Industrial Relations Commission New South Wales Medium Neutral Citation: Elliott v State of New South Wales, Ministry of Health (Ambulance Service of NSW) [2012] NSWIRComm 141 Hearing dates: 24 - 25 October 2012, 12 - 13 November 2012 Decision date: 07 December 2012 Jurisdiction: Industrial Court of NSW Before: Staff J Decision: 1. Application granted. 2. The parties are directed to file within 14 days of the date hereof, short minutes of order, which reflect the findings made together with the amount that the applicant is entitled to receive pursuant to cl 4 of the Award. If agreement cannot be reached in respect of costs, I will hear the parties. Catchwords: APPLICATION FOR AWARD ENTITLEMENT - payment of partial and permanent disability benefit - ambulance officer - officer suffered on duty injury - termination of employment - entitlement to disability benefit under Award refused - interpretation of clause in Award providing for payment of partial and permanent disability benefit - officer entitled to disability benefit under the Award - costs reserved Legislation Cited: Industrial Relations Act 1996 Cases Cited: Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; (2001) 22 NSWCCR 46 Director of Public Employment (by her agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 Jones v Dunkel (1959) 101 CLR 298 Mercer v ANZ Banking Group [2000] NSWCA 138; (2000) 48 NSWLR 740 Police Association of New South Wales (on behalf of Sahra Gulbis) v Commissioner of Police [2008] NSWIRComm 187 Re Union of Postal Clerks and Telegraphists re; ex parte Australian Telephone and Phonogram Officers' Association (1996) 66 ALR 227 Category: Principal judgment Parties: Neil Charles Elliott (Applicant) State of New South Wales, Ministry of Health (Ambulance Service of NSW (Respondent) Representation: Mr TJ Dixon of counsel (Applicant) Mr D Mahendra of counsel (Respondent) Slater & Gordon (Applicant) Maddocks Lawyers (Respondent) File Number(s): IRC 1374 of 2011 Judgment 1Neil Charles Elliott ("the applicant") commenced proceedings against the State of New South Wales, Ministry of Health (Ambulance Service of NSW) ("the Ambulance Service") pursuant to s 365 of the Industrial Relations Act 1996 ("the IR Act") for an order for the recovery of remuneration and other amounts payable under the Ambulance Service of NSW Death and Disability (State) Award ("the Award"): Industrial Gazette, Vol 366, at 5. 2Section 365 of the IR Act is in the following terms: 365 Order for recovery of remuneration and other amounts payable under industrial instrument An industrial court may, on application, order an employer to pay any amount payable under an industrial instrument that remains unpaid to the person to whom it is payable. 3The applicant seeks an order to be paid a partial and permanent disability benefit payable under the Award. The applicant claims $192,219.40. 4In order for the applicant to succeed, it is necessary for him to establish that he suffered a partial and permanent disability as defined in cl 3 of the Award and to have satisfied cl 4, Coverage, of the Award. 5Clause 3 and cl 4, in particular cl 4.3, are critical to the determination of the applicant's application. 6It is convenient to set out the relevant terms of cl 3 and cl 4 which are: 3. Definitions ... "the Service" means the Ambulance Service of NSW, a Division of the NSW Health Service, as established by the Health Services Act 1997. ... "a superannuation scheme" means the First State Super superannuation scheme that provides on duty additional coverage for death, total and permanent disability, and partial and permanent disability. This also means the separate scheme that provides for off duty injury coverage for death, total and permanent disability, and partial and permanent disability. "off duty injury" means any personal injury or disease which is not an on duty injury. "on duty injury" means an injury arising out of or in the course of employment (including a disease which is contracted by an officer in the course of their employment) in such circumstances as would, if the officer were a worker within the meaning of the Workers Compensation Act 1987, entitle the officer to compensation under the terms and provisions of the Act. "partial and permanent disability" means the officer's cessation of employment was substantially due, to the permanent physical or mental disability of the officer (not caused by any act or default of the officer intended to produce an injury leading to that disability) and the officer is, when the officer ceases to be employed by the Service, permanently unable, by reason of that disability, to perform the duties of the position for which the officer was substantively employed. ... "State Authorities Superannuation Scheme" ("SASS") means the superannuation scheme established under the State Authorities Superannuation Act 1987. "State Authorities Non-contributory Superannuation Scheme" ("SANCS") means the superannuation scheme established under the State Authorities Non-contributory Superannuation Act 1987. "State Superannuation Scheme" ("SSS") means the superannuation scheme established under the Superannuation Act 