacker and Mr Heald representing the employer. There was discussion about the duties that would be provided to the worker upon his return to work, it being proposed by the employer that he return to duties on the skull notcher, or as tallyman or crane operator. The worker protested this proposal for the same reasons ventilated in 2004.[72]

80

Nevertheless, the worker returned to work on this basis on 8 December 2008 in accordance with RRTW plan 14 which had the goal of a return to "different employment" with the pre-injury employer.[73] The worker's union lodged a dispute with respect to this proposal. As a result, the compensating authority reverted to the goal of a return to pre-injury employment with the pre-injury employer in subsequent RRTW Plans.

81

The employer maintained its objection to the formulation of a plan on this basis. Accordingly, it did not permit the worker to return to modified duties as a diesel mechanic, and continued to offer the alternative duties nominated.

82

RRTW Plan 15 was established on 22 December 2008. The goal was that of a return to pre-injury employment. At the time the worker was certified fit for alternate duties from 8 December 2008 to 18 January 2009 involving two hours a day. At that stage there was to be no use of the right arm. It was proposed that the rehabilitation consultant attend a worksite review with the employer and the worker, and that a job analysis of the diesel mechanic duties be undertaken. The employer lodged a notice of dispute with respect to this plan on 24 December 2008.

83

The worker was given some training with respect to the operation of the skull notcher in January 2009, during which period he said it was not working consistently and frequently broke down. When he was told, after what he considered to be an inadequate period of training, that he would be certified as a competent operator of the skull notcher, he protested and became angry, upset and anxious. He went to see Dr Neoh who provided him with a PMC stating that he was not fit for either work on the skull notcher, or for work on the overhead crane or as a tallyman. Since the presentation of the certificate of Dr Neoh to this effect, the employer has not offered any duties to the worker.

84

The only work related activity in which the worker has been engaged since January 2009 is a "work training arrangement" at a general automotive mechanics workshop which commenced on 11 May 2009.[74] This has allowed the worker to participate in a graduated return to work programme which includes mechanical duties. According to the worker, these duties frequently have involved above head height work which he has been able to discharge without difficulty.

Recent medical and job assessments and work capacity evaluations

85

Further assessments of diesel mechanic duties and evaluations of the worker's functional capacity have been conducted this year and are of particular relevance to the dispute over RRTW Plan 18.

86

A physiotherapist Ms Callahan attended the worksite on 22 January 2009 and conducted an assessment of the various tasks of a diesel mechanic shown to her by Mr Thacker. Ms Callahan conducted this analysis in the context that she had been the worker's treating physiotherapist on various occasions since October 2007 up to 5 March 2009. She provided a detailed report on her assessment to CRS Rehabilitation.

87

She considered a range of tasks associated with diesel mechanic duties including light bench work, ladder climbing, hydraulic hose repairing, forklift driving, handling props to stabilise machine wheels, and servicing machines. She considered these tasks would be too difficult for the worker to perform, due to a lack of strength in the injured shoulder, and the fact that much of the work required use of the arms at or above shoulder height, much of it on a repetitive basis.[75]

88

Ms Callahan was called by the employer to give evidence with respect to her report. She said that her opinion was based upon the worker's condition as at 22 January 2009, and may have to be altered if there was continued post-operative improvement assessed objectively and on the basis of the worker's subjective pain. Nevertheless, whatever the improvement, Ms Callahan did not think that the worker would ever be able to do all of the tasks considered, including that of servicing machines if it involved working four to five hours without a break with the arms extended at or above shoulder height.[76]

89

Ms Callahan was invited to comment on the outcome of a functional capacity evaluation of the worker conducted on 13 March 2009, which is referred to below.[77] In light of that evaluation, Ms Callahan considered that the worker would be able to do more than was assessed to be the case as at 22 January 2009. In particular, she considered the evaluation suggested the worker could carry out tasks including light bench duties, repair of hydraulic hoses (subject to rearrangement of the storage area), forklift driving, propping machine wheels, servicing heavy vehicles (if there were appropriate rest periods), store work and ladder climbing. She accepted that further improvement was possible.[78]

90

In mid-January 2009 a job analysis was undertaken of the work of a diesel mechanic by a Ms Warren of Pinnacle Workplace Consultants with the assistance of Mr Heald. She provided a report on 4 February 2009 ("the Pinnacle Report").[79] The purpose was to analyse the physical demands of diesel mechanic duties, to list those duties felt to be suitable for the worker within his current medical restrictions, to recommend modifications to duties and equipment accordingly and to present a graduated return to work schedule.

91

It was noted that at the time of the job assessment, the worker was subject to restrictions including that he use the right arm for support only, and that there be no lifting with the right arm and no overhead reaching. He was certified fit for work on this basis two hours per day, Monday to Friday, it being envisaged that hours would increase from two to three per day allowing for use of the right arm within restrictions. At the time Ms Warren noted that the worker reported that he felt capable of lifting weights of up to 5 kilograms in the right hand and carrying weights of up to 15 kilograms using both hands, and that he felt capable of performing fixed plant servicing at work and operating the forklift for distribution of stores and supplies.

92

The Pinnacle Report analysed normal duties of a diesel mechanic in the following areas: servicing of heavy vehicles; forklift operation; housekeeping; benchwork; onfield breakdowns; and service and maintenance of fixed plant off-site. The duties were described as being of "medium to heavy physical demand level".[80] Only forklift operation and housekeeping (for the most part), and some aspects of bench work, were considered to be within the worker's capacity. Ms Warren recommended that other tasks not be undertaken without specific medical clearance. Three main areas of concern were noted to be work at or around shoulder height, work involving repetitive or sustained reaching in awkward postures with arms extended forwards or above the head, and heavy lifting.

93

Against this background, recommendations were made for a graduated return to work plan subject to the outcome of a full functional capacity review and medical confirmation of the worker's capacity to match the duties nominated at each stage of the plan. The plan involved seven stages of two weeks each with gradually increasing hours and duties. By stage 7 it was contemplated that the worker would be carrying out "normal workshop duties", subject to restrictions including that he not carry out on-field breakdown work, that he use aids for heavy lifting, use three points of contact when climbing up or down stairs, and that he adopt alternative postures as required and take scheduled breaks.

