Industrial Relations Commission New South Wales Medium Neutral Citation: Health Secretary in respect of HealthShare NSW v Betts [2023] NSWIRComm 1104 Hearing dates: 8 September 2023 Date of orders: 17 October 2023 Decision date: 17 October 2023 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster Decision: (1) Leave to appeal is granted (2) The appeal is upheld and the decision at first instance is set aside. (3) The application by Rebecca Betts filed on 9 April 2021 pursuant to s 242 of the Workers Compensation Act 1987 (NSW) is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Leave to appeal granted – Appeal upheld – whether appeal raises substantial issues of law – whether utility in granting leave to appeal – requirement of s 241 met by providing a medical certificate stating the employee is fit for the employment sought – no requirement that the medical certificate is a "true statement" of the workers fitness – finding of fitness must be based on medical evidence – no medical evidence to support conclusion the worker was fit – application dismissed Legislation Cited: Industrial Relations Act 1996 (NSW) ss 187, 188, 191 Interpretation Act 1987 (NSW) ss 33, 35 Workers Compensation Act 1987 (NSW) ss 2A, 241, 242, 243, 244, 245, 247, 248 Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 3 Cases Cited: Berry v CCL Secure Pty Ltd (2020) 271 CLR 151 Bull v Attorney General (NSW) (1913) 17 CLR 370 Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355 Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Commissioner of Police v New South Wales Police Force v Zisopoulos (2020) 299 IR 314 Glenn Robson v GWA Group Ltd [2015] NSWIRComm 9 Hillman v NSW Trains [2017] NSWIRComm 1056 Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 House v The King (1936) 55 CLR 499 Jenkins v Secretary of the Ministry of Health on behalf of Nepean Blue Mountains Local Health District [2023] NSWIRComm 1045 Johnson v Williams and Another (2000) 58 ALD 1 Lego Australia Pty ltd and others v Paraggio and Others (1994) 52 FCR 542 MacDonald v Jetstar Airways Pty Ltd [2019] NSWIRComm 1010 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Rodriguez v Telstra Corporation Ltd (2002) 66 ALD 579 Terminals Pty Ltd v NUW, NSW Branch (on behalf of Todd Bell) (2008) 182 IR 258 Category: Principal judgment Parties: Health Secretary (Appellant) R Betts (Respondent) Representation: Counsel: D Fuller (Appellant) A Searle (Respondent) Solicitors: Bartier Perry Lawyers (Appellant) File Number(s): 2023/208313 Publication restriction: Nil Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Jurisdiction: Industrial Relations Commission Citation: Betts v Health Secretary in respect of Health Share [2023] NSWIRComm 1054 Date of Decision: 09 June 2023 Before: Commissioner Muir File Number(s): 2021/103346 DECISION 1. This is an Application for Leave to Appeal and Appeal brought by the Health Secretary in respect of HealthShare NSW ("Health Share") against the decision of Commissioner Muir in Betts v Health Secretary in respect of Health Share [2023] NSWIRComm 1054 ("Decision"). In the Decision, the Commissioner ordered, pursuant to s 243 Workers Compensation Act 1987 ("WC Act"), that Ms Betts be reinstated as a Quality Assurance Business Partner with Health Share. 2. We have decided to uphold the Appeal on the basis that there was no medical evidence to support the finding in the Decision that Ms Betts was fit to return to the role she occupied prior to her dismissal. Background 1. Commissioner Muir set out the factual background to the matter in the Decision at [2]-[16]: "[2] The applicant had worked for Health Share from 2011, and elsewhere within NSW Health since 1998. In 2015, she began to struggle with her job and eventually became completely unable to work. The applicant claimed that her injuries were caused by her work and her claim for workers' compensation was accepted. [3] The applicant's employment was terminated on medical grounds on 17 June 2018. This was based on the opinion of the applicant's treating doctors that the applicant would never sufficiently recover to perform the inherent requirements of her former role. [4] After the termination of her employment at Health Share, the applicant secured a common law damages payment which was premised on her ongoing incapacity for work. [5] In July 2019, the applicant commenced part time work in a clerical capacity at Westmead Hospital. It became clear through the course of the hearing that this was for both economic reasons and because the applicant considered it assisted her recovery from her injury. [6] On 6 March 2020, the applicant wrote to the respondent seeking to be reinstated to her former role as a "Quality Coordinator". The letter set out: 'On 17th June 2018 my employment with HealthShare NSW was terminated as a result of a work related medical injury/illness. Since then, I have made significant progress with my recovery and am hereby requesting immediate reinstatement to my former position as a Quality Coordinator (HSM level 2). You are most likely aware of the provision under Part 8 Section 241 of the Workers Compensation Act 1987 whereby an employer is required to immediately reinstate a terminated worker on production of a medical certificate indicating fitness to resume work. You are also most likely aware of section 243 whereby the Industrial Relations Commission can order reinstatement should the employer fail to comply with section 241. I have enclosed two medical certificates issued by my GP and by my treating psychiatrist as required. I look forward to resuming my role as a Quality Coordinator and to hearing from HealthShare shortly regarding a starting date.' [Emphasis in original] [7] Attached to the letter was a certificate from Dr Richa Rastogi, the applicant's treating psychiatrist, the substance of which was: 'I saw [the applicant] today for a review. She is mentally stable and functioning well. She is working two days and needs to be cognitively challenged and needs stimulation. She is very motivated and her confidence is good. She has recovered from her previous episode and resumed full functioning. I am of the opinion that she is fit to resume her pre-injury role and hours as a quality co-ordinator on a full time basis from medical perspective.' [8] Also attached to the letter was a certificate from Dr Aryan Hakimi, the applicant's general practitioner. This certificate said: '[The applicant] has improved and will be fit to attend her normal duty.' [9] The respondent replied to the applicant on 13 March 2020, the substance of which set out: 'Thank you for your letter dated 6 March 2020 (received by HealthShare NSW on 10 March 2020) regarding your request for reinstatement to your pre-injury position as a Quality Coordinator with HealthShare NSW. Your request and supporting documentation has been reviewed, and at this stage we do not have sufficient evidence to indicate that you are able to resume your pre-injury role with Health Share NSW. HealthShare NSW will now commence to seek additional information to determine if we are able to facilitate your reinstatement. This will include seeking information from your Nominated Treating Doctor, and Treating Psychiatrist and may involve an Independent Medical Assessment. Please provide us with any updated contact details for yourself and your Nominated Treating Doctor and Psychiatrist. HealthShare NSW will keep you updated on the progress of the above, in writing. …' [10] Over the next 12 months the applicant, the respondent and the applicant's treating medical practitioners exchanged a series of correspondence as the respondent sought further details of the applicant's recovery. [11] It quickly became apparent that Dr Hakimi's medical certificate would not be supported with any details. Dr Hakimi's response, when asked to elaborate on her certificate, was: 'I hope you are well. My name is Dr Hakim and I am [the applicant's] GP. I was asked to complete a medical report for my patient so that she can begin full-time work again. Having spoken to [the applicant], I have explained that it is not possible for me to provide a full psychological evaluation for her since I have not been treating [the applicant] for this issue for long enough time. I cannot in a good conscious provide my opinion on whether [the applicant] should return to full-time work because I do not have sufficient information regarding her mental state and capacity. I referred her to Dr Richa Rostogi (her psychiatrist) in December for continuing care. Therefore, the most appropriate person to complete this report would be Dr Rostogi. My understanding is that Dr Rostogi has already completed this report as well which will help determine [the applicant's] capacity for full-time work. I do apologise for any inconvenience this may have caused.' … [14] Dr Rastogi answered a number of specific questions over the 12 month period. Relevantly, she responded: (1) On 6 May 2020, setting out: (a) In answer to a question whether she was confident the applicant was able to resume full time work and meet the demands of her pre-injury role, without sustaining further injury: 'She is stable and functioning well with treatment. She should be given a trial of pre-injury role/duties and provided support'; (b) In answer to a question whether, in her opinion, the applicant's impairment was now completely resolved: 'Yes with current treatment, she has improved. I would not say the impairment has resolved completely. She needs ongoing treatment'; (c) In answer to a question as to how confident she was that a return would not result in an aggravation of the applicant's injury: 'I cannot provide an opinion with guarantee that an aggravation will never occur. Her current symptoms have settled with improvement in functioning and ready for preinjury employment'; and (d) Indicating "Y", presumably for yes, as to the applicant being able to meet each of 16 separate "Capabilities" which the respondent stated were 'necessary to perform the role of a Quality Assurance Business Partner', the role to which the applicant sought reinstatement; (2) In July 2020 setting out: (a) '[The applicant] has secured [illegible] intensive counselling and treatment that has helped build coping skills/resilience. She is aware of her condition and has family support. She has been well for more than 12 months and exposed herself to stressful situations without any relapse hence she is ready to resume her preinjury work'; and (b) 'I am of opinion that she is fit for her preinjury role. She would need retraining with any changes and monthly support meetings with manager to assess progress and communicate issues'; and (3) On 1 December 2020 setting out: (a) [The applicant's] treatment by Dr Rastogi as: '1. Treatment from February 2015 to January 2018 • Inpatient admissions at Northside clinic • Group therapy • 1:1 counselling • [listing medications] 2. February 2018 till March 2020 • [listing medications]' (b) Providing a narrative as follows: '3. She is certified fit to drive without restrictions. She has been driving to Westmead Hospital and is working five days a week. She has driven long distances and all alone. 