Industrial Relations Commission New South Wales Medium Neutral Citation: Fire Brigade Employees' Union of New South Wales v Fire and Rescue NSW [2022] NSWIRComm 1056 Hearing dates: 1 and 2 December 2021 Date of orders: 22 July 2022 Decision date: 22 July 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: The employee subject of the dispute is fit to perform his ordinary duties as a firefighter Catchwords: INDUSTRIAL DISPUTE – retained firefighter – Post Traumatic Stress Disorder – assessment for duty and permanent incapacity – medical discharge Legislation Cited: Industrial Relations Act 1996 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Fire Brigade Employees' Union of New South Wales (Notifier) Fire and Rescue NSW (Respondent) Representation: Counsel: Ms L Saunders (Notifier) Mr D Baran (Respondent) Solicitors: Mr J Kennedy, Hall Payne Lawyers (Notifier) File Number(s): 2020/00307020 Publication restriction: Nil decision 1. On 27 October 2020, the Fire Brigade Employees' Union ("FBEU"), on behalf of Retained Firefighter Glen Beasley, by way of an amended dispute notification, notified the Industrial Registrar pursuant to s 130 of the Industrial Relations Act 1996 of an industrial dispute regarding the proposed medical discharge of Mr Beasley by Fire and Rescue NSW ("FRNSW") which was to have taken effect on 23 October 2020 ("Notification"). 2. The FBEU had invoked clause 8 of the Crown Employees (Fire and Rescue NSW Firefighting Staff Death and Disability) Award 2020 ("D and D Award") which relevantly provided as follows: 8. Assessment of Fitness for Duty and Permanent Incapacity 8.1. The procedures set out at subclauses 8.2 to 8.5 inclusive will apply if: 8.1.1 FRNSW has reason to believe that: 8.1.1.1 a firefighter may be unfit for duty, permanently or otherwise, and that firefighter disagrees; or 8.1.1.2 it may be necessary to impose certain medical/physical conditions or restrictions on a firefighter, permanently or otherwise, and that firefighter disagrees with the need for some or all such conditions or restrictions; or 8.1.2 A firefighter has reason, supported by medical information, to believe that: 8.1.2.1 the firefighter may be unfit for duty, permanently or otherwise, and FRNSW disagrees; or 8.1.2.2 it may be necessary to impose certain medical/physical conditions or restrictions on the firefighter, permanently or otherwise, and FRNSW disagrees with the need for some or all such conditions or restrictions; or 8.1.3 A firefighter has already been assessed as defined at paragraphs 8.6.2, 8.6.3 or 8.6.4 and subsequently obtains more contemporary information which suggests that they may be fit or that their requirements or restrictions should be changed, and FRNSW disagrees. 8.2 If the medical assessment is initiated by FRNSW at subclause 8.1.1 then FRNSW will advise the firefighter in writing of their need to undergo an immediate health assessment by a medical practitioner nominated by FRNSW, and its reason(s) for such referral. … 8.7 FRNSW will write to the firefighter within 7 days of receipt of the assessing medical practitioner's report stating that it has either: 8.7.1 wholly accepted the assessing medical practitioner's report; or 8.7.2 partially accepted the assessing medical practitioner's report, together with the reason(s) for its non-acceptance of the relevant part(s); or 8.7.3 accepted none of the assessing medical practitioner's report and its reasons for same. 8.8 If the FRNSW determination at subclause 8.7 is that the firefighter is permanently unfit to perform the firefighter's ordinary duties then the firefighter shall be deemed for the purposes of this Award to have suffered partial and permanent incapacity until determined otherwise in accordance with this clause. FRNSW shall inform the FBEU (unless the firefighter expressly declines to agree to the FBEU being informed) at the earliest possible opportunity. 8.9 A firefighter may request by way of report that the Commissioner review the FRNSW determination at subclause 8.7 within 14 days of receipt of that written determination or within 7 days of the Department having informed the FBEU, whichever is the later. A firefighter who makes such a request shall then be allowed 28 days, or such additional time as the Commissioner may allow, in order for a medical practitioner of the firefighter's choosing to: 8.9.1 review all previous reports and documentation relating to the matter; and 8.9.2 confer with a FRNSW-nominated medical practitioner with a view to maximising the areas of agreement and minimising any areas of disagreement between them. In order to facilitate such conferences, FRNSW and the firefighter must, by no later than close of business on the next working day following the firefighter's request for a review, exchange the contact details of their respective nominated medical practitioners and in the case of the firefighter, written authorisation for their nominated medical practitioner to discuss their medical information with the FRNSW-nominated medical practitioner; and 8.9.3 produce a report (and, if the FRNSW-nominated medical practitioner is agreeable, a joint report) of their conclusions. 8.9.4 The Commissioner will consider all previous reports and documentation relating to the matter, together with any additional information (including the medical practitioner's report at paragraph 8.9.3) submitted by the firefighter and will within 14 days supply the firefighter concerned with a written and final FRNSW determination of the matter. 8.10 If the firefighter does not agree with the Commissioner's determination at subclause 8.9 then the matter may be referred to the Industrial Relations Commission (the Commission) for final determination of the matter, i.e. whether the firefighter is; 8.10.1 fit to perform the firefighter's ordinary duties without any requirements or restrictions; or 8.10.2 fit to perform the firefighter's ordinary duties with specified requirements or restrictions; or 8.10.3 temporarily unfit to perform the firefighter's ordinary duties but fit to perform alternative duties, either with or without specified requirements or restrictions; or 8.10.4 temporarily unfit to perform any FRNSW duties; or 8.10.5 permanently unfit to perform the firefighter's ordinary duties. 8.11 Where a dispute cannot be settled by conciliation, the parties agree in principle that the preferred method of adjudication will be by the Commission utilising the 'Bluescope model'. The 'Bluescope model' will be adopted except where the Commission orders otherwise or where one of the parties elects not to use the Bluescope model and notifies the other party of this election as soon as practicable before or at the time the dispute is notified to the Commission. 8.12 A firefighter who is found to be temporarily unfit as per paragraphs 8.6.3 or 8.6.4 or 8.10.3 or 8.10.4 will be given the appropriate period of time, as advised by the assessing medical practitioner, necessary for the firefighter to return to their ordinary duties. 1. In the Notification, the FBEU elected not to use the "Bluescope Model" as the method of adjudication of the dispute concerning the proposed medical discharge of Mr Beasley. Background 1. The background to this dispute was set out by the FBEU in the Notification in the following terms: e. RFF Beasley is a 31 year old man who experienced Post Traumatic Stress Disorder and depression in November 2017. During this time his primary employment was as a paramedic with NSW Ambulance. f. RFF Beasley's current primary employment is as an associate lecturer in paramedics at Charles Sturt University. g. RFF Beasley has undergone treatment and is not suffering from Post Traumatic Stress Disorder or Depression. h. FRNSW has discharged RFF Beasley based on reports from the Independent Medical Examiner, Dr Parmagiani... i. The Union argues that there are deficiencies in the way Dr Parmagiani conducted the interview with RFF Beasley in order to assess RFF Beasley's fitness for work. The Union also argues that Dr Parmagiani did not have all the relevant material, specifically RFF Beasley's medical records, reports and history of the treatment, to conduct a proper assessment. j. Dr Parmagiani concludes that RFF Beasley has a psychological vulnerability to Post Traumatic Stress Disorder and depression. This conclusion was drawn without reference to the extensive and ongoing psychological and medical treatment that RFF Beasley has received/is receiving. k. RFF Beasley has provided Fire and Rescue with medical evidence that he is fit for work. He has also been assessed by the Fire and Rescue NSW's workers compensation insurer as being fit to return to work. Case for the FBEU 1. A witness statement prepared by Mr Beasley on 29 July 2021 contained the following: Employment 4. My employment history is as follows: (a) New South Wales Fire and Rescue ('FRNSW'), as a Retained Firefighter, from 22 March 2012 to present; (b) New South Wales Ambulance Service (NSW Ambulance), as a Paramedic, on a full-time basis, from February 2017 to May 2020; (c) Charles Sturt University, as a casual academic - Paramedicine, on a casual basis, from 2017 to 2020; and (d) Charles Sturt University, as an Associate Lecturer - Paramedicine, on a full-time basis, from 2020 to present. Fire and Rescue New South Wales 5. From between in or around 2004 - 2012, I was a volunteer for the New South Wales Rural Fire Service ('NSWRFS'). 6. In or around 2012, I saw an advertisement for retained fire fighter positions with FRNSW. I applied and was accepted, 7. The terms of being retained fire fighter for FRSNW are such that: (a) I must provide 24 hours of availability per week (this is further broken down; in that I must attend 70% of calls which come in during my availability, and 33% of all calls); and (b) I am paid a retainer of approximately $52 per fortnight - for me to remain on call. 8. In my current role as a retained fire fighter, when required, I attend at FRNSW Bathurst Fire Station. 9. Like most retained fire fighters, I have a full-time job outside FRNSW (currently as a Lecturer in Paramedicine at Charles Sturt University), while being able to fulfil the availability requirements of a retained fire fighter position in my spare time. 10. I have no disciplinary history and never had any concerns raised in respect of my conduct or performance during the course of my employment with FRNSW. 11. I have been absent from duty from FRNSW since January 2018, on the basis of a diagnosis of PTSD. … Events during volunteering with the Rural Fire Service 15. In or around 2004-2005, when I was a volunteer fire fighter, I attended a fatal car accident. 16. Upon attendance at the scene, where a car had hit a tree, I saw the bodies of two deceased school friends. 17. After attendance at this job, the Rural Fire Service ('RFS') arranged for a Clinical Psychologist to attend the Station to facilitate a clinical de-brief. The RFS offered ongoing psychological support if needed. I did not seek further medical treatment after this event as I did not feel a need to at the time. 18. At the time, I was able to cope with this event. It was confronting and upsetting but I was able to process the event and move on without issue. Events during employment with Fire and Rescue NSW 19. I attended a number of traumatic jobs during the course of my employment with FRNSW. 20. In or around 2017, I attended a hazardous materials job where sulphur had leaked onto shipping pallets and a worker had attempted to hose it. This worker suffered airway burns. I believe this job was rushed by my colleagues, as it was hot, and we were wearing cumbersome protective equipment. We did not perform all of the appropriate checks and clearances before we left the job. Once back at the station, we were called back to the scene as more sulphur was located - we had not done our job comprehensively and had to return. I felt this was wrong and struggled to understand why others in my team wanted to rush the process. 21. I did not seek medical treatment following the above job. I did not feel a need to at the time. 22. In addition to the above job, I was experiencing workplace stressors such as raising concerns with FRNSW in respect of how the crew handled the above job after the incident. I felt that my concerns fell on deaf ears. There was no formal de-brief or additional training to address the issues I had raised. I never received any formal response to my complaint. Events during employment with NSW Ambulance 23. I also attended a number of traumatic jobs during the course of my employment with NSW Ambulance. 24. In or around 2017, I attended a job as a Trainee Paramedic, where a young man suffered a fatal cardiac arrest as a result of a heroin overdose. This man was around my age and it was a confronting scene. This also brought back memories of when I had attended the fatal car accident of my school mates. 25. I did not seek medical treatment following the above job. I did not feel a need to do so at the time. 26. Later in or around 2017, I attended a job, as a Trainee Paramedic, of an elderly woman who had suffered a traumatic head injury (depressed skull fracture). This patient was lying face down on the floor in a pool of her own blood. I was a Trainee Paramedic, meaning that I was under direct supervision of a mentor/colleague. Upon our attendance at this job, my Supervisor walked out of the scene and left me to handle the situation and the critically ill patient on my own, as he could not cope. This was a confronting situation to face with no support. 