Industrial Relations Commission of New South Wales CITATION: Phillis v RobarBoring Contractors Pty Ltd [2005] NSWIRComm 1185 APPLICANT: Mr. J. Phillis PARTIES: RESPONDENT: Robar Boring Contractors Pty Ltd FILE NUMBER(S): 2342 of 2005 CORAM: Ritchie C Employee injured at work. Workers Compensation claimed and accepted. Injured worker returned to work for two non consecutive days. Employer sent employee home concerned about safety at work. Employer received medical evidence stating employee never would return to full time work. As a consequence employer terminated employee. Employee made application under s.93 of IR Act. Applicant sought to return to part time position for a three month duration and then revue situation. Respondent argued lack of medical evidence that would allow Commission to reinstate applicant. CATCHWORDS: Volume of work down,respondent already terminated staff as a consequence and failed to replace other staff who had resigned. Applicant had received a payout re workers compensation claim. Commission found that weight of medical evidence showed that applicant had failed to prove fit to return to employment sought. Medical evidence expressed degree of concern if reinjured. Applicant prepared to risk being reinjured. Respondent's responsibility re compliance with OH&S. Would find difficult to comply if applicant reinstated. Application dismissed. LEGISLATION CITED: Industrial Relations Act -1996 HEARING DATES: 07/19/2005; 09/28/2005 DATE OF JUDGMENT: 11/16/2005 Mr. S. Marshall of the Union LEGAL REPRESENTATIVES: Mr. S. Coleman of Counsel. DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 16 November 2005 Matter No IRC 2342 of 2005 IN THE MATTER OF: Construction , Forestry, Mining and Energy Union(New South Wales Branch) (on behalf of Alan Phillis) and Robar Boring Contractors Pty Ltd. Application by Construction, Forestry, Mining and Energy Union( New South Wales Branch) on behalf of its member Alan Phillis for reinstatement of an injured employee pursuant to section 93 of the Industrial Relations Act 1996. DECISION [2005] NSWIRComm 1185 Background. 1 On 3 July 2003 Mr. Alan Phillis injured himself whilst working for Robar Boring Contractors Pty Ltd (the respondent). He sustained an injury to the rear of his lower left leg occasioned by a piece of jagged scrap steel. The laceration became infected and developed into "cellulitis". The infection rapidly progressed and as such he was admitted into hospital for treatment on 10 July 2003. 2 On his release from hospital Mr. Phillis consulted with various specialists as the infection had compromised his lymphatic system. He was therefore required to follow a strict regime of rehabilitation and the permanent wearing of venous compression stockings to manage his condition. 3 On 22 July 2003 he attended a meeting with Mr. Jeffrey Robar ( the employer's Return to Work Co-Ordinator ) and a representative of WIMS, the rehabilitation services provider. The meeting was to determine a suitable return to work programme. The requirement was that Mr. Phillis would have to be capable of working a full day (ie 8 hours). 4 Mr. Phillis had a long work history as an operator of drilling and boring machinery working in various parts of the world. 5 In December 2003 he received clearance from his doctor to return to work. Mr. Phillis would work on alternate days commencing on 16 December 2003, and then 18 and 22 December. He worked both 16 and 18 December but at the end of work on 18 December he received a letter from Mr. John Robar, Director of the respondent company. The correspondence stated that it was costly and inappropriate for a change of driver each day and that they needed staff who were available every day. 6 Mr. Phillis returned to work on 22 December, with a Workcover medical certificate stating he was fit for suitable duties but was advised that he was not needed. 7 Mr. Phillis remained on workers compensation payments until 12 March 2004 when he received correspondence from the respondent stating that he had been terminated. On 18 March 2004 he received another letter from John Robar postmarked 17 March 2004 stating that he was to ignore the previous letter terminating his services and that his dismissal would now take effect on 26 March 2004. Mr. Phillis had been employed with the respondent since 22 November 2001. 8 On 19 April 2004 his union filed an Application for Reinstatement of Injured Worker under section 93 of the Industrial relations Act 1996 (the Act). 9 The matter was allocated to Patterson C. of the Commission. The matter came before the Commission on 16 June 2004 and on 8 August 2004 when an evidentiary time table was provided to the parties. This timetable was varied on 5 October 2004. On 15 December 2004 the parties again came before the Commission when at that time parties were advised that Mr. Phillis would, in accordance with section 96 of the Act be directed to have an examination by a Medical referee/panel. 10 Mr Phillis attended the medical referee on 2 May 2005. As a consequence of the extended sick leave of the Commissioner the file was reallocated to the Commission as presently constituted. 