1916. "suitable employment" means the same as the definition in Section 43A of the Workers Compensation Act 1987. "total and permanent disability" means: a) An officer suffers the loss of: the use of two limbs, or the sight of both eyes, or the use of one limb and the sight of one eye where limb is defined as the whole hand or the whole foot: or b) An officer working 15 hours each week or more The officer having been absent from his/her occupation with the employer through injury or illness for six consecutive months and becoming incapacitated to such an extent as to render the officer unlikely to ever engage in any gainful profession, trade or occupation for which the officer is reasonably qualified by reason of education, training or experience. c) An officer working less than 15 hours each week The officer, because of injury or illness becomes permanently unable to perform the basic activities normally undertaken as part of everyday life as evidenced by the officer being unable to undertake any two of the activities listed below: i) Bathing - to shower or bathe ii) Dressing - to dress or undress iii) Toileting - to use the toilet including getting on or off iv) Feeding - to eat and drink v) Mobility - to get in or out of his/her wheelchair vi) Continence - to control bladder and bowel function If the officer can perform the activity on his/her own by using special equipment the officer is not to be considered unable to perform the activity. "Union" means HSUeast. 4. Coverage 4.1 This Award applies to all officers with the following exceptions: 4.1.1 Members of the State Superannuation Scheme; and 4.1.2 To the extent identified in subclause 4.2, members of SASS who have Additional Benefit Cover and who do not elect to be covered for the Death and Total and Permanent Disability benefits under this Award. 4.2 Officers who are members of SASS who have additional benefit cover and who do not elect to be covered for the Death and Total and Permanent Incapacity benefits under this Award will not be entitled to the benefits of this Award in relation to Death and Total and Permanent Incapacity. However, such officers will still be entitled to benefits covered by this Award with respect to Partial and Permanent Disability. 4.3 Subject only to subclause 4.1, this Award applies to all officers employed on or after the operative date of this award. Officers must have been at work on or after that date performing normal duties for a continuous period of not less than 30 days to be eligible for benefits payable under this award in respect of pre-existing injuries or diseases. Transitional Arrangements These arrangements also apply to officers at work at the operative date of this award who are participating in a Return to Work Program or who return to work after that date and participate in a Return to Work Program. Ambulance Service's case 7The Ambulance Service's case, in summary, which changed during the course of the proceedings, was that during the period that the applicant contends he was at work for the purposes of cl 4.3 he was on annual leave. The relevant period was between 24 September 2007 and 24 October 2007, after which the applicant was on workers' compensation. It follows, so it was contended that, on a proper construction of the Award, being on annual leave did not satisfy the 30 day issue as required by cl 4.3 of the Award. 8Furthermore, the Ambulance Service contended that the applicant was not "ready, willing and able" to perform normal duties for a continuous period of not less than 30 days between 2 April 2007 to 19 September 2007 as, for significant portions of that period, the applicant was on annual leave in lieu of sick leave. 9It was initially contended by the Ambulance Service that the requirement found in cl 4.3 to work 30 continuous days was to be construed as requiring a person to work 30 continuous business or working days. During the course of the proceedings, the Ambulance Service conceded that the reference to "a continuous period of not less than 30 days" in cl 4.3, should be read as being a reference to 30 calendar days. 10The Ambulance Service, in its outline of contentions filed in the proceedings, made no submission in respect in respect of whether the applicant was "partially and permanently disabled" ("the disability issue"). However, it subsequently amended its approach to this issue in final submissions, putting this matter in issue. 11Mr TJ Dixon of counsel appeared for the applicant. Mr D Mahendra of counsel appeared for the Ambulance Service. Background 12It was common ground that the applicant commenced employment with the Ambulance Service of NSW ("the Ambulance Service") on 10 October 1980 as an ambulance officer. He was employed on and from about July 2002 in the position of Operations Centre Manager, Southern Operations of the Ambulance Service. 13The applicant was at all relevant times, a member of the State Authorities Superannuation Scheme ("SASS") and had Additional Benefit Cover. He had not elected to be covered for the Death and Total and Permanent Disability Benefits under the Award. 