27. I did not seek medical or psychological support or treatment after attending this job. Cardiac arrest jobs were relatively common - attendance to these jobs was on average, once every few weeks. I put the stress I experienced after attending this job down to the usual stressors a paramedic would experience in the line of duty, 28. I did not suffer any symptoms that I would associate with mental illness immediately after attending this job. 29. In addition to the above job, there were stressors in the workplace that I was experiencing as a trainee paramedic, such as: (a) meeting performance expectations. As a trainee, a report is prepared every three months by a direct supervisor, which documents progress and performance. There was constant pressure on me to perform at a high level and meet expectations of my supervisors; and (b) at the Katoomba Ambulance Station, there were some interpersonal issues amongst other more senior staff that I was exposed to. As a new trainee, I felt pressure to keep my head down and avoid such conflicts. Personal Stressors 30. In addition to the workplace traumas I experienced, I also suffered from personal stressors in between 2017 and 2018, namely: (a) my mother was diagnosed with breast cancer and was required to undergo chemotherapy and radiation; (b) my long-term relationship with my partner broke down and we separated; (c) I was working three jobs, for NSW Ambulance, FRNSW and as a casual lecturer at Charles Sturt University; and (d) I lived approximately 100km away from my full-time job with NSW Ambulance. I resided in Bathurst and had to commute 1 and a half hours to the Katoomba Ambulance Station. As such, I was working 15-hour days before a lengthy commute home. [Psychological] Injury 31. In or around early 2018, I received a verbal diagnosis of PTSD from my GP Dr Yasmin Kasim as a result of the culmination of the traumatic experiences I had experienced while a volunteer with NSWRFS, working with NSW Ambulance and working with FRNSW and the significant personal stressors I was experiencing at the time. 32. When first diagnosed with PTSD, I suffered symptoms including: (a) heightened levels of anxiety; (b) rapid heart rate; (c) [sleep] deprivation; (d) panic attacks; and (e) avoidance behaviours. 33. These symptoms started gradually, and I didn't realise or understand what was happening initially. I noticed that these symptoms predominantly occurred when I was exposed to high stress situations and certainly more so when in attendance at my NSW Ambulance job. 34. In or around early January 2018, I consulted a General Practitioner at Westpoint Medical Practice, named Dr Saima Majeed. Dr Majeed provided me with strategies to deal with workplace stress. These included: (a) removing me temporarily from the workplace; (b) breathing techniques; and (c) mindfulness techniques. 35. In January 2018, Dr Majeed provided me a certificate to take stress leave from my work. I am not able to locate a copy of this document. This GP then left the practice and I was referred to Dr Yasmin Kasim. 36. Also in or around early 2018, I further consulted my General Practitioner at Westpoint Medical Practice, named Dr Yasmin Kasim. This was when the verbal diagnosis of PTSD occurred. Dr Kasim and I spoke about my long-term care and treatment and he referred me to speak with a psychologist. Dr Kasim was of the view and verbally advised me that he could see if I applied myself to treatment, given time, I had good prospects of a full recovery. I continue to receive ongoing treatment and support from Dr Kasim, as needed, 37. On 31 Janua1y 2018, I advised my Duty Commander Steve Evans, of the fact I would need to take time away from duty as a result of a psychological injury. When I first experienced the abovementioned symptoms, I took appropriate action by removing myself from FRNSW duty. I did not intend for this to be indefinitely, but rather, for as long as my treating practitioners recommended. Medical treatment 38. In or around March 2018, I first consulted a psychologist at Shonna Stewart Psychology Bathurst, named Shonna Stewart. Upon my regular, weekly attendances, we engaged in the following treatments: (a) talk therapy - to make sense of what I had experienced and learn to rebuild myself; and (b) Eye Movement Desensitisation and reprocessing ('EDMR') - exposure treatment. 39. After twelve months of attending treatment with Ms Stewart, she decided to close her Clinic. 40. From early 2019, I transferred care to a psychologist at Bathurst Psychology, named Dean Oxley. Mr Oxley and I continued with the same treatments Ms Stewart had commenced with me. In addition, Mr Oxley helped educate me on coping strategies and focusing on a graduated return to work. The treatment and education Mr Oxley provided was inclusive of: (a) cognitive behavioural therapy (CBT); (b) talk therapy - talking about stressors and breaking those down; (c) developing personal coping strategies; and (d) developing new cognition on how I saw traumatic or stressful events. 41. Initially, I attended Mr Oxley once per fortnight. The frequency of my attendances slowly decreased as my PTSD resolved. I no longer attend Mr Oxley on a regular basis. I would return to Mr Oxley, if needed, but I have not seen Mr Oxley since 2020. 42. I have always complied with my treating practitioners recommended treatments and proposed courses of action, in order to address my diagnosis and return to my usual self. 43. In March 2018, I lodged a Workers Compensation Claim against NSW Ambulance, following my diagnosis of PTSD. I am not able to locate a copy of this document. 44. In February 2019 Dr Kasim recommended that I undertake a program of graded exposure therapy, a slow return to work and exposure to stressors to see how my treatment had progressed and to apply strategies for experiencing workplace stress or trauma - with the NSW Ambulance Service. It was recommended by Dr Kasim that I ride third up in an Ambulance with a crew as an initial return to work plan. This arrangement was in my experience common practice for students, and I was aware it could be facilitated, as it had been in the past. 45. In or around May 2019, after Dr Kasim recommended graded exposure therapy, my Union, the Australian Paramedic Association of New South wales ('APA') attempted to negotiate a return to work with NSW Ambulance as I was unable to arrange this myself with NSW Ambulance. 46. My APA Union Representative (whose name I cannot recall), communicated directly with NSW Ambulance in an attempt to have my recommended return to work facilitated. I do not have any records of these communications in my possession. 47. I attempted the return to work as recommended by Dr Kasim and was allowed by NSW Ambulance to return for one day here and there, however, NSW Ambulance advised they were not able to facilitate my return as recommended by Dr Kasim, as they could not have me shadow a crew. NSW Ambulance were not able to facilitate the consistent return I needed and that was recommend by my treating practitioner. This caused me to become anxious and stressed. 48. As a result of the difficulties associated with my recommended return to work, I suffered significant undue stress. As a result, Dr Kasim provided a further medical certificate, deeming me unfit for duty. On 22 May 2019, I was certified by Dr Kasim as having no capacity for any employment up to 25 May 2019… I thereafter progressively provided certificates from Dr Kasim that I had no capacity for a continuous period up to 14 August 2019. I no longer have a copy of those certificates. 49. On 2 December 2019, Mr Oxley prepared a Progress Report in respect of my condition… 50. On or around late December 2019 or early January 2020, I made a request for 2 years leave without pay from NSW Ambulance. I had remained off work at that time. 51. In or around January or February 2020, I received a response from Claire (I do not recall her surname) of NSW Ambulance. She responded to the effect that they had hoped to work with me to have me return to duty and denied my request for leave without pay. 52. In or around February 2020, I resigned from NSW Ambulance by way of written communication to Claire. I felt as if I had no choice but to resign from NSW Ambulance and in doing so, I was able to take up additional hours of employment as a Lecturer. It was incredibly difficult to make the decision to resign as I would have loved to continue in my job as a paramedic but I felt as if I had no choice since they were not able to work with me on my recommended return to work plan. 53. I carbon copied the Inspector of the Western Region, Stephen Lobbey, into that communication. I do not have a copy of this letter in my possession as this communication was made using my NSW Ambulance email account which I no longer have access to. 54. On 10 February 2020, I verbally discussed with either Brett Jackson or Stephen Evans (I cannot be sure which of these two supervisors I had this conversation with) of FRNSW, that I had not been cleared to return to my pre-injury duties with NSW Ambulance. I advised that I had requested 2 years leave without pay from NSW Ambulance which they denied. 55. On 17 February 2020, I submitted a medical certificate dated 3 February 2020 to FRNSW, confirming I was certified by Dr Kasim to have capacity for work with NSW Ambulance Service. I am not able to locate a copy of this document. My return to this employment would need to be amended in that I could work 24 hours per week from 1 February 2020 until 29 February 2020. 56. In or around May 2020, when the Covid-19 situation was increasingly getting more concerning, I contacted Steven Lobbey, NSW Ambulance Western Region Inspector, by way of telephone call, to see whether NSW Ambulance could take me on in a casual capacity to assist, if needed with an increasing demand on the service due to the emerging Covid-19 situation. Steven advised me via text message following our phone conversation that he was accepting my resignation and I could not return to NSW Ambulance. 57. On 22 June 2020, Mr Oxley prepared a subsequent Progress Report in respect of my condition… 58. On 7 July 2020, Mr Greg Anning, Consultant Psychologist prepared a Psychological Assessment Diagnostic Report in respect of my condition. I was required to attend this appointment by the insurer, IML Insurance, in respect of my Workers Compensation Claim... 59. On 17 July 2020, iCare Insurance, NSW prepared an Injury Management Plan in respect of my return to work… 60. On 5 August 2020, Dr Kasim (my GP) prepared a Work Cover Certificate of Capacity in respect of my condition and return to work which certified that I was fit for work with FRNSW… 61. I do not currently experience any symptoms and my PTSD is in remission. 62. I am not currently taking any medications and am not undergoing any other treatment. I continue to work full-time at the University. Impact 63. I am passionate about a career in community service by virtue of my role as a retained fire fighter. I thrive on and gets professional satisfaction from my career. 64. The impact of losing my job as a retained fire fighter would see me lose touch with connections of those in the job. Those who work for Fire and Rescue are part of an elite community, who rally around one another when needed. I have found this to be of tremendous support to me over the past three years. 65. I would also suffer economic loss, by virtue of the lost income (both the retainer payments and additional wages for jobs I attend). 66. I love working as a fire fighter. I have undergone specific training in this field in order to hold the position of retained fire fighter, such as: (a) Recruits School completed in or around Febrnary 2012; (b) Pump School - so I could drive the truck completed in or around late 2013; and (c) Basic Inhouse training - which is not recognised in industry, only the fire brigade internally. This training was facilitated on an ongoing basis, with either online modules to be completed or by having trainers attend the area and facilitate courses of different topics or scenarios. This would occur every few months. I was conscious to always stay up to date with this training. 67. These skills and knowledge are not easily transferrable to another profession, trade or industry and as such, would make securing comparable future employment exceptionally limited. 68. I am confident that my PTSD condition is in remission. I wholeheartedly agree with the conclusions and recommendations in the respective Reports from my treating practitioners, that I am currently fit, able and willing to return to my role as a retained fire fighter. I am in a stable mindset and in strong physical health. 69. I understand that a return to FRNSW will inevitably mean exposure to further traumatic scenarios. I am prepared for this eventuality and am confident I could effectively deal with any such scenario, including with the new strategies I have learned. 70. In seeking support and treatment from my GP and psychologist, I have a greater sense of self­awareness as to when things may cause me to feel uneasy. I have learned the following coping mechanisms to prepare myself for the possibility of stressful or traumatic situations, and responding if necessary: (a) engage in cardiovascular exercise; (b) meditate; (c) eat healthy; (d) engage in breathing techniques; (e) engage in self-talk; (f) acknowledging a situation but not engaging in the emotional side of it; (g) seek treatment from my GP as needed; and (h) seek treatment from my psychologist as needed. 