94

The worker was assessed by Dr Graham at the request of the compensating authority on 6 February 2009. He had previously seen the worker in June 2008, before the most recent operation, and after the worker had been removed from the workshop by the employer on account of the difficulties it perceived he was having with the work.

95

Dr Graham considered the worker to be suffering from bursitis with impingement in the right shoulder, and significant osteoarthritic change in the glenohumeral joint. As at June 2008, he was of the view that the worker should avoid repetitive or forceful use of the right arm, use of the right arm above mid-chest height or reaching and lifting away from his body. Dr Graham thought it reasonable to discuss the implications of a shoulder joint replacement and what could be done to delay such a procedure, which he considered was generally seen as a "last resort". He also noted that there was developing bursitis in the left shoulder. He did not consider that the worker would ever obtain full function in his right shoulder given that the osteoarthritic changes following the injury were irreversible.[81]

96

After seeing the worker again on 6 February 2009, Dr Graham formed the opinion that the worker had made an excellent recovery from the recent surgery, and that he demonstrated a full range of movement in the right shoulder. Dr Graham again noted radiological evidence of significant degenerative change. He considered that the worker would be permanently restricted with respect to repetitive forceful use of the arm and use of the arm above shoulder height. He felt that the worker could return to the lighter aspects of diesel mechanic work including working on small compressors, the small welder, repairs on the Hilti guns and other lighter tasks. He noted that the worker felt confident that he could increase his activities to a stage where he was able to carry out approximately 80% of the full duties as previously. However he said that it would require at least twelve months from surgery to assess whether the condition was stable and permanent.[82]

97

On 13 March 2009 Ms Warren completed a functional capacity review.[83] She stated that the results indicated that the worker had a capacity to perform at a medium physical demand level on a full-time basis with limitations, and that the evaluation demonstrated a greater functional and work capacity than previously seen. Restrictions continued to be the avoidance of repetitive and forceful use of the right arm and the use of the right arm at above shoulder height. Some minor modifications were made to the graduated return to work plan prepared by Ms Warren on 4 February 2009.

98

RRTW Plan 17 was established on 20 April 2009. This plan was for the period 24 March 2009 to 24 June 2009. Again the goal was to achieve a return to pre-injury employment. The plan included a graduated return to work schedule based on the Pinnacle Report and Ms Warren's functional capacity evaluation.[84] RRTW Plan 18 was established on 26 May 2009 with the same goal and similar graduated return to work proposals.[85] Neither of these plans have been implemented due to the current disputation.

99

At the request of the compensating authority's case manager, an employment assessment was conducted on 7 July 2009 by Ms Collins, a rehabilitation consultant employed by CRS Australia. She wrote a "Suitable Employment Assessment Report" dated 9 July 2009.[86] Ms Collins reviewed the Pinnacle Reports and other similar documentation produced since September 2008, the recent graduated return to work schedules and the most recent medical information to hand. She interviewed the worker on 7 July 2009 and subsequently met with Mr Thacker on-site. In particular she discussed the job analysis of 4 February 2009 with Mr Thacker, and noted his concern that the tasks considered suitable, such as forklift operation, housekeeping and light benchwork, were only occasional tasks and that the Pinnacle Report and subsequent return to work plans did not have regard to this.

100

Ms Collins noted the worker's assertion at interview that he had the ability to work at or above shoulder height in the work hardening job he was doing. Ms Collins set out a summary of the required physical demands of diesel mechanic duties, including the extent of the lifting required, the climbing of ladders and platforms, the need to work in restricted spaces and with repetitive reach above shoulder height. She noted the comments made by Dr Graham in his report of 11 February 2009 with respect to the worker's ability to carry out some of the lighter tasks and the permanent restrictions which would apply.

101

Ms Collins concluded that the worker appeared to have a reasonable prospect of returning to the role of a diesel mechanic. Upon the basis of the medical information, the functional capacity evaluation, and the activities carried out in the work training arrangement, it was her view that the worker had demonstrated the capacity to meet some of the core components of the physical demands of a diesel mechanic. She noted that the extent of the permanent restrictions that may be required could be determined twelve months post-surgery and suggested that these would be best assessed once the worker had the opportunity to complete the graduated return to work plan in his pre-injury role rather than in an alternate work placement.

102

Ms Collins observed that there were other options available to the worker should he be unsuccessful in returning to the role of a diesel mechanic, these being the positions of level 3 or level 4 operator. In her view these roles involved a light/medium level of work, although it was noted that there had been no physical assessment of the requirements of those roles to date. She considered that this option should only be explored if the return to a diesel mechanic job was unsuccessful. She considered this to be "in-keeping with the return to work hierarchy".[87]

103

When giving further evidence upon being called by the compensating authority, Ms Collins explained that her practice was to look at return to work options within the structure of the rehabilitation hierarchy, starting from pre-injury employment with the pre-injury employer.[88] She considered the worker's position only with respect to the prospects of a return to pre-injury employment with the pre-injury employer or to other suitable employment with the pre-injury employer, such as machine operation. She approached the assessment on the basis that modification of pre-injury diesel mechanic duties may be required.[89]

104

The most recent medical opinions of which Ms Collins was aware as at the time of her assessment on 7 July 2009 were Dr Bain's report of 8 October 2008, and Dr Graham's report of 11 February 2009. In light of those reports she took the approach that there was a "possibility" that the worker could return to work as a diesel mechanic,[90] and that the position was inconclusive as to whether it was appropriate to continue to focus on the worker's return to pre-injury employment.[91] Having since become aware of Dr Bain's view that there has been an excellent operative result,[92] Ms Collins was confirmed in her opinion that the appropriate approach at this stage in terms of rehabilitation was to continue to explore a return of the worker to his pre-injury employment.[93]

105

The opinion of Mr Heald was that overall the work of a diesel mechanic was heavy and awkward, involving the use of arms in extended positions for lengthy periods of time, climbing on top of vehicles, ladders and work platforms, carrying heavy items, and performing awkward operations using the dominant arm. Due to the size of the vehicles involved at the worksite, Mr Heald considered the work of a diesel mechanic to be somewhat hazardous and that care needed to be taken to ensure that it was done in a safe manner. In his view the physical/functional demands on diesel mechanics were variable and unpredictable, given the differences in the nature of machinery, and the need to attend immediately to breakdowns and part failures.[94] The only consistency in the job was the regular servicing required every 250 hours of operation.

