Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Bros Management

Industrial Relations Commission (NSW)|2008-10-01|Before: Boland J

CITATION: Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Bros Management (No 2) [2008] NSWIRComm 185

APPLICANT Transport Workers' Union of New South Wales on behalf of Thomas Lawson PARTIES: RESPONDENT Lindsay Brothers Management Pty Limited

CATCHWORDS: Injured worker - Reinstatement - Section 242 of Workers Compensation Act 1987 - Transport industry - Worker terminated on the ground that employer did not have suitable duties for worker to perform due to medical restrictions - Application by worker's union for reinstatement of worker - Whether worker fit for full time or part time employment - Directions to confer - Supplementary decision - Continuing reservations about worker's fitness for full time employment - Reinstatement to part time position - Further directions to confer - Money orders made - Parties to report on assessment of worker's fitness for full time employment

LEGISLATION CITED: Workers Compensation Act 1987

CASES CITED: Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited [2008] NSWIRComm 157

APPLICANT: Mr M Aird Transport Workers' Union of New South Wales

LEGAL REPRESENTATIVES: RESPONDENT Mr A P Joseph of counsel Solicitor: Mr C Mossman BCI Duells Lawyers

TRANSPORT WORKERS' UNION OF NEW SOUTH WALES ON BEHALF OF THOMAS LAWSON v LINDSAY BROTHERS MANAGEMENT PTY LIMITED (No 2)

Application by Transport Workers' Union of New South Wales on behalf of its member Thomas Lawson for reinstatement of an injured employee pursuant to section 242 of the Workers Compensation Act 1987

1 In a decision given in this matter on 29 August 2008 (Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited [2008] NSWIRComm 157), the Commission stated: [45] The most appropriate course, in the circumstances, is for me to make it clear that I am satisfied that Mr Lawson is fit for employment as a driver trainer/pick-up and delivery driver (including yard work), subject to the medical limitations imposed under the terms of the medical certificate signed by Dr Anderson on 2 July 2008. I am also satisfied that the respondent has that kind of employment available. What I am not clear about is whether there is full time work available for Mr Lawson to perform in a combination that caters for his medical restrictions or whether reinstatement should be to a part time position and, if so, what should be the appropriate part time hours of work.

[46] The parties are directed to confer as to the basis of Mr Lawson's reinstatement having regard to the terms of this decision. In doing so, it would be appropriate for the parties to agree on the terms of a communication to Dr Anderson explaining the terms of this decision and seeking some clarification on, or assistance in understanding, what was meant by "limited driving" in the certificate dated 2 July 2008.

[47] The parties shall report back to the Commission on the outcome of their discussions at 9.30am on Monday 15 September 2008 at which time, after hearing a brief report from the parties, the Commission will make final orders. 2 The parties reported to the Commission on 15 September but they were not in a position to provide the Commission with any firm basis upon which it could make final orders. Further and better information was still required from Dr Anderson. It was proposed by the respondent that an Occupational Therapist assess Mr Lawson's fitness for work and liaise with Dr Anderson; that Dr Anderson be requested to provide a further report on Mr Lawson's condition. The Commission directed that this was an appropriate course and that the parties report to the Commission on 1 October 2008. 3 On 1 October, the Commission was advised that an Occupational Therapist (Ms Hudswell) had assessed the physical demands of Mr Lawson's pre-injury duties, determined the availability and appropriateness of suitable duties and determined Mr Lawson's current functional abilities. A copy of the Therapist's 10-page report dated 22 September 2008 was provided to the Commission. The Therapist noted in her report that "Mr Lawson is currently certified fit for suitable duties, full time hours, with no lifting above shoulder level restriction, no lifting greater than 15 kg and no interstate driving". The Therapist noted, nevertheless, a number of "potential barriers" to Mr Lawson performing his work in light of the medical restrictions. 4 The Therapist made the following recommendations: 1. Konekt [the firm of therapists] recommend that all suitable duties be discussed and cleared with the Nominated Treating Doctor, Dr Anderson, prior to Mr Lawson's return to work; 2. Konekt recommend that both Mr Lawson and Lindsay Bros adhere to the restrictions placed on the WorkCover Medical Certificate by Dr Anderson. 3. Konekt recommend that Mr Lawson continue to attend treatment as per the request of Dr Anderson. 5 The restrictions imposed by Dr Anderson in a WorkCover Certificate dated 20 September 2008 were that: there was to be "no lifting above shoulder level", "occasional lifting up to 15 kg max permitted", "metropolitan and country driving permitted no interstate/breaks as necessary". 6 In a note addressed to Mr Aird of the Transport Workers' Union and dated 29 September, Dr Anderson stated: Having reviewed the workplace assessment by Konect (sic) regarding Thomas [Lawson], I am essentially in agreement with the work duties suggested.

My only concern is the use of the manual pallet jack which would require excessive use of shoulders and would usually be for goods weighing significantly more than 15 kg.

