Terminals Pty Limited v NUW, NSW Branch

LEGISLATION CITED: Workers Compensation Act 1987

Aboud v NSW Department of Education (1999) 92 IR 32 Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2002) 128 IR 37 CASES CITED: National Union of Workers, New South Wales Branch (on behalf of Todd Bell) and Terminals Pty Limited [2008] NSWIRComm 1073 National Union of Workers, New South Wales Branch (on behalf of Todd Bell) and Terminals Pty Limited [2008] NSWIRComm 1118 Riley v WorkCover Authority (2006) 151 IR 396 State Rail Authority v The Honourable Justice Bauer and others (1994) 55 IR 263

HEARING DATES: 6 November 2008, 21 November 2008

APPELLANT: Mr R Warren, of counsel Stevens and Associates Lawyers (Mr N Stevens) LEGAL REPRESENTATIVES: RESPONDENT: Mr A Joseph, of counsel National Union of Workers, New South Wales Branch (Mr S Mueller)

CORAM: WALTON J, Vice-President GRAYSON DP MURPHY C

Terminals Pty Limited and National Union of Workers, New South Wales Branch (on behalf of Todd Bell)

Application by Terminals Pty Limited for leave to appeal and appeal against a decision and order of Commissioner McKenna given on 26.8.2008 and 18.9.2008 in matter no. IRC 2087 of 2007

1 On 25 September 2007, Terminals Pty Limited (the appellant) dismissed its employee, Todd Bell, in reliance upon a medical report which, in the view of the appellant, established that Mr Bell was not able to perform "the inherent requirements" of his position as terminal operator, grade 4. At the time of his dismissal, Mr Bell was carrying out duties of a terminal operator, grade 4 with some medical restrictions applying to his work. 2 On 4 October 2007, Mr Bell applied for reinstatement of his employment with the appellant on the basis of a medical report then provided by Dr Stephen Yung that he was fit to perform certain duties. That application was rejected by the appellant. In the result, proceedings were commenced before McKenna C brought under s 242 of the Workers Compensation Act 1987 by Mr Bell's union, the National Union of Workers, New South Wales Branch. In the course of prosecuting that application, reliance was placed on a subsequent medical report of Dr Dalton which indicated significantly less medical restrictions. The receipt of that evidence and the subsequent reliance upon it by the Commissioner in her decision upon the application was the subject of some controversy in these proceedings.

3 On 26 August 2008, McKenna C gave a decision in relation to the subject application: National Union of Workers, New South Wales Branch (on behalf of Todd Bell) and Terminals Pty Limited [2008] NSWIRComm 1073. The Commissioner subsequently made orders which appear in the transcript of the proceedings for 18 September 2008 and published a supplementary decision dated 4 November 2008: National Union of Workers, New South Wales Branch (on behalf of Todd Bell) and Terminals Pty Limited [2008] NSWIRComm 1118.

4 The matter before us concerns an application for leave to appeal and, if granted, appeal from the decision of the Commissioner of 26 August 2008 and orders given on 18 September 2008 but not the supplementary decision. That decision was, in fact, rendered after the appeal was lodged (and, indeed, expressly refers to the appeal proceedings). It was not referred to by the parties during the course of their submissions in the appeal, nor did it come to the attention of the Full Bench until after decision had been reserved on the appeal. This course of events ultimately resulted in the Full Bench re-listing the matter after having reserved decision in order to consider what, if any, steps should be taken in the light of the supplementary decision coming to notice. We will return to that matter momentarily.

5 In the decision of 26 August 2008, McKenna C found that the applicant had "established a case favouring an order for the reinstatement of Mr Bell to the position of terminal operator, grade 4, with continuity of service". The Commissioner observed "I am satisfied it is appropriate to order accordingly". Those findings were followed by the following observations: ...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.