71. I would also continue to utilise my treating doctors and psychologist to deal with any such issues if they arose. 1. In a progress report dated 22 June 2020, Mr Beasley's treating psychologist, Mr Raymond Oxley wrote: Glen Beasley commenced psychotherapy for a work place injury on 14th May 2019. Throughout the sessions he outlined the significant benefits and strong connection he has with his role as a Firefighter with NSW Fire and Rescue. NSW Ambulance had commenced a Graduated Return to Work Program (GRTW) for Glen to return him normal clinical duties as a Paramedic prior to his change of employment. My advice is that Glen commence a GRTW program with Fire and Rescue NSW to reintroduce him to the rigours of his substantive role as a Fire Fighter. My professional opinion is that Glen Beasley has the capacity to complete all duties as outlined in the "Firefighter Essential Functions Information Sheet". 1. Mr Oxley proposed a Graduated Return to Work Program ("GRTW") for Mr Beasley over a period of six weeks. 2. On 29 June 2020, Mr Beasley's general practitioner, Dr Yamin Kasim, wrote the following to Ms Jessica Rosman of FRNSW; Mr Glen Beasley has post traumatic stress disorder (PTSD) and started psychotherapy since March 2018. The triggers were both from fire fighting as well as ambulance work. Initially he required two types of antidepressants/anxiolytic medications to control his mood/anxiety. Over the course of two years, these medications have been ceased due to ongoing psychotherapy. His mood/anxiety is stable enough not to be on these medications He was unable to return to his pre-injury duties as a paramedic due to the graduated return to work program (GRTW) not being adhered by NSW ambulance. This occured twice in the last 2 years. As a result, Mr Beasley was not able to successfully complete his treatment Further exposure to traumatic incidence (triggers for PTSD) in a graduated manner is the treatment for his PTSD. I personally agree with Mr Dean Oxley (psychologist) that Mr Beasley has the capacity to resume his pre-injury role of firefighting, if he is given the chance to commence a GRTW with fire and rescue NSW. The program is only 5 weeks long as Mr Beasley has received more than 2 years of psychotherapy. His initial anxiety and depressive symptoms related to PTSD are resolved. I aim for him to return to pre-injury duties for firefighting after the 6 week GRTW. 1. The FBEU relied on a report from Greg Anning, Consultant Psychologist, who assessed Mr Beasley on 30 June 2020. Mr Anning's report dated 7 July 2020 contained the following: 7. OPINION I am of the opinion that at the time of assessment Mr Beasley's clinical presentation was not consistent with any psychological diagnosis. Psychological testing with the PAI was consistent with this finding. Based on Mr Beasley's account of his past symptoms I believe that it is most likely that he suffered Posttraumatic Stress Disorder (PTSD) symptomology that was sub-clinical to a diagnosis of PTSD and that the appropriate diagnosis would have been Adjustment Disorder with Mixed Anxiety and Depressed Mood secondary to management issues at Ambulance NSW. This condition persisted due to Mr Beasley not being able to complete a graduated return to work program and subsequently return to pre-injury duties with Ambulance NSW. Mr Beasley's Adjustment Disorder appears to have resolved following his resignation from Ambulance NSW and his securing employment with Charles Sturt University. Mr Beasley's nominated treating doctor, Dr Yamin Kasim, and his treating psychologist, Dean Oxley, were also of the opinion that Mr Beasley does not currently have a psychological condition. Mr Oxley commenced treatment with Mr Beasley on 14th May 2019 at which time he was of the opinion that he presented with PTSD symptomology together with anxiety and depression. He agreed that it was likely that Mr Beasley had and Adjustment Disorder with Anxiety and Depressed Mood together with sub-clinical PTSD. It is noted that Mr Beasley previously received psychological treatment with Shona Stewart. I understand Ms Stewart employed EMDR to treat Mr Beasley however the targets of this treatment are unknown. It is possible that his PTSD symptomology was more prominent at that time and that this may have also been contributed to by exposure to traumatic events with FRNSW. However he had been a Retained Firefighter since 2012 and left the workplace after six to twelve months with Ambulance NSW. There does not appear to have been a drop off in his availability with FRNSW before he submitted a workers compensation claim with Ambulance NSW. This suggests that his psychological injury was causally related to his employment with Ambulance NSW. This is however is a moot point as his claim for psychological injury incurred whilst working for Ambulance NSW was accepted. I understand that this claim is still open. 8. RECOMMENDATIONS 8A. Fitness for work I am of the opinion that Mr Beasley is fit for work. He has been working full time for Charles Sturt University for the past six months. Miranda Blackbourn, Return to Work Advisor, reported that an independent fitness for duty assessment found that Mr Beasley was permanently incapacitated for work and that he will require a fitness of duty review to be able to return to work with FRNSW. 8B. Treatment required I am of the opinion that at the time of assessment Mr Beasley did not require psychological treatment. However I believe that he may benefit from a limited number of psychological sessions if and when he recommences work with FRNSW to monitor and evaluate any vulnerability to developing trauma related symptoms. I understand that treatment is continuing to be provided by QBE (Ambulance NSW insurer). If this unavailable to him then treatment via a GP Mental Health Plan would be appropriate. 1. A further report dated 19 January 2021 prepared by Dr Andrew McClure, Consultant Psychiatrist, for FRNSW contained the following: OPINION Diagnosis Retrospectively, Mr Beasley developed symptoms of anxiety, worry, rumination, sleep disturbance and physical symptoms including chest pain and tachycardia, which are consistent with anxiety. Particularly after the breakdown of his relationship, he became increasingly depressed, anergic and disinterested, unable to feel pleasure and unmotivated to look after himself. These symptoms are consistent with DSM-5 diagnoses of Generalised Anxiety Disorder and a Major Depressive episode. In my opinion there is insufficient evidence for a diagnosis of Post-traumatic Stress Disorder (PTSD). He does not convincingly describe true flashbacks, nor report regular nightmares, He does not avoid discussing or thinking about his various experiences with the Rural Fire Service, the Fire Brigades or the Ambulance Service. With treatment, time and job change, the worker has achieved remission. Mr Beasley no longer meets the DSM-5 diagnostic criteria for any specific psychiatric disorder. Prognosis Based on this single cross-section of assessment today, Mr Beasley has recovered fully from his condition. However he will remain susceptible to recurrence. Contributing factors unrelated to work Relevant factors have been: * Mother's serious illness. * Breakdown of intimate relationship (though this was possibly at least partially consequential). Causation I note that Mr Beasley first developed symptoms of an anxiety-related disorder around mid-2017. These accelerated at the end of the year when his relationship broke down. The worker first noticed symptoms in the context of attending an injured patient while working as an ambulance paramedic. His co-worker 'disappeared' for around 40 minutes and meanwhile a second crew arrived. He regarded this as poor practice. He felt personally responsible for the other officer's behaviour, which he regarded as quite inappropriate. By contrast Mr Beasley had been working for the Rural Fire Service and the NSW Fire Brigades for a number of years and, despite exposure on a number of occasions, he did not develop symptoms of a psychiatric disorder. In my opinion Mr Beasley's employment with Fire & Rescue NSW was not a substantial contributing factor to his psychological disorder. If the worker's condition were considered a 'disease injury,' I would consider his employment with NSW Ambulance a substantial contributing factor to the 'contraction' of that disease rather than the aggravation, acceleration, exacerbation or deterioration of a pre-existing condition. Of the work-related factors involved in the causation of Mr Beasley's psychological condition, it is his employment with the NSW Ambulance which is salient. His experiences while a volunteer with the Rural Fire Service and his employment with the NSW Fire Brigades made minimal contribution. Capacity Mr Beasley is fit for his current fulltime employment as a university lecturer. He is unfit to return to work with the NSW Ambulance Service as, in all likelihood, his psychiatric disorder would recur. On the other hand, in my opinion, Mr Beasley is fit for work as a retained firefighter 24 hours per week. To the extent that his employment contributed to causation of his psychiatric 'injury,' the salient factors were his relationships with senior co-workers in the NSW Ambulance Service. In contrast, he has been exposed to traumatic incidents (particularly the death of 2 classmates) in the RFS and the Fire Brigades but did not report any symptoms at the time. His work with the Ambulance Service has proven considerably more 'pathogenic' than his work as a firefighter. It cannot be excluded that Mr Beasley may have a recurrence of his condition. As in the case of the index episode, multiple factors will likely be relevant. Treatment has enhanced Mr Beasley's coping strategies. If he manages the demands on his time, and seeks appropriate support as required, recurrence is unlikely. Treatment The worker is in the termination phase of his psychological treatment with Mr Oxley. This has an important 'maintenance' role and should continue on an infrequent basis. He does not require any other psychological or psychiatric treatment. He does not need psychoactive medication. Thank you, once again, for the referral. I trust that the foregoing report will assist Fire & Rescue NSW in the ongoing management of the worker, Glen Beasley's, claim. 1. The FBEU also relied on a report by Dr Christopher Canaris, Consultant Psychiatrist, dated 19 March 2021, which was prepared at the request of Ms Anastasia Polites, Senior Industrial Officer of the FBEU. Dr Canaris' report contained the following: Mental State Examination Your member was interviewed by Zoom at his workplace at Charles Sturt University. I saw his head and shoulders. He presented as a casually clad man of Celtic complexion with his head tied in a topknot. He provided the account documented above in a coherent and consistent fashion. His demeanour was relaxed, and he had a warm and reactive affect. I found no evidence of psychosis. I elicited no evidence of an organic brain syndrome. Summary and Conclusions Your member is a retained firefighter and former paramedic who on joining the NSW Ambulance Service was exposed to a number of traumatic incidents while confronting other life stressors including a long-distance relationship which broke down and his mother's cancer diagnosis. In this setting, he became depressed, highly anxious, and found himself ruminating on difficult workplace situations. He became socially withdrawn and gained considerable weight because of comfort eating. He experienced fatigue. He was treated with antidepressants as well as seeing a psychologist undergoing EMDR. He states that he made a full recovery. He is aware he is at increased risk but believes that he has gained considerable insight and is now able to manage his risk while continuing to see his psychologist. He presents as entirely well on mental state examination. His current diagnosis would be one of posttraumatic stress disorder with comorbid major depressive disorder in complete remission. The specific issue is whether he is fit to work as a firefighter in ordinary or restricted duties. I note in this context that you supplied me a document from Fire & Rescue NSW entitled "Psychiatric disorders." This document makes clear that a person with a long-standing, severe, or chronic and/or relapsing condition should be considered permanently unfit to perform firefighting duties. It specifically states that mild mental illness and even so-called moderate levels of mental illness may not impact on function with successful treatment. It addresses aspect of mental state examination useful in identifying areas of impairment listing appearance, behaviour, attitude, mood and affect, speech, thought form stream, and content, perception, and condition. It specifically addresses schizophrenia and other psychotic disorders, bipolar disorders and other "moderate or severe psychiatric conditions." Mr Beasley's posttraumatic stress disorder presumably falls under the category of "other moderate or severe psychiatric conditions." As far as mental state examination is concerned, there are no features in any way suggestive of current impairment. On this basis alone, Mr Beasley would be entirely fit to work as a firefighter simply because his condition appears to be in full and sustained remission. There is nothing about his current functioning that would place him or others at risk if he worked as a firefighter as he is now. More specifically, there are no issues relating to adverse medication side effects. There is no risk of impulsive behaviour. He is in treatment with a psychologist and states his intention to abide by any advice. There is no substance abuse or other comorbidity. It is of course ultimately not my decision whether Mr Beasley should be allowed to remain a retained firefighter. However, from a psychiatric perspective the issue is one of risk management. All firefighters are at risk by the very nature of the job. The question is whether Mr Beasley presents an unacceptable risk if he returns to work as a retained firefighter. To this end, I would make the following observations. The emergence of his illness in response to trauma means that he is vulnerable to further episodes in response to future trauma exposure. His level of vulnerability is impossible to quantify but is greater than if he had never been unwell. However, given that he has made a full recovery, that he intends to continue in treatment, and that he appears to have good insight into his earlier condition, it is likely that any deterioration would be detected early. There is potentially risk emanating from shift work. That said, as a retained firefighter Mr Beasley would face a significantly lower burden in relation to this aspect of firefighting. He would also be working considerably shorter hours in firefighting than a full-time firefighter. Additionally, Mr Beasley has the benefit of another career which he is successfully pursuing which gives him a flexibility in employment that would not be readily available to a full-time firefighter. These considerations suggest that Mr Beasley's risk should he be allowed to return to firefighting is eminently manageable. Whether his employer chooses to manage this risk is a separate issue. I trust this helps you in the management of your member's claim. Please do not hesitate to contact me if you need anything further. 