106

When cross-examined on this topic however, Mr Heald agreed that 70% of the work done by diesel mechanics fell within the "regular, scheduled and predictable" nature of service work, with the remaining 30% of the work being the unpredictable type of repair work. Some of this involved breakdowns in the field, but even where that occurred, Mr Heald said that efforts would be made to get vehicles to the workshop to carry out the work in that environment given the availability of equipment and tools. In about 80% of cases, vehicles subject to breakdown in the field were able to be brought to the workshop for repair. He agreed that for the most part however, even when there was a breakdown, the relevant item was able to be moved to the workshop for ongoing repair such that only 15 to 20% of breakdowns had to be repaired in the field.[95]

107

Mr Heald said that the problem for the employer arising from the Pinnacle Report on which RRTW Plans 17 and 18 had been formulated was that the tasks for which the worker was considered fit at the time were done on an intermittent basis only and did not occupy a great deal of time. Mr Thacker, the employer's administration superintendant, supported Mr Heald's view. The issue was the subject of an email exchange between Mr Thacker and Ms Berridge, the case manager of the compensating authority, on 8 April 2009.[96] Mr Thacker noted that the tasks highlighted in the job analysis and inserted in RRTW Plan 17 were tasks that the worker could do if they were available on a consistent basis during the hours that he was at work, but made the point that they were not available to a sufficient extent to allow for his employment on four hours a day five days a week as contemplated by the plan.[97]

Updated medical, job assessment and other evidence at the hearing

108

On 10 July 2009, as a result of arrangements made by the employer, an enquiry agent attended at the premises of the employer and recorded images of various duties said to be required of a diesel mechanic. The employer tendered a DVD of the material recorded and a copy of the agent's running sheet. About 27 separate tasks were seen and described. The DVD was shown during proceedings and was the subject of particular comment by the worker, Mr Heald and Dr Graham. Mr Heald said that the DVD depicted most of the activities which were being conducted that day by diesel mechanics both in the workshop and elsewhere at the worksite.

109

I do not propose to set out the detail of each of the activities seen on the DVD. They include the climbing of stairs within the workshop or to gain access to the top of the larger items of plant; the activities of the mechanics as they work in, around and under machinery either in the field or in the workshop, these activities demonstrating on occasions the need to carry out work with the arms extended above, below or at shoulder height; repetitive or forceful movements whilst using tools with the arms being extended at varying heights; the lifting and carrying of items of equipment for bench work and associated activities; maintenance in the metal recovery plant which required work in awkward positions and the use of hammers; and forklift driving and associated activities. These various tasks have been the subject of comment in the job assessments in evidence.

110

The worker maintained that he would have no difficulty in carrying out most of the required tasks. He accepted that he might have difficulty with repeated climbing up and down ladders with a tool bag, but suggested this would not be necessary in the workshop given the equipment and aids available. He accepted that under present restrictions he might not be permitted to lift some of the pieces of equipment shown, and that some of the tasks requiring repetitive use of the arm at or above shoulder height would cause problems. He maintained however that these tasks were rarely required, or that with some of them he could obtain assistance if necessary, and that in any event, the DVD was not representative of the duties he would usually perform as a diesel mechanic as it did not demonstrate the regular servicing done in the workshop on mobile equipment, nor the cleaning up done after such work which makes up the majority of the work done.[98] He said the work, whilst it was on "heavy" equipment, was not for the most part heavy work in itself. [99]

111

The worker says that his shoulder is now better than it ever has been since the injury in July 2001, and that he has a full range of movement in his shoulder and good strength. He expressed confidence in his ability to increase his work capacity over time such that he would be able to perform approximately 80% of his pre-injury duties as he did at times in the years 2005 to 2007. In the meantime he has been continuing with the "work hardening" activity at the automotive mechanics workshop. Despite the fact that this work frequently requires above head height work in the pits or on vehicles that are raised on a hoist, the worker says he has been coping with these duties.

112

Dr Graham, who was shown the DVD during the course of his evidence, had reservations about the worker's capacity for some of the work depicted. In his view, a number of the activities involved what appeared to be repetitive and forceful movement using the arm and shoulder, or use of the arms in an extended position at or above shoulder height, which he would not recommend or would advise against. This comment applied to about one third of the tasks demonstrated. Dr Graham considered that a similar proportion of the other tasks shown could be difficult, but given the worker's high level of motivation, he felt they could be attempted, in some instances with workplace modifications, and in other instances where the task was at a later stage of the graduated programme.[100]

113

If the DVD depicted work that was representative of diesel mechanic duties overall, Dr Graham said he would have significant reservations about the worker getting back to that sort of heavy work. However, if most of the work could be done in the workshop and with use of equipment and aids, then he thought it slightly more likely that a return to work would be successful, particularly if overall the duties of regular servicing did not require the extent of heavy activity shown. Whatever the case, it was his view that the worker should start with light bench work and see how he progresses, but that whatever eventuated, he would not get back to the full duties of a diesel mechanic.[101]

114

Dr Graham noted the worker's very strong desire to return to his pre-injury duties, and said that the element of job satisfaction was a vital factor in the ability to rehabilitate a worker and was very relevant to the degree of pain tolerance relating to any particular activity. Dr Graham agreed with the proposition that as well as taking into account the objective pathology in relation to the worker's condition, he would be guided in a large measure by the worker's report as to what he can and cannot do.[102]

115

Dr Bain last saw the worker on 26 June 2009. He wrote to Dr Neoh following that consultation, advising that the worker had a "good result" from the October 2008 operation, having regained a considerable amount of motion and with pain almost completely resolved. Despite some crepitus and catching of the shoulder on certain movements, Dr Bain felt that overall the result was "excellent", and advised the worker to progressively increase his activities as comfort allowed.[103]

116

Dr Bain explained that when he had expressed the view in his reports of 2005 and 2006 that it was unlikely that the worker would return to "full pre-injury" duties, he meant that he was unlikely to return to "heavy and repetitive" activities. He remains of the view that the worker will not return to that level of work, and his view as to the present capacity of the worker was that he should avoid heavy and repetitive activities using the right shoulder, and avoid repetitive above head height activities. He said that the arthritis in the right shoulder will prevent the maintenance of a heavy workload.