6 Despite an observation made in her supplementary decision that a reinstatement order was made in consequence of this aspect of the decision of 26 August, we are satisfied that the Commissioner did not make an order on 26 August, but rather did so by the short order made on 18 September in the following terms: ... that Todd Bell be reinstated, at the respondent's premises as a terminal operator Grade 4, no later than the beginning of his normal shift on Wednesday 24th September 2008. 7 In order to be effective, the orders of reinstatement required a date of operation. That much was not done on 26 August 2008, even though the orders were foreshadowed. The effective order of the Commissioner was that ultimately made on 18 September 2008, 8 The terms of the order made by the Commissioner were of no small consequence to the proceedings, as a significant issue on this appeal was whether the Commissioner had attached conditions upon the reinstatement of Mr Bell and, if so, whether such decision was erroneous in law and having regard to proper exercise of discretion in the light of the evidence in the proceedings. It follows that the later observations by the Commissioner in her supplementary decision as to the nature of the orders made were, in light of the appeal brought, somewhat unfortunate, as was reflected in the joint submissions of the parties that we should ignore the supplementary decision for the purposes of deciding this appeal (noting, as well, that the decision was principally devoted to the question of whether any order for back pay should be made). 9 The approach adopted by the Commissioner in the supplementary decision created some real difficulties for these proceedings. The question is whether we should have regard to the observations made by McKenna C in her supplementary decision. A related problem is that the supplementary decision dealt with the question of back pay, without making orders that may have made the decision appellable. Thus, the appeal before us cannot deal with all relevant issues which may arise from the proceedings at first instance. On balance, and not without some real hesitation, we have decided to have regard to the supplementary decision so far as it deals with orders made in earlier decisions, but, as we have already observed, we conclude that observations as to the making of orders on 26 August in the supplementary decision were erroneous.

10 This conclusion does not resolve, of itself, the ultimate question raised by the appellant as to the nature of the orders made, which we will deal with in the balance of this decision. We should note, however, that the decision of the Commissioner of 26 August involved some ambiguity as to whether the Commissioner was making an order under s 243 (2) of the Workers Compensation Act (that Mr Bell be reinstated to his former decision as terminal operator, grade 4 on the basis that he was fit to perform that kind of employment), or whether the Commissioner had made orders on terms or in accordance with the provisions of s 243 (3). Despite the lack of clarity, we are satisfied, on balance, that the Commissioner intended to find that, after an assessment of the true requirements for the performance of work of terminal operator, grade 4, Mr Bell was fit to perform that work and was reinstated accordingly. In the final analysis, we do not consider the decision to warrant appellate intervention for reasons we will now provide.

11 The following are the relevant provisions of the Workers Compensation Act: Part 8 Protection of injured workers from dismissal 240 Definitions (1) In this Part: Commonwealth industrial instrument means any award, workplace agreement or other agreement made under (or taken to have been made, or to have effect, under) the Workplace Relations Act 1996 of the Commonwealth. industrial organisation of employees has the same meaning as it has in the Industrial Relations Act 1996 . reinstatement includes re-employment. State industrial instrument has the same meaning as industrial instrument has in the Industrial Relations Act 1996 . (2) For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942 . (3) For the purposes of this Part, a person is the employer of an injured worker only if the injury arose (either wholly or partly) out of or in the course of employment with that person. Note. For the purposes of comparison, a number of provisions of this Part contain bracketed notes in headings drawing attention ("cf IR Act") to equivalent or comparable (though not necessarily identical) provisions of the Industrial Relations Act 1996 (as in force immediately before the commencement of this Part).

241 Application to employer for reinstatement of dismissed injured worker (1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application.

(2) The kind of employment for which the worker applies for reinstatement cannot be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury. (3) The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement. 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order.

(2) An industrial organisation of employees may make the application on behalf of the worker. (3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed. 243 Order by Industrial Relations Commission for reinstatement (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). (4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission. 244 Presumption as to reason for dismissal (1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. (2) That presumption is rebutted if the employer satisfies the Industrial Relations Commission that the injury was not a substantial and operative cause of the dismissal of the worker. 245 Disputes as to fitness - medical assessment (1) The Industrial Relations Commission may refer to an approved medical specialist any dispute as to the worker's condition or fitness for employment to be assessed as provided by Part 7 of Chapter 7 of the 1998 Act. (2) The approved medical specialist is to submit a report to the Industrial Relations Commission in accordance with the terms of the reference.

