Industrial Relations Commission of New South Wales CITATION: Therese Smith v State Transit Authority of New South Wales [2010] NSWIRComm 1062 APPLICANT Therese Smith PARTIES: RESPONDENT State Transit Authority of New South Wales FILE NUMBER(S): IRC 438 of 2010 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - Applicant employed as bus driver for State Transit Authority (respondent) - injury on job - medically retired in 2009 - ongoing physiotherapy treatment by applicant - in 2010, applicant sought reinstatement - respondent declined - application for reinstatement of injured employee - conciliation not successful - Hearing held - application for reinstatement as bus operator at Willoughby Depot granted by Commission. LEGISLATION CITED: Industrial Relations Act 1996 Workers Compensation Act 1987 Cansino v South Western Sydney Area Health Service CASES CITED: [1999] NSWIRComm355 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (o/b Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm108 HEARING DATES: 01/11/10 DATE OF JUDGMENT: 3 December 2010 APPLICANT Mr I Latham Barrister LEGAL REPRESENTATIVES: RESPONDENT Mr S McLean Employee Relations Advisor State Transit Authority DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 3 December 2010 Matter No IRC 438 of 2010 Therese Smith and State Transit Authority of New South Wales Application by Therese Smith for reinstatement of an injured employee pursuant to section 242 of the Workers Compensation Act 1987. DECISION [2010] NSWIRComm 1062 1 This is an application by Therese Smith ("the Applicant") for reinstatement of an injured employee against State Transit Authority of New South Wales ("the Respondent"), pursuant to section 242 of the Workers Compensation Act 1987 ("the Act"). 2 The application was filed on 7 June, 2010 in the New South Wales Industrial Registry. 3 The matter was set down for conferences in June, July and August but were unsuccessful and the matter was programmed for a Hearing. 4 At the Hearing, the Applicant was represented by Mr I Latham, barrister. The solicitor assisting was Ms E Magill. Mr Latham called the following witnesses: Theresa Smith the applicant Gary Way bus operator 5 The Respondent was represented by Mr S McLean, Employee Relations Advisor, who called the following witnesses: Mark Peters Depot Manager, Willoughby Depot Paul Gan Corporate Injury Manager and Manager of the Workers Compensation Unit. BACKGROUND 6 The applicant commenced employment with the respondent in 1993 as a bus operator at Willoughby Depot. 7 In May 2006, the applicant injured herself at work whilst driving a bus. It was a strain injury to her right side including lower back and neck. 8 The applicant reported the injury. Although she had no time off from work due to the injury, the WorkCover medical certificate advised that she was only to drive two (2) types of buses - Volvo or Scania. 9 In March, 2007, the applicant aggravated her right side and back injury. She reported this injury which was sustained whilst driving a bus. 10 Her general practitioner, Dr Minogue, issued a WorkCover medical certificate which certified her unfit for work for a couple of weeks. She returned to work but only briefly before having a relapse. The applicant was off work from April 2007 to October 2008. 11 A WorkCover medical certificate advised she was fit for suitable duties commencing late October 2008. The respondent advised, it had no suitable duties. This position of the respondent changed in February 2009 and the applicant then carried out work in the office. This return to work on suitable duties plan, required the applicant to attend medical appointments (including physiotherapy) outside of work hours. The applicant was not able to attend physiotherapy or maintain her exercise regime. 12 In that same month of February 2009, the applicant deposed she sought to reduce her hours of work in order to recommence her treatment program but this application was rejected by the respondent. The applicant said she did not work again following that rejection. 13 Subsequently, she was medically retired from employment with effect from 20 June 2009. 14 The applicant undertook physiotherapy treatment in March 2009 (prior to her medical retirement) and now believes she is fit and able to commence duties as a bus operator. 15 She instructed her legal representative to make application to the respondent for her reinstatement. That application was made by letter of 11 March 2010. The respondent declined her application and subsequent correspondence between the parties did not settle the matter for the applicant. 16 The application for reinstatement of an injured employee was then made on 7 June 2010. FINAL SUBMISSIONS From the Applicant 17 Mr Latham for the applicant, provided to the Commission, a typed summary of his case. The main points made in final submissions were: (a) The applicant sought reinstatement as a bus operator. (b) The reinstatement application was accompanied by a certificate from her treating doctor (Doctor Minogue) stating that she was fit for employment as a bus operator. (c) The evidence of Craig Berry, relied upon by the respondent to decline the reinstatement request, is evidence of a physiotherapist and is not medical evidence. (d) Section 243 of Workers Compensation Act 1987, sets out four types of reinstatement orders that may be made by the Commission. The applicant sought a reinstatement order, pursuant to section 243(2)(a), as a bus operator