117

Dr Bain said he did not expect that the worker would need further surgery on his shoulder over the next few years. However he thought degenerative changes in the lining of the shoulder joint ultimately may cause deterioration necessitating shoulder replacement.[104] The condition of the right shoulder will deteriorate in any event with time, but that degeneration will be hastened by heavy and repetitive activity. If a shoulder replacement is needed eventually, then Dr Bain would more strictly enforce limitations on activity given the potential for damage to the metal prosthesis.[105]

118

Dr Bain said that the worker would be able to perform most of the activities referred to in the Pinnacle Report, including forklift operation, housekeeping, benchwork and on-field breakdowns, if the work was not heavy and did not require exertion of great force, and if there was support from other workers with heavy lifting or awkward activity, in the sense that such work could be done for him. However, his view was that two of the activities mentioned in the Pinnacle report, being servicing of heavy vehicles and servicing and maintenance of fixed plant off-site, would be difficult for the worker.[106]

119

On further questioning, Dr Bain qualified this view, saying that he would be guided by the worker's description of the duties involved in servicing heavy vehicles, and by the "independent professional people such as this group". I take the reference to "this group" to mean rehabilitation consultants such as the author of the Pinnacle Report and Ms Collins among others. Dr Bain said that in assessing whether the worker could perform the servicing of heavy vehicles, he would "most likely" take into account the worker's view that such duties did not necessarily involve heavy work.[107]

120

Dr Neoh noted that at the time she last saw the worker, on 13 July 2009, he was suffering from two conditions, being the permanent disabilities resulting from his right shoulder injury, and an ongoing psychiatric disability manifested by depression which was due to the dispute with his employer over the refusal to provide modified duties in the workshop, and the allocation of the work involving the operation of the skull notcher.[108] Her prognosis was that the worker's depression should resolve if the work issues were settled and he was able to return to modified duties as a diesel mechanic.

121

As far as the present and future capacity for employment of the worker was concerned, Dr Neoh considered that the worker would be able to return to work as a diesel mechanic in a supportive environment with fixed restrictions as to the use of his right arm. These restrictions were mainly in terms of weight bearing and the use of the right arm at or above head height, and restrictions on lifting and forceful movement using the right shoulder.[109] She said that the worker's left shoulder pain was not a persistent feature of his presentation and that his complaints in this regard were infrequent.

Whether the disputed goals of the RRTW Plans are unreasonable

122

At the outset of its submissions, the employer suggested that a helpful perspective might be obtained if one considered a hypothetical converse scenario. That is, if one assumed that the worker had failed to comply with the obligation to work towards the nominated goal and was served with a s 36 notice as a result, and disputed that notice on the basis that the medical evidence indicated that he was not fit for the proposed modified duties. The employer suggested that in that scenario the worker would most likely succeed in having the notice set aside.

123

That might be so, but consideration of the alternative perspective does not assist me. The worker does not maintain that he cannot do the duties envisaged. In fact he is highly motivated to undertake them. The issue is whether the plans are "unreasonable" in proposing that there be a graduated return to work plan with the nominated goal. The plans do not assume that the worker necessarily will be able to or should be able to achieve the ultimate goal. The consideration of the suitability of the proposed employment and the worker's capacity for it arises in an entirely different context to a s 36 dispute.

124

The employer contended that the unreasonable nature of the goal of each disputed plan is supported by the fact that the goal initially set in RRTW Plan 15 and then replicated in RRTW Plans 17 and 18 was formulated without Dr Bain first being asked to report on whether the proposed return to modified duties as a diesel mechanic would be achievable following the 2008 operation. It was contended that the failure to make this inquiry meant that at the outset there was an absence of highly relevant information which would have indicated that a rehabilitation goal other than that nominated should be investigated.

125

In my view this submission is founded on a misapprehension of the facts. Two reports of Dr Bain to the compensating authority were considered early in the post-operative period by the rehabilitation provider. One is dated 18 August 2008 and was written when it was planned that the worker undergo a further operation. In that report, Dr Bain said he was not able to determine "when the patient would be able to return to normal duties", and indicated that in view of the long history it was most unlikely that he would.[110] This did not foreclose the question of a return to modified duties as a diesel mechanic, as is confirmed by the evidence of Dr Bain referred to above.[111]

126

The second report dated 8 October 2008 was prepared shortly after the operation.[112] Dr Bain said that he had reviewed a graduated return to work schedule drafted by a Mr Cech, and recommended that it not start until four weeks from the time of surgery. It is not clear which particular schedule Dr Bain was referring to,[113] but the various undated schedules prepared at about this time clearly contemplated a return to modified pre-injury duties. Dr Bain's view was known to those involved in the formulation of RRTW Plan 15,[114] and it was thus entirely appropriate that they proceed upon the basis that the plans developed to that stage had been endorsed by Dr Bain subject to a later start time.

127

Further, the actions taken by the rehabilitation consultants throughout the period of their involvement after the October 2008 operation indicate that they were mindful of the need to have ongoing reformulations of graduated return to work programmes assessed by Dr Bain and other medical practitioners involved.[115] The contention that RRTW Plan 15 and later plans were formulated without appropriate inquiry as to the views of Dr Bain is unfounded.

128

The employer emphasised the past history of the rehabilitation process and the worker's prognosis in contending that the goal of the disputed RRTW Plans is unreasonable. I have had regard to all of that evidence and the submissions of the employer including that:

•

in previous periods of rehabilitation, even when the worker was at the highest point of his recovery, he was prone to aggravation of his condition, and was "just coping" as noted by Dr Neoh, needing regular days off work, a regular intake of what was at times quite strong analgesic medication, and an increase in the level of work restrictions, such that ultimately he was unable to achieve a long term return even to modified duties;

•

the injury has resulted in a 15% permanent loss of function of the right shoulder, and from the time of the first operation, the worker's future capacity for work has been substantially compromised, and subsequent operative procedures have not improved the position beyond the restrictions of no heavy lifting or repetitive above head activities imposed as far back as July 2003;[116]

•

there is developing degenerative change, and the future possibility of a shoulder replacement, with a greater susceptibility to aggravation of the condition by modified diesel mechanic duties, and incipient problems with the left shoulder;

•

the views of Dr Bain and Dr Graham should be understood as indicating that in reality the worker will have difficulty in coping with even a moderate range of activity, these views being consistent with those expressed after a functional capacity evaluation conducted in August 2006 and more recently by Ms Callahan;

•

even though there might be continued improvement to October 2009, being one year after the last operation, it is not too early to say that the extent of the present and future disability is such that there is no reasonable prospect of the goal of RRTW Plan 18 being achieved.

129

The employer contended that ultimately the nature of the work required to be done, even if it is limited to the performance of 80% of the range of a diesel mechanic's tasks, is not suitable employment. No matter how structured the return to work plan is, or what modifications are made to relieve the worker of the requirement to do the heavier 20% of duties, there are inevitably going to be tasks required which the worker should not do, and which place him at risk of aggravation. Thus whilst the work may not be heavy all day, nevertheless it will involve work on heavy plant and equipment, and occasions will arise where considerable force must be used, or where prolonged work in awkward postures may be required, as indicated by the evidence of Mr Adams.

130

The employer contended that the position of the worker and the compensating authority was based upon the "hope" that the specified goal would be achieved, in a context where the benefit of hindsight shows that the goal is unachievable, and that it is unreasonable to impose an obligation on the employer to provide duties which are intended to assist in achieving that goal. "It is only going to end in disaster".[117]

131

The position of both the worker and the compensating authority is that it is too early to say whether or not any RRTW Plan with the current goal is unreasonable. Whilst the worker's rehabilitation has followed a tortuous path with many setbacks, it was contended that the most recent operative treatment in October 2008 had resulted in some significant improvement in the worker's condition, and that it is possible that the worker will be able to return to at least his level of performance in 2006/2007. It was contended that the worker, despite his disability, is likely to be able to do the vast bulk of the pre-injury work, and that it was not unreasonable to continue with rehabilitation aimed at a graduated return to work to pre-injury employment appropriately modified and to further assess the position in due course.

132

The worker will undoubtedly have significant ongoing disabilities. In this regard the evidence of Drs Neoh, Graham and Bain was quite consistent. The worker suffers from a permanent disability of the right shoulder which will restrict him from engaging in work activities which involve heavy lifting, repetitive forceful use of the right arm, or repetitive use of the right arm at or above shoulder height. The extent of this disability will increase over time, given that the worker now has ongoing and irreversible osteoarthritis of the right shoulder joint, and that deterioration may be hastened if his condition is aggravated by work activities. Ultimately there may be a need for a shoulder replacement.

133

The picture is complicated by the fact that there is now a condition of "developing left shoulder bursitis". Dr Neoh, as the worker's general practitioner over the last six years, is best placed to speak of the actual impact of this problem on the worker's activities. She stated that the left shoulder condition had manifested itself only intermittently, and in light of this evidence and that of the worker to the same effect, I do not consider that it is likely to have any significant impact on the worker's ongoing capacity for work.

134

There is no doubt that the worker is not and never will be fit to return to the full range of duties he carried out as a diesel mechanic before his injury. The question remains as to the level of moderate activity to which the worker might return. The possibility that he may achieve a return to modified duties as a diesel mechanic is enhanced by the surprisingly good recovery since the 2008 operation, and by the fact that, on the basis of his evidence, his current condition seems to be as good as it ever has been since the injury in 2001.

135

That possibility is further enhanced by the fact that it appears that the worker has returned to a reasonable range of activity, having managed quite well with his graduated work hardening duties since May 2009, including the discharge of duties requiring prolonged overhead use of the arms, admittedly on the comparatively lighter duties of an automotive mechanic.

136

The worker is strongly motivated to return to diesel mechanic work. He has demonstrated a high degree of pain tolerance in the past. It may be, as the employer contended, that the determination of the worker to persist in his attempts to return to diesel mechanic duties emanates in part from his unwillingness or inability to face up to the fact that in the long term the extent of the injury may force him to consider other unpalatable options. I have referred earlier to the worker's concern at the implications of a loss of his ability to pursue his trade. Nevertheless, as Dr Graham confirmed, the level of the worker's motivation remains a significant positive factor to be taken into account in deciding whether the goal of a return to modified duties is not unreasonable, and I consider this to be so whatever the various considerations that drive that motivation.

137

Despite these positive indications as to the future, I doubt that the worker's capacity for work will be as great as he predicts it will be. His high level of motivation and pain tolerance did not avail him when the condition of his shoulder deteriorated in 2005 and 2007. In my view, his perception as to the range of the tasks depicted on the DVD that he says he will be able to carry out without difficulty may be overly optimistic. As appears from the evidence of Dr Graham, some of the activities with which the worker indicated he would have no difficulty are likely to be contrary to the permanent restrictions which will be imposed on any return to work, and may aggravate his condition.

138

On the other hand, I accept the worker's evidence that the activities depicted on the DVD do not present an accurate representation of the activities in which he is likely to be involved if conducting modified workshop duties as ultimately proposed under the disputed plans. That is, I think many of the activities depicted which might put him at risk are likely to arise infrequently, and that when they do arise, the tasks might be done on some occasions with mechanical assistance, and on other occasions with the assistance of other workers, or might be assigned to mechanics other than the worker without causing unreasonable disruption or inefficiency to the employer's operations.

139

In coming to this conclusion, I accept the evidence of the worker and Mr Quinn to the effect that the main feature of the work is the scheduled servicing of plant in the workshop, where assistance and equipment is available with respect to heavier aspects of the duties. In my view this evidence is not inconsistent with that of Mr Heald. Whilst he emphasised the heavy, awkward and unpredictable aspects of the work of a diesel mechanic, Mr Heald accepted that 70% of the work done was of a "regular, scheduled and predictable" nature carried out in the workshop, and that most of the breakdown work was also done in the workshop environment.