1. The FBEU also relied on the following written submissions (footnotes omitted): 1. Glen Beasley is a retained firefighter. He was first employed by Fire + Rescue on 22 March 2012. 2. In January 2018, Mr Beasley became temporarily unfit for work due to a psychological injury arising from symptomatic PTSD, caused principally by exposure to traumatic incidents in his then-primary employment with Ambulance NSW and personal life stressors. He sought treatment, and enjoyed a full recovery. He no longer works for Ambulance NSW; his primary employment is now as a lecturer at Charles Sturt University. 3. Mr Beasley is presently certified as fully fit to return to work as a retained firefighter. He has been so certified since February 2020. On the expert evidence presently before the Commission, he is fully fit. Specifically, his condition is in 'full and sustained remission' and, while he is in theory more vulnerable to episodes if exposed to traumatic events than if he had never been ill, any risk is 'eminently manageable'. 4. Fire + Rescue has, nonetheless, determined that Mr Beasley is permanently unfit to perform the inherent duties of a firefighter. It proposes to medically discharge him on this basis. 5. The Crown Employees (Fire and Rescue NSW Firefighting Staff Death and Disability) Award 2021 at cl.8.1 sets out the process by which Fire + Rescue may determine that an employee is permanently unfit to perform their role. 6. That process has been followed here, and a final determination made. Where an employee disagrees with such a determination, they may refer the matter to the Commission for final determination as to their fitness. 7. This is not a process involving a review of the determination, such that error must be demonstrated: on the terms of the award, the Commission is empowered to, and must, make a fresh decision based on the material before it. 8. Mr Beasley disputes Fire + Rescue's determination. This is perhaps unsurprising given no doctor - including the one engaged by Fire + Rescue - has ever concluded that he is permanently unfit, and the medical consensus is in fact that he is fully capable of returning to work. 9. It is true that he is at risk of psychological injury following exposure to traumatic incidents. All firefighters are; it is a known hazard of the job. Mr Beasley's risk, given his previous injury, is in theory slightly higher; however, the counterpoint to this is that he has, through previous treatment, equipped himself with skills and techniques to better identify and manage this risk. Fire + Rescue have not at any point explained how it has concluded that this risk otherwise cannot be managed, or is at a level that is unacceptable. It is a remarkable conclusion - and one that would forestall any firefighter who develops PTSD through exposure to this known risk from ever returning to work, regardless of how well they recover. 10. On the material presently before the Commission, the only determination available is that Mr Beasley is fit to perform his ordinary duties, following a graduated return to work plan (which would be a specified requirement per cl.8.10.2 of the Award). Case for FRNSW 1. FRNSW relied on a number of reports from Dr Julian Parmegiani, Consultant Psychiatrist. Dr Parmegiani's report of 19 May 2020 contained the following: Summary and Opinion … Mr Beasley experienced a number of traumatic events between 2017 and 2018, during the course of his employment with the NSW Ambulance Service. He also experienced stress in his private life, including breaking up with his partner, and his mother being diagnosed with cancer. Mr Beasley became depressed, withdrawn and unmotivated. He ruminated about work incidents, and he became debilitated by his symptoms in early 2018. He was diagnosed with Posttraumatic Stress Disorder. He was prescribed antidepressant medication, and he was referred to a psychologist. His symptoms improved with the passage of time. He was however unable to return to his pre-injury role as a paramedic, and he resigned in January 2020. Mr Beasley found alternative employment, and he re-established other pre-injury routines. He was able to live independently and he mixed socially. He continued seeing a psychologist once per fortnight. Specific Questions Based on your assessment of Mr Beasley and the provided information please advise whether in your medical opinion, Mr Beasley is either: a) fit to perform the firefighter's ordinary duties without any requirements or restrictions; or Mr Beasley is unlikely to resume his pre-injury role of retained firefighter. This would expose him to traumatic incidents, and cause a relapse of his psychiatric symptoms. b) fit to perform the firefighter's ordinary duties with specified requirements or restrictions; or Mr Beasley could return to duties that do not expose him to traumatic incidents. c) temporarily unfit to perform the firefighter's ordinary duties but fit to perform alternative duties, either with or without specified requirements or restrictions; or d) temporarily unfit to perform any FRNSW duties; or e) permanently unfit to perform the firefighter's ordinary duties. Mr Beasley has a psychological vulnerability to Posttraumatic Stress Disorder and depression. He is at risk of suffering a relapse of these conditions following exposure to future stressful life events. A past history of psychiatric disorder is a recognised vulnerability factor to the development of Posttraumatic Stress Disorder and depression. 1. Dr Parmegiani's supplementary report of 1 September 2020 contained the following: Report of Mr Greg Anning, psychologist, dated 7 July 2020 Mr Anning assessed Mr Beasley on 30 June 2020. Mr Anning found that Mr Beasley did not currently suffer from a psychological condition. Mr Anning wrote, 'Based on Mr Beasley's account of his past symptoms I believe that it is most likely that he suffered Posttraumatic Stress Disorder (Posttraumatic Stress Disorder) symptomatology that was subclinical to a diagnosis of PTSD and that the appropriate diagnosis would have been Adjustment Disorder with Mixed Anxiety and Depressed Mood secondary to management issues at Ambulance NSW'. Mr Anning added, 'This condition persisted due to Mr Beasley not being able to complete a graduated return to work program and subsequently returned to pre-injury duties with Ambulance NSW. Mr Beasley's Adjustment Disorder appears to have resolved following his resignation from Ambulance NSW and is securing employment with Charles Sturt University'. Mr Anning wrote on page 9, 'He reports that he did not have any symptoms during a return to work trial in which he spent two days on the road within an ambulance with paramedics'. … Comment … I obtained a different history about Mr Beasley's return to work program with Ambulance NSW. I wrote on page 3, 'Mr Beasley attempted to return to work as an ambulance officer on repeated occasions. He initially worked on clerical tasks, and later as a third paramedic. He still lacked energy and he experienced fatigue. His employer eventually told hi he had to return to his pre-injury duties within four weeks. Both Mr Beasley's GP and psychologist felt that it was too quick. Mr Beasley therefore resigned from the NSW Ambulance service in January 2020'. This is in contrast with Mr Anning's report, where he wrote, 'He informed that he eventually resigned because he was not given any opportunity to return to work'. In summary, Mr Beasley was still suffering psychiatric symptoms when he was attending a graduated return to work program. The prospect of resuming his pre-injury duties within four weeks exacerbated his anxiety, indicating that he did not feel capable of coping with more trauma. Report of Raymond Dean Oxley, treating psychologist, dated 22 June 2020 Mr Oxley wrote, 'my advice is that Glen commence a GRTW program with Fire & Rescue NSW to reintroduce him to the rigours of his substantive role as a firefighter. My professional opinion is that Glen Beasley has the capacity to complete all duties as outlined in the 'Firefighter essential functions information sheet'. Report of Dr Yamin Kasim, treating general practitioner, dated 29 June 2020 Dr Kasim wrote, 'Mr Glen Beasley has Posttraumatic Stress Disorder (PTSD) and started psychotherapy since March 2018. The triggers were both from firefighting as well as ambulance work'. Dr Kasim added, 'he was unable to return to his pre-injury duties as a paramedic due to the graduated return to work program (GRTW) not being adhered (sic) by NSW Ambulance. This occurred twice in the last two years. As a result, Mr Beasley was not able to successfully complete his treatment'. Dr Kasim explained that, 'further exposure to traumatic incidence (sic) (triggers for PTSD) in a graduated manner is a treatment for his PTSD'. I do not agree with Mr Kasim. Mr Beasley tried unsuccessfully to return to work as an ambulance officer. He believed that he could have succeeded if the reintroduction to potentially traumatic events had been more gradual. His history however indicated a vulnerability to PTSD. A return to pre-injury duties would have eventually exposed him to numerous stressful incidents and precipitated a relapse of his Posttraumatic Stress Disorder. I accept that Mr Beasley is keen to return to work for emergency services, but doing so would expose him to a risk of further psychiatric illness and disability. The additional information provided does not alter the opinion I expressed in my report of I 9 May 2020. 1. A further supplementary report dated 5 May 2021 by Dr Parmegiani contained the following: Report of Dr Andrew McClure, psychiatrist, dated 19 January 2021 Dr McClure diagnosed a Generalised Anxiety Disorder and a Major Depressive Episode. He noted that employment with NSW Ambulance was a substantial contributing factor to the development of his psychiatric condition. Dr McClure added on page 9, 'In my opinion Mr Beasley's employment with Fire & Rescue NSW was not a substantial contributing factor to his psychological disorder.' Dr McClure wrote on page 8, under Prognosis, 'Based on this single cross-section of assessment today, Mr Beasley has recovered fully from his condition, however he will remain susceptible to recurrence.' Dr McClure stated on page 10, 'It cannot be excluded that Mr Beasley may have a recurrence of his condition (My emphasis). As in the case of the index episode, multiple factors will likely be relevant. Treatment has enhanced Mr Beasley's coping strategies. If he manages the demands on his time, and seek appropriate support as required, recurrence is unlikely.' Report of Dr Christopher Canaris, psychiatrist, dated 19 March 2021 Dr Canaris assessed Mr Beasley at the request of Fire Brigade Employees Union. Dr Canaris wrote on page 5, 'His current diagnosis would be one of Posttraumatic Stress Disorder with co-morbid Major Depressive Disorder in complete remission.' Dr Canaris wrote on page 6, 'The emergence of his illness in response to trauma means that he is vulnerable to further episodes in response to future trauma exposure (my emphasis). His level of vulnerability is impossible to quantify but is greater than if he had never been unwell. However, given that he has made a full recovery, that he intends to continue in treatment, and that he appears to have good insight into his earlier condition, it is likely that any deterioration would be detected early.' Dr Canaris concluded, 'These considerations suggest that Mr Beasley's risk, should he be allowed to return to firefighting is eminently manageable. Whether his employer chooses to manage this risk is a separate issue. ' Conclusion I assessed Mr Beasley in May 2020. I wrote in my report, 'Mr Beasley is unlikely to resume his pre-injury role of retained firefighter. This would expose him to traumatic incidents and cause a relapse of his psychiatric symptoms.' Dr McClure and Dr Canaris concluded that Mr Beasley's history placed him at a higher risk of sustaining a psychiatric injury as a result of further exposure to trauma. Drs McClure and Canaris believed that risk could be managed by early intervention. Ultimately, it will be up to Fire & Rescue NSW to decide whether to expose a psychologically vulnerable worker to more trauma. Whilst measures can be put in place to reduce risk, there is no guarantee that such measures will prove effective. 