4. She has been abstinent from alcohol since December 2019 and continues to remain abstinent 5. There are no outside factor out of work that contribute to Ms Betts psychological injury 6. She is working five days a week in administrative role at Westmead in various wards and outpatient clinic. She does client face duties and works in multidisciplinary areas and deals with patients and relatives from diverse grounds. She has handled stress and had no relapses over last 12 months. She has good stress coping and handled difficult positions and situations with no relapses. 7. She has been working in highly stressful work environment and proven to function effectively without relapses. She has handled stressful situations and given she has made full recovery she has resumed premorbid functioning with intensive treatment she had received. She did not report any specific stressful situations in particular in her current work. 8. Given her recovery and her current working progress and working in stressful situations and working full time and good response to therapy over years and juggling different work scenarios and challenging situations in her current work she had a good predicament and relapse is unlikely. She has maintained premorbid functioning for more than 12 months and had no relapses and good insight. She is using adaptive coping skills and demonstrates good resilience. The risk of injury is limited and exacerbation is unlikely based on her 12 month progress. 9. Her ongoing treatment plan is to continue her anti-depressants and mood stabiliser long term for next 12 months and regular reviews with me only as needed 10. I am of the opinion given her current mental state and functioning, she is eligible for pre-injury duties and full time hours. I am confident she has capacity to work in preinjury duties and is very capable for performing all duties as of now. 11. She does not need any further investigations or treatment. she is managing her life independently and not needing regular psychiatric interventions. I only see her every 4-6 months now.' (c) Attaching a patient record for the applicant at Dr Rastogi's practice. [15] On 29 March 2021, the respondent's solicitors wrote to the applicant setting out: 'HealthShare has considered [the applicant's] request for reinstatement and reviewed all of the information provided to date including the report provided by Dr Rastogi in response to HealthShare's request for more information. Based on all of the information available, HealthShare is concerned that [the applicant] is not fit for the inherent requirements of the role and therefore it has decided to decline her request for reinstatement into her former role as a Quality Assurance Business Partner. We understand that [the applicant] is presently working elsewhere. HealthShare has formed this view for a number of reasons including: 1. the medical report of Dr Patrick Morris dated 27 February 2018 which indicated that that [the applicant's] condition had stabilised, her impairment was likely to be permanent and that, due to her injuries, she was unlikely to ever return to pre-injury duties; 2. the fact that [the applicant] was assessed as having a 19% whole person impairment for the permanent injuries that she sustained; 3. the dearth of information in Dr Rastogi's report and attached medical files to explain the treatment undertaken and the factors going to [the applicant's] recovery especially in circumstances where the prevailing medical evidence indicated that her condition had stabilised, she had reached maximum medical improvement and her condition was unlikely to improve with or without treatment; 4. [The applicant's] unsuccessful attempts to return to work on suitable duties at points during July 2016, April 2017, May 2017 and June 2017. In respect of the attempted return to work in April 2017 [the applicant] reported to Dr Morris that she "attempted a retum to work program working 5 hours a day, 2 days per week. She started having a lot of anxiety, developed panic attacks and could not cope. Her depression increased and she described feeling 'useless' and 'afraid'. She lasted two weeks before having to stop work."; and 5. the fact that the requirements of her former role remain fundamentally the same including the requirements for Quality Assurance Business Partners to: (a) liaise with and support a number of hospitals and local health districts; and (b) frequently travel and work between multiple sites and locations across NSW. Should [the applicant] disagree with HealthShare's decision (and continue to seek reinstatement to her former role), HealthShare will require [the applicant] to attend a medical assessment with a suitably qualified Psychiatrist. That Psychiatrist will be asked, in the context of the requirements if the Quality Assurance Business Partner role, to examine [the applicant], the background giving rise to her injuries, and the medical records in order to determine whether she is in fact capable of returning to that role (so as to warrant reinstatement). Otherwise, please advise us … if [the applicant] does not accept Health Share's decision and the referral to a Psychiatrist is required.' [Emphasis in original] [16] On 9 April 2021 the applicant filed an application with the Industrial Relations Commission (Commission) pursuant to s 242 of the WC Act." The legislative scheme 1. Part 8 of the WC Act is titled 'Protection of injured workers from dismissal'. It provides a process for workers who are dismissed as a result of an injury for which they are entitled to receive compensation under the WC Act to seek reinstatement or re-employment with their former employer. Section 241 of the WC Act has been referred to as the "gateway provision". It is in the following terms: 241 Application to employer for reinstatement of dismissed injured worker (1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application. (2) The kind of employment for which the worker applies for reinstatement cannot be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury. (3) The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement. 1. Section 242(1) provides that if an employer does not "immediately" reinstate the worker, the worker may apply to the Commission for a reinstatement order. If the application to the employer is made more than two years after the worker was dismissed, the Commission cannot make a reinstatement order except in "special circumstances": s 242(3). 2. The Commission can only make an order that an employer reinstate a worker if the Commission is satisfied that the worker is fit for the relevant kind of employment they have applied for: s 243(2). However, the Commission's decision to reinstate the worker is discretionary. The Commission is also reposed with a discretion to make an order that the employer pay to the worker an amount that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated by the Commission: s 243(4). 3. The stated objectives of the WC Act relevantly include at s 3 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the "1998 Act") [1] : 3 System objectives The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives— (a) to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury, (b) to provide— • prompt treatment of injuries, and • effective and proactive management of injuries, and • necessary medical and vocational rehabilitation following injuries, in order to assist injured workers and to promote their return to work as soon as possible, … (d) to be fair, affordable, and financially viable, …. (f) to deliver the above objectives efficiently and effectively. The Decision 1. The Decision arose from an application pursuant to s 242 of the WC Act filed on 9 April 2021 ("Application"). The Application asserted that Ms Betts had provided sufficient medical evidence for her immediate reinstatement. Commissioner Muir provided the factual background to the dispute, which is quoted in this decision above at [3] and summarised the legislative framework at [17]-[18] of the Decision. 2. Commissioner Muir detailed that the parties agreed that Ms Betts was an injured worker as described in s 241(1) and that she had applied to be reinstated on 6 March 2020 for a position that accorded with s 241(2): Decision at [19]-[22]. 3. In the Decision at [35], the Commissioner summarised the issues between the parties as: (1) Has the applicant satisfied the gateway in s 241(3); (2) Is the applicant currently fit for employment of the kind for which she has applied to be reinstated (the Employment); (3) Assuming she is relevantly fit for the Employment, should the Commission exercise its discretion to reinstate the applicant; and (4) If the Commission orders reinstatement, what if any order should be made in relation to remuneration for the period since 6 March 2020. 1. The Commissioner then considered Ms Betts' submissions on the operation of the s 243(3) gateway. He held that the general practitioner's certificate that attested Ms Betts "would be fit to resume her normal duty" was likely insufficient to pass the gateway, even had it not been essentially withdrawn. The Commissioner analysed the certification from Ms Betts' psychiatrist Dr Richa Rastogi. The Commissioner held that Dr Rastogi's medical certificate did meet the requirement in s 243(3) despite some level of equivocation by Dr Rastogi: Decision at [36]-[47], [50]. The Commissioner stated the following in respect to comments by Dr Rastogi to the effect that the applicant had not made a complete recovery: "[46] However, these are no more than a reasonable medical view that, in balancing the level of the applicant's recovery against the capacity of the applicant to perform the functions of the Employment, Dr Rastogi's opinion was that the applicant's recovery was sufficient for her to perform the Employment. That Dr Rastogi could not guarantee that there would never be a relapse, that she opined that the applicant required ongoing treatment, and that the applicant had not completely recovered does not change the substance of Dr Rastogi certifying that the applicant was fit for the Employment. [47] Any contrary view of Dr Rastogi's opinion is unreasonably negative. It is also contrary to the beneficial intention of Part 8 of the WC Act. [48] I am reinforced that this is the correct outcome by what I consider is a proper reading of the decision of Walton P in Glenn Robson in the passages cited by Mr Mattson. As His Honour sets out, even the production of the clearest and most optimistic of medical certificates would be '… by no means conclusive of the application brought and, in particular the resolution of whether the injured worker is fit for the purposes of s 242(2) and (3)'." 1. The Commissioner held that Dr Rastogi's certificate was sufficient to pass through "the gateway" requirement of s 241(3). This was despite his finding that the applicant was not fit for employment at the time she applied to the employer for reinstatement: at [44] and [56]-[57]. 