11 The hearing took place on 19 July and 29 September 2005. The allocated second hearing date of 15 August had to cancelled due to the illness of Mr. Phillis's union advocate. Applicant's Case. 12 Mr. Phillis obtained a Workcover medical certificate from his treating doctor (Dr. Suthaharan) dated 12 December 2003 which stated that he was fit for pre injury duties for two days a week. He worked both 16 and 18 December 2003. An identical certificate dated 19 December was provided to the respondent. Notwithstanding these two certificates the respondent would not allow the applicant to continue work beyond 18 December. 13 It was shown by the applicant of a study of the jobs carried out by the respondent for its clients and their duration, that 77% of them were single day work. Therefore there was plenty of work for the applicant to carry out taking into consideration his restriction of not working on consecutive days. The act of the respondent to stop the applicant from continuing his rehabilitation programme was contrary to medical advice at the time. He has not been able to find alternative employment and because of his age may never be able to be employed again. He sought reinstatement back to his part time rehabilitation position plus backpay. 14 In evidence the applicant stated that when he attended work on the two days in December he wore pressure bandages and walked with a pronounced limp. He denied that on either of the two days that Mr Robar spoke to him about his concern for the applicant's health or him wearing shorts in the factory. He agreed that the aim of the rehabilitation programme was to gradually return him to full time duties. 15 It was the applicant's personal view that he considered that he could now carry out full time duties. He made that statement not withstanding the reports from a Dr. Giblin and a Dr. Collins that expressed the view that he was not fit for the type of work, that of drilling. The applicant countered that he knew his industry intimately and wanted to prove the point that he could get back to work. He saw Dr Collins on 9 March 2004 and Dr. Giblin on 11 June 2004. It was also the applicant's view that he did not accept Dr. Hickie's (the medical referee) report because Dr. Hickie is just another person who did not have an understanding of the job nor his physical capabilities. 16 He stated that on 20 May 2005 he went for a semi trailer driving license but could not complete the three day course because on the third day his leg was hurting too much. 17 He accepted that he had an underlying disability and that the disability would never go away. He stated that he did not know whether he would be able to return to full time duties because he had never been given the opportunity. The provision of appropriate protective clothing by the respondent would increase his chances of working in a safe manner. 18 He also stated that he had received a workers compensation payment of $36,500 for the disability of his leg. Medical Reports. 19 Dr. Collins in his medical report dated 9 March 2004 stated that the applicant had : "40% lower impairment, which converts to 16% Whole Person Impairment." and DIAGNOSIS The patient has chronic venous insufficiency of the left calf with chronic inflammatory change. PROGNOSIS In my opinion the patient's condition is permanent. There was a risk of recurrent infection. FITNESS FOR WORK He is not fit for his pre-accident job or any work where he would be required to walk and stand a great deal. He is fit in my opinion only for sedentary or administrative type duties. 20 In the report of Dr. Giblin dated 11 June 2004 it states: PROGNOSIS His condition remains stable, and his current symptoms complex formation, signs, and associated physical restrictions, will remain permanent. There is a reasonable risk of progressive deterioration including recurrent infection and swelling. If he lives long enough, it is a possibility that he may require a below knee amputation. He remains permanently unfit for his pre-injury employment and permanently unfit for any work environment which requires prolonged periods of standing or walking or using the left leg in a repetitious impact fashion. These permanent work related restrictions will also apply indefinitely to his domestic and recreational activities. and OPINION It is my view that this gentleman's condition has now stabilised and reached maximum medical improvement. 21 The applicant went for a medical assessment before Dr. John Hickie on 2 May 2005 in accordance with section 96 of the Act. 22 Dr. Hickie was required to answer a number of questions that had been agreed between the parties. He had been supplied with the medical reports of Dr. Collins, Dr. Giblin and from the Occupational Therapist, A. Kanaian. 