at Willoughby Depot. (e) The applicant sought an order for payment of monies for the period between the making of the application and the making of any order by the Commission. (f) In lieu of reinstatement to Willoughby Depot, the applicant sought reinstatement to the Ryde or Tempe Depot. For the Respondent 18 Mr McLean for the respondent provided to the Commission, a typed summary of his case. The main points made in final submissions were: (a) The application for reinstatement was opposed by the respondent. (b) The applicant has not satisfied section 241 of the Workers Compensation Act 1987 - that is, she has not provided a medical certificate to the effect that she is fit for employment of the kind for which she has applied. (c) The medical certificate provided by the applicant carries the inference that she is not fit to drive the models of buses at Willoughby Depot. She would be required to drive all models of buses at Willoughby Depot. (d) Based on the applicant's injury history, the extent of injuries sustained on 24 March 2007, the inferred restrictive duties medical certificate and the outcome of the practical assessment conducted on 8 July 2010, there is a genuine risk of the applicant re-injuring herself should she return to unrestricted bus driving duties at Willoughby Depot. (e) The Commission has a discretionary power and should exercise it, in light of the foregoing matters in (d) above, and not order the reinstatement of the applicant. (f) Re-employment as a concept, to another depot is not rejected by the respondent. CONSIDERATION 19 The Applicant filed a section 242 application pursuant to the Workers Compensation Act 1987, seeking reinstatement as an injured employee. 20 Before considering that application, the Commission records that the legislative history of the injured employee provision, is set out in a Full Bench decision of the Commission: Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 at pp9-11, Hungerford and Marks JJ, O'Neill C, 23 August, 1999. 21 The legislative history set out in the foregoing Full Bench decision, concludes with the Industrial Relations Act 1996. 22 Subsequently one further important legislative change took place to the injured employee provision. Thus, Part 7 - Protection of Injured Employees (sections 91 to 100 inclusive) of the Industrial Relations Act 1996, was relocated to the Workers' Compensation Act 1987 (at Part 8) by operation of the Industrial Relations Further Amendment Act 2006. The Statutory Provisions in Operation 23 Sections 91 to 100 inclusive of Part 7 of the Industrial Relations Act 1996 are virtually identical to sections 240 to 249 inclusive of Part 8 of the Workers' Compensation Act 1987. 24 Given that Part 7 and Part 8 are virtually identical, the Commission is aided in the approach to be taken to the statutory operation of Part 8, by reference to the Full Bench statutory approach to operation of Part 7, in Cansino: pp11 to 14. The later Full Bench in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (o/b Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm108 at para 110. (" Riley's Case ") reproduced, without adverse comment, the Full Bench approach in Cansino to the statutory interpretation of Part 7 - and hence Part 8. 25 Both Full Bench Decisions in Cansino and Riley, considered the meaning of certain terms contained in Part 7 and which same terms appear in Part 8. For example: "employment of a kind"; "more advantageous"; "position"; "reinstatement"; "suitable employment"; "vacant"; and "available". Section 243 and Reinstatement Orders 26 Section 243 of the Workers Compensation Act 1987, sets out the type of reinstatement orders that may be made by the Commission. There are four types of orders listed in sub-section (2) and (3): being two orders in sub-section (2) and two orders in sub-section (3). 27 However, it would appear from a reading of sub-section (3), that the two orders listed in sub-section (3) can not be considered by the Commission as remedies for reinstatement, unless the two orders listed in sub-section (2) are not able to be utilised by the Commission. This is so, as sub-section (3) opens with the condition, "If the employer does not have employment of that kind available,…. "(underlining added). 28 Further, the use of the term "available" in the quoted extract above from sub-section (3), makes it clear that the two reinstatement order remedies listed in sub-section (2) can only be utilised, provided that employment of a kind is "available". The meaning of that term was considered in Cansino. (p29, para 20). 29 Having regard to the Cansino statutory interpretation of the operation of Part 7 (and hence Part 8), the Commission sets out below the four reinstatement orders. Thus, the Commission may make an order reinstating the employee to: Section 243 (2) (a) employment of a kind that is available and for which the employee has applied and which may be as advantageous or less advantageous than the pre-injury employment; or (b) employment of any other kind that is available and which is no less advantageous to the employee than that employment applied for; or Section 243(3) (c) employment of any other kind, being: (i) employment of a kind that is available but that is less advantageous to the employee; or (ii) 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). 30 In respect of all four types of orders, there is a requirement that the employee is fit for that kind of employment. Such fitness is to be based on medical evidence. 31 Excepting for the last order of reinstatement listed, the other three orders of reinstatement require that the employment be "available". Section 243 and the Procedural Process 32 There is a statutory procedure to be followed by an injured worker seeking a reinstatement order: (a) the injured worker is one who receives an injury for which the worker is entitled to receive compensation under the Workers Compensation Act 1987: Section 240(2). The applicant satisfies this criterion. (b) The injured worker was dismissed because he/she was not fit for employment arising out of the workplace injury: Section 241(1). The applicant satisfies this criterion. (c) The injured worker is to apply to the employer for reinstatement to "employment of a kind": Section 241(1). The applicant applied for the role of Bus Operator at Willoughby Depot and in nominating that sought after role, she then labelled that role/work as being "employment of a kind". (d) The injured worker is to produce a medical certificate to say that he/she is fit to undertake the work/role (employment of a kind) being sought: Section 241(3). The applicant complied with this criterion. Her medical certificate is from Dr F. J. Minogue, dated 9 March 2010. However the respondent has put the applicant's fitness for duty in issue. (e) The applicant's application for employment of a kind was rejected by the Respondent. This entitled the applicant to make an application to the Commission for a reinstatement order: Section 242(1). Employment of the kind for which the worker has applied 33 The applicant has applied for employment of a kind, being the role of Bus Operator at Willoughby Depot. The respondent is opposed to the particular application. The respondent is open to the applicant being re-deployed to other bus depots. 34 The Commission has already set out the four types of reinstatement orders and stated that the latter two orders (found in section 243(3)), are only available if none of the two orders in section 243(2) can be utilised. 35 And section 243(2) contains in its first set out order, the priority that it is to be considered firstly by the Commission. Thus, the words of priority are: "…for which the worker has so applied for reinstatement…." So, the first focus of the Commission has to be on the kind of employment for which the worker has so applied. The applicant nominated to the respondent that she sought reinstatement to the role of Bus Operator at Willoughby Depot. Two questions then arise for consideration. Firstly, is that role "available" and secondly, is the applicant fit for that role/employment of a kind? 36 Finally, the Commission notes that section 243(2) and (3) for that matter, contain the term "may order" in the context of the Commission's consideration of the possible reinstatement orders. Thus, the Commission has a discretion, at the end of the day, as to its reinstatement power - whether to make an order and if so, to what extent. Is the role "available"? 37 The applicant's first hurdle is that the role is "available". The evidence demonstrated that the role is available. 38 The Commission will now consider the next issue being the evidence put forward by the applicant that she is fit for the work for which she applied and also consider the respondent's evidence against that work application. Is the applicant fit for the work? 39 The key issue for the Commission's determination in this matter is the question going to the applicant's fitness for the role. The applicant answers in the affirmative and relies upon medical evidence to support her position. The respondent provided no medical evidence but relies upon a physiotherapy report, a practical assessment and the applicant's injury history to answer the key question as follows: there is a possibility of re-injury. The respondent did not produce a medical assessment to say that the applicant was not fit for work. The respondent is opposed to the applicant's claim for reinstatement to the employment of a kind nominated by the applicant - Bus Operator at Willoughby Depot. 40 There were relevantly seven (7) lots of documentary material going to the applicant's claim of fitness for the role: (a) 2 March 2010 - Physiotherapy Report of Russell Tuckerman. (EX 13, TAB 1). (b) 9 March 2010 - Medical Certificate for the applicant from her treating doctor, Dr F. J. Minogue (EX 13, TAB 1). (c) 7 April 2010 - Letter from Dr Minogue to Paul Gan (EX 13, TAB 3). (d) 8 July 2010 - Practical Assessment (EX 9, TAB 10). (e) 13 July 2010 - Physiotherapy Report of Craig Berry (EX 9, TAB10). (f) 21 September 2010 - Physiotherapy Report of Russell Tuckerman. (EX 2). (g) 12 October 2010 - Letter from Dr Minogue to Barwick Legal. (EX 1). 41 Having considered that material in particular and all of the other evidence, I find that the applicant has established her case that she is fit for the employment of the kind for which she has nominated: that is, Bus Operator at Willoughby Depot. My reasoning is set out below. 42 Firstly, the Commission only had medical evidence from one party to the proceedings - that is, the applicant. There was no medical evidence put on by the respondent to say that the applicant was not fit for the role. 43 Secondly, Dr Minogue issued a medical certificate on 9 March 2010, advising that the applicant was fit for employment as a Bus Operator. (EX 13, TAB 1). In doing so, the applicant satisfied the legislative criterion that she produce to the employer a medical certificate that she is fit for the nominated employment: s241(3) Workers Compensation Act 1987. This caused the respondent to question this medical assessment up to and including the Hearing before myself. I deal with that questioning below. 