2. The Commissioner then considered the case law and evidence on Ms Betts' fitness to work: Decision at [53]-[55]. Ms Betts had not been fit to work at the time of Dr Rastogi's report, which incorrectly stated that Ms Betts had been abstinent from alcohol for some months. He accepted the applicant's evidence that she had been abstinent in for 18 months prior to the hearing, which was "not seriously challenged by the respondent": Decision at [68]. The Commissioner accepted Ms Betts had reached a state of sustained remission, as defined by Dr Glen Smith, the expert whose evidence Health Share relied upon: Decision at [79]. 3. The Commissioner turned to Dr Smith's report and oral evidence: Decision at [60]-[65], [68]-[80]. The Commissioner considered Dr Smith's opinion that it is advisable to be sceptical of the reports of a patient with an alcohol use disorder, but stated that he approached Ms Betts' evidence, not with the scepticism appropriate of a medical professional, but in a way that more closely aligned with the rules of evidence: Decision at [69]. The Commissioner extracted and analysed five sections of Dr Smith's cross examination. Commenting on one portion of the cross-examination, the Commissioner stated: "[77] The significance of the fifth and final part of the cross examination extracted above is that it reinforces the conclusion I have come to above at [72], that the substance of the challenge made by the respondent to the applicant's fitness for the Employment is about her dependence on alcohol. I have concluded, based on her evidence, and that of Dr Smith, this disorder is not likely to prevent her being fit for the Employment. [78] I accept and adopt the submission of the applicant that the mere risk of a relapse does not amount to a sufficient challenge to the fitness of the applicant for the Employment. Both Dr Rastogi and Dr Smith were clear that there is of course always a risk of a relapse. Dr Smith's evidence was that a person who has been diagnosed with a major depressive disorder, or an alcohol use disorder, can never be considered cured in an absolute sense. They can only reach a state of remission which might be early or sustained, with perhaps a very low risk of relapse after a period of five years." 1. The Commissioner complimented the applicant on the way she ran her case as follows: "[65] The applicant cross-examined Dr Smith at length. Before setting out the important parts of that cross examination, I consider it is important to observe that the applicant's cross examination of Dr Smith was meticulously organised, well directed to the case which she advanced, and professionally delivered. This will become relevant, as I set out below, in relation to the exercise of the Commission's discretion and, and prior to that in support of the finding I make that the applicant is fit to resume the Employment. …. [80] I am reinforced in the view that the applicant is fit for the Employment because of the way she conducted her case before the Commission. In particular I was impressed by the way in which she conducted her cross examination of the witnesses, and in particular the respondent'[s] expert witness, Dr Smith. It was apparent that representing herself in this matter before the Commission was a stressful undertaking. The applicant remained organised, relevant to the case she was putting, and indeed presented her case to a standard which professional advocates regularly appearing before the Commission should be pleased to reach." 1. The Commissioner made the following comments regarding onus of proof in the exercise of the discretion pursuant to s 243: "[83] It was implicit, rather than express, in the submissions of the applicant that, once she established that she was fit for the Employment, it was presumed by Part 8 of the WC Act that she should be reinstated. The respondent did not concede that Part 8 proceeds on such a basis. [84] Given the remedial nature of Part 8 of the WC Act, I consider that the onus in relation to the exercise of the Commission's discretion, once it has been found a worker is fit for the Employment, should rest on the employer. That is, generally having reached this point the Commission would exercise the powers under s 243 to reinstate the worker, unless there appears to be a good reason why the Commission should not. [85] In this case, the applicant has determinedly pursued reinstatement, expressing to the Commission her desire for that reinstatement, both because she believes it will assist her rehabilitation, and because she finds meaning and personal satisfaction from the Employment. To the extent that any onus fell on the applicant, these should be sufficient reasons for the Commission to exercise its discretion in the applicant's favour, subject to consideration of any submissions by the employer. … [88] In the Outline the respondent submitted that: 'Even if the Commission felt the Applicant was fit, or capable of performing the role, as a matter of discretion it would not risk re-instatement and future serious and debilitating taking illness for the Applicant. The risk of future serious injury is real and not fanciful and demonstrative from the recent history.' [89] I consider that, although on its face, the respondent's submission could be seen as merely repeating the question of the applicant's fitness, ultimately it is subtly different and appropriate to be made as to the Commission's discretion. Nevertheless, following the analysis above at [77] to [79] as to the applicant's fitness, I consider it follows that the material before the Commission would not warrant the Commission refusing to exercise discretion on this basis. Based on that analysis, the risk of re-injury is at a level where it clearly does not outweigh the beneficial and remedial intention of Part 8 of the WC Act." 1. The Commissioner did not make an order for lost remuneration or "backpay" pursuant to s 243(4): Decision at [90]-[99]. The Appeal 1. Health Share's Application for Leave to Appeal and Appeal included the following reasons why leave to appeal should be granted: 1 The questions of law set out below are of general importance in relation to the operation of Part 8 of the Workers Compensation Act 1987 (Act), which have significant consequences for the rights and obligations of employers and employees in the context of workplace injuries. 2 Those questions of law arose in another recent case: Jenkins v Secretary of the Ministry of Health on behalf of Nepean Blue Mountains Local Health District [2023] NSWIRComm 1045 at [23]-[26], [155]-[159], [162]. The Commissioner's analysis of those issues in this case is different from (in the case of the first question), or in tension with (in the case of the second and third questions), the analysis of the same issues in Jenkins. This appeal provides an opportunity for the Full Bench to clarify the law on these issues. 3 The other grounds of appeal bear upon the application of the requirements in Part 8 of the Act to the circumstances of the Respondent in this case. A determination of these grounds will provide guidance to other employers and employees as to the proper approach to Part 8, because they raise issues with application beyond the particular facts of this case. 4 Given the object of the Workplace Injury Management and Workers Compensation Act 1998 (which encompasses the Act) to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury (s 3(a)), it is not in the public interest for an employer to be ordered to reinstate a worker on the ground that they are fit for the relevant employment, in circumstances where there have been errors in determining whether they were actually fit and in exercising the discretion to reinstate 1. Health Share stated the following questions of law: 1 Do the words 'a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the employer applies for reinstatement' in section 241(3) of the Act include a certificate given in circumstances where: a. the worker was not, in fact, fit for employment of the kind for which the employee applied for reinstatement at the time of the certificate being given; or b. the certificate was based on a factual foundation that was incorrect at the time of the certificate being given [ground 1]? 2 Is it necessary, in order for the Commission to be satisfied that a worker is 'fit for .. employment' within the meaning of section 243(2) of the Act, for there to be medical evidence that the worker was fit for the relevant employment at the time of the hearing [ground 4]? 3 Does Part 8 of the Act contain a presumption that a worker should be reinstated once the Commission is satisfied that the worker is fit for employment, and place an onus on the employer to establish the contrary [ground 6]? 1. Health Share listed the grounds of appeal as follows: Ground relating to the 'gateway' 1 The Commissioner erred in construing the words 'a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the employer applies for reinstatement' in section 241(3) of the Act as including a certificate given in circumstances where: a. the Respondent was not, in fact, fit for employment of the kind for which the employer applied for reinstatement at the time of the certificate being given (as the Commissioner found at [44] and [57]); b. further or alternatively, the certificate was based on a factual foundation that was incorrect at the time of the certificate being given (as the Commissioner found at [57]). 2 The Commissioner took into account an irrelevant consideration, being 'the beneficial intention of Part 8 of the [Act]', in determining the certificate given met the requirements of section 241(3) of the Act (at [47]). Grounds relating to fitness for employment 3 The Commissioner acted upon a wrong principle by asking himself whether the Respondent's 'disorder is not likely to prevent her being fit for' the relevant employment (at [77]), when section 243(2) of the Act required the Commissioner to be positively satisfied that the Respondent was fit for the relevant employment. 4 The Commissioner erred in forming a satisfaction that the Respondent was 'fit for ... employment' for the purposes of section 243(2) of the Act on the basis of: a. no medical evidence that the Respondent was fit for the relevant employment at the time of the hearing; b. further or alternatively, his own observations of how the Respondent conducted her case during the hearing (at [65] and [80]). 5 The Commissioner denied the Appellant procedural fairness by relying on his own observations of how the Respondent conducted her case during the hearing to support his satisfaction that the Respondent was fit for employment (at [65] and [80]), without giving the Appellant an opportunity to address that matter. Grounds relating to discretion 6 The Commissioner erred in construing Part 8 of the Act as containing a presumption that a worker should be reinstated once the Commission is satisfied that the worker is fit for employment, and placing an onus on the employer to establish the contrary (at [83]-[84]). 