1. FRNSW tendered into evidence a witness statement of Andrew McGarity, Manager Injury Management, FRNSW, dated 27 September 2021, which contained the following: 11. I am aware that Retained Firefighter (RFF) Glen Beasley was assessed by Consultant Psychiatrist Dr Julian Parmegiani in accordance with Clause 8 of the D&D Award in May 2020 and that Dr Parmegiani expressed the opinion that a return to operational firefighting duties would expose RFF Beasley to further traumatic events with the attendant risk that he would suffer a relapse of his Post Traumatic Stress Disorder and depression... This opinion, in effect, was tantamount to RFF Beasley being permanently unfit for his substantive role as an operational firefighter. 12. In accordance with Clause 8.7 of the D&D Award, FRNSW wrote to RFF Beasley on 26 May 2020 advising him that FRNSW accepted in full the opinion of Dr Parmegiani and inviting him, if he so chose, to seek a review of the decision pursuant to Clause 8.8 of the D&D Award… 13. RFF Beasley opted to request a review of the decision and provided reports from his General Practitioner and two Psychologists which challenged Dr Parmegiani 's opinion. These reports were provided to Dr Parmegiani with a request that he review his opinion. In September 2020 Dr Parmegiani provided a supplementary report... 14. FRNSW informed RFF Beasley that it intended to proceed with his medical discharge in accordance with Clause 8 of the D&D Award and subsequently the FBEU commenced these proceedings on his behalf. 15. In May 2021 Dr Parmegiani was provided with copies of reports from Dr Christopher Canaris and Dr Andrew McClure which were provided by the FBEU. After review of those reports Dr Parmegiani provided a further supplementary report dated 5 May 2021... Those reports did not alter his view. 16. While different practitioners have proposed different diagnosis, Dr Kasim, Dr Canaris and Dr Parmegiani have all provided a primary diagnosis of PTSD, and it is the most common diagnosis reached by the assessing clinicians. 17. FRNSW has a primary duty of care to its employees to eliminate risks to health and safety so far as is reasonably practicable and if not reasonably practicable to do so, then to minimise those risks so far as is reasonably practicable... 18. In his report Dr Canaris opined that RFF Beasley is vulnerable to further episodes in response to future trauma exposure and the level of vulnerability is greater than if he had never been unwell. He appears to suggest that the risk is something that FRNSW can manage… 19. Dr McClure in his report also states that the risk of further injury cannot be excluded… 20. Dr Parmegiani stated that returning RFF Beasley to work with FRNSW would expose him to the risk of psychiatric illness of disability, and advised that if risk management was implemented, there was no guarantee these measures would be effective... 21. I understand the epidemiological data indicates that prior significant trauma/PTSD increases the risk of future PTSD following traumatic events by 2½ to 3½ fold. The prevalence of PTSD arises with the number of fatal or critical incidents up to a prevalence of approximately 20% following exposure to 25 fatalities. 22. FRNSW is an Emergency First Response Agency. By its very nature the incidents to which its operational firefighters respond are highly likely to involve traumatic episodes. These include but are not limited to House and Building Fires, Motor Vehicle Accidents and other situations where severe trauma and sometimes fatalities occur. 23. Under Section 19 of the Work Health & Safety Act (2011) FRNSW has a primary duty of care, and so must ensure as far as practical the health and safety of all workers. 24. In the course of assessing available options for RFF Beasley FRNSW was unable to identify what reasonably practicable steps it could possibly take to minimise the risk of further injury. 25. The identified risk of injury is real based on available medical and epidemiological evidence and amounts to a risk which is reasonably foreseeable… and which FRNSW is not able to effectively mitigate. 26. I am satisfied that the process that has been undertaken in relation to RFF Beasley has been fair and has accorded with the provisions of the D&D Award, FRNSW Policies and Procedures and FRNSW's duty of care under the WHS Act and Regulations. 1. FRNSW also relied on a witness statement of Robert McNeil, Assistant Commissioner Regional Operations, FRNSW, dated 27 September 2021, which contained the following: 2. As the Assistant Commissioner Regional Operations I am responsible for: a. The development and implementations of strategic plans to provide a sound basis for the operational planning, development, allocation and use of resources to meet identified fire and emergency risks and community needs and enable the delivery of prevention, suppression, hazmat rescue and emergency services to industry and the community; b. Management of the Command, activities and resources, including monitoring and benchmarking of performance to ensure Area and Zone Commanders deliver emergency response, planning, training, fire prevention and suppression services that are timely, effective, acceptable to stakeholders, within budget, comply with relevant regulations, and consistent with Fire and Rescue New South Wales (FRNSW) state-wide policy, procedures and objectives. 4. I have responsibility for the vast majority of Retained (On Call) Firefighters employed by FRNSW. 5. Pursuant to Clause 28.1 of the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2020 Retained Firefighters are required to attend 33% of all calls to incidents from their station in any six month period and 80% of all calls to incidents from their station during any period of compulsory availability in any four week period… 6. Attendance at incidents involves regular exposure to traumatic episodes with significant psychological demands. 7. Firefighters witness the deaths and serious injuries of victims. These situations can be violent, even horrific ranging from burns, motor vehicle and industrial accidents, to suicides giving rise to critical incident stress. 8. Firefighters must make critical decisions that can affect others under emergency conditions. The cognitive and decision-making demands are high, even for those not in command positions. Any condition that can affect arousal, perception, learning, memory, concentration, emotion, decision making capacity etc, may impact adversely on situational awareness, thus posing a risk to the health and safety of the individual firefighter and others relying on them for their safety. Firefighters must have the ability to undertake appropriate and safe actions on the incident ground, which is often dynamic and complex. 9. I am not aware of any strategy that FRNSW could put in place which would avoid exposing a Retained Firefighter to traumatic incidents. 1. FRNSW relied on the following outline of submissions (footnotes omitted): Preamble 1. Glen Beasley, the subject of this dispute, was notified that he was to be medically discharged from his employment with Fire and Rescue NSW (FRNSW) by letter dated 29 September 2020. Mr Beasley is a Retained Firefighter {RFF) stationed at Bathurst Fire Station. 2. RFF Beasley has not attended for work with FRNSW since December 2017. Since January 2018 he has had a diagnosis of Posttraumatic Stress Disorder {PTSD). 3. On 2 March 2018 RFF Beasley provided FRNSW with a Workers Compensation Certificate relating to his primary employment with NSW Ambulance as a Paramedic stating that he was not fit for operational duties. He continued to provide medical certificates stating he was unfit for operational duties through to February 2020. 4. In February 2020 Operational Management at FRNSW requested a review of RFF Beasley's fitness for duty which triggered a referral to an Independent Medical Examiner pursuant to clause 8 of the Crown Employees (Fire and Rescue NSW Staff Death and Disability) Award (D&D Award)… 5. In May 2020 RFF Beasley was assessed for the purposes of Clause 8 by Consultant Psychiatrist Dr Julian Parmegiani. Circumstances resulting in the decision to medically discharge 6. Between 2004 and December 2017 RFF Beasley experienced a number of traumatic episodes associated with his involvement with the Rural Fire Service and his employment with FRNSW and New South Wales Ambulance. He also experienced personal stressors during 2017 and 2018. 7. On 19 May 2020, after taking a detailed history from RFF Beasley, Dr Parmegiani opined… : "Mr Beasley is unlikely to resume his pre-injury role of retained firefighter. This would expose him to traumatic incidents, and cause a relapse of his psychiatric symptoms. Mr Beasley could return to duties that do not expose him to traumatic incidents. Mr Beasley has a psychological vulnerability to Posttraumatic Stress Disorder and depression. He is at risk of suffering a relapse of these conditions following exposure to future stressful life events. A past history of psychiatric disorder is a recognised vulnerability factor to the development of Posttraumatic Stress Disorder and depression." (Emphasis added) 8. On 26 May 2020 FRNSW wrote to RFF Beasley informing him that, based on Dr Parmegiani's opinion, he was regarded as permanently unfit for his ordinary duties as a firefighter with FRNSW... 9. RFF Beasley, as he was entitled to do under clause 8.9 of the D&D Award, requested a review of the decision... 10. Further material which was not available to Dr Parmegiani in May 2020, including reports from RFF Beasley's General Practitioner and Psychologists, was provided to Dr Parmegiani in August 2020. 11. On 1 September 2020 Dr Parmegiani provided FRNSW with a supplementary report… in which he disagreed with RFF Beasley's General Practitioner. He stated: "I do not agree with Mr Kasim. Mr Beasley tried unsuccessfully to return to work as an ambulance officer. He believed that he could have succeeded if the reintroduction to potentially traumatic events had been more gradual. His history however indicated a vulnerability to PTSD. A return to pre-injury duties would have eventually exposed him to numerous stressful incidents and precipitated a relapse of his Posttraumatic Stress Disorder. I accept that Mr Beasley is keen to return to work for emergency services, but doing so would expose him to a risk of further psychiatric illness and disability. The additional information provided does not alter the opinion I expressed in my report of 19 May 2020." (emphasis added). 12. RFF Beasley's medical discharge was then confirmed which prompted the lodgement of the dispute in this matter. 13. In March 2021 the FBEU arranged for RFF Beasley to be assessed by Consultant Psychiatrist Dr Christopher Canaris. In his report dated 19 March 2021… Dr Canaris stated: "It is of course ultimately not my decision whether Mr Beasley should be allowed to remain a retained firefighter. However, from a psychiatric perspective the issue is one of risk management. All firefighters are at risk by the very nature of the job. The question is whether Mr Beasley presents an unacceptable risk if he returns to work as a retained firefighter. To this end, I would make the following observations. The emergence of his illness in response to trauma means that he is vulnerable to further episodes in response to future trauma exposure. His level of vulnerability is impossible to quantify but is greater than if he had never been unwell." (Emphasis added). 14. Dr Canaris concedes that RFF Beasley is at greater risk of suffering illness from exposure to trauma than other firefighters who have not previously suffered from a psychiatric illness. In other words, the risk associated with RFF Beasley is greater than the risk associated with 'all firefighters' by 'the very nature of the job'. 15. Dr Canaris' report together with that of Dr Andrew McClure dated 19 January 2021 were provided to Dr Parmegiani for review. In his further supplementary report… Dr Parmegiani commented on the fact that both Dr Canaris and Dr McClure concluded that RFF Beasley's history placed him at a higher risk of sustaining a psychiatric injury as a result of further exposure to trauma. He then stated: "Ultimately, it will be up to Fire & Rescue NSW to decide whether to expose a psychologically vulnerable worker to more trauma." 16. FRNSW is quite properly concerned by the risk of psychiatric injury to RFF Beasley as articulated by Drs Parmegiani, Canaris and McClure. 