44 Mr Paul Gan, Acting Manager Workers Compensation questioned Dr Minogue's medical certificate by correspondence of 24 March 2010. (EX 13, TAB 2). In that letter, Mr Gan refers to the applicant's injury history. He wrote that the applicant's report of injury from 2007 had said that "she developed lower back pain, right leg pain and right knee pain as a result of not being able to reach the accelerator (pedal) with the whole of her foot (and) so had to stretch to be able to drive bus with whole of foot on the accelerator." Mr Gan then asked how the applicant's circumstances had changed in 2010 in order for that injury report to no longer apply. The evidence showed that the applicant was of a smallish stature and the respondent was saying that she had had difficulty in being able to depress the accelerator pedal in 2007 and this was the cause of her injury and what were the changed circumstances that allowed Dr Minogue to say she was now fit for employment. 45 Dr Minogue responded by letter of 7 April, advising of two changed circumstances. Firstly, the applicant had been having very appropriate physiotherapy with a Mr Russell Tuckerman whose methods appeared to be particularly efficacious (effective). Secondly, the type of buses which the applicant had been driving had a rather immovable and rigid seat and position for driving which prevented the applicant from making necessary seat adjustments in order to reach the braking and accelerator pedals. The doctor had now learned that new models of buses are in use which enable the applicant to reach the pedals without any discomfort or disability. In summary, the doctor expressed his opinion that she would be able to drive safely without causing further injury or cause any aggravation of her lower back pain, knee or ankle pain. (EX 13, TAB 3). 46 Mr Gan deposed, that Dr Minogue's assessment appeared to be based on the assumption that the applicant would only be required to drive the "newer models of buses". (EX 13, para 13). Mr Gan, in agreement with Mr Peters (Depot Manager, Willoughby), took the view that the applicant had a potential risk of re-injury if she was to return to work. 47 During the consideration phase before myself, and in an attempt to resolve the applicant's claim for reinstatement, a practical assessment was carried out on 8 July 2010. This exercise required the applicant to sit in the driver's seat for all models of buses she would be required to drive out of Willoughby Depot. The Pre-employment Practical Assessment (Form 450) lists twelve (12) activities against which the applicant was assessed for six (6) types of buses. (EX 3, Annex TMS 33). 48 The practical assessment form shows that for eight of the twelve factors to be assessed, the applicant has been given a tick for all types of buses. One more factor comprises ticks and "N.A". 49 The form shows that for the factor "Pedal reach (leg not fully extended)", the tester has recorded "ALMOST FULL EXTENSION" for three of the buses and ticks for the remaining three buses. 50 The form shows that for the factor "Change Front Side & Rear destination rolls", the tester has recorded "FRONT: STRETCH BUT ABLE" for two of the buses and ticks for the remaining four buses. 51 The form shows that for the factor "Operate Park Brake", the tester has recorded, "STRETCH OF BODY & LEG" for two of the buses and ticks for the remaining four buses. 52 The above assessment was carried out by Mr Craig Berry, Physiotherapist and Mr Ramon Libuano (Bus Operator/Trainer). 53 Craig Berry wrote a report on the practical assessment of the applicant. (EX 3, Annex TMS 32). The report advised that the applicant was able to perform the criteria (factors) at the time of the assessment. The report then makes a couple of notations. Thus, the applicant was reported to perform the winding of the front destination winders at extreme stretch. Further, the applicant was reported to be only just able to reach the pedals of the Scania and MAN buses. In respect of both matters, it was said that the applicant was then predisposed to risk of re-injury, because of her shortish stature and the report's observation about her stretching to reach the front winder or say, depress fully the accelerator. 54 The respondent declined to reinstate the applicant based on the practical assessment and Craig Berry's report. 55 In response to the respondent's position, the applicant provided a physiotherapy report from Russell Tuckerman, dated 21 September 2010 (EX 2) and a medical assessment from Dr Minogue, dated 12 October 2010 (EX 1). 56 The Tuckerman physiotherapy report of September 2010, presents the applicant in a positive way as to her fitness to return to full time duties as a Bus Operator. His report provides a comparative report on her physical nature between March 2009 and September 2010. (His earlier report on the applicant is dated 2 March 2010 - EX13, TAB 1). He refers to the treatment she has had under his clinic's care within that time frame. His report answers the posed question as to whether the applicant (Ms Smith) has developed the skills and awareness to avoid re-injuring herself: Thus: "Ms Smith has definitely developed the skills to avoid re-injury in understanding her neutral spine position, understanding how to maintain this when attempting to flex at her hips, squat, lunge, walk and sit. By understanding postural awareness in sitting and standing she can maintain this neutral position under load and this has allowed her to remain pain free and increase her activity levels as described in the paragraph above. These skills will certainly assist Ms Smith in avoiding re-injury as she will be able to maintain a sitting posture when working as a bus operator and she knows the importance of not putting her spine into a kyphotic or stressed posture as identified in physiotherapy assessment of her bus sitting position." 