7 The Commissioner placed a fetter on his discretion under section 243(2) of the Act, and failed to give genuine and realistic consideration to the evidence and submissions of the Appellant in exercising his discretion, including by: a. failing to consider the evidence of Miralynn (Fifi) Spechler as to the Respondent's performance before she became unfit (at [101]-[112]); b. disregarding Ms Spechler's evidence as to circumstances occurring in the workplace when the Respondent was unfit (at [102]-[104]), which were relevant to the exercise of discretion; c. failing to consider any of the evidence of Monica Sastre as to the Respondent's performance in her most recent position in circumstances where Ms Sastre resiled from only one aspect of her statement in cross­ examination (at [113]-[117]); and d. failing to consider the circumstance that the Respondent was not fit for the relevant employment at the time of applying for reinstatement. 1. On 4 August 2023, Health Share filed a Narrative on Leave to Appeal, and an Outline of Submission on the Appeal (AS). 2. On 18 August 2023, Ms Betts filed a Narrative on Leave to Appeal, and an Outline of Submission on the Appeal (RS). 3. On 4 September 2023, Health Share filed Reply Submissions (ASR). 4. The matter was listed for hearing before the Full Bench on 8 September 2023. The law applying to appeals 1. The principles applying to appeals are well settled. Section 188 of the Industrial Relations Act 1996 (NSW) ("IR Act") provides that an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. 2. In Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 at [5] it was stated: The law and practice governing leave to appeal is well settled and does not require restatement. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted and, subject to the requirements of s 188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence. [citations omitted] 1. If leave to appeal is granted, an appeal to a Full Bench is not by way of a new hearing: IR Act s 191(1). The Full Bench cannot merely substitute its decision on the matter but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received: IR Act s 191(3). 2. We have decided it is appropriate to grant leave to appeal. We consider the appeal raises important issues relating to the jurisprudence of the Commission when determining proceedings commenced pursuant to s 242 of the WC Act. In particular, the appeal raises an issue of interpretation in respect of s 241(3). Further, the appeal raises the issue of the evidentiary basis upon which the Commission can make a finding of fitness in respect of a worker. Grounds relating to the 'gateway' (Grounds 1 and 2) 1. The first two grounds of appeal are referred to as the "gateway" arguments. The requirement to produce a medical certificate in s 241(3) is described as a gateway because it is necessary in order to enliven the jurisdiction of the Commission under Pt 8 of the WC Act. If the worker meets the requirements of s 241, including the provision of a certificate by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement, and the employer does not reinstate the worker immediately, the worker may apply to this Commission for a reinstatement order: s 242 (1). 2. The Commissioner concluded that Dr Rastogi's certificate had met the requirements of the gateway: see above at [18]. In deciding this issue, Commissioner Muir considered not only the report of Dr Rastogi, but also her subsequent answer to the inquiries made of her by Ms Betts: [50]; [45]-[46]. 3. Commissioner Muir decided that in determining whether Ms Betts had passed through the gateway and met the requirements of s 241(3), it was not relevant that Ms Betts was not actually fit for employment as at the date of the certificate, because the assessment of Dr Rastogi was based on a false premise that Ms Betts had been abstinent from the consumption for alcohol for some time: Decision at [57]. Health Share's submissions 1. Health Share argued that there were two errors in the approach taken by Commissioner Muir in respect of his evaluation of whether Ms Betts had passed the gateway. 2. The first ground was that Ms Betts had not produced a certificate meeting the requirements of s 241(3) because, as the Commissioner found, the factual premises of Dr Rastogi's opinion were incorrect and not reflective of Ms Betts' state of fitness. Health Share argued that given Commissioner Muir's findings that Dr Rastogi's opinion was based on a false premise that Ms Betts had not relapsed in the preceding 12 months, the Full Bench should find that Commissioner Muir erred in finding that the certificate produced by Ms Betts was effective and valid for the purposes of s 241(3). 3. The effect of Health Share's submission in respect of the gateway argument is summarised at [35] of AS: "The proper construction of s 241(3) is that there is no 'certificate ... to the effect that the worker is fit' for the relevant kind of employment unless, as a matter of substance, it is an attestation to or assurance of the worker's fitness. A certificate is not to be regarded as an attestation to or assurance of fitness as a matter of substance if it is apparent that the medical opinion forming the basis of the certificate is premised upon an incorrect factual foundation, or is otherwise affected by an error that is material to the formation of the opinion. In those circumstances, in effect, the purported certificate is vitiated by the error - for the purposes of s 241(3), it is, as a matter of substance, no 'certificate' of fitness at all. The same would be true of a purported certificate shown to be founded on an opinion that is so ambiguous or contradictory that it cannot be regarded as, in substance, attesting to or assuring the worker's fitness." 1. In support of this construction, the appellant argued that this interpretation is consistent with the ordinary meaning of "certify", which is "to guarantee as certain or attest in an authoritative manner, or to give reliable information of or endorse reliably": see [36] of AS. Further, it was argued that a construction elevating form over substance would not be consistent with the purpose of the "gateway" in s 241(3), which is to provide a reliable medical foundation upon which the employer can reinstate the worker. 2. Health Share referred to the objective of the legislative scheme relating to injured workers, namely, to assist in securing the health, safety and welfare of workers and in particular, preventing work-related injury: 1998 Act s 3. It submitted that that objective would be undermined if a worker could seek reinstatement based on a certificate which, because of errors in its factual premises, was not reliable evidence of the worker's fitness. Health Share submitted that it is important that the certificate be a reliable basis for the employer to reinstate because it is the contemplated purpose of s 242 that the employer will reinstate the employee 'immediately' on the sole evidence of the medical certificate: s 242(1). However, Health Share conceded that there is no associated offence provision, and that the only consequence for not immediately reinstating the worker is that the worker may seek a reinstatement order in the Commission. 3. Health Share argued that Commissioner Muir's construction would circumvent the scheme of legislation in prescribing the two-year period within which the application must be made before requiring that special circumstances are demonstrated: s 242(3). 4. Health Share relied upon the description of the requirement in the historical legislative materials as being one of providing "medical evidence of fitness for employment"… and demonstrating that the employee "is fit" to return to employment. Health Share sought to draw an analogy with "the historical approach" taken to ambiguous certificates given by a medical referee under workers compensation legislation. 5. Health Share argued that the construction it advanced was analogous to principles in other areas of the law: [37] of AS. Health Share did not base their argument on the report of Dr Rastogi being a fraud or the product of wilful dishonesty. Rather, Health Share submitted that the Commission should conduct an inquiry akin to judicial review of the certificate on the grounds that the doctor's evaluation of fitness was based on false or misleading information (AS at [39a]). Thus, Dr Rastogi's report should be set aside in analogous circumstances to when an administrative decision maker's decision is set aside. 6. Health Share argued that it was permissible to look to material extrinsic to the certificate in assessing whether it was, in substance, a certification of fitness. For example, Health Share argued that if a medical examiner were to later disavow the purported certificate or clarify ambiguities that made it clear that they did not certify fitness, then their medical opinion should be taken on the entirety of their evidence rather than on the first certificate in isolation. Health Share's submission was that this enquiry should be limited to the factual foundation for the original certificate. It was put that this would not require a more detailed certificate or require that all subsequent medical certificates from the same practitioner display no inconsistencies. Nor would it permit the employer to nullify one medical practitioner's opinion by seeking out a second opinion. However, where subsequent documents clarify that the factual basis for the opinion was so limited that the certificate does not in substance certify fitness for employment at the time that it was issued, it should be regarded as insufficient to pass the gateway. 7. The second argument advanced by Health Share was that the Commissioner fell into error when he referred to the "beneficial intention" of Pt 8 of the WC Act to support his conclusion that Dr Rastogi had given a certificate meeting the requirements of s 241(3). Health Share argued that the principle that beneficial provisions should be construed liberally is a principle of statutory construction, having no application to the factual determination of whether a medical practitioner has given a certificate for the purposes of s 241(3). Ms Betts' submissions 1. Ms Betts argued that there is no evidence suggesting that Dr Rastogi's report was anything other than her honest and reasonable medical opinion, unambiguous in its terms, and based upon the information she had in making it. She submitted that this is all the legislation requires for the requirement of s 241(3) to be met. 2. Ms Betts referred to Glenn Robson v GWA Group Ltd [2015] NSWIRComm 9 (Robson) at [39]-[51], where the Commissioner considered the evidentiary basis upon which the Commission may reinstate an injured worker, stating at [45]: "Thus, it is clear the determination as to fitness for employment 'must necessarily be made on the basis of medical evidence' (Cansino at 13(16)), although such evidence is not restricted to that provided to the employer in the original request for reinstatement (see Bell at [29]). Further, the Commission may determine fitness on the basis of documentary medical evidence alone (see Lawson at [24])." 