246 Continuity of service of reinstated worker (1) If a worker is reinstated under this Part, the Industrial Relations Commission may order that the period of employment of the worker with the employer is taken not to have been broken by the dismissal. (2) However if the Industrial Relations Commission does so, the period between dismissal and the date of the application by the worker to the employer for reinstatement is not to be taken into account in calculating for any purpose the period of service of the worker with the employer. 12 By way of background and as the Commissioner recites in the following passage of her first decision:- Background

4 The respondent operates bulk liquid stevedoring/storage facilities at four Australian ports for products used for chemical, manufacturing, lubricating and fertilizing purposes, such as liquid chemicals, fuels, petroleum products, vegetable oils and liquefied gases. Although the respondent is the major or largest Australian operator of this line of business, there are only thirty workers at Port Botany; ten are employed by the respondent as terminal operators. The terminal operators work in teams of five.

5 Mr Bell commenced employment with the respondent in June 1995 at the Port Botany facility. As at the date of dismissal, Mr Bell's substantive position was as a terminal operator, grade 4. Over the course of his employment with the respondent, Mr Bell previously had sustained injuries to his back in 1997-1998 (as well as shoulder injuries), and subsequently returned to work. On 12 February 2007, Mr Bell suffered a further back injury when lifting a trailer at work. Workers' compensation liability was accepted in connection with that injury, as it was with the previous injuries. Hence, Mr Bell has had two significant episodes of back pain, about a decade apart. 6 As a result of the most recent injury, Mr Bell was unable to work from 13 February 2007 until 24 April 2007. Thereafter, Mr Bell returned to work, with the accommodation of the respondent, on rehabilitation-minded, light duties. The post-injury duties performed by Mr Bell in his employment with the respondent were gradually broadened. Nonetheless, it is common ground that it will remain permanently medically inadvisable, in the interests of attempting to avoid re-injury, for Mr Bell to perform work that is inconsistent with certain guidelines. While there were differing medical views, the recommendations concerning Mr Bell have involved matters such as not moving six-inch hoses; not lifting items above certain weight limits (the medical views varied between 5kg to 25kg); and avoiding working in a forward-flexed position or in jobs that require regular twisting and bending. 7 On 25 September 2007, the respondent determined, for reasons given in the letter extracted below, to dismiss Mr Bell:

As you are aware, since your back injury on 12 February 2007 the Company has worked tirelessly with its workers' compensation insurer, rehabilitation consultants and medical professionals trying to assist you in achieving full rehabilitation so that you may return to your pre injury position as a Terminal Operator.

As part of this process, in a recent medical report from Dr John Lose (a copy of which has previously been provided to you) he states that: "Mr Bell will never be able to safely perform all of the requirements of a grade 4 operator".

Accordingly, based on Dr Lose's opinion that you will never be able to perform the inherent requirements of your pre injury position, it should come as no surprise to you that the company intends to terminate your employment effective today's date, being Tuesday 25th September 2007.

Attached is a final breakdown of your termination monies including your accrued but untaken entitlements to annual and long service leave. The Company does not require you to work out your four weeks notice and will pay you that amount in lieu.

Yours sincerely Douglas Eng NSW, State Manager Terminals Pty Limited 8 In a letter dated 4 October 2007, Mr Bell sought reinstatement or, effectively, re-employment in the following terms:

As you know, Terminals Pty Ltd terminated my employment on 25 September 2007. My employment was terminated due to injuries I suffered in the workplace and the company's view that I could no longer do my job.

I recently saw Dr Stephen Yung on 2 October 2007. Dr Yung provided me with a medical certificate. I have attached a copy of this certificate. The certificate states that I am fit to perform duties subject to lifting up to 15kg, not moving the six inch hose, and not working in a forward flexed position.

That being the case, I request that the company reinstate me to my previous position as terminal operator for which I believe I am fit to perform the inherent requirements of, with the exception of work on the wharf involving lifting over 15kg and moving the six inch hoses.