14At the time of the termination of employment of the applicant on 1 August 2008, he held the position and received a salary at Level 4, Operations Manager under the Ambulance Service of New South Wales Superintendent/Operational Managers (State) Award. The Ambulance Service had during the applicant's employment Policies and Procedures for the management of the return to work of officers who suffered illness or injury and who were required to return to work under an injury management plan. 15On 19 September 2007, the applicant was offered a temporary placement within the Risk Management Department of the Ambulance Service, which position was to commence on 24 September 2007 and continue until 23 December 2007. 16It was agreed that the applicant was unfit for work on and from 24 October 2007. The applicant contended that his employment was terminated for medical reasons from 1 August 2008. However, the Ambulance Service contended that the applicant resigned. The applicant claimed partial and permanent disability benefits on 12 September 2008 which was rejected by the Ambulance Service. Evidence of the parties 17Mr Dixon read two affidavits of the applicant, who was required for cross-examination. The applicant also relied on a report prepared by Dr Kanjee Kana, a medical practitioner, who was required for cross-examination. 18Affidavits of Mr Harry Lynas, Mr David Garvey and Mr Greg Guleksen, who were work colleagues of the applicant, were also read by Mr Dixon. Each was also required for cross-examination. 19Mr Dixon also read an affidavit of Professor Wilfred Winston Yeo, a medical specialist physician, who was not required for cross-examination. Attached to Professor Yeo's affidavit was a report dated 11 January 2012. Counsel also tendered a report of Dr Kipling Walker, Psychiatrist, dated 19 November 2007. 20Also tendered was the applicant's tender bundle. Reference will be made to relevant documentation from the tender bundle in dealing with the evidence. 21Mr Mahendra read affidavits of Mr Joseph Kanti, Manager of Events and Special Projects, and Mr Terry Morrow, District Inspector Wollongong Sector. Both were required for cross-examination. Evidence of applicant 22The applicant stated that on 1 September 2006, he was diagnosed with Xanthogranulomatous ("Xantho"). This is a chronic inflammatory disease which causes a number of symptoms including nausea, lethargy, headaches and pain. As a result of this disease, in early February 2007, the applicant underwent radical surgery performed by Dr Richard Martin, where his thyroid, parathyroid, and surrounding tissues (including muscle, blood vessels, lymph nodes and nerves) were removed. 23The applicant stated that his symptoms include ongoing neck and face pain, constant nausea, light headedness, headaches, profuse perspiration, drowsiness, increased anxiety and weakness. 24On 1 October 2006, the applicant commenced sick leave as a result of the disease. 25On 2 April 2007, the applicant returned to work however, he was advised by his Manger, Mr Denis Beavan, that there was no position available for him and that he should commence annual leave. He commenced annual leave at that time as directed by Mr Beavan. 26On 19 September 2007, the applicant engaged in a telephone conversation with Mr Greg Rochford, Chief Executive Officer of the Ambulance Service. His evidence was that during the course of this conversation, a secondment offer was made to him to assume the temporary position of Occupational Health, Safety and Risk Management Educator. Mr Rochford and the applicant agreed that his official return date from annual leave was to take place the following day. The applicant attached a position description pertaining to this role. 27The applicant stated that it was also agreed that he would maintain all of the rights and entitlements of his substantive position as Operations Centre Manager and continue to report to his previous Manager, Mr Beavan, instead of the Human Resources Manager, Mr Colin Lyttle, to whom other officers performing OHS/HR/Risk Management roles reported. 28On 20 September 2007, the applicant's evidence was he made himself available to return to work. However, he was unable to commence his new role as the person who was charged with being his direct Manager in the role, Mr Beavan, was unavailable to meet with him until Monday 24 September 2007. 29The applicant finally met with Mr Beavan on 24 September 2007 and commenced the role of OHS & Risk Management Educator. 30In respect of his return to work, the applicant annexed a statutory declaration made by him on 13 May 2009, in which he described his return to work and the work carried out at Wollongong, Goulburn, and Rozelle Ambulance Centres, between 22 [sic] September 2007 and 24 October 2007. 