1. Ms Betts submitted that an ordinary and non-technical approach has traditionally been taken to the question of whether a certificate required by s 241(3) has been given by a medical practitioner, arguing support can be found for this approach in Terminals Pty Ltd v NUW, NSW Branch (on behalf of Todd Bell) (2008) 182 IR 258 (Bell) and Robson. 2. Ms Betts argued that her construction of s 241(1) is consistent with the objects of the WC Act. Against Health Share's submissions, Ms Betts argued that the scheme operates to enable the employer to seek further information from a worker's doctor or rely upon its own medical evidence if there is any doubt as to fitness: [28] of RS. On this, Ms Betts submitted that Health Share's concerns that workers might not be fully frank in seeking a medical certificate is misplaced because they would be "found out" in any proceeding before this Commission: [29] of RS. 3. Ms Betts submitted that Health Share's attempts to rely upon analogous legislation is misconceived. It was put that the certificate relied upon was not ambiguous, there was no allegation or fraud or misrepresentation by Ms Betts or Dr Rastogi and reliance could not be placed on other areas of law to support the interpretation advanced because the circumstances were not analogous to the matter before the Commission. 4. Ms Betts submitted that the task of the Commission is to determine whether an applicant worker is fit for the relevant employment applied for at the time the matter is heard and determined. She argued that there is no requirement for the Commission to identify and examine the matters that formed the basis of the opinion expressed in the certificate to determine whether, in substance, it attests to, assures, or reliably endorses the worker's fitness. 5. Finally, Ms Betts argued Commission Muir was entitled to rely upon the beneficial nature of Pt 8 of the WC Act as it "is highly relevant" in its determination of whether the material provided by Dr Rastogi satisfied the requirements of s 241(3) of the WC Act. 6. Ms Betts summarised her response to the gateway argument at [34] of RS: "The construction advanced by the Appellant is highly artificial and is contrary to or inconsistent with the purpose and object of the legislation in that it requires the medical evidence supplied to the employer to be in all respects infallible. In workers' compensation proceedings more generally, differing medical evidence is relied upon by contending parties and a tribunal must decide which is preferable. This is the case in proceedings of the current kind. It should also be borne in mind that it has been recognised that while the provision of the certificate is the gateway, the application to this Commission is not necessarily the same as the application to the employer, which is why these matters are determined on the evidence before the Commission at hearing and not only what was provided to the employer at the time of that application." Consideration of the gateway arguments 1. The determination of the gateway arguments is in effect a question of statutory construction. The principles of statutory construction are well settled. 2. The process begins with a textual analysis of the words of the relevant provision being interpreted – that is, a consideration of the ordinary and grammatical meaning of the words of the text. However, that initial step may involve the construction of the words of a provision in question when read in the context of the statute as a whole: Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at [26] and [88]. 3. The determination of the purpose of a statute or a particular statutory provision may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, if appropriate, reference to extrinsic materials. Section 35 of the Interpretation Act 1987 (NSW) authorises the use of extrinsic material, such as explanatory memoranda and second reading speeches, in circumstances where it is necessary to confirm that the meaning of the provision is the ordinary meaning conveyed by its text. 4. Ordinarily, the legal meaning of a particular provision in a statute will correspond with the grammatical meaning, but this is not always so: Certain Lloyd's Underwriters v Cross at [25]. The interpretation best open on the text which achieves the purpose or object of the statute is to be preferred to each other interpretation (even if the purpose or object is not expressly stated in the text). This well settled approach to statutory construction, that it is the purpose of the legislation which must be identified and promoted when interpreting the operation of a statute, is reflected in s 33 of the Interpretation Act. 5. The goal in interpreting a statute is to give effect to the intention of the Parliament. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 the High Court observed (at p 408) that the modern approach to statutory interpretation: 1. insists that the "context" be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise; and 2. uses "context" in its widest sense to include such things as the existing state of the law and the mischief which one may discern the statute was intended to remedy. 1. In the context of the provisions in the WC Act relating to the reinstatement of injured workers, the principles of beneficial legislative interpretation apply: Bull v Attorney General (NSW) (1913) 17 CLR 370. 2. An analysis of the legislation starts with a consideration of the words of the legislation itself, read in context. The purpose of Pt 8 is imminently clear from its terms and s 3 of the 1998 Act. Part 8 is part of a broad scheme, framed through statute, designed to protect workers from injury in the workplace, and support their rehabilitation and return to work when they are injured. 3. The plain words of s 241(3) do nothing more than require the worker to produce a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement. Health Share argued that the task of the Commission in respect of a certificate provided by a worker when making an application for reinstatement is to "identify and evaluate the matters that formed the basis of the opinion expressed in the certificate to determine whether in substance it attests to, assures or reliably endorse the worker's fitness". Health Share argued that there has been no certificate as required by s 241(3) provided to the employer unless, as a matter of substance, it is "an attestation to or assurance of the worker's fitness": [35] of AS. 4. We agree with Health Share that in circumstances of fraud, the requirements of s 241(3) will not have been met because in effect, there is no certificate of fitness. As we already observed, there was no allegation that the production of the relevant certificate by Ms Betts or Dr Rastogi involved any fraud by either of them. We also agree with Health Share that it may be that a certificate is so ambiguous or contradictory that it does not in fact certify that the employee is fit for the position for which they have applied. However, we do not agree the requirements of the gateway are not met when the medical opinion is based upon an incorrect factual foundation, even where it can be argued that this has made the opinion unreliable. 5. Had the legislature required that the certificate be a "true statement" of the worker's fitness, it could have made this plain. In our view, the gateway provision requiring the production of the certificate is designed to support the worker's application for reinstatement. Once the certificate is provided, the scheme of Pt 8 enables the fitness of the worker to be interrogated and challenged. The gateway does not slam shut because the certificate provided by the worker in applying for reinstatement was not reliable or ineffectual for whatever reason. 6. We are not persuaded by Health Share's submissions that the objects of the legislation would be undermined if a worker was able to provide an unreliable certificate of fitness to "open the gateway". It is reasonable to expect that an employer would make enquiries with respect a worker's fitness to return to work if they had any concern with respect to the reliability of the certificate provided by a worker. Further, although an employee may have produced an unreliable certificate (as occurred here), if the reinstatement is contested, it would be open for the Commission to take into account the passage of time since the worker was dismissed in deciding whether to make any order for reinstatement sought. 7. In support of its interpretation, Health Share referred to principles in other areas of law which it described as analogous. It was argued that in administrative law, a "fraud" committed on the decision-maker may invalidate the decision made. At the hearing, counsel for Health Share expanded on this argument, stating that this concept of "fraud" in administrative law is wide, encompassing not only the provision of false and misleading information to a decision-maker, but also the omission of facts disabling a decision-maker from making a proper assessment. 8. Mr Fuller referred the Full Bench to the decision in Johnson v Williams and Another (2000) 58 ALD 1 (Johnson) and Lego Australia Pty ltd and others v Paraggio and Others (1994) 52 FCR 542 (Lego) to advance this proposition. Both of these matters involved arguments to set aside important decisions, where the Federal Court had jurisdiction to consider whether they were made properly in accordance with administrative law principles. Health Share also referred to concepts in contract law where some misrepresentations of fact and unilateral mistakes are factors that may result in the rescission of a contract. Again, we have not found these analogies relevant to our interpretation of s 241(3). 