In the alternative, I request that I be reinstated in one of the following positions:

1. Safety Checklist Inspector 2. Forklift Driver 3. Boiler Operator 4. Loading and Unloading of Trucks

I look forward to your response which I would appreciate within two weeks of this letter.

Yours truly Todd Bell 13 As we have noted, and as the Commissioner then records, the employer's non-responsiveness to the above application was followed on 19 November 2007 by an application to the Commission on the worker's behalf pursuant to s 242 of the Workers Compensation Act, such application ultimately giving rise to the impugned order for reinstatement. 14 In reaching her conclusions as to reinstatement, McKenna C had before her on the worker's side, the evidence of Todd Bell and fellow terminal operator Kyle O'Brien as well as the evidence of treating local practitioner Dr Steven Yung and medico-legal consultant Dr Seamus Dalton. 15 For its part, the appellant employer relied on the evidence of NSW State Manager, Douglas Eng, Operations Manager, Brad Crockett, and injury management consultant, Dr John Lose, (including the opinion of orthopaedic surgeon Dr Andreas Loefler) and it is fair to say that in having regard to the competing views within the general body of evidence, the Commissioner was called upon to resolve issues ranging from the nature of work routinely required of terminal operators to the impact of Todd Bell's ongoing medical restrictions on his capacity to carry out such work without risking further injury. 16 The Commissioner described the evidentiary contest this way:- 13 The evidence concerning the nature of the performance of work at the Port Botany site was as detailed as it was contested. The principal evidence in this respect was given by three witnesses - and often with a high level of animation, as they physically demonstrated in the witness box how the work was performed. The applicant adduced evidence from Mr Bell and one of his workplace colleagues, Kyle O'Brien. Mr O'Brien is employed by the respondent as a terminal operator, grade 5. The respondent adduced evidence from Bradley Crockett, who is employed as the respondent's Operations Manager. Further short evidence, principally relevant to the reason for dismissal, and operational and financial matters (among other topics), was also given by Douglas Eng, who is the respondent's State Manager. As to specialist medical evidence, the applicant adduced written and oral evidence from Dr Seamus Dalton and the respondent from Dr John Lose, each of whom has relevant expertise in injury management.

14 The evidence of Mr Bell and Mr O'Brien suggested it would be practicable for Mr Bell to return to work at Port Botany, notwithstanding the post-injury restrictions. Of particular relevance, their evidence emphasised that aspects of the work involving the movement of, for example, heavy, six-inch hoses, pumps, etc., could be undertaken successfully with the use of forklifts; and otherwise through the collaborative effort typical of the work practices already in place at Port Botany as between the terminal operators themselves and other workers, such as truck drivers and ships' crews. Their evidence was dismissive of suggestions to the contrary.

15 Mr Bell and Mr O'Brien were emphatic that not only could the work be performed in the manner described by them, but that their descriptions were based on practical, everyday working experience. For instance, Mr O'Brien described how the practice of using forklifts for hoses initially had come about when much heavier, eight-inch hoses were formerly used at Port Botany. According to Mr O'Brien's evidence, it was physically impossible to move the eight-inch hoses without assistance. Mr O'Brien stated it was as a result of the impossibility of individually moving the eight-inch hoses that terminal operators had, of necessity, learned "the technique" of using the fork-lifts for the lifting and alignment of hoses. While Mr O'Brien acknowledged he had, when he was younger and "full of bravado", manually moved the six-inch hoses unassisted, he personally, along with "most blokes", had discontinued this work practice. In this regard, I note there was evidence that two terminal operators are aged over sixty; one has a hernia complaint and the other has had a double hip replacement and a hernia. Dr Lose said that he had been informed by a couple of workers that they do not always use forklifts. As Mr O'Brien put it, although some terminal operators may manually handle the six-inch hoses without the assistance of a forklift, to do so is to undertake the task "the hard way". As to this, I accepted the evidence of Mr Bell that the operators all have their own ways of doing things concerning hose work. The evidence of Mr Bell and Mr O'Brien was also critical of the evidence of Mr Crockett as it described the performance of terminal operators' duties concerning, for example, the physical stances that might be assumed by terminal operators when performing aspects of their work.