31The applicant annexed a memorandum dated 11 October 2007 authorised by Ms Colleen Fowler, Acting Director, Workforce. This document was signed by Mr Lyttle, Director, Workforce on 16 October 2007, the General Manager, Operations and the Chief Executive, Greg Rochford, of the Ambulance Service on 17 October 2007. It read: Purpose To issue a letter to Neil Elliott for his temporary placement from 24 September 2007 to 23 December 2007 undertaking training for the position of OHS & Risk Management Educator, Workforce Unit. Background Neil Elliott has been absent on sick leave since October 2006. Neil Elliott met with the Chief Executive on 19 September 2007 and agreement was given to place Neil Elliott in the OHS & Risk Management position for three months. At a meeting held on 11 October 2007 with Neil Elliott, Denis Beavan and Colin Lyttle, it was agreed for Neil to remain in the Southern Division location for the period of the temporary placement while he undertakes training identified for the position. Analysis of Key Issues Neil Elliott is returning from a long absence on sick leave. Also, on 26 September 2007, Neil advised Colin Lyttle that he was not able to drive the vehicle allocated by Risk Management due to a back problem. The Service is also aware of previous and current back and other medical conditions which may impact on his fitness for duties. If extensive travel, lifting of training or other equipment, or manual handling training is required to be undertaken during his placement, Neil will need to provide a medical certificate from his treating medical practitioner to clear him to undertake these duties or advise the Service of any restrictions. This ensures that the Service complies with his duty of care and OHS Act requirements to provide a safe work environment. The Operational Managers Level 4 salary and other conditions of employment (eg uniform, vehicle, electricity reimbursement) expenditure will be met by Southern Division for the period of the placement. As the appointed OHS Risk Management Trainer, Rod Allan, will require the use of the Workforce Unit vehicle, mobile phone, laptop computer and other training equipment, the Southern Division will need to continue to allocate his current vehicle, if required. A training and development plan has been developed and includes the Cert IV trainer and Cert IV OHS certificate courses which are requirements of the position. Other training has also been identified and will be undertaken on the job by Rod Allan. Recommendation That the Chief Executive: 1. Sign the attached letter to Neil Elliott for his three months temporary placement to undertake the training required for the OHS & Risk Management Educator position; and 2. Approve for the costs to be met by Southern Division for the period of the three months placement; and 3. Approve the requirement for medical clearance by his treating medical practitioner or assessment of adjustments in the workplace if undertaking the duties in the position other than training. 32On 17 October 2007, Mr Rochford confirmed by letter, the discussions that had taken place between the applicant and himself on 19 September 2007 together with discussions between Mr Lyttle, Mr Beavan and the applicant which had occurred on 11 October 2007. This letter read: This letter is to confirm our discussion on 19 September 2007 and the discussion held on 11 October with you, Colin Lyttle and Denis Beavan. I agree to provide you with a temporary placement from 24 September 2007 to 23 December 2007 in the Risk Management Unit while you undertake a relevant training program in OHS risk management. You will continue to attract your current salary of Operational Manager Level 4, the conditions of employment contained in the Superintendents/Operational Managers (State) Award and will continue to work in the Southern Division during the temporary placement. During the temporary placement, you will report to Joe Kanti, Risk Management Adviser in terms of the position duties, responsibilities and accountabilities and the training plan identified. Rod Allan, OHS Risk Management Training will provide the on the job training. Prior to undertaking activities such as extensive travel, carrying training equipment or conduct manual handling training, please take this letter and a copy of the OHS Risk Management Trainer position description to your treating medical practitioner and provide a medical report clearing you to undertake the duties or to advise the Service of any adjustments which need to be made. Please contact Colin Lyttle, Director Workforce on telephone number XX XXXX XXXX should you have any enquiries in relation to the temporary placement. 33On 11 October 2007, prior to the receipt of the above letter confirming the applicant's temporary placement and resumption of work, the applicant met with Mr Beavan, Mr Lyttle and Mr Kanti, which is referred to in the above letter. He was informed that Mr Rod Allan, having been appointed to another position, no longer wished to continue in that position having returned to his position as Southern Division HR Risk Manager, the position to which the applicant had been appointed on a temporary basis. The applicant was informed during this meeting that he was to now work from the Sydney office of the Ambulance Service. His evidence was he informed Mr Beavan that this was not the agreed position as per their meeting on 19 September 2007. 