23 His report states in part: Is he fit for the sort of work for which he makes application? It is a difficult to answer this question. A return to work programme on a two or three day non-consecutive day basis was devised by Mr. A. Kanaan with the agreement of Drs Hall and Dr. K. Suthaharan and a representative of Robar Boring Constructiors on 19/11/03. Mr. Phillis claims he did this for three days and was then told not to return to work. He states he had no problems and wished to continue on the same arrangement. It was the opinion of Dr. Roger Hall that he should be given every opportunity to try to undertake this work. It is unclear whether he was not able to undertake the work or whether he was terminated for other reasons. It is now eighteen months since these events and over a year since the opinions of Drs I Collins and P Giblin were obtained. During that time there has been significant improvement in Mr. Phillis's left leg and his general mobility. He may be able to do the work but he would be at risk of further injury to the left leg and secondary infection. Is the applicant specifically able to operate a foundation drilling rig doing work for normal hours for two non-consecutive days per week without further injury or exacerbation of the existing injury ? I think he would find it difficult to undertake his duties and there is certainly a risk of exacerbating his existing condition if there was any further injury to his left calf. Is the applicant fit and likely to remain fit to carry out the duties for which he seeks employment without exacerbation of his chronic venous insufficiency, inflammation or the risk of recurrent infection? The major risk for Mr. Phillis would be further injury with the risk of recurrent infection. I have discussed this with Mr. Phillis and he seems prepared to undertake that risk. Bearing in mind the nature of the position, for which the applicant is seeking employment, is he able to carry out all tasks on a 1) regular or 2) permanent basis, two non- consecutive days per week ? Again it is difficult to answer this question, as it is not clear what occurred when he undertook the planned rehabilitation program on two or three days that he did undertake his position, is not available to me. Were the applicant to injure his leg as a result of his duties, what are possible medical outcomes for the applicant ? He would be at high risk of further infection, septicaemia, further oedema, ulceration and eventually more serious problems with his left leg and foot. Respondent's Case. 24 Both Mr. Jeffrey Robar and Mr. John Robar gave evidence for the respondent. 25 Mr Jeffrey Robar stated that he is the Director of Fleet Maintenance Pty Limited. That company performs the maintenance on the machinery and trucks of John Robar Boring Contractors Pty Ltd. He stated that he was appointed as the Return to Work Co-Ordinator in relation to the applicant with Workplace Injury Management Services (WIMS) being appointed as the Rehabilitation Provider. This provider was later replaced by Accent Rehabilitation Services. He was part of the arrangement where the applicant returned to work for two full days in December 2003. On 18 December he saw the applicant walking with a limp. As he was wearing shorts he could see his pressure bandages. He advised his father John Robar. Mr. Jeffrey Robar said that the applicant's work could be carried out on uneven, unstable ground and he would have to do a lot of climbing up and down stairs to get on and off the machinery. He did not think it was a safe environment. 26 Mr. John Robar gave evidence that since the applicant had constructed a document showing the number of single working days (Ex.E) covering 2003/2004, the volume of work had reduced and he had recently retrenched four men. Two other men had resigned. They have gone from 13 to 7 operators. There were 4 or 5 vehicles on the road and the rest of the employees are servicing vehicles, washing them and generally cleaning up around the place to keep it neat and tidy. 27 It was this witness's view that he was concerned that the applicant would aggravate his injury or injure himself further. He spoke to the applicant and expressed his concern but that applicant said he was okay. He did not want the applicant working unless he was 100% fit. He also had concerns about customers complaining about a new driver having to be inducted on site if the job done by the applicant went for more than one day. 28 A Workcover medical certificate dated 23 January 2005 from Dr. Suthaharan stated that the applicant was fit for suitable duties from 24 January 2005 to 27 February 2005,and another from 28 February to 26 March 2005. On 30 January 2005 the same doctor was asked the following question by Accent : Do you anticipate that Mr. Phillis will be able to resume his pre injury duties as a heavy drill operator in the long term. The doctor answered –No. 29 As a consequence of this medical evidence received, Mr.Robar raised correspondence terminating the applicant. This correspondence was replaced with a further letter replacing the first but still terminating the applicant as from 26/03/05. There is no work for the applicant in the respondent's office. Consideration and Decision. 30 Section 94 of the Act is expressed in the following form: SECTION 94 – ORDER BY COMMISSION FOR REINSTATEMENT 94(1) [Order] The Commission may, on such an application, Order the employer to reinstate the employee in accordance with the terms of the Order. 94(2) [Reinstatement to position employee has applied for] The Commission may order the employee to be reinstated to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), but only if the Commission is satisfied that the employee is fit for that kind of employment. 