His truck driving duties are permitted as per the WorkCover Certificate provided. 7 Mr Aird, for the applicant, contended that Mr Lawson was fit for work within the medical restrictions imposed and that such work was available on a full time basis. Mr Joseph for the respondent accepted that such work was available but only to the extent of 25 hours per week. 8 The change that has occurred in Mr Lawson's assessed capacity to perform work since the decision of 29 August is that rather than being restricted to "limited driving" he is now able to perform metropolitan and country driving with necessary breaks, but no interstate driving. Further, rather than "no lifting" the applicant may now do occasional lifting up to a maximum weight of 15 kg, but not above shoulder level. 9 As Mr Aird submitted, it would have been far preferable if the parties had met prior to the proceedings on 1 October and given proper consideration to whether they could agree on the work to be performed by Mr Lawson, whether there was sufficient work of a suitable nature for him to return to full time work or whether part time employment was better suited to his medical restrictions. As matters stand, I continue to have reservations about Mr Lawson's capacity to return to full time employment. It seems to me that a restriction applying to a person who earns his living as a truck driver that he shall not lift above shoulder level, may only do occasional lifting up to a maximum weight of 15 kg and must take "necessary breaks" whilst driving (I presume that means breaks beyond what are normally required of a truck driver), are significant limitations. On the other hand, I have a report from an Occupational Therapist who has inspected the work Mr Lawson is required to perform and a medical practitioner's opinion. However, the report and opinion do not throw any light on whether the employer has driving work available on a full time basis that involves very little lifting and I have not been assisted greatly by the parties in that respect. 10 I am most concerned to avoid placing Mr Lawson in a position that would aggravate or cause a recurrence of his injuries. Accordingly, I propose to take a cautious approach by reinstating Mr Lawson to part time employment as a driver but subject, of course, to his medical restrictions. The weekly hours of work for Mr Lawson shall be 25. This arrangement shall apply for one month from the date of this decision. During that time the parties shall meet for the purpose of making a detailed assessment of whether there is productive, full time employment available to Mr Lawson within his medical limitations. That may involve the engagement of an independent assessor agreed on by the parties if they jointly consider that is an appropriate course. The parties will report the outcome of their assessment to the Commission at 9.30 am on Wednesday 5 November 2008. 11 Pursuant to s 243(4) of the Workers Compensation Act the Commission proposes to order that for the period from the date of his dismissal, namely, 6 December 2007 to April 2008 (the date in April does not appear to be in evidence) when Mr Lawson had another shoulder operation, the respondent shall pay to Mr Lawson an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay for 25 hours per week of work for the period, less any amount Mr Lawson received by way of income from any other source of employment. In this regard, I note that the medical restrictions on Mr Lawson for the period 3 December 2007 to 3 March 2008 were "no lifting, limited driving on occasional basis only, instruction of drivers, supervision". I presume those restrictions would have remained in place up to the time Mr Lawson underwent the further operation on his left shoulder in April. No payment (other than workers compensation if applicable) shall be made for the period between the date in April 2008, when Mr Lawson would not have been available to work because of his left shoulder operation, and 7 July 2008, which is the date Dr Lawson certified that Mr Lawson was fit to return to work after his operation. From 7 July 2008 to 6 October 2008, Mr Lawson shall be paid an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay for 25 hours work per week for the period, less any amount Mr Lawson received by way of income from any other source of employment. The parties may agree to any adjustments to these periods where the evidence that the Commission has relied upon is deficient. Orders and directions

12 The Commission makes the following orders: 1. Lindsay Brothers Management Pty Limited shall reinstate Thomas Lawson to part time employment as a driver on and from 6 October 2008, subject to the restrictions imposed by the WorkCover NSW Medical Certificate dated 20 September 2008 and signed by Dr G Anderson. The weekly hours of work for Mr Lawson shall be 25. 2. On or after 6 October 2008 Lindsay Brothers Management Pty Limited shall meet with the Transport Workers' Union of New South Wales for the purpose of making a detailed assessment of whether there is productive, full time employment available to Mr Lawson within his medical limitations. That may involve the engagement of an independent assessor agreed on by the parties if they jointly consider that is an appropriate course. The parties will report the outcome of their assessment to the Commission at 9.30 am on Wednesday 5 November 2008. 3. For the period from the date of his dismissal, namely, 6 December 2007 to the relevant date in April 2008, Lindsay Brothers Management Pty Limited shall pay to Mr Lawson an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay for 25 hours of work per week for the period, less any amount Mr Lawson received by way of income from any other source of employment. No payment (other than workers compensation if applicable) shall be made for the period from the relevant date in April to 7 July 2008. From 7 July 2008 to 6 October 2008, Mr Lawson shall be paid an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay for 25 hours per week of work, less any amount Mr Lawson received by way of income from any other source of employment. 4. The Transport Workers' Union of New South Wales, following consultation with Lindsay Brothers Management Pty Limited, shall, within fourteen days, file and serve short minutes of order reflecting the foregoing orders. The short minutes shall identify the amounts of money to be paid to Mr Lawson. _________________________

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