140

I acknowledge one area of uncertainty on the evidence as to the level of "moderate" activity which may be required of the worker. This arises from the evidence of Mr Adams which suggests that during some of the period when Mr Quinn was supervisor, there were occasions when the worker carried out activities of a nature which, if undertaken in the future, may put him at risk of aggravation. The evidence of Mr Quinn, and of the worker, suggested that risky activities of this nature were not assigned to him, or that when the need for heavier work arose, assistance was always available. It may be that the worker has undertaken activities beyond what was expected of him in the past, and has put himself at risk to avoid creating an issue by seeking assistance. However, on the basis of the evidence of Mr Quinn and the worker in this regard, I consider that the employer should be able to allocate duties to the worker in such a way as to minimise the risk of aggravation of his condition.

141

In this context I take into account that the opinions of Drs Bain and Graham as to the range of moderate duties the worker may successfully undertake is to be considered in light of factors which include the worker's description of those duties and subjective reports as to his capabilities and, as Dr Bain acknowledged, in light of other information such as the outcomes of functional capacity evaluations and job assessments. As to the last point, I have regard to the functional capacity evaluation conducted by Ms Warren in February 2009 which indicated considerable improvement in the worker's capacities, and to the opinion of Ms Collins that in light of her job assessment in July 2009, and the view of Dr Bain as to the excellent result following surgery, there is a "possibility" of a return to modified diesel mechanic duties, and that the appropriate approach is to continue to explore that return.

142

In general the evidence of the worker indicates, and I so find, that a performance of duties at the level ultimately proposed under RRTW Plans 17 and 18, being "normal workshop duties" with the restrictions as ultimately specified in the Pinnacle Report, would equate to a performance of about 80% of pre-injury duties similar to those which I have found the worker achieved from January 2005 to early August 2005, and for about one year or more from mid-2006.

143

Over the period in 2005 to 2007 when the worker was carrying out this level of work, I find that there was sufficient work available to keep him occupied in a full-time productive capacity. There is no evidence before me which suggests that the employer's operations or structure has altered since 2007 such that it is now not able to provide suitably modified work on the same basis as when Mr Quinn was maintenance supervisor.

144

Having regard to the above matters I find that the worker may be able to return to a moderate level of full-time work as a diesel mechanic which accommodates his current restrictions, and that given the recent improvement in his condition, that return may be achieved on a sustained or durable basis. I do not consider that the goal of the disputed plans is unachievable or doomed to failure.

145

There is no doubt that the history of past failures in the rehabilitation process indicates that the employer is justified in its concern that the goal of a return to modified pre-injury work may be unsuccessful. However, the fact that this concern has a valid basis does not render the goal "unreasonable". In my view there are rational grounds based upon the evidence as to the improved condition of the worker this year for concluding that it may be possible for the worker to yet succeed in achieving a durable return to a range of modified diesel mechanic duties which the employer can provide without undue disruption or inconvenience to its operations.

146

An additional concern expressed by the employer through Mr Heald and Mr Thacker, was that the early stages of RRTW Plan 17, based on the Pinnacle Report, contemplated the provision of a limited range of duties which they assert are intermittent in nature and would not keep the worker fully occupied. The same concern arises with respect to RRTW Plan 18. The plans include a graduated return to work programme through seven stages over a period of fourteen weeks. The implementation of each of the proposed seven stages is subject to medical approval, assessment and review in the context of ongoing contact between the rehabilitation service provider, the employer and the worker.[118]

147

I accept that on RRTW Plan 18 as currently formulated there may be problems in finding a sufficient amount of suitable work for allocation to the worker in the earlier stages where there is a greater restriction on the range of duties he may be permitted to perform. This may cause some inefficiencies and inconvenience to the employer. However, these stages are of relatively short duration, and further, the effluxion of time since the graduated return to work plan was initially drafted, and the improvement in the worker's condition since that time, may mean that the various time frames and stages can be considerably condensed. Whatever the situation in that regard, I do not consider that the obligation on the employer to comply with the various stages of the plans over what is envisaged to be a maximum of fourteen weeks before an optimum level of employment is reached is unreasonable given my conclusion as to the possibility of the worker achieving the end goal.

148

Thus I am not satisfied that the employer has established that the disputed RRTW Plans are unreasonable, or that the obligations imposed on it in working towards those goals are unreasonable. Having regard to the statement of issues outlined at the commencement of these reasons, I find that:

•

there is a possibility that in light of the extent of the worker's recovery since his operation of October 2008, and the accommodations that the employer can reasonably make with respect to the duties able to be performed by the worker, that he can return to a substantial proportion of his pre-injury duties as a diesel mechanic;

•

it is not unreasonable to impose on the employer an obligation to provide duties to the worker with the goal of returning him to modified duties as a diesel mechanic as contemplated by the disputed RRTW Plans;

•

it is not unreasonable to impose on the employer an obligation to provide duties to the worker in the workshop as it did in the period when the worker was able to discharge approximately 80% of his pre-injury duties.

149

Despite my conclusions in this regard, it is clear that the worker's position is vulnerable. Implementation of the plan in its present or modified form may not succeed in rehabilitating the worker as hoped. Further setbacks indicative of a repetition of past experiences of failed rehabilitation may well mean that the current rehabilitation goal is revealed to be untenable despite the apparent extent of the worker's current recovery. If so, the worker may have to face up to the fact that there is no reasonable basis upon which he can pursue his trade as a diesel mechanic with his current employer on any terms. Whether that becomes the situation will depend upon the evidence relating to the circumstances in which impediments arise, if they do at all, and nothing I have said about future possibilities can dictate the outcome of any disputes which might arise over further rehabilitation goals.

150

I have observed earlier that my conclusion on the employer's dispute notices makes it unnecessary for me to address the jurisdictional issue raised by the compensating authority. However, I propose to do so in the event that the matter is taken further.