94(3) [Reinstatement to other appropriate employment] If the employer does not have employment of that kind available, the Commission may Order the employee to be reinstated to employment of any other kind for which the employee is fit, being: (a) employment of a kind that is available but that is less advantageous to the employee, or; (b) employment of a kind that the Commission considers that the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation). 31 Both parties provided written final submissions and previous cases which I have taken into consideration in my determination. 32 It was the applicant's submission that it seeks an order from the Commission reinstating Mr. Phillis back to his position of three non consecutive days a week as part of his rehabilitation programme for a duration of three months. After that period Mr. Phillis, his Union and the respondent could sit down and discuss the future. Medical evidence provided by the applicant's treating doctor (19 December 2004 and 25 February 2005) allows him to return to that extent. In the applicant's submission that with the correct protective clothing provided and adequate work available then rehabilitation can take place. 33 It was the respondent's submission that the medical evidence did not certify Mr. Phillis fit for pre injury duties. The medical panel report ordered by the Commission did not certify him fit for pre injury duties. The evidence is not there for the Commission to conclude that Mr. Phillis was fit for employment of the kind for which the employee applies for reinstatement. Medical evidence expressed substantive concern about the dangers that Mr. Phillis would be exposed to if he reinjured his leg. The lump sum payment received by Mr. Phillis as a consequence of the injuring his leg and his 40% loss attributed to it, showed the extent of the injury. He received $36500 and now wants his job back. Re instatement to a part time job with no realistic expectation that he will ever be able to work full time was contrary to section 92(2) of the Act. Rehabilitation must be possible and part time work available to invoke section 94(3) (b). If there is no prospect that rehabilitation can occur and there exists risk of further injury then the applicant can not be found fit for that employment. 34 In my view the onus rests on the applicant to prove to the Commission that Mr. Phillis is fit for employment of the kind for which he applied for. The brief medical statement of Dr Suthaharan dated 30 January 2004 stated that the applicant will not be able to resume his pre injury duties in the long term. The medical reports of the two specialists Dr. Collins and Dr. Giblin do not assist the applicant in this claim. The concluded views of the two doctors as expressed above do not state that the applicant is fit for employment. In fact they state the opposite. The report of the medical referee Dr. Hickie again did not state that the applicant is fit for employment. He like the other two doctors recognised the high risk that the applicant would face if he were to re injure his leg. The risk of further injury and secondary infection to the left leg was present. One doctor even commented if Mr. Phillis lived long enough, of the possibility that he may require a below knee amputation. 35 Mr. Phillis admitted that he had an underlying disability and that it would not go away. The lump sum payment received by Mr. Phillis with respect to his workers compensation claim would indicate a permanent injury. He believed he could do the job because he knew intimately the drilling industry. He was in a better position than the doctors. He wanted to give it a go, he was prepared to live with the risk. Whilst it is a commendable attitude to wish to return to work, he has obviously not accepted the high degree of risk that he would run if he did so return. A risk that the treating medical specialists have clearly expressed. 36 All employers have a clear responsibility under the Occupational Health and Safety Act to provide a safe work environment for their employees. Taking into consideration the views found in the medical reports provided to the Commission, I believe it would be most difficult for the respondent in this case to comply, taking into consideration the industry and its varying physical working conditions that drillers operate under. 37 Evidence was given by Mr. John Robar that demand for work had greatly reduced since the applicant was terminated from the respondent. He had terminated some employees and not replaced two others when they resigned. He did not have any part time employees. He had jobs that are booked for a day but may due to unforeseen circumstances go beyond a day. 38 There was no medical evidence brought before the Commission that stated that Mr. Phillis would ever return to full time duties. Medical evidence was that he would not return to full time duties. Medical evidence was that the injury was permanent and there was a high degree of risk of reinjury if he returned to his normal occupation. 39 It is my finding that based on the weight of medical evidence, the applicant has not proved that Mr. Phillis is fit for employment of the kind for which he applied for reinstatement. 40 As a consequence this application is dismissed and the matter concluded. D.RITCHIE 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.