17. As an employer FRNSW owes a non-delegable duty of care to its employees. The duty requires the employer to manage risks by either eliminating the risks to health and safety so far as is reasonably practicable and if not reasonably practicable then to minimise those risks so far as is reasonably practicable. The Primary Duty of Care is to ensure, so far as is reasonably practicable, the health and safety of, inter alia, workers engaged, or caused to be engaged by the person. Clause 36 of the WHS Regulations articulates the hierarchy of controls an employer is obliged to implement in order to minimise risk. 18. FRNSW was also obliged to comply with Clause 8 of the D&D Award… which sets out the procedures that will apply where FRNSW has reason to believe that a firefighter may be unfit for duty. The inherent requirements of the role 19. As a retained firefighter RFF Beasley is obliged to attend 80% of all calls during his availability and 33% of all calls. A 'call' occurs when an incident requires the attendance of the firefighters. 20. Attendance at incidents involves regular exposure to traumatic episodes. 21. A risk of relapse of a psychiatric condition may pose a risk to the health and safety of the individual firefighter and others relying on them for their safety. 22. Assistant Commissioner McNeil, who has responsibility for the vast majority of retained firefighters, is unaware of any strategy that would avoid exposing a retained firefighter to traumatic incidents. The risk 23. Because of the nature of the identified risk to RFF Beasley the decision to medically discharge him needs to be viewed in the context of FRNSW's obligations under the Work Health and Safety Act, the provisions of the D&D Award and at Common Law. FRNSW is obliged to effectively and appropriately perform risk management and to provide a safe workplace and to prevent harm. It is obliged to consider all risks. 24. On RFF Beasley's own evidence he is obliged, as a retained firefighter, to attend 'incidents' as the significant component of his role. Such incidents are likely to expose RFF Beasley to traumatic episodes. Each of the Consultant Psychiatrists engaged to assess RFF Beasley has identified that he is vulnerable to a relapse of his psychiatric condition if exposed to further traumatic episodes. 25. The only 'reasonably practicable' way to eliminate or minimise the established risk to RFF Beasley is to ensure that he is not exposed to further traumatic episodes. The process 26. The process under Clause 8 of the D&D Award was agreed by the Fire Brigade Employees Union (FBEU) and is manifestly fair and reasonable. 27. Deputy President Sams in Australian Services Union, on behalf of Haywood and Ors v Sydney Water Corporation outlined the sorts of procedural flaws that might render medical retirement unfair: "In my view, a medical retirement could disclose procedural flaws, or faults, which might also warrant a finding of the termination of employment being "harsh, unreasonable or unjust". Examples might include a failure to: i) Provide adequate notice to the employee; ii) Comply with an agreed process; iii) Take proper account of contrary medical opinion; iv) Provide a reasonable opportunity for the employee to rebut the reasons for the termination of employment." 28. FRNSW submits that it has not failed with respect to any of the matters referred to by Deputy President Sams. He went on to say: "There can be little doubt that the principles referred to in Note 6, permit the employer to medically retire an employee, providing the agreed process is fairly applied and all the criteria have been met." (Emphasis added) The Notifier's case 29. The FBEU essentially argues that, as RFF Beasley is regarded by his treating clinicians and Dr Canaris as currently fit for his role as a retained firefighter, he should be allowed to return to work. This argument ignores entirely the evidence of Drs Parmegiani, Canaris and McClure who, as one, regard RFF Beasley as being at risk of further injury if exposed to traumatic episodes. 30. Of the three Consultant Psychiatrists only Dr Parmegiani has expressed a definite opinion regarding the level of risk… when he stated: "Mr Beasley is unlikely to resume his pre-injury role of retained firefighter. This would expose him to traumatic incidents, and cause a relapse of his psychiatric symptoms." (Emphasis added). 31. Dr Parmegiani also had the benefit of reviewing all of the available medical opinions, unlike Drs Canaris and McClure, none of which caused him to alter his opinion. 32. RFF Beasley identifies the strategies he believes will protect him from a relapse of his symptoms. Unfortunately the only method of testing the efficacy of his strategy is to expose him to traumatic episodes with the attendant risk. It is not enough that RFF Beasley is prepared to be exposed to traumatic scenarios. The duty of care is owed to him, not by him. The decision 33. The decision by FRNSW to medically discharge RFF Beasley was based on an assessment of his diagnosis and the risk of further injury against his pre injury role. 34. Exposure once again to traumatic episodes will create a real risk which is foreseeable. The assessment of RFF Beasley's fitness for duty must necessarily involve an assessment of the effect of exposure to traumatic episodes on him should he be returned to work with FRNSW. The test is balance of probabilities. 35. The FBEU has provided no evidence, medical or otherwise, excluding the foreseeable risk of further injury. Conclusion 36. RFF Beasley has not engaged in firefighting duties or any other emergency service since 2017. 37. It is not surprising that he currently demonstrates no symptoms of psychiatric disorder as he has had no exposure to traumatic episodes for almost four years. 38. Notwithstanding his current symptomatic presentation there is consistency of expert opinion that he is vulnerable to relapse and there is therefore a foreseeable risk of further injury on exposure to traumatic episodes. 39. FRNSW has taken a compassionate approach to RFF Beasley's circumstances as demonstrated by the two year delay before the clause 8 process was triggered. 40. FRNSW respectfully submits that the IRC should dismiss the Notification. Case in reply for the FBEU 1. Mr Beasley prepared a reply witness statement dated 28 October 2021 which contained the following: Response to Dr Julian Parmegiani Statement of 21 September 2021 4. I have read the Dr Julian Parmegiani Statement dated 21 September 2021. 5. In response to… Dr Parmegiani's report of 19 May 2020, I say: … (c) I saw Dean Oxley, psychologist on a weekly basis initially. for one to two months. As my recovery began and my condition didn't require intense management, my attendance with Mr Oxley reduced to fortnightly and then to monthly. I ceased treatment due to my recovery in November 2020. (d) On page 3 of the report Dr Parmegiani suggests that when I returned to work with NSW Ambulance, I lacked energy experienced fatigue and was told to return to pre-injury duties within four weeks. (e) I agree that during my return to work with NSW Ambulance in or around April 2019, I did lack energy at times and had some fatigue, but I was handling those issues at the time. I did not experience any other symptoms of my PTSD during my return to work. My return to Ambulance pre-injury duties was most inhibited by NSW Ambulance at that time as they refused to facilitate return to work strategics in line with my treating practitioners' recommendations as set out in paragraph 47 of my first statement. That is what I told Dr Parmegiani. I otherwise set out the detail in relation to my attempted return to work below. (f) I disagree that I resigned in January of 2020. I resigned from NSW Ambulance in or around February 2020. I resigned because NSW Ambulance were not facilitating the recommendations of my treating practitioners which meant I felt as if I had no other choice but to leave my employment. … (j) I disagree with the suggestion by Dr Parmegiani on page 5 that I was 'unable to return and resigned' from my job with NSW Ambulance. My treating practitioners deemed that I did have capacity to return to my pre-injury duties, based on the positive progress l had made in respect of my condition at the time. My return to work was proposed to happen gradually. I resigned as a result of obstruction from NSW Ambulance as they did not facilitate the return as recommended by doctors and were pushing it to be done in shorter amount of time - which was not supported by my GP or Psychologist. 6. In response to… Dr Parmegiani's report of 1 September 2020, I say: … (b) I disagree with the statement on page 3 by Dr Parmegiani that I "was still suffering psychiatric symptoms when he was attending a graduated return to work program. The prospect of resuming his pre-injury duties within four weeks exacerbated his anxiety, indicating that he did not feel capable of coping with more trauma". As stated above, whilst I experienced some lower energy and fatigue, I felt I was managing those issues fine. I deny that I experienced increased anxiety during my return to work, that I felt I was not capable of coping with trauma, or that I reported such issues to Dr Parmegiani. What I said to him was words to the effect that I felt like NSW Ambulance were continually trying to rush me back to full-time work against the recommendation of my treating medical practitioners, which made me feel pressured, and that exacerbated my frustration and stress. (c) On page 3 of the report Dr Parmegiani says that "Mr Beasley tried unsuccessfully to return to work as an ambulance officer." The reason for that failure was due to the approach of NSW Ambulance. He then states that a return to pre-injury duties would have caused a relapse of PTSD. I do not agree. I was and my doctors were confident that, if my return to work could be facilitated in accordance with the recommendations of my treating doctors, and with the ongoing treatment I was having at the time, that I could return to my work with NSW Ambulance without such a relapse. I never got that opportunity. … 8. In response to… the report of Dr Parmegiani of 5 May 2021, I say: (a) The report concludes that a return to Fire & Rescue NSW would place me at a high risk of a release of my Psychiatric symptoms. I disagree. My condition is safely and well managed by my treating practitioners and I am now aware of coping tools and resources that I can use to make sure I never get to the point of being so unwell again. Response to Statement of Rob McNeil of 27 September 2021 9. I have read the statement of Mr Rob McNeil dated 27 September 2021. 10. In response to paragraph 6, I say that there is no definition of 'regular' in respect of exposure to traumatic episodes. I understand that attendance at accidents and other traumatic jobs forms an inherent part of the role, however, there are many other aspects of the job, meaning that attendance at traumatic jobs is rather infrequent - in my experience. Those other duties I would perform in my role with FRNSW included attendance at fire alarm jobs, community education, equipment maintenance, general administration duties, attendances at oil spills on the road and attendances at fire jobs where there is no human injuries or fatalities. 11. In response to paragraph 7, I estimate that in my 8 years volunteering with the RFS, and 9 years of employment with FRNSW, I have attended a job involving a death or serious injury of a victim on approximately 10 to 15 occasions. That said, if l encounter a traumatic incident in my future employment with FRNSW, I am confident of being able to effectively work and deal with the situation without a risk to my mental health. 12. In response to paragraph 8, I say that I am cognisant of the need to make critical decisions on the job and under emergency situations. My condition is treated and in remission. My ability to undertake critical decision making is not compromised and I am confident of being able to handle such situations. 13. In response to paragraph 9, I say that it is not about the frequency of exposure to traumatic incidents, but rather how I would manage exposure. Through my treatment, I have learnt strategies to I am able to implement in order to cope and debrief after attendance at a traumatic job. Response to Statement of Andrew McGarity of 27 September 2021. 14. l have read the statement of Mr Andrew McGarity dated 27 September 2021. 15. In response to paragraph 18, I say that my condition has been appropriately treated, safely managed and I am in remission. 16. In response to paragraph 20, I say that any first responders are susceptible to the risk of psychiatric illness due to the exposure to traumatic jobs they attend. During the course of my treatment, I have developed insight into the causes and strategics I would implement at an early juncture, if necessary. 1. Mr Beasley then gave a detailed account of the circumstances surrounding his resignation from NSW Ambulance in 2020. 2. The FBEU put the following submissions in reply (footnotes omitted): The task before the Commission 1. Clause 8.10 of the Crown Employees (Fire and Rescue NSW Firefighting Staff Death and Disability) Award 2021 empowers the Commission to answer a specific question; that is, to determine finally whether the firefighter is: a. fit to perform the firefighter's ordinary duties without any requirements or restrictions; or b. fit to perform the firefighter's ordinary duties with specified requirements or restrictions; or c. temporarily unfit to perform the firefighter's ordinary duties but fit to perform alternative duties, either with or without specified requirements or restrictions; d. temporarily unfit to perform any duties; or e. permanently unfit to perform the firefighter's duties. 2. It is not, as is suggested by the Respondent, some general enquiry as to whether dismissal would be fair and reasonable. The Commission's answer may only fall within one of those five categories. Only the latter permits the termination of the firefighter's employment by way of medical discharge. Fire + Rescue, who in these proceedings seek such a finding, must make out a positive case in support. 