151

Section 28B of the Act provides as follows:

"(1) A worker or employer may apply for review of -

(a) a decision to establish or not to establish a rehabilitation and return to work plan; or

(b) a provision of a rehabilitation and return to work plan,

on the ground that the decision or the provision is unreasonable.

(2) On review of a rehabilitation and return to work plan (or in consequent appellate proceedings), the plan may be modified to the extent necessary to ensure that the plan does not impose unreasonable obligations on the worker or the employer.

(3) Proceedings on a review under this section (or consequent appellate proceedings) do not suspend obligations imposed by a rehabilitation and return to work plan."

152

The aspect of the jurisdiction of the Tribunal under s 28B of the Act relevant to this case is the jurisdiction to determine an application for review of a provision of a RRTW Plan on the ground that the provision is unreasonable. A decision must be made that a provision is "unreasonable" before any consideration can be given to modifying the plan to remedy the unreasonable provision. The power to modify a plan is discretionary, and need not necessarily follow a conclusion that a provision is unreasonable.

153

Thus the jurisdiction of the Tribunal to determine whether a provision of a plan is unreasonable or not precedes and is separate from any subsequent question as to whether an unreasonable provision should be modified or not. Accordingly, the observations of the Tribunal at first instance in Winnall v Department of Education and Children's Services[119] and subsequently on appeal,[120] to which the compensating authority referred in support of its jurisdictional point, do not directly bear upon the relevant question. The comments made by the Tribunal with respect to jurisdiction were confined to an apparent acceptance of the proposition that, because the RRTW Plan in dispute was no longer on foot, there was no effective remedy the Tribunal could provide in terms of modifying the plan, and impliedly, there was no jurisdiction to make any order in that regard. The decisions do not address the anterior question as to whether the Tribunal has jurisdiction to determine whether a provision of an expired plan is unreasonable separately from the issue of any subsequent remedy.

154

As I understand the compensating authority's submission, it seeks to extrapolate from the authority of Winnal, not only the proposition that the Tribunal does not have jurisdiction to make orders to modify RRTW Plans 15 and 17 because they have already expired, but also that the Tribunal has no authority to consider the anterior question as to whether a provision is or is not unreasonable where the s 28B review proceedings stand alone. It was conceded that this jurisdictional problem does not arise where the question as to whether a provision of a plan was unreasonable is considered in the context of other proceedings, such as a dispute over a s 36 notice alleging non-compliance with a RRTW Plan: Smith v WorkCover Corporation,[121] Stirling v Local Government Association.[122]

155

The employer contended that the Tribunal has jurisdiction to make an order sought with respect to any of the RRTW Plans whether they have expired or not. It was contended that the Tribunal must have jurisdiction as findings as to reasonableness are important in terms of further plans and in terms of other proceedings which might arise under the Act. For example, review assessments under s 67 of the Act, or proceedings alleging non-compliance with s 58B obligations. It was submitted that the fact that a plan might have expired, such that an order modifying the plan would be futile, should not dictate whether there is jurisdiction to decide the preliminary question of unreasonableness.

156

I consider the contention of the employer is correct. The interpretation of the s 28B jurisdiction for which the compensating authority contends would limit the scope of review proceedings in a manner which is inconsistent with the rehabilitation scheme of the Act. That scheme contemplates that in circumstances where a RRTW Plan must be established, there may be a series of finite RRTW Plans, varying in length in accordance with the circumstances of the worker and the employer, and the objectives of the plan, with each plan being subject to review and consequent amendment, alteration or modification.[123] It is implicit in this process that there may be a lengthy series of RRTW Plans, as has occurred in this particular case.

157

Whilst the compensating authority must consult with the worker and the employer in the course of the preparation of a plan, it can impose obligations on those parties which must be complied with. The intent of s 28B is to provide a remedy where either the worker or employer considers that an unreasonable obligation has been imposed. The utility of that remedy would be seriously compromised if the ability of the Tribunal to determine a question was dependent upon random factors such as the length of the plan in question and whether it was brought before the Tribunal in time for a determination to be made before the disputed plan expired.

158

Had Parliament considered that any application should be made before expiry of the plan, or within any shorter time limit than is specified with respect to dispute notifications generally, it could have said so. That the scope of s 28B should be limited as contended by the compensating authority seems even more unlikely having regard to the fact that both subsections (2) and (3) of s 28B contemplate that the review process may take place at first instance or in consequent appellate proceedings, the latter proceedings being unlikely in practice to ever be determined during the currency of the usual RRTW Plan.

159

The question as to whether a provision of a plan is unreasonable is clearly of importance to the parties and the compensating authority not only in terms of the ongoing review of existing plans and the implementation of subsequent plans. It also has wider implications with respect to ss 58B and 67 as submitted by the employer. This is emphasised with respect to s 67 by the notice to be given to employers under reg 5(i) as to the potential for imposition of supplementary levies in the event of non-compliance with obligations imposed under a plan.

160

In my view it would be contrary both to the scheme of the Act, the language of the provision in question, and the liberal interpretation to be given to beneficial legislative review remedies of this type, to read down the scope of the s 28B jurisdiction in the manner for which the compensating authority contends.

161

Accordingly, I dismiss the application for directions seeking orders that RRTW Plans 15 and 17 be struck out for want of jurisdiction.

162

The challenge to each of RRTW Plans 15, 17 and 18 on the ground that the goal of each of those plans is unreasonable in seeking to return the worker to his pre-injury employment with the pre-injury employer fails.

163

This ground was the only basis upon which the challenge to RRTW Plan 18 was mounted. In the circumstances, I dismiss the notice of dispute with respect to that plan.[124]

164

RRTW Plans 15 and 17 were also disputed on other grounds, including with respect to both of them that they were unlawfully backdated, and with respect to RRTW Plan 17 that there was no consultation as required by s 28A(3)(a) of the Act.[125] Given the circumstances in which these proceedings evolved, these further grounds were not the subject of argument before me. There would seem to be no point in the circumstances in ventilating these matters, given that the plans expired long ago, but I will hear the parties further on the matter.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] That is, that the plan start date precedes the date on which the plans were established.