16 The evidence adduced by the respondent suggested it just would not be feasible to avoid, redesign, etc., the work contraindicated in the medical recommendations applicable to Mr Bell. In particular, the evidence of Mr Crockett indicated that moving, lifting or otherwise manoeuvring miscellaneous items and plant necessarily would involve weights exceeding those (variously) recommended for Mr Bell and unavoidably would involve, for example, twisting and bending, and adopting forward-flexing postures. To this end, Mr Crockett had weighed various items at the workplace. Despite the applicant's submissions, I do not consider the weights of items given in Mr Crockett's evidence were anything other than what the scale actually gauged. As the respondent submitted, the weights of items reported in Mr Crockett's evidence were not contradicted by any competing scientific evidence.

17 The evidence concerning the weight or dynamics of weights involved in, for example, turning a valve, was, potentially at least, more problematic. For instance, Dr Dalton was unaware of a reliable means by which to measure the weight or load on a person's lumbar spine that might arise from turning a valve; and, in that respect, I noted and accepted the evidence of the terminal operators as to, for instance, the comparative ease with which certain items, such as valves and swivel-hinged latches, actually could be turned or manually handled.

18 Significantly, the respondent's evidence drew attention to the fact the weight restrictions for Mr Bell may preclude him from safely moving an injured or unconscious worker to safety when performing certain aspects of the work of a terminal operator; or assisting fully in dealing with a catastrophic failure. The evidence given by Mr Crockett was complemented by the evidence of Dr John Lose. Dr Lose provided injury management consultancy services for the respondent concerning Mr Bell, including a workplace assessment. Dr Lose was of the opinion that Mr Bell will never be able to perform safely all the inherent requirements of a grade 4 terminal operator. 17 In coming to the view she did, namely, that Todd Bell had made out a case favouring reinstatement to his former position as a terminal operator, grade 4 the Commissioner considered not only the evidence but also the principles discussed in such cases as Cansino v South Western Sydney Area Health Service (1999) 130 IR 1; Riley v WorkCover Authority (2006) 151 IR 396 and State Rail Authority v The Honourable Justice Bauer and Others (1994) 55 IR 263. Having reached that view, she correctly found it unnecessary to consider the alternative forms of employment specified in the application before her. 18 McKenna C determined that there was no practical difficulty in reinstating Todd Bell to his former position on the clear premise that co-operative work practices would continue whereby Mr Bell was one member of a team of five operators who assisted each other as and when the task at hand required, and on the equally clear premise that Mr Bell would sensibly and prudently manage the tasks he was required to perform (against the background of medical recommendations) without some form of assistance by means of forklifts or other devices or by enlisting a co-worker for assistance. The Commissioner noted in the latter respect that, on the evidence, it was clear that the division of work responsibilities within the team was a matter left to the terminal operators themselves. 19 As to those medical recommendations, McKenna, C preferred the opinion evidence of Dr Seamus Dalton and in so doing analysed the competing medical opinions this way:- 23 As to weights, the opinions on the weight restrictions (coupled with a range of other recommendations) that should apply to Mr Bell have varied from assessments of 5kg (Dr Lose) to 15kg (both Dr Andreas Loefler and Dr Yung) to 20-25kg (Dr Dalton). That is:

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.