3. As such, the preliminary process followed by Fire + Rescue is, save for confirming whether the preliminary steps necessary to enliven the Commission's jurisdiction at 8.3 to 8.9 have been followed, an irrelevancy. 4. Fire + Rescue's submissions at [26]-[28] and [39], which appear to urge the Commission to dismiss the application on the basis that it has complied with a proper process, should accordingly be disregarded. The decision of Sams DP in ASU obo Haywood v Sydney Water [2000] NSWIRComm 282 followed an application for remedy in respect of a threatened dismissal under s.84, and is directed at an entirely different statutory question. It is of no assistance to the Commission. Fire + Rescue's case 5. Fire + Rescue now contend that Mr Beasley is permanently unfit to perform his duties per cl.8.10.5. Mr Beasley need not disprove this: Fire + Rescue must instead make this proposition good if it wishes to succeed. 6. To the extent this is explained, this proposition seems to be advanced on the basis that: 'exposure once again to traumatic episodes will create a real risk that is foreseeable': Submissions at [34]. 7. As a starting point, it can be accepted that attendance at incidents with the potential to exposure to traumatic events is an inherent part of a firefighter's role. It follows that it is inarguable that every firefighter, retained or permanent, is at risk of psychological injury. 8. As it is a risk which cannot be eliminated, the question becomes one of minimisation insofar as is reasonably practicable. ln other words, Fire + Rescue must take steps to mitigate this risk - that is, that exposure to trauma will lead to psychological injury - in respect of its entire workforce. 9. This is exactly the same as its obligations in respect of physical harm. In crude terms: a. operational firefighters are, as part of the inherent requirements of their role, required to attend incidents involving active fires; b. when they do so, they are exposed to a risk of serious physical injury from fire; c. this risk obviously cannot be eliminated from a firefighter's work; and d. thus Fire + Rescue is obliged to minimise this risk, through methods like particular work methodology (e.g. minimum crewing) and personal protective equipment. 10. Managing and reducing psychological risks - here, the after-effects of exposure to trauma - can be more complicated than physical injury, but obviously it can be done; for example, by prior planning and training, and post-incident early intervention. The question is, what can be done to stop exposure to trauma from resulting in florid injury? 11. Fire + Rescue is oddly, but resolutely, silent on this point. In particular Mr McGarity makes no effort to explain what the organisation's current risk management strategies in this respect are, let alone why they would be inadequate in Mr Beasley's case. 12. It cannot be that this organization has no strategies in place to deal with an obvious and complex risk; its decision to remain silent on this point should instead be taken as telling against the (bald) assertion that the strategies that do exist, including those proffered by Mr Beasley and his doctors, are inadequate to protect him and others. 13. It is as such not enough to assert that Mr Beasley is at some risk, even increased risk. This will not make him necessarily unfit to perform the inherent requirements of the role. The question is whether any such risk is manageable. The risk posed to and by Mr Beasley 14. The critical contest in the evidence is whether, due to a previous injury, Mr Beasley's unquantified potential predisposition to future injury makes him unfit to perform the inherent requirements of his role. 15. It is correct, as Fire + Rescue submit at [29], that Mr Beasley does have this predisposition. 16. It is not however right to say, as Fire + Rescue does at [30], that the level of risk has only been assessed by Dr Parmegiani. The selective extract from Dr Parmegiani's report ignores his actual conclusion, on a fair reading of his reports, which is that Mr Beasley is at risk, not that he will necessarily be injured by exposure to trauma. 17. Dr Parmegiani does not in fact engage with the question of the degree of risk at all. He notably declines to explore risk management options (although acknowledging that measures could indeed be put in place to reduce risk). The extent of his view is that there is no guarantee of effectiveness: that is true of all risk mitigation strategies involving risks that cannot be wholly eliminated. 18. On a fair reading, it is apparent that Dr Parmegiani's view that Mr Beasley is unfit is based on there being the existence of any risk. This is not the correct approach: the issue is whether the risk is unacceptable, in that it cannot be sufficiently managed. 19. Dr Canaris, by contrast, considers the question properly. After recognizing that there is no current impairment, such that Mr Beasley's condition is in 'full and sustained remission', he acknowledges that 'he is vulnerable to further episodes in response to further trauma exposure'. He then goes on to catalogue the various factors that make this risk manageable. Notably, many of the factors that led to the injury in the first place - all external to Fire + Rescue - are no longer present in Mr Beasley's life. 20. Further, while his previous injury leads him to have a perhaps higher future vulnerability, this must be counterbalanced against the related level of insight which, in Dr Canaris' view, is likely to lead to a better chance of early (ie pre­ injury) detection of deterioration. 21. Mr Beasley in his evidence demonstrates a keen awareness of the steps that could be taken, and articulates a number of steps and practices he will himself employ to minimise his risk. 22. In these circumstances, the Commission could not be satisfied that Mr Beasley is unfit to perform the inherent requirements of his role. Conclusions 23. Fire + Rescue has not made out its case that Mr Beasley is unfit to perform the inherent requirements of its role. 24. It would be surprising if it had. Mr Beasley, on suffering a psychological injury, did everything right: he sought and fully participated in a sustained period of treatment, and made changes to his life. He is in full and sustained remission as a result. He is alert to future risk and taking steps to manage it himself. There is no reason why he should not be permitted to return to work. 25. Fire + Rescue's case to the contrary seems to distill to the proposition that the Work Health and Safety Act 2011 (Cth) requires it to dismiss every firefighter who suffers a psychological injury, because of their increased risk of future injury, without implementing any steps to manage said risk. This is unlikely to be correct. It is also not an approach the Commission should lightly endorse. Determination 1. The proposal by FRNSW to medically discharge Mr Beasley is based entirely on the proposition that he is permanently unfit to perform the ordinary duties of a firefighter as a consequence of him being diagnosed in 2018 by his general practitioner, Dr Kasim, as suffering from Post Traumatic Stress Disorder ("PTSD"). The FBEU has invoked clause 8 of the D and D Award in order to prevent the medical discharge of Mr Beasley from taking place. 2. Pursuant to subclause 8.10, the Commission, as presently constituted, is to determine whether or not Mr Beasley is fit to perform his ordinary duties as a firefighter, with or without any requirements or restrictions (at [2]). A determination that Mr Beasley is fit to perform his ordinary duties as a firefighter will have the effect that the proposed medical discharge of Mr Beasley by FRNSW will not proceed. Any such determination must be made on the basis of the medical evidence before the Commission. 3. In June 2020, Mr Beasley's treating psychologist, Mr Oxley, advised that Mr Beasley commence a six week GRTW with FRNSW "to reintroduce him to the rigours of his substantive role as a Fire Fighter" on the basis that, in Mr Oxley's professional opinion, Mr Beasley "has the capacity to complete all duties as outlined in the 'Firefighter Essential Functions Information Sheet'" (at [6]-[7]). Dr Kasim supported this proposal (at [8]). 4. In July 2020, Mr Anning, Consultant Psychologist, expressed his opinion that Mr Beasley was "fit for work", that he "did not require psychological treatment" but that "he may benefit from a limited number of psychological sessions if and when he recommences work with FRNSW to monitor and evaluate any vulnerability to developing trauma related symptoms" (at [[9]). 5. In January 2021, Consultant Psychiatrist, Dr McClure, expressed the opinion that there was insufficient evidence for a diagnosis of PTSD and that Mr Beasley's symptoms were consistent with "DSM-5 diagnoses of Generalised Anxiety Disorder and a Major Depressive episode" but had "achieved remission" and "no longer meets the DSM-5 diagnostic criteria for any specific psychiatric disorder". Dr McClure stated that "Mr Beasley is fit for work as a retained firefighter 24 hours per week" but that it "cannot be excluded that Mr Beasley may have a recurrence of his condition". However, Dr McClure further stated that treatment "has enhanced Mr Beasley's coping strategies. If he manages the demands on his time, and seeks appropriate support as required, recurrence is unlikely". Dr McClure further stated that Mr Beasley was in the "termination phase of his psychological treatment with Mr Oxley" and did not "require any other psychological or psychiatric treatment. He does not need psychoactive medication" (at [10]). 6. In March 2021, Consultant Psychiatrist, Dr Canaris, stated that Mr Beasley's "current diagnosis would be one of posttraumatic stress disorder with comorbid major depressive disorder in complete remission". Dr Canaris further stated: As far as mental state examination is concerned, there are no features in any way suggestive of current impairment. On this basis alone, Mr Beasley would be entirely fit to work as a firefighter simply because his condition appears to be in full and sustained remission. There is nothing about his current functioning that would place him or others at risk if he worked as a firefighter as he is now. More specifically, there are no issues relating to adverse medication side effects. There is no risk of impulsive behaviour. He is in treatment with a psychologist and states his intention to abide by any advice. There is no substance abuse or other comorbidity. … The emergence of his illness in response to trauma means that he is vulnerable to further episodes in response to future trauma exposure. His level of vulnerability is impossible to quantify but is greater than if he had never been unwell. However, given that he has made a full recovery, that he intends to continue in treatment, and that he appears to have good insight into his earlier condition, it is likely that any deterioration would be detected early. There is potentially risk emanating from shift work. That said, as a retained firefighter Mr Beasley would face a significantly lower burden in relation to this aspect of firefighting. He would also be working considerably shorter hours in firefighting than a full-time firefighter. Additionally, Mr Beasley has the benefit of another career which he is successfully pursuing which gives him a flexibility in employment that would not be readily available to a full-time firefighter. These considerations suggest that Mr Beasley's risk should he be allowed to return to firefighting is eminently manageable. Whether his employer chooses to manage this risk is a separate issue. (at [11]) 1. All of the five health professionals referred to above expressed the opinion that Mr Beasley was fit to perform his ordinary duties as a firefighter, albeit that Mr Oxley recommended a six week GRTW with FRNSW "to reintroduce him to the rigours of his substantive role as a Fire Fighter". None of these health professionals was required by FRNSW for cross-examination in these proceedings. 2. Mr Beasley himself gave compelling evidence, which I accept, as to his capacity to return to his pre-injury duties. He stated: 68. I am confident that my PTSD condition is in remission. I wholeheartedly agree with the conclusions and recommendations in the respective Reports from my treating practitioners, that I am currently fit, able and willing to return to my role as a retained fire fighter. I am in a stable mindset and in strong physical health. 69. I understand that a return to FRNSW will inevitably mean exposure to further traumatic scenarios. I am prepared for this eventuality and am confident I could effectively deal with any such scenario, including with the new strategies I have learned. (at [5]) 1. Against the opinions of these five health professional, who all support Mr Beasley's return to pre-injury firefighter duties, is the opinion of Dr Parmegiani to the contrary on the basis that resumption of Mr Beasley's pre-injury role of retained firefighter would expose him to traumatic incidents and cause a relapse of his psychiatric symptoms (at [13]-[15]). 