9. We have not found the decisions in Johnson and Lego helpful in determining this matter. In short, we do not think it is appropriate to apply administrative review and or contract law principles to find that if a certificate of fitness is formulated on a false premise, the Commission should find that no certificate of fitness has in fact been provided by the worker to the employer in accordance with s 241(3). These cases referred to by Health Share are derived from different areas of the law and statutory contexts. Our task is to interpret s 241(3) within the context in which it appears in the legislation, with reference to the objective of the statutory scheme. We are of the view that our interpretation is consistent with the objects and scheme of the WC Act, particularly given the employer is not required to accept the certificate of fitness as the only evidence of the worker's capacities. Indeed, the employer is obliged to satisfy itself of the fitness of the worker to perform the duties of any role the worker is reinstated into. 10. Section 241(3) needs to be read in context of the other provisions within Pt 8 of the WC Act. Section 241 provides a process by which a worker may "apply" for reinstatement with the employer. The legislation places no obligation upon the employer to reinstate the worker "immediately" upon such application. However, the application having been made and the requirement of s 241 having been met, the worker may at any time commence proceedings seeking reinstatement in the Commission by operation of s 242 of the WC Act. 11. The evident purpose of s 241 of the WC Act is to provide a process by which the worker may "apply" to be reinstated by their former employer. There is no guarantee an employer will reinstate a worker upon application. Upon making an application for reinstatement pursuant to s 241, it may be that the employer is satisfied of the worker's fitness and the worker is reinstated. The employer may have concerns with respect to the worker's fitness and whether they are able to meet their statutory obligations to provide a safe work environment if they are reinstated. The employer may seek to address these concerns directly with the worker, or their treating physicians, or arrange for the worker to attend an independent medical expert. Indeed, in practice, it is often the case that the employer has engaged with the worker and their application for reinstatement in this way before the worker, having reached an impasse with their employer, makes application to this Commission for reinstatement. It may be that the employer does not contest the fitness of the employee at all but resists the application by the worker on some unrelated basis. 12. The Commission is not able to reinstate a worker unless it is established that the worker is fit for the employment to which they seek to be reinstated. The Commission is required to determine the fitness of the worker, at the time the relevant orders are made. The reliability of the certificate provided by the worker pursuant to s 241(3) may be considered in the context of this decision if relied upon by the worker in the proceedings. The worker may rely upon other evidence of their fitness, for example, evidence led in reply to the employer's medical evidence. For these reasons, we reject Health Share's first ground of appeal. 13. The second aspect of the appellant's gateway argument was that the Commissioner fell into error when he referred to the 'beneficial intention' of Pt 8 of the WC Act to support his conclusion that Dr Rastogi had given a certificate meeting the requirements of s 241(3): see above at [18]. 14. We agree with Health Share that the principle that beneficial provisions should be construed liberally is relevant to statutory construction. It does not inform how the Commission should approach factual determinations. However, in our view, on a fair reading of the Decision, Commissioner Muir was referring to the requirement of s 241(3). In any case, it is abundantly clear that the Commissioner would still have found that the requirement of s 241(3) was met through the evidence of Dr Rastogi. The Commissioner's reference to the principle of beneficial legislation was directed at reinforcing his conclusion, rather than informing it. Grounds relating to fitness for employment (Grounds 3 to 5) 1. These grounds of appeal relate to the manner in which, and the standard to which the Commissioner formed a satisfaction that Ms Betts was fit for the relevant kind of employment for the purposes of s 243(2) of the WC Act as at the time of the hearing. In summary, Health Share argued that the Commissioner misapplied the onus of proof, formed an opinion of Ms Betts' fitness without medical evidence to support his conclusion and denied Health Share procedural fairness by relying upon her capacity to conduct the proceedings to form his opinion. The submissions 1. Ground 3 of the appeal is that Commissioner Muir acted upon a wrong principle by asking himself whether Ms Betts' 'disorder is not likely to prevent her being fit for' the relevant employment at [77] of the Decision. This approach was also said to be reflected in his acceptance of Health Share's submission that a mere risk of a relapse 'does not amount to a sufficient challenge to the fitness of the applicant for the Employment' at [78]. 2. Health Share argued that the Commissioner's approach inverted the proper inquiry and had the effect of placing the onus on Health Share to prove that Ms Betts was not fit for the relevant employment, or at least removed the onus from Ms Betts to prove she was so fit. Health Share argued that this approach is inconsistent with authority and in particular the decision of the Court of Appeal in Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350 (Bindaree Beef) at p 365 where it was stated that 'it remains necessary for the worker to satisfy the Commission as to fitness under s 243(2)'. Health Share also referred to a recent decision in the Commission where this approach was adopted by Commissioner McDonald in Jenkins v Secretary of the Ministry of Health on behalf of Nepean Blue Mountains Local Health District [2023] NSWIRComm 1045 (Jenkins). Health Share submitted that the manner in which the Commissioner approached the inquiry built in a presumptive position that Ms Betts was fit for the Employment [2] . From this position, the Commissioner inquired whether, she was not fit by reason of her Alcohol Use Disorder. 3. Ms Betts referred to Robson at [46]-[51] where consideration was given to the meaning of "satisfied" in s 243(2). With respect to the issue of onus, Ms Betts submitted there is a distinction to be drawn between the legal onus on an applicant to prove a case, and the evidentiary onus. It was submitted that the evidentiary onus can shift during the course of a hearing. In support of this, Ms Betts referred the Commission to the decisions in Berry v CCL Secure Pty Ltd (2020) 271 CLR 151 (Berry) at [29], [39], [42], [66]; and Commissioner of Police v New South Wales Police Force v Zisopoulos (2020) 299 IR 314 (Zisopoulos) at [68]-[70], [90]: Tcpt, 8 September 2023, pp 43-44. 4. Ms Betts argued that Commissioner Muir had already reached an affirmative satisfaction that she was fit for the Employment, before embarking upon an analysis of whether the Alcohol Disuse Order was likely to prevent her being fit for employment commencing at [77] of the Decision. It was argued that from this point forward, the Commissioner was analysing the case against Ms Betts being reinstated, consistent with shifting onus discussed in Berry and Zisopoulos: Tcpt, 8 September 2023 at p 42 (34) - p 43 (20). 5. Ms Betts argued that properly understood, the Commissioner evaluated all of the evidence to conclude that he was satisfied she was fit for the Employment, thereby discharging the onus on the applicant. She argued that it was open to the Commissioner to accept her evidence that she had been abstinent from the consumption of alcohol for 18 months, a finding not challenged in the appeal. Further, Ms Betts submitted that in noting the Alcohol Use Disorder was not "likely" to prevent her being fit for the Employment and that the mere risk of a relapse was not a sufficient challenge to the fitness of Ms Betts, the Commission was both conducting an assessment of the case against her reinstatement and also of the level of risk to her health and fitness, which is a matter that would go to the exercise of discretion. 6. The fourth ground of appeal advanced by Health Share was that the Commissioner erred in forming a satisfaction that Ms Betts was fit for the Employment. It was submitted that the basis of that satisfaction must be formed on medical evidence, relying upon the Full Bench decision in Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355 (Cansino). Health Share submitted that Commissioner Muir was not able to make the relevant finding of fitness because there was no medical evidence to support it. Health Share argued that the basis of the finding of fitness was made on the Commissioner's own evaluation, including his observations of how Ms Betts conducted her case at the hearing. 7. Health Share submitted that the evidence of Dr Smith did not support the Commissioner's finding that Ms Betts was fit for the Employment. Health Share argued that the Commissioner's determination that she had been abstinent from alcohol use for 18 months did not undermine Dr Smith's opinion, noting that Dr Smith maintained his view that Ms Betts was not fit to return to work under cross-examination. However, Health Share submitted that even if the view of Dr Smith had been undermined, it still was not a sufficient basis for the Commissioner to make a positive finding that Ms Betts was fit for the Employment. Health Share stated that the factual finding of the Commissioner that Ms Betts had been abstinent from alcohol for 18 months could not, by itself, have been the basis of a finding of fitness: ASR at [5]. 8. Health Share noted that Dr Smith's conclusion was not challenged in cross-examination and that it was not inevitable that the opinion expressed by Dr Smith would be different with respect to Ms Betts' fitness because she had reached the point of "sustained remission" in respect of her Alcohol Use Disorder. 9. Ms Betts submitted that there was medical evidence to support the finding of fitness. She argued that the Commission was entitled to rely upon the evidence of Dr Smith and, to the extent it was congruent with the findings of fact, the medical opinion proffered by Dr Rastogi. 10. Ms Betts stated at [47] of RS: "…according to the Appellant's own medical expert, Dr Smith, being in a state of sustained recovery is the best that can be achieved for a person suffering from alcohol consumption disorder... The situation with depressive disorder is different: the evidence was that a person could recover, but remained vulnerable to further episodes... Further, that it was possible to maintain a job even if a person was living with a diagnosis of depression… Even the existence of depressive symptoms would not necessarily prevent a person from having a successful career…. The only basis for the opinion of unfitness by Dr Smith was the risk of a relapse to alcohol use which, on his own evidence, was in sustained recovery with the risk of relapse diminishing over time... Importantly, a person could be considered employable, even if presenting depressive symptoms, depending upon their presentation at the time of that matter being considered or assessed…, noting that Dr Smith's assessment and report were in September 2021 and the proceedings were heard in October 2022 and, on the authorities, this key issue is to be decided at the point of the hearing/determination." (References removed) 1. In respect of the fifth ground of appeal, Health Share argued that the Commissioner's consideration of Ms Betts' conduct of the case was not probative evidence upon which the Commissioner could conclude that Ms Betts was fit for employment. Health Share argued that her conduct of the case was not evidence, let alone medical evidence, and had no probative force in evaluating her fitness. 