57 Mr Tuckerman's report shows that he has read the Craig Berry report. 58 The applicant was cross-examined on Mr Tuckerman's report as to the issue extracted above as to her skills and awareness to avoid re-injuring herself. She confirmed the positive assessment of Mr Tuckerman, her physiotherapist. She said it was he who put her on the right path, during her physiotherapy treatment. He taught her how to use her muscles... have the correct muscles turned on, so as to have support... to have a neutral spine position in order to avoid pain. As a result, she felt a lot better now in 2010 than she did before 2007. (Tr 11, line 14 to Tr 12, line 46) 59 Dr Minogue, the applicant's treating doctor, provided a medical assessment (12 October 2010) in response to Craig Berry's report. Relevantly his medical assessment states: "6. As regards to Craig Berry's assertion that Ms Smith could be at risk of injury to her lower back and surrounding structures. I am unable to agree with this. I base my opinion on the fact that she was able to drive older model buses over some years without any discomfort nor disability. 7. Taking into consideration all the factors contributing to her symptoms of disability, discomfort and pain, I do not agree with the matters as expressed in the report of Craig Berry. I do not think that Ms Smith is now exposed to any greater degree than any other driver of the appropriate bus. Any potential injuries would, in my opinion come from any fresh and independent injuries." 60 In reviewing all of the foregoing material (and the evidence as a whole), I find that the applicant has medical evidence and supporting physiotherapy report, to establish her case that she is fit for the employment of the kind for which she has nominated. Of importance is the applicant's supporting testimony that the physiotherapy treatment provided her with the technique for the correct use of her muscles for carrying out tasks in order to avoid pain. There is no medical evidence from the respondent to say otherwise. Also of importance, is that the views expressed by Tuckerman and Dr Minogue (21 September and 12 October 2010 respectively) are ones made having regard to the Craig Berry report. Their views were not expressed in ignorance of that report. CONCLUSION 61 For the reasons set out in this Decision, the Commission has determined that the applicant has satisfied the relevant statutory hurdle to make good her claim for her nominated role of Bus Operator at Willoughby Depot. That is, the role is available and she is medically fit to perform that role. 62 Having made that finding, the Commission was then required, by statute, to consider the exercise of its discretionary power as to whether a reinstatement order should be made, per section 243(2), in favour of the applicant's sought after role as Bus Operator at Willoughby Depot. 63 Taking on board the evidence on this issue (in particular, the evidence as to job availability and suitability in other depots), the Commission will issue an order for reinstatement into the role of Bus Operator at Willoughby Depot. 64 The Commission will also make the appropriate order as to lost remuneration. The period of time for which the lost remuneration order will operate, will be from the date the applicant made her application to the respondent for reinstatement (7 June 2010) to the date of the order for reinstatement (3 December 2010): section 243(4). That order for lost remuneration shall have deducted from it any Workers Compensation payments made to the applicant in that operative period of time. ORDERS For the reasons set out in this Decision the Commission has determined that the dismissal of the applicant Therese Smith warrants the intervention of the Commission by way of an Order under section 243(2) of the Workers Compensation Act 1987. The Commission hereby makes the following Orders: 1 The Commission orders, pursuant to section 243(2) of the Workers Compensation Act 1987, that the State Transit Authority of New South Wales (the respondent) reinstate Therese Smith (the applicant) to employment of a kind, being Bus Operator at Willoughby Depot. 2 The Commission orders pursuant to section 243(4) of the Workers Compensation Act 1987, that the respondent pay to the applicant an amount of money being for the period from the date of the making of her application for reinstatement (7 June 2010) to the respondent, to the date of this order (3 December 2010) less any amount of money received as payment in respect of workers compensation or derived from alternative employment 3 The Commission orders that the applicant is to be reinstated to the employment of the kind herein stipulated as soon as practicable, and within twenty-one days from the date of this Decision. A Macdonald 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.