2. Under cross-examination by counsel for the FBEU, Dr Parmegiani gave the following responses: Q. Dr Parmegiani, I was asking you some questions about PTSD… I'm right to say that PTSD is an injury suffered as a result of exposure to traumatic events? A. That's correct. Q. It can express itself in a range of different symptoms, including, for example, depressed mood? A. Yes. Q. Your understanding is that the fire fighters critical incident stress is an inherent part of their job? A. Yes. Q. If that critical incident stress isn't managed, it has a risk for any fire fighter of leading to a psychological injury; have I got that right? A. Yes. Q. Including PTSD? A. Yes. Q. You'd accept that PTSD is treatable? A. Yes. Q. If it's in, described as being "in remission", that means the person is asymptomatic? A. Yes. Q. It's also manageable, is that right? A. I'm not sure what you mean by "manageable". Q. When I say "treatable", it is possible to entirely cure someone of having PTSD, is that right? A. Well, it is possible to treat so that they present normally. They may remain vulnerable but they appear normally, unless they're re-exposed to whatever caused, or similar events to what caused the PTSD in the first instance. … Q. … Dr Parmegiani, we were talking about the management of PTSD. As I understood your answer to me, effectively it can be treated so the person presents as asymptomatic? A. Yes. Q. And, in theory, a person whose PTSD is in remission it is possible for them to remain asymptomatic for the rest of their life? A. Yes. Q. It is equally possible that they might relapse on exposure to stress? A. Yes. Q. But that itself is manageable in a variety of different ways, do you agree with that? A. I'm not sure what you mean exactly but, yes, if they are exposed to a traumatic event, they can relapse. You can act accordingly or, you know, initiate some treatment if they do relapse. Q. There are strategies that can be put in place to avoid a relapse, even on exposure to stress; would you agree with that? A. Look, I'm not entirely sure what you mean by that because the exposure to the traumatic incident itself is what can really cause the relapse, so either they're not exposed to the incident or they are exposed to the incident. Once they're exposed to the incident, if they develop symptoms, then you can certainly treat them or try to treat them, but you've got to have early detection and systems in place. Q. Yes, but early intervention following traumatic re-exposure can prevent a relapse, is that what you're saying? A. You don't have the intervention unless they develop symptoms. If they are exposed to a traumatic event and they cope okay, it's not indicated for them to undergo psychological treatment if they haven't reacted adversely to that stressor. Q. But if they've had, for example, a minor reaction, early intervention could stop that turning into a full blown relapse, would you accept that? A. Yeah, I would accept that. Q. It's all about the structures and systems that that particular person has in place? A. Yes. Q. But do I understand the crux of your report to be that someone who has, in the past, had a psychological injury, such as PTSD-- A. Yep. Q. --is more likely, not necessarily will but is more likely, on exposure to trauma, to suffer a further injury than if they had never been injured in the first place? A. Yes, that is correct. Q. That's true of anyone who suffers from a psychological injury? A. Well, generally, I mean, if you look at large numbers of people you will find that people who've been exposed, who've had post-traumatic stress disorder, are more vulnerable than the controlled group to PTSD, given a similar stress. Q. But that degree of risk, that degree of additional vulnerability, varies from person to person; you accept that? A. Yes, it may. Q. It's impossible to quantify the percentage likelihood of how-- A. Look, I think it still remains more elevated than the average person but some relapse with minimal trigger and some will relapse with a more significant trigger. But compared to your average person, the man in the street, of average resilience, they're more likely to have an exaggerated psychological response. Q. So my question, Dr Parmegiani, was you can't in fact quantify the degree of that risk to any one individual as a percentage of chance, can you? A. No, it would be difficult to tailor the risk to each individual, not knowing. Because there are other factors too. Not only the individual's psychological makeup, but also what happens, the events leading to the incident, what happens immediately afterwards. There's a whole lot of variables that can play into it. … Q. In terms of coping strategies, there are a number of things that individuals can do to keep themselves mentally fit, you'd agree with that? A. Yes. Q. Diet and exercise is an obvious one? A. That's the most important one, yes. Q. Meditation can help? A. Yes, mediation, abstaining from alcohol. Q. Engaging in self-talk practices? A. I'm not sure about that. Q. Depends upon the individual perhaps? A. Look, I don't agree with you, if you mean self-talk to positive affirmations, no, I think - if you're talking about cognitive behaviour therapy, that's different. Q. Sure? A. That's what a therapist would go through and also teach the person to go through and then that may be what you're referring to. Q. I think it is. So, someone who's learnt cognitive behaviour therapy strategies from therapy-- A. Yes. Q. --that would affect the degree of risk of relapse, you'd accept that? A. Yes, yes. … Q. Let's talk about your opinion of Mr Beasley. You accepted that Mr Beasley's condition at the time you saw him was in full remission? A. Yes. Q. And it had been for some time at that point? A. Yes. Q. He wasn't, at the time, displaying any symptoms? A. No, not that I recall, no. Q. No and he wasn't taking any medication? A. I'd need to check but if that's what it says, I accept that. Q. Your point in determining that he was unfit to work as a fire fighter is that because of his previous injury he had an increased vulnerability? A. Yes. Q. And your assessment of his fitness was solely based on that perceived vulnerability, have I got that right? A. Yes and his history, yes. I mean, that goes to the core of the vulnerability, yes. … A. Well, the vulnerability was raised because he did try to return to work and he had a relapse and that's why it's even more significant than just a one off episode of PTSD. Q. So your understanding was that his symptoms relapsed during his attempt to return to work at NSW Ambulance? A. Yes. Q. And if you're wrong about that, that would change your view? A. No, it would reduce the level of risk if that, indeed, was - if it hadn't happened. Q. I want you to just make an assumption for me. Assume that that didn't happen. Potentially, that would change your view that Mr Beasley was permanently unfit to be a retained fire fighter? A. Well, it would still be a risk, whether he's unfit or not is really a ...(not transcribable)... employment issue. His risk of relapse on exposure to trauma is more significant than in the general population. If he had tried to go back to work once or twice and suffered a relapse upon exposure to stress and the prospect of trauma, then that increases the vulnerability. If that didn't happen, then he's not as vulnerable but, nevertheless, still somewhat vulnerable. Q. So if the return to work failed simply because, for example, Ambulance NSW was unable to facilitate a return to work plan and Mr Beasley chose to leave, your view would be his level of vulnerability was lower than you've expressed in your report? A. Well, it depends what that return to work plan was. If it was exposing him to trauma, which eventually would have happened anyway, as part of his course and he couldn't cope with that, then, you know, his vulnerability to relapse is high. The PTSD hasn't gone away. He thinks it's gone away but it hasn't. Q. So that view is based on your understanding that Mr Beasley returned to work at Ambulance, was exposed to trauma and relapsed; have I understood you correctly? A. He had the prospect of being returned to frontline work earlier than he felt capable of and, therefore, he resigned. That's how I understood it. I may be wrong but it was the prospect of going back to his former pre-injury duties that made him ...(not transcribable - fault in audio visual link)... Q. That's what you based your conclusion on? A. Yes, partly. Q. Okay and you accept that if your understanding was wrong, your view, your ultimate view as to Mr Beasley's fitness, might change? A. I would still think it would be dangerous to expose him to more traumatic events, with his history of PTSD. (T 01/12/21 P 24 L 45 – P 32 L 11) 1. What is apparent from Dr Parmegiani's three reports and his cross-examination is that his opinion that Mr Beasley is unlikely to resume his pre-injury role of retained firefighter is heavily qualified. To some extent at least, this opinion was based on a misapprehension of Mr Beasley's history with NSW Ambulance. 2. In his report of 19 May 2020, Dr Parmegiani stated that Mr Beasley was "unable to return to his pre-injury role as a paramedic, and he resigned in January 2020". Mr Beasley disagreed with this statement in the following terms: My treating practitioners deemed that I did have capacity to return to my pre-injury duties, based on the positive progress l had made in respect of my condition at the time. My return to work was proposed to happen gradually. I resigned as a result of obstruction from NSW Ambulance as they did not facilitate the return as recommended by doctors and were pushing it to be done in shorter amount of time - which was not supported by my GP or Psychologist. (paragraph 5(j) at [19]) 1. Mr Beasley was not challenged on this aspect of his evidence. 2. In his report of 1 September 2020, Dr Parmegiani, in relation to Mr Beasley's attempts to return to work with NSW Ambulance, stated: In summary, Mr Beasley was still suffering psychiatric symptoms when he was attending a graduated return to work program. The prospect of resuming his pre-injury duties within four weeks exacerbated his anxiety, indicating that he did not feel capable of coping with more trauma. (at [14]) 1. Mr Beasley refuted this statement in the following terms: I deny that I experienced increased anxiety during my return to work, that I felt I was not capable of coping with trauma, or that I reported such issues to Dr Parmegiani. What I said to him was words to the effect that I felt like NSW Ambulance were continually trying to rush me back to full-time work against the recommendation of my treating medical practitioners, which made me feel pressured and that exacerbated by frustration and stress. (paragraph 6(b) at [19]) 1. Again, Mr Beasley was not challenged on this aspect of his evidence. 2. Under cross-examination, Dr Parmegiani stated that Mr Beasley's "vulnerability was raised because he did try to return to work and he had a relapse and that's why it's even more significant than just a one off episode of PTSD". The evidence before the Commission does not support this statement (see paragraphs 44-47 at [5]). Pressed by counsel for the FBEU, Dr Parmegiani ultimately conceded "If that didn't happen then he's not as vulnerable but, nevertheless, still somewhat vulnerable". Dr Parmegiani was unable to estimate just how vulnerable Mr Beasley is beyond "somewhat vulnerable". 3. Taken at its highest, Dr Parmegiani's evidence is that Mr Beasley, having been diagnosed with PTSD in 2018, a diagnosis with which Dr McClure does not agree (at [25]), remains more vulnerable to a recurrence of PTSD upon exposure to traumatic incidents than does the general population who have never been diagnosed with PTSD. It is not in dispute that, amongst the population who have not been diagnosed with PTSD, some individuals will be more susceptible to experiencing PTSD, following exposure to traumatic incidents, than will other individuals. Some may well be more at risk than Mr Beasley, despite his previous episode of PTSD. 4. Further, there is no compelling evidence before the Commission to support Mr McNeil's concern that Mr Beasley, if returned to full firefighter's ordinary duties, would pose a risk to others relying on him for their safety (paragraph 8 at [17]). 5. I reject the proposition which underpins Dr Parmegiani's opinion that Mr Beasley is "unlikely to resume his pre-injury role of retained firefighter", which is that any firefighter (and, presumably any other front line workers who are exposed to traumatic incidents such as police, paramedics, nurses and doctors) who has been diagnosed with PTSD, is permanently unfit to perform their ordinary duties and should, effectively, be consigned to the scrap heap. Such a proposition pays no regard to the steps that such firefighter may have taken, such as Mr Beasley took with Mr Oxley, and may be continuing to take, in order to overcome the symptoms of PTSD and to cope with the risk of relapse upon further exposure to traumatic incidents (paragraphs 40-41 at [5]). I am supported in this rejection by the opinions of Mr Oxley, Dr Kasim, Mr Anning, Dr McClure and Dr Canaris. 6. Based on the evidence before the Commission and the submissions made by the parties, I determine, pursuant to clause 8.10 of the D and D Award that Mr Beasley is fit to perform his ordinary duties as a firefighter. In line with Mr Oxley's advice, this should occur following a six week GRTW to reintroduce Mr Beasley to the rigours of his substantive role as a firefighter. The content of the GRTW should be worked out between FRNSW and Mr Beasley and his treating practitioners and the FBEU. I determine this dispute accordingly and so order. John Murphy Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2022