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. 20 The Commissioner gave the following reasons for preferring Dr Dalton's opinion:- 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. 21 Further, and in dealing with the employer's objection to the admission of Dr Dalton's evidence in the worker's case, the Commissioner said this:- ...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. 22 The appellant employer here renewed its objection to the receipt of Dr Dalton's evidence and argued that in receiving the evidence, the Commissioner fell into error by failing to properly apply the relevant provisions of the Workers Compensation Act. Because an issue has been raised as to the proper construction of those statutory provisions and in turn as to the Commission's jurisdiction, we propose to grant leave to appeal in order that we may deal with that issue on its merits. 23 The employer argued that absent amendment to the application filed on Todd Bell's behalf on 19 November 2007 (and there was none) the Commission could not receive medical material in evidence in proceedings brought pursuant to s 242 which was not part of medical material in support of the application as made. Dr Dalton's report came into existence on 18 April 2008 some five months after the application was made pursuant to s 242. 24 The employer contended that the jurisdiction of the Commission to hear and determine an application for reinstatement of an injured worker is limited by the provisions of s 241 - 243 of the Workers Compensation Act and that the initiating process conferring jurisdiction is an application made by a worker "for reinstatement to employment of a kind specified by the application" (s 241 (1) of the Workers Compensation Act). Without that initial application being made and supported by medical certification (s 241 (3) of the Workers Compensation Act) the Commission has no jurisdiction to consider any application subsequently made under s 242 of the Workers Compensation Act. Only if the worker's initial application is refused by the employer can application then be made to the Commission and the application to the Commission is, by statutory construction, the same application as was made to the employer. 25 This "gateway" to the Commission's jurisdiction is so, the employer submitted, even though the Commission may reinstate a worker to employment of a kind that the Commission considers the employer can reasonably make available for the worker (s 243 (3) (b) of the Workers Compensation Act) and if McKenna C had been disposed to entertain medical material additional to that contained within the initiating process then she had discretionary recourse to an approved medical specialist pursuant to s 245 of the Workers Compensation Act. Hence, it was submitted, the Commissioner fell into error by receiving into evidence medical opinion which was not proffered to the employer in terms of the application made by Todd Bell under s 241 of the Workers Compensation Act. 26 We do not agree, for reasons which we will now set out, that the statute properly construed limits or restricts the Commission in its access to medical evidence beyond that which is proffered in terms of a s 241 application or beyond that which is available under s 245 of the Workers Compensation Act and we do not consider that the Commissioner erred in receiving such additional medical evidence. 27 As the respondent argued on appeal, there is nothing in the statutory provisions set out above which requires that applications made under ss 241 and 242 be one and the same and, although it may be readily acknowledged that the Commission would lack jurisdiction to entertain an application under s 242 unless an application under s 241 had first been made, it does not follow that additional material may not be produced and relied upon in the interests of informing the Commission in the course of proceedings brought under s 242. 28 Furthermore, and as the respondent on appeal submitted, the Commission's power to order reinstatement to employment "of a kind for which the employee has so applied (s 243 (2) of the Workers Compensation Act) is by reference to an application made under s 242 and not s 241 of the Workers Compensation Act. That important distinction sits comfortably with the language used in the statute which permits an order for reinstatement only if, in the present tense or in other words at the time of the application is being heard, "the Commission is satisfied that the worker is fit for that kind of employment" (s 243 (2) of the Workers Compensation Act). 29 The discretion reposed in the Commission to make orders under s 243 is to be exercised in the light of medical evidence (Cansino supra) and that medical evidence must be that which is before the Commission at the time the application for orders is being heard and determined. It would make no sense for the Commission to be constrained from hearing and considering such evidence merely because it was not the same medical evidence (in this case a simple medical certificate from Dr Yung) forwarded to the employer in accordance with s 241 of the Workers Compensation Act (although clearly the report will be relevant to the determination of the application). 