2. Additionally, Health Share submitted the Commissioner's reliance upon his observations of Ms Betts in the Decision constituted a denial of procedural fairness. Health Share complained that the Commissioner did not disclose his intended reliance on his observations of Ms Betts prior to making his determination. 3. Ms Betts argued that the observations made by Commissioner Muir at [65] and [80] of the Decision with respect to Ms Betts' capacity to conduct her case merely "reinforced" the view that the Commissioner had otherwise reached that she was fit for the Employment. 4. Further, Ms Betts argued that the manner in which she conducted the case before the Commission was in fact in evidence before the Commission. Ms Betts referred to an email attached to the evidence of Ms Betts which stated: "During my illness I was unable to process complex problems. Since my recovery I am able to think clearly and process any issues that may arise. Evidence of this can be seen in my ability to navigate the workers' compensation process, the current process with the IRC and my ability to successfully maintain employment in excess of 2 years at Westmead Hospital." 1. Accordingly, Ms Betts argued that Health Share was on notice that her ability to navigate the process with the Commission was to be relied upon in support of her application. Thus, it was submitted that there was no lack of procedural fairness towards Health Share. Consideration of the fitness for employment arguments 1. Section 243(2) of the WC Act provides that the Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. Section 245 provides a mechanism by which the Commission may refer to a medical assessor any dispute as to the worker's condition or fitness for re-employment to be assessed. 2. In Robson, Justice Walton, President considered the requirement that the Commission be "satisfied" of the worker's fitness. Justice Walton observed that the authorities as to the meaning and operation of the expression had largely been confined to a consideration of the nature of evidence which must be adduced in order to determine fitness, rather than the nature and degree of satisfaction required: [43] of Robson. Relevantly, Justice Walton observed [48]-[54]: "48. The standard of persuasion required in a civil proceedings, such as the present one, is to be found in the principles stated in Briginshaw v Briginshaw [1938] HCA 34; (1938 60 CLR 336 ('Briginshaw'), as now embodied in s 140 of the Evidence Act 1995….. 49. Hence, the issue of whether the applicant is fit for the kind of employment sought in this application (or any kind of employment) must be determined to the reasonable satisfaction of the Commission as that concept is understood in the common law. 50. There is nothing in the nature in the cause of action or subject matter of these proceedings or gravity of the matters under consideration which would require that assessment to be undertaken with the more stringent standard of proof contemplated by Dixon J in the abovementioned passage or in s 140(2) of the Evidence Act. Satisfaction will be determined in this case upon the balance of probabilities. 51. I consider that the correct approach in determining whether the Court is satisfied an applicant is 'fit' for the kind of employment to which consideration is directed in proceedings brought under s 243(2) of the WC Act is that stated in the aforementioned passage from the judgment of Dixon J in Briginshaw. I would add my concurrence, for the purposes of determining 'satisfaction' under that subsection, with the observations of Adams J in Robertson v Police [1957] NZLR 193 at 195 where his Honour stated: The mind of the Court must be "satisfied" - that is to say, it must arrive at the required affirmative conclusion - but the decision may rest on the reasonable probabilities of the case, which may satisfy the Court that the fact was as alleged, even though some reasonable doubt may remain. If the probabilities, when considered in the light of all such doubts as may arise with regard to them, do in fact persuade the Court, that is, in my opinion, all that is necessary in order to entitle the Court to say that it is "satisfied" of the fact. 52. The converse would follow if the requisite level of persuasion was not available upon the evidence in the proceedings. 53. Before leaving the question of fitness under this heading, it is important to note the following observations of Bathurst CJ (with whom Beazley P agreed) in Bindaree Beef: 65 …In considering this question the Commission would, in my opinion, be required to take into account the question of whether or not the worker could safely perform that type of employment. Failure to do so, in my opinion, would constitute error… 54. Thus, considerations of occupational health and safety are relevant in assessing the applicant's fitness to be reinstated to the work so applied." 1. Both Berry and Zisopoulos considered the difference in the legal burden of proof upon an applicant to proceedings and the evidentiary burden. In an application for reinstatement pursuant to Pt 8 of the WC Act, the applicant will at all times bear the legal onus in respect of persuading the Commission that the orders can and should be made. The answer to whether a fact in issue has been proven to the requisite standard, can only be given after both parties' evidence is evaluated. Ms Betts was entitled to persuade the Commissioner he should be satisfied she was fit for the Employment based on any of the evidence before the Commission, whether it was adduced by her or Health Share. 2. In Cansino, the Full Bench provided an extensive analysis of the predecessor provisions of the WC Act at pp 11-14. In respect of the requirement to determine the fitness of the worker (now contained in s 234(2)), the Full Bench observed: "(16) A determination of fitness for employment as referred to in s 94(2) must necessarily be made on the basis of medical evidence." 1. This requirement for a determination of fitness to be made based on medical evidence has been referred to and relied upon in numerous other decisions: see for example, Robson at [45]; Hillman v NSW Trains [2017] NSWIRComm 1056 at [180], [192]; MacDonald v Jetstar Airways Pty Ltd [2019] NSWIRComm 1010 at [40]; Jenkins at [17], [23]. 2. Health Share referred the Full Bench to the decision in Rodriguez v Telstra Corporation Ltd (2002) 66 ALD 579 (Rodriguez), where Kiefel J (as her Honour then was) held in the context of an appeal from a decision of a Tribunal rejecting a workers compensation claim (at [54]-[55]): "The tribunal is not bound by the rules of evidence ... and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force ... The drawing of an inference without evidence is an error of law ... Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence. It may be said that expert evidence is sometimes over-utilised and is called in situations where an arbiter of fact is in a position to determine the matter for itself. Sometimes all that is necessary is for a method or process to be explained, so that the court or tribunal can then apply it to the facts it finds. On the other hand, there are cases where a whole question is, in effect, relegated to experts to give evidence upon it. This was such a case. The tribunal was not put in a position where it could simply draw its own inferences. In an area which required an understanding of a disorder it could only receive the opinions, have the bases for them explained if they differed and apply logic to determine which were to be accepted." (emphasis added) 1. It is also settled that for the purposes of s 243(2), the Commission is to determine the fitness of the employee at the time of the hearing of the matter: Bell at [28]; Robson at [179]. 2. We reject Ms Betts' submission that the Commissioner had determined that Ms Betts was fit on account of the reasoning he applied up until [77] of the Decision. There is nothing in the text of the Decision to support that conclusion. The issue of the applicant's fitness for the Employment was intertwined with the likelihood of relapse either in respect of her Alcohol Use Disorder or Major Depressive Disorder with Anxious Distress, both of which were in remission. Commissioner Muir did not invert the proper inquiry, but rather, made a determination of Ms Betts' fitness for the Employment based on his own evaluation of her fitness. He settled upon his evaluation through a process of drawing inferences from the medical evidence before him. 3. The Commissioner determined he was satisfied of Ms Betts' fitness for the Employment for the reasons set out at [53]-[82] of the Decision. However, Commissioner Muir did not have medical evidence before him that entitled him to conclude that Ms Betts was fit for the Employment at the time of the hearing. In our view, it was not open to the Commissioner to find that Ms Betts was fit for the Employment. 4. The only medical opinion to the effect that Ms Betts was fit for the Employment was that of Dr Rastogi in her Medical Report dated 1 December 2020: Ex R1 Tab 10; Appeal Book pp 90-95. However, Commissioner Muir found at [56]-[57]: "The detailed medical records of the applicant, as disclosed to the respondent when considering her application for reinstatement, and later pursuant to orders of the Commission during these proceedings, make clear that at the time the applicant asked the respondent to reinstate her it was unlikely that she was actually fit for the Employment. Indeed, I have concluded that as at 6 March 2020 the applicant was not fit for the Employment. I have concluded the applicant was not fit because at this time she was still grappling with what was, by her own admission, a dependence on alcohol as a means to cope with anxiety and stress. The reports of Dr Rastogi set out, on their face, that the applicant had been abstinent from the consumption of alcohol for some months at the time of seeking reinstatement. As the applicant conceded during proceedings in the Commission, this was in fact not the case; she had experienced at least one relapse where significant quantities of alcohol were consumed and for which she sought medical support including inpatient treatment." 1. This aspect of the Decision was not the subject of appeal from either party. Ms Betts did not otherwise adduce evidence from a medical practitioner to support her case that she was fit for the Employment. 2. Health Share relied upon the Medicolegal report of Dr Glen Smith, Consulting Forensic Psychiatrist dated 21 September 2021. Dr Smith was cross-examined by Ms Betts in the proceedings below. As Commissioner Muir observed in the Decision, the report of Dr Smith provided a provisional diagnosis of Ms Betts as follows: 1. "Major Depressive disorder with Anxious Distress, in remission"; and 2. "Alcohol Use Disorder, in early remission." 