[2] RRTW Plan 15 covered the period 30 November 2008 to 30 January 2009; RRTW Plan 17 covered the period 24 March 2009 to 24 June 2009.

[3] An application for directions was filed by the compensating authority on 29 April 2009 seeking an order that the notice of dispute with respect to RRTW Plan 15 be struck out on the basis that the Tribunal has no jurisdiction to make an order with respect to an expired plan. That application is part of the proceedings now before the Tribunal and is made also with respect to the dispute over RRTW Plan 17 (following orders made on the employer's application for directions dated 12 May 2009). (Trial Book 1 p 7 (TB1/7)).

[6] Paraphrasing of paras [2], [3] and [4] of the agreed statement of issues Exhibit A2 dated 17 July 2009.

[8] Tr 251.15 - 20, where para [2] of the statement of issues was adopted as the issue to be addressed; see also tr 265.25 - 31, 266.13 - 17.

[9] Section 2(1)(a)(i) and (ii) of the Act.

[10] Section 58B(1) of the Act - subject also to the qualifications in s 58B(2).

(A) the worker's return to the pre-injury employment with the pre-injury employer;

(B) the worker's return to different employment by the pre-injury employer;

(C) the worker's return to the pre-injury employment but with a different employer;

(D) the worker's return to different employment with a different employer.

[13] Straddles, pot carriers, ladel carriers.

[14] As described in the Employment Assessment report of Ms Collins (Exhibit R1) dated 9 July 2009 and agreed by Mr Heald, the employer's maintenance supervisor (tr 43).

[15] Worker's statement TB5 paras [8] - [13].

[19] PMC of Dr Neoh 16 October 2003 (TB2/7).

[20] PMCs Dr Neoh 16 February 2004 (TB2/11) and 19 February 2004 (TB2/12); Gowland Consulting Progress Report 20 February 2004 TB3/51.

[22] Dr Neoh reportedly stating it to be unlikely, with Dr Bain reportedly expecting that the worker could return to heavy duties - Rehabilitation Progress Report 30 March 2004 TB3/62-63.

[24] Rehabilitation Progress reports 26 August 2004 and 28 September 2004 - TB3/89 and 93.

[25] Report Dr Neoh 12 October 2004 (TB2/140) and PMCs TB2/27 - 28.

[26] The first, because it might aggravate the worker's condition - it involved use of a "Hilti" gun which uses an explosive device to stamp barcodes on processed metal product. The repetitive nature of the work and the impact of the gun recoil made it unsuitable. The second job required the worker to operate a crane from a highly elevated cabin. This was thought likely to produce an adverse reaction given the worker's fear of heights, and it was suggested that the physical effort required to operate the crane levers might aggravate the shoulder condition.

[29] Medical report 30 September 2004 TB2/106 - 107.

[30] Rehabilitation Progress report 17 December 2004 TB3/110.

[31] RRTW Plan 4 dated 9 December 2004 (TB3/107).

[32] Worker's statement TB5/6 para [32].

[33] Rehabilitation Progress report 17 January 2005 (TB3/113).

[37] RRTW Plan 2 approved 15 March 2004 TB3/56.

[38] Report 16 August 2005 TB2/117 - 118.

[39] Worker's statement TB5/7 para [37].

[40] Rehabilitation Progress Report 22 November 2005 TB3/162.

[41] Report 15 March 2006 TB2/121 - 122.

[43] Rehabilitation Progress Report 31 May 2006 TB3/184.

[44] As noted in the Work Solutions email 7 August 2006 TB3/192.

[45] By physiotherapist Mandy Gordon, Restart Occupational Health Services, Assessment 21 & 22 August 2006, Exhibit A1, at p 12.

[48] Worker's statement TB5/7 paras [38] - [43].

[49] Unofficially at first but later being formally confirmed in that position.

[58] Including weekends, it would appear - PMCs TB2/30 - 45.

[60] TB2/56 - 68 - two thirds of which were in the second half of the year when the worker's condition began to deteriorate.

[61] Mr Quinn met with a rehabilitation consultant and the worker to further discuss the issue as to the duties for which the worker was fit on 21 December 2006 - Minutes of meeting (Exhibit W7).

[62] PMC TB2/58 of 2 July 2007; tr 157.

[64] PMC 18 December 2006 TB2/68; tr 157 - 159.

[66] Dr Saies letter to Dr Neoh 14 December 2007 (Exhibit W3).

[67] An assertion not disputed by Mr Heald.

[69] Worker's statement TB5/9 para [55].

[71] Report 8 October 2008, TB2/132-133.

[75] Report analysis and summary TB2/249 - 251.

[82] Report 11 February 2009 TB2/195-199.

[88] Referring to the four alternative objectives with respect to rehabilitation plans set out in reg 5(c) of the Regulations.

[94] Tr 26 - as described in the Dewing Ergonomic and Safety Report 21 August 2003 (TB2/206).

[98] Worker's statement TB5/17 para [81].

[99] Worker's statement TB5/2 para [9].

[103] Report to Dr Neoh 26 June 2009 (R2).

[110] Report 18 August 2008 (TB2/129).

[111] In particular, in light of the clarification of his earlier reports as noted at para [116] above.

[113] Probably that prepared by Mr Cech (TB4/65).

[114] At TB1/55 it is noted on RRTW Plan 15 that the worker "was cleared...under GRTW Schedule by

[115] See, for example, graduated return to work proposals considered by CRS Australia 3 November 2008 (TB1/173) as to review of recommendations by Dr Bain, and 3 December 2008 (TB4/113); see also the Part 2 detail of each of the disputed plans.

[116] Report Dr Bain 9 July 2003 (TB2/100).

[118] Refer generally to paras [1] - [15] of rehabilitation process TB1/80.

[119] [1997] SAWCT 7.

[120] Winnall v DECS [1997] SAWCT 35.

[121] [2002] SAWCT 93.

[122] [2009] SAWCT 19 at [57].

[124] Notice of dispute no. 4765 of 2009 dated 7 July 2009 (TB1/82).

[125] Notice of dispute 7982 of 2008 dated 24 December 2008 (Plan 15) and notice of dispute 3415 of 2009 dated 22 April 2009 (plan 17).