30 We consider McKenna C was correct in receiving Dr Dalton's report over the appellant employer's objection and, further, that, to the extent it expressed opinions different to other medical experts, she was entitled to prefer it noting as she did that it:- [24] ... formed the best basis for a contemporary snapshot of Mr Bell's capacities at the time of these proceedings notwithstanding the earlier assessments of Drs Los, Loefler and Yung which were by the time the hearing proceeded, about a year old. 31 Similarly it was open to the Commissioner to prefer and reach conclusions based on the evidence of Todd Bell and Kyle O'Brien as to their day to day direct experience of the work of a terminal operator and to the extent that it was preferred to the exclusion of operations manager Brad Crockett's evidence, we do not consider that conclusions thereby reached demonstrate appellable error, having regard to the principles set out in Aboud v NSW Department of Education (1999) 92 IR 32 and more recently in Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2002) 128 IR 37. 32 In Aboud's case, Wright P and Walton VP said this a pp 42-43:- The principles to be applied by the Full Bench reviewing findings of fact made by a trial judge below are clear. An appeal brought under Pt 7 of Ch 4 of the Act will generally attract the normal principles which apply to appeals stricto sensu on questions of facts and/or law: see Re: Solicitors (State) Award (No 3) (1996) 72 IR 225 at 234 and Stone Microsystems (Aust) Pty Ltd v Kwong & Datamax Pty Ltd (1997) 42 NSWLR 160 163; 85 IR 238. In the case of an appeal from a judge in the strict sense, the appellate court will substitute its own judgements only if the trial judge has fallen into error of law or has made a finding of fact which is clearly wrong or not reasonably open on the evidence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 688. Otherwise the appellate court should not intervene. 33 In Humphries at [83] and [84] the Full Bench summarised the relevant principles this way:- 83 The relevant principles to be applied on appeal in such circumstances may conveniently be adopted from the decision of the Full Bench in Burge v NSW BHP Steel (at [7]): The general principle is that an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge; in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes (1978) 142 CLR 531 at p 551. And, in addressing error, an appellate court should not interfere with the trial judge's conclusions on facts unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at p 107; Autobake Pty Ltd v Budd [1986] 19 IR 18 at p 25; Abalos v Australian Postal Commission (1990) 171 CLR 167 at pp 178 ff; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at pp 153-155; and Port Macquarie Golf Club v Stead (64 IR at p 59). [Emphasis added]. 84 These principles were also articulated in Wilson v Department of Education and Training [2000] NSWIRComm 120 (at [61]-[62]): The appellate court substitutes its own judgments only if the trial judge makes a finding of fact which is wrong or not reasonably available on the evidence: ( Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 688). The appellate court should otherwise not intervene. As Priestley JA recently observed in Martin v Byrnes (unreported, Court of Appeal, Priestley , Stein JJA and Sheppard AJA, 25 May 1999): The cases running through the hundred years from Coghlan v Cumberland [1898] 1 Ch 704 to Earthline Constructions [(1998) 160 ALR 588] all show that courts such as this court are duty bound to reverse conclusions based on trial judges' views of fact when those views of fact are plainly wrong but are equally duty bound not to reverse such decisions of a trial judge merely because the intermediate appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made. This Commission and its predecessors have adopted the above view: ( Hussmann Australia Pty Ltd v Walker (1993) 48 IR 396 at 406; Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149 at 154). 34 The appellant employer also submitted that, in framing her reasons for decision and orders for reinstatement in the context of lifting and other restrictions, McKenna C effectively gave Todd Bell rights of self - management in the performance of his work as a terminal operator and, in so doing, fell into appellable error by depriving the employer of its right to direct Mr Bell and other members of his team in that regard. 35 We do not consider there is substance in this submission when viewed in the light of the preferred evidence of Todd Bell and Kyle O'Brien to the effect, firstly, and as we have earlier observed, that the manner in which and by whom given tasks are carried out within a particular team (or the division of responsibilities as the Commissioner described it) is a matter left to the team indicating a high degree of self-management among respective members of the team and, secondly, there are a variety of techniques employed by terminal operators in the performance of individual tasks, depending on human variables such as physical stature, general levels of fitness, observance of safe work practices and so on. The Commissioner did not consider, and nor do we on the material before us, that there was any impediment to Mr Bell performing the functions of terminal operator, grade 4 within the subject employment context, notwithstanding Mr Bell's medical restrictions. In this sense, it was open to McKenna C to make an order under s 243 (2) of the Workers Compensation Act which we consider was an order ultimately made by the Commissioner, notwithstanding the vagaries of her decisions in this respect. 36 We would, however, repeat and adopt the advice proffered by the medical experts, that Mr Bell should give careful and measured attention to properly bracing and positioning himself for the safe performance of tasks as well as continuing back strengthening/core stability exercises as may be medically advised from time to time. Orders 37 The orders we make are as follows:

1. Leave to appeal is granted.
2. The appeal is dismissed.
3. The stay ordered by Boland J, President, on 24 September 2008 is lifted.

   ---

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