1. Dr Smith provided the following "Summary and Opinion" in his report with respect to Ms Betts' condition (also extracted at [62] of the Decision): "Ms Betts is…living…in Wagga Wagga. She denied a history of significant anxiety or depressive symptoms prior to around 2014 when she suffered from significant anxiety and depressive symptoms, diagnosed as Major Depressive Disorder. She was significantly impaired, requiring repeated psychiatric hospital admissions and she was subsequently assessed as suffering 19% whole person impairment in early 2018. She made a claim for work injury damages after that, and the matter was reportedly settled in around 2019. [Ms Betts] told me that her alcohol consumption escalated in late 2019 in the context of her dog dying but the reports of Dr Morris, Approved Medical Specialist for the Workers Compensation Commission, and her treating GP noted an escalation in alcohol consumption from at least 2017. There was evidence in her provided history and the available documentation (from her GP) of ongoing problematic alcohol consumption as recently as early 2021. Ms Betts provided a history of having a relapse briefly after the passing away of her grandmother in February 2021. She denied excessive alcohol consumption since around March 2021. She presented with only partial insight into the significance of her alcohol consumption, stating that she does not believe that she needs to abstain completely and that if she consumes alcohol in her own time there should be no problem with that. There was also evidence of minimisation of the significance of her history, notably that she told me that she had not consumed alcohol in a problematic pattern since October 2019, while Dr Morris' report suggests a more significant problem. Ms Betts reported that her depressive symptoms had improved from 2019, through the implementation of strategies from the outpatient mood program, psychological therapy and treatment with Dr Rastogi. The only changes in treatment from 2018 have been cessation of the outpatient group and of psychological therapy in around 2019. Factors that changed after 2018 were resolution of her claim in around 2019, and her return to work as a ward clerk. She felt positive and happier returning to a work role. It is likely, in my opinion, that her return to work did result in some improvement in her condition. Notwithstanding that, there was evidence that she has had difficulty coping with minor stressors, resorting to using alcohol in an excessive pattern to cope with emotional distress. Ms Betts has not received any significant treatment for her Alcohol Use Disorder and without a commitment to abstinence from alcohol, in my opinion, her risk of relapse to problematic alcohol consumption is very high. In my opinion, Ms Betts presented with symptoms consistent with the diagnosis of severe Alcohol Use Disorder, in early remission, although there would need to be independent verification that she is not currently consuming alcohol. She also presented with a history consistent with the diagnosis of Major Depressive Disorder, with Anxious Distress, currently in remission." 1. The report documents that there were "significant inconsistencies between Ms Betts' history and presentation and the available documentation", including with respect to her history of alcohol consumption and her work as a ward clerk at Westmead Hospital. 2. Dr Smith concluded his report as follows: "In my opinion, Ms Betts would likely be at high risk of relapse to heavy alcohol consumption and then significant anxiety and depressive symptoms if she returned to her pre-injury role. Her pre-injury role requires substantial travel which likely had a significant impact on her mood previously and there is evidence that, even with minor stressors, she remains at risk of resorting to alcohol consumption as a means of coping. Therefore, in my opinion, Ms Betts presented as unfit to return to the full-time pre-injury role as Quality Assurance Business Partner for Health Share." 1. Commissioner Muir extracted five aspects of Ms Betts' cross-examination of Dr Smith. Based on that cross-examination, he made the following observations and findings: 1. Dr Smith's report assumed Ms Betts was in early remission from her Alcohol Use Disorder. However, as the Commission accepted that Ms Betts had been completely abstinent from alcohol use for 18 months, she was in fact in sustained remission, with the risk of relapse reducing further over time. 2. Ms Betts was at risk of relapse with respect to her Alcohol Use Disorder whether she was reinstated or not. 3. Dr Smith's report stated that Ms Betts did not give a commitment to abstinence. However, she had since committed to total abstinence and had maintained that status for 18 months. 4. In considering the cause of a relapse, Dr Smith's report treated the death of Ms Betts' dog as a minor stressor. In doing so, Dr Smith did not place sufficient weight on the death of the dog as a stressor causing her relapse. 5. Dr Smith agreed that at the time of his assessment the risk of return to alcohol consumption was a significant factor in his conclusion. He stated that in his opinion, "the most significant risk factor for relapse to anxiety and depressive symptoms was the risk of relapse to alcohol consumption, but the risk of relapse to anxiety and depressive symptoms in the context of stressors would also be present." 1. The Commissioner went on to conclude that "based on her evidence and that of Dr Smith, this disorder is not likely to prevent her being fit for the Employment." He further stated that, "I consider that the sum and substance of the respondent's challenge to the opinion of Dr Rastogi, that the applicant was fit for the employment, was related to her alcohol use disorder." 2. Dr Smith's evidence does not provide an evidentiary basis to support a finding that Ms Betts was fit for the Employment. At no time was it put to Dr Smith that he would find Ms Betts to be fit for the Employment if he was satisfied that she had been abstinent from alcohol for 18 months and had committed to ongoing abstinence. In any event, we have some reservations with respect to the probative value that evidence could have had given Dr Smith's expert evidence that a report of abstinence by a person with Alcohol Use Disorder should be independently verified: Tcpt 25 October 2022, p 39(39)-p 43(5). The Commissioner was effectively drawing an inference from Dr Smith's evidence that Ms Betts was fit on account of his factual findings of her abstinence: see Rodriguez above. That is not a finding of fitness based on medical evidence. 3. Dr Smith's evidence was that his assessment of Ms Betts' fitness was based on the "risk" of relapse of either her Anxiety and Depressive Symptoms or alcohol use. He viewed "the biggest risk" as the relapse to alcohol use. However, as set out above, Dr Smith's report and opinion was informed by a broad range of factors, including the medical history and related documentation relating to Ms Betts' health, the role description of the position she applied for, the nature of the Employment, and her occupational history, including her most recent employment as a Ward Clerk. He also gave evidence that the risk of relapse was reduced by a person's participation in therapy: Tcpt, 25 October 2022 p 36 (15)-(26); (35)-(45); p 39 (9)-(10). Dr Smith also gave evidence of there being studies that suggest that people with an Alcohol Use Disorder routinely underestimate the amount they consume on a regular basis and exaggerate the amount of time that they haven't been drinking when they've been in recovery, which is why verification of periods of abstinence was required: Tcpt, 25 October 2022 p 43 (1)-(5). Although Ms Betts sought to rely upon a report of a hair sample to evidence her abstinence from alcohol use for at least six months, Commissioner Muir did not place weight on this in the Decision, instead noting the respondent did not seriously challenge her evidence that she had been abstinent from alcohol consumption for 18 months: [67]-[68]. However, Dr Smith's evidence was that a reported period of sobriety needed to be verified independently. He gave detailed evidence on how this could be achieved. Dr Smith's evidence was that the Employment would be a significant stressful position for Ms Betts: Tcpt, 25 October 2022, p 27 (38)-(49); p 34 (43)-(50). The evidence Dr Smith gave under cross-examination does not amount to medical evidence that Ms Betts was fit for the Employment. 4. The Commissioner was not able to rely upon the evidence of Dr Rastogi to conclude that Ms Betts was fit for the Employment. The Commissioner found that Ms Betts was not fit at the time of Dr Rastogi's report and that it was based on a false premise, namely that she had not consumed alcohol since 2019. Dr Rastogi's did not give evidence before the Commission. Her report could bear no relevance to the assessment of Ms Betts' fitness at the time of the hearing. There was no medical evidence before the Commission that provided Ms Betts was fit for the Employment at the time of the hearing. 5. The Commissioner was not entitled to assume that either Dr Rastogi or Dr Smith would have provided medical evidence to the effect that Ms Betts was fit for the Employment had they applied the Commission's factual findings. With respect to Dr Smith, there was an opportunity to put this proposition to him, but it was not. 6. We agree with Health Share that the Commissioner was not entitled to rely upon the presentation of Ms Betts at the hearing to decide upon her fitness for the Employment. However, we are not persuaded that was the process of reasoning adopted by the Commissioner. On a fair reading of the Decision, in our view the Commissioner's compliments of Ms Bett's advocacy, described as reinforcing his view, were not foundational to his ultimate conclusion. 7. However, it follows from our findings that there was no medical evidence to support the Commissioner's conclusion that Ms Betts was not fit for the Employment. Our view on this matter is conclusive with respect to the outcome of the appeal. It is not necessary for us to consider the remaining grounds of appeal. Further, as there was no medical evidence to support the conclusion that Ms Betts was fit for the Employment, we have decided that the proceedings below must be dismissed. Other appeal grounds 1. In light of this determination, it is not necessary to consider grounds 6 and 7 of Health Share's appeal. Orders 1. The Full Bench makes the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld and the decision at first instance is set aside. 3. The application by Rebecca Betts filed on 9 April 2021 pursuant to s 242 of the Workers Compensation Act 1987 (NSW) is dismissed. ********** Endnotes 1. Pursuant to s 2A(2) of the 1987 Act, that Act is 'to be construed with, and as if it formed part of, the 1998 Act'. 2. Consistent with the Decision, "the Employment" is the position applied for by Ms Betts, namely her pre-injury role of Quality Coordinator (HSM level 2): see [6] of the Decision. 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: 17 October 2023