34The applicant stated that he first physically attended the Goulburn office of the Ambulance Service to meet with Mr Beavan on 24 September 2007 to discuss the logistics of his role. At this stage, no-one in the Ambulance Service had suggested to him that he had not in fact commenced work on 24 September 2007 and that he was still on annual leave (the Ambulance Service's record confirms that between 24 September 2007 and 26 October 2007 the applicant remained on annual leave). 35The applicant stated that he had not received his pay slips during this period and so was unaware that the Ambulance Service had made a mistake in paying him annual leave and not his correct salary. At this time, he did not complete a leave of absence form which would have been required to be signed by his immediate supervisor in order to allow him to take annual leave. 36The applicant annexed an email to Mr Philip Saye of the Ambulance Service with copies to Mr Beavan, Mr Jeffrey Woods and Ms Abernethy dated 7 August 2007 advising that he wished to reduce his annual leave from six weeks to three weeks starting 4 August 2007. He also annexed an email from Mr Craig Hutchins of the Ambulance Service dated 9 October 2007, providing the applicant with a list of "Educators for the Southern". The email named eight Educators/Traning Officers in the Southern Division, together with their mobile telephone numbers with the exception of two of the Educators. 37The applicant also annexed an email from Ms Michelle Rawlinson to him which read as follows: Hi Neil, Could you please see below email from Phil Saye and complete your timesheets as requested. If you have any enquiries, please call Phil Saye. Hope you are well. Regards, Michelle Rawlinson 38The applicant's evidence is that he worked in the temporary position up until 24 October 2007. He attached copies of his diary entries for the relevant period which he contended indicated he was on duty. He also annexed timesheets together with a letter that he had forwarded to his solicitor advising among other matters that the Ambulance Service had in fact made a mistake in paying him annual leave and not his salary during the period that he worked in September/October 2007. 39On 24 October 2007, the applicant ceased work for reasons of ill-health. He annexed an email from Mr Beavan to Mr Willis which was copied also to Mr Lyttle, advising that Mr Beavan had received a WorkCover medical certificate which stated: "... as best I can understand it, (discord between staff and Mr Elliott and Harassment by Executives resulting in acute depression)". 40Copies of WorkCover Medical Certificates dated from 24 October 2007 to 29 May 2008, diagnosing acute depression, were annexed. 41The applicant's affidavit then read: In approximately July 2008, I had two meetings with Ambulance Service CEO Greg Rochford and HR Manager Ian Peters. At the initial meeting, Mr Rochford said to me to "go off and talk to my doctors about whether you can work and get back to me with your decision" or words to that effect. At the second meeting, Mr Rochford asked me "what was the outcome with your meeting with your doctors," or words to that effect. My response was "Both my doctors said that I was unable to return to work in any capacity" or words to that effect. I showed them the Certificate of incapacity completed by Dr Kana. Mr Rochford then said he was "sorry to see me go" or words to that effect and for Ian Peters to accommodate me. Attached hereto and marked "NE-14" is a copy of the SASS Confidential Medical Report of Incapacity provided by Dr Kana, which was shown to Mr Rochford during this meeting. 42NE-14 is a medical report from Dr Robert Gertler, Psychiatrist, to Slater & Gordon Lawyers for the applicant dated 25 March 2008. The report commences by Dr Gertler stating that he has had access to the following: 1. Statement of Evidence prepared by your client. 2. Report of Dr Kipling Walker psychiatrist. 3. Statements of Ms Ryan and Mr Bevan (sic). 43Dr Gertler's report in response to questions asked by the applicant's solicitor states: 2. Your diagnosis of injury sustained by our client. Mr Elliott is suffering from an adjustment disorder with depressed mood. The level of depression is moderate and is associated with melancholic feelings, emotional lability, sleep disturbances, and a tendency towards social withdrawal. 3. The relationship between any such injury and any work incidents recited in the history, employment duties or employment practices in which our client was engaged in his employment with Ambulance Service of NSW. Mr Elliott's adjustment disorder with depressed mood has developed on the basis of the incidents which took place whilst employed in the Ambulance Service of NSW. Those incidents commended in 2004, however were for the most part dealt with by Mr Elliott despite feelings of stress. From late 2005 however, the various incidents described by him appear to have a cumulative effect and have led to the development of an overt, depressive reaction. 4. If applicable, where out (sic) client is said to be suffering from a degenerative condition please provide your opinion as to whether the nature and conditions of our client's employment with Ambulance Service of NSW can be said to have been a substantial contributing factor in either causing, aggravating, accelerating, exacerbating or deteