National Union of Workers, New South Wales Branch (on behalf of Todd Bell) and Terminals Pty Limited [2008] NSWIRComm 1118

CASES CITED: National Union of Workers, New South Wales Branch (on behalf of Todd Bell) and Terminals Pty Ltd [2008] NSWIRComm 1073

HEARING DATES: 19/09/08; written submissions 02/10/08, 03/10/08

APPLICANT Mr A Joseph of counsel LEGAL REPRESENTATIVES: RESPONDENT Mr R Warren of counsel Stevens & Associates, Lawyers

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES McKENNA C

NATIONAL UNION OF WORKERS, NEW SOUTH WALES BRANCH (ON BEHALF OF TODD BELL) AND TERMINALS PTY LIMITED

Application by National Union of Workers, New South Wales Branch on behalf of its member Todd Bell for reinstatement of an injured worker pursuant to section 242 of the Workers' Compensation Act 1987

DECISION [2008] NSWIRComm 1118 1 On 26 August 2008, I issued an earlier decision in this matter ([2008] NSWIRComm 1073) which found in favour of a claim by the National Union of Workers, New South Wales Branch ("the applicant") seeking the reinstatement of Todd Bell to his employment with Terminals Pty Limited ("the respondent"). That application was made pursuant to s242 of the Workers' Compensation Act 1987 ("the Act"). The earlier decision read, in part: [41] The applicant has established a case favouring an order for the reinstatement of Mr Bell to the position of terminal operator, grade 4, with continuity of service, and I am satisfied it is appropriate to order accordingly… and further: [44] I accept also it is appropriate, as a corollary to the findings in favour of reinstatement and continuity of service, to accede to the applicant's submission that there should be a remuneration order in Mr Bell's favour. I note both parties sought leave to address further on what actually may be an appropriate amount of remuneration in the event the applicant's claims on behalf of Mr Bell were successful. 2 In proceedings on 18 September 2008, I gave the reinstatement order made in paragraph [41] of the earlier decision an operative date of 24 September 2008. The issues particular to the operative dates concerning continuity of service and the amount of remuneration remained outstanding and, by agreement, were to be the subject of further written submissions from the parties. 3 On 19 September 2008, the respondent filed an application for leave to appeal and to appeal against the earlier decision, and sought a stay. Despite the appeal and stay, the parties subsequently made further written submissions on continuity of service and remuneration in accordance with the programme already in place in this matter before the appeal was lodged. 4 On 31 October 2008, I sought clarification from the parties concerning the extent of the stay. By letter dated 3 November 2008, Stevens & Associates, solicitors for the respondent, advised the stay was confined to the reinstatement order (and confirmed it was the respondent's preference that I should deal with the outstanding matters before the appeal scheduled for 6-7 November 2008). Given the confirmation from Stevens & Associates yesterday advising the stay of the earlier decision was limited only to the reinstatement order, I have listed the matter for decision today on the outstanding issues. Submissions - continuity of service

5 Mr A Joseph of counsel, for the applicant, submitted Mr Bell's service with the respondent should be taken as continuous and not having been broken by his dismissal on 25 September 2007, with the exception that the period between 25 September 2007 and 4 October 2007 not be counted as part of the period of service. The date of 4 October 2007, refers, as I understand it, to the date on which Mr Bell made his initial written application to the respondent for a return to work (which was declined by the respondent) and which, in due course, gave rise to the application under s242 of the Act which was filed on 19 November 2007. The written submissions for the respondent filed on 2 October 2008 concerning the outstanding issues did not cavil with, or otherwise address, the dates proposed in the applicant's submissions as to continuity. 6 Having considered the applicant's submissions and the fact the respondent did not cavil with them, I propose to give effect to the applicant's proposals as they concern an order for continuity of service. Submissions - remuneration

7 As to the question of remuneration, Mr Joseph submitted the following: 4. The figures below have been based on the period between Mr Bell's dismissal (25 September 2007) and this Friday (19 September 2008) but not taking account of the period 28 April 2008 and 25 June 2008. This is a period of 42 weeks.

Mr Bell was earning $1,535.89 (gross) per week as at the date of the termination of his employment (paragraph 7, exhibit 8). For the 42 week period this amounts to a total of approximately $64,507.38 (gross).

Mr Bell received 'top-up' insurance payments of $544.30 (gross) each week after the termination of his employment on 25 September 2007 (paragraph 10, exhibit 8). For the 42 week period this amounts to approximately $22,860.60.

Mr Bell, between 8 October 2007 and 1 February 2008, was working between 15-35 hours per week earning $15 per hour gross. If one takes an average of 25 hours per week ($15 x 25 hours = $375 per week gross) then for the relevant period this would equate to earnings of $6,375 gross.

Mr Bell earned $510.10 (gross) per week between approximately 1 February 2008 and 19 September 2008 (exhibit 8, paragraph 9). For this period, this amounts to a total of approximately $12,499.26.

On the basis of the above, the Commission ought make the following order and notation: (i) The respondent to pay Mr Bell, on or before 19 September 2008, an amount of $22,772.52 (gross).

(ii) The Commission notes that this is an amount equivalent to the amount lost by Mr Bell by virtue of his dismissal between 4 October 2007 and 19 September 2008 deducting any payments received from alternative employment or in relation to workers' compensation entitlements and not counting the period between 28 April 2008 and 25 June 2008. 8 The reference in the proposed notation to excluding the period 28 April 2008 to 25 June 2008 appears to be because the proceedings went into abeyance for a period of time consequent upon submissions by the applicant concerning amended programming of the hearing dates. However, I note in this respect, that the initially-rescheduled dates of 18-20 June 2008 were, in turn, deferred to 25-27 June 2008 on the application of the respondent. 9 Mr Joseph submitted the figures concerning earnings were based on the best information that could be garnered in circumstances where Mr Bell was no longer in possession of all his pay advices, as he had forwarded them to the workers' compensation insurer. Mr Joseph also submitted that in the absence of some indemnity arrangements concerning recoupment by the workers' compensation insurer, the applicant's proposed orders and notations were appropriate, and there should be no suggestion of any possibility of "double dipping". 10 Mr R Warren of counsel, for the respondent, submitted that in relation to any order for remuneration, the Commission should take account of the time the respondent first became aware of the report prepared by Dr Seamus Dalton, and of his opinion as to Mr Bell's physical condition and the work he could perform - particularly given the reliance in my earlier decision on Dr Dalton's evidence, as opposed to the medical views of three other physicians. In this respect, Mr Warren submitted the earliest the respondent was aware of Dr Dalton's medical report was on 5 May 2008. Mr Warren further noted that, in the normal course of events, an employer might take some time to consider what work may be available in relation to any such assessment. Allowing for such considerations, Mr Warren submitted it would be appropriate to consider a reasonable date of notional re-employment for the purposes of any remuneration order as being no earlier than 19 May 2008, that is, a fortnight after Dr Dalton's report was known to the respondent. Mr Warren submitted that with respect to the period 19 May 2008 to 19 September 2008, any order for remuneration should be no greater than $8,393.60 - taking into account payments Mr Bell had received as wages in his alternative employment and as benefits from the workers' compensation insurer. Those amounts were calculated in the respondent's submissions as follows: 10. Mr Bell's rate of pay for ordinary time per week for the relevant period should have been $1,535.89. Thus, the following calculation reveals a shortfall in remuneration earning during the relevant period of $8,393.60 (gross):

18 weeks pay @ $1,535.89 (from 19/5/2008-19/9/2008) = $27,646.02 Workers compensation insurance payments made = $9,688.54 Earnings from [alternative employment] = $9,563.88 Remuneration shortfall = $8,393.60 (gross) 11 Lastly, Mr Warren submitted it appeared the applicant's submissions did not take into account the amounts Mr Bell received as a result of his injury attracting workers' compensation payments. He submitted the Commission should not countenance making orders for remuneration which would, in effect, afford a "double count" of payments during his period of absence from the respondent's workplace. 12 On 3 October 2008, the applicant confirmed it did not wish to respond to the respondent's submissions; and was content to rely on the written and oral submissions made on 18 September 2008.

13 I have not been satisfied it is appropriate to accede to the submissions that the order for remuneration should extend to the date proposed by the applicant. The medical advice available to the parties around the approximate time of Mr Bell's dismissal, and up to the date of Dr Dalton's report, was summarised in paragraph [23] of my earlier decision, as follows:

. In a report dated 29 May 2007 Dr Lose recommended "an occasional weight lifting limit of 5kg". Again, in a subsequent, undated report noting a "date of examination" of 14 August 2007, Dr Lose recommended the following restrictions: "lifting limit of 5kg, avoidance of repetitive or sustained bending". (Dr Lose had noted in an earlier report dated 12 July 2007 that he expected posturally-correct, controlled safe lifting limits eventually to reach "between 15-20kg, possibly 25kg" after strengthening - but there was no evidence of any further examination by Dr Lose of Mr Bell after he made that 5kg recommendation.)

. In a report dated 19 July 2007, Dr Loefler, an orthopaedic surgeon, recommended that Mr Bell should stay on permanent restricted duties. Dr Loefler recommended that Mr Bell's lifting should be no more than 15kg and he should avoid working in forward-flexed positions and in jobs requiring regular twisting and bending.

. The most recent WorkCover certificate from Mr Bell's general practitioner, Dr Steven Yung, which was dated 2 October 2007, recommended lifting limits of 15kg, no moving of six-inch hoses and avoiding working in forward-flexed positions. … 14 Hence, in short form, this was the medical advice available to the parties as to Mr Bell's fitness around the time of the dismissal and until Mr Bell had a further examination. In April 2008, Dr Dalton examined Mr Bell and formed his own views as to Mr Bell's then state of fitness for work with the respondent. Dr Dalton's opinion was summarised in paragraph [23] of my earlier decision, as follows: [23] … Dr Dalton examined Mr Bell on 4 April 2008 and, in a report dated 18 April 2008, he recommended that a "a lifting restriction of 20-25kg would be reasonable" in Mr Bell's case, subject to applying correct lifting and bending techniques at home and at work - and that Mr Bell can safely perform his previous duties with the exception of lifting the six-inch hose. He disagreed with "the suggestion that a permanent restriction of 15kg is applicable", given Mr Bell's circumstances.

It was not until Dr Dalton had prepared his report and it was available to the parties that they would have been aware of the more expansive view of Mr Bell's fitness and capacity to perform the work of a terminal operator grade 4. It may be noted that, at least so far as the weight lifting recommendations were concerned, Dr Dalton's view accorded with those that earlier had been contemplated by Dr Lose in his report dated 12 July 2007 - and, to that extent, there was a measure of convergence, over the passage of time, of the preliminary opinion of Dr Lose and the subsequent assessment by Dr Dalton in April 2008. 15 It may be accepted that the evidence of Dr Dalton was of significance in the proceedings given my findings in the earlier decision concerning his report and evidence, but, equally, it cannot be said the applicant would not otherwise have made out a case for relief by way of reinstatement had it not been for Dr Dalton's evidence as to Mr Bell's fitness from around April 2008. Nonetheless, as I noted in the earlier decision at paragraph [24]: [24] I consider the most recent medical assessment given by Dr Dalton formed the best basis for a contemporary snapshot of Mr Bell's capacities at the time of these proceedings, notwithstanding the earlier assessments by Drs Lose, Loefler and Yung - which were, by the time the hearing proceeded, about a year old. Dr Dalton is an obviously well-qualified, specialist physician and he had the benefit of most recently examining Mr Bell. If a specialist such as Dr Dalton had, for instance, formed the view that Mr Bell could not safely manage weights above 5kg, that evidence could not be disregarded so far as these proceedings are concerned. Medical conditions typically involve dynamic, not static, considerations - even where there is something in the nature of an underlying permanent condition. The letter dated 4 October 2007 seeking Mr Bell's reinstatement referred to 15kg weights. The initiating process filed on 19 November 2007 noted, in more general terms, at "B" that the application was for "a reinstatement order under s242 of the Workers' Compensation Act 1987" - albeit, in support of that application, the applicant outlined supporting information, including the assessments of Mr Bell's fitness that accorded with those in the WorkCover certificate signed by Dr Yung approximately six weeks before the application was filed. However, I could not reasonably proceed on the basis that the Commission was somehow relevantly bound in its consideration of the reinstatement application only to a 15kg specification, if the most contemporary medical evidence suggested a much lesser standard of, say, 5kg - any more than I could disregard the fact the evidence persuasively indicated a standard of up to 25kg.

and further, at paragraph [41]: [41] … I accepted Dr Dalton's opinion as to Mr Bell's current fitness, and as to the medical recommendations that should be observed. Mr Bell's performance of duties as a terminal operator following reinstatement should be undertaken in accordance with the most current medical recommendations, that is, as advised by Dr Dalton. 16 I am generally persuaded by Mr Warren's submissions that it would be an appropriate course, given the timing of the medical developments in support of the applicant's claim on behalf of Mr Bell and, as noted in the earlier decision, the relevance of Dr Dalton's evidence to my findings, consistently to limit the order for remuneration in the manner proposed in the respondent's submissions to around the time that Dr Dalton's report was available - subject to two provisos. 17 First, I have noted Mr Warren's submission that: 8. [I]n the normal course of events, when an application is made to an employer pursuant to s241 of the Act, the employer could conceivably take a short period of time to consider both the report, identify the work therein referred and respond, if it be positive, by offering at some later stage reasonably proximate to the application, the worker employment in accordance with the doctor's assessment.

9. Thus, the process having been undertaken following an appropriate application being made, and in terms of this case and the receipt of Dr Dalton's report, it would be appropriate to consider a reasonable date of notional re-employment as being no earlier than 19 May 2008.

Despite Mr Warren's submissions, I have not been satisfied that the amount of remuneration should be discounted by an amount of two weeks referable to a notional period of consideration during the period 5-19 May 2008. Shortly stated, there was no evidence the respondent gave any consideration of the type otherwise contemplated in Mr Warren's submissions, e.g., Dr Lose was not commissioned to undertake a further examination; the parties did not enter into constructive discussions concerning a return to work after Dr Dalton's report; there was no application by the respondent for a referral to a medical referee or medical panel, etc. The respondent's knowledge of Dr Dalton's report from 5 May 2008 did not seem to have any impact on the position of the respondent as it concerned reviewing the possibility for a return to work. It is difficult, in such circumstances, to accept the proposition the respondent should be regarded as being allowed time to consider a notional re-employment in terms of an order for remuneration, when the evidence did not support a conclusion there were, in fact, any such developments. If, however, there had been evidence of the type to support the submissions advanced by Mr Warren concerning the period in question, it may have put a different complexion on the respondent's submissions in this respect. In the circumstances, I consider the amount of remuneration proposed by the respondent an appropriate for an order should be re-calculated without omitting the period 5-19 May 2008. 18 Second, I note the submissions of the respondent as they concerned remuneration were calculated to 19 September 2008, whereas the reinstatement order was given an operative date of 24 September 2008. As such, it appears the respondent's remuneration figure of $8,393.60 will need a further, small adjustment to take account of the operative date for the reinstatement order. 19 In circumstances where my earlier decision as to Mr Bell's reinstatement is the subject of a pending appeal before the Full Bench, I do not consider it presently would be appropriate to give an operative date for an order concerning payment of remuneration. The parties have leave to make further submissions on an appropriate operative date for payment of remuneration, in the event that remains a relevant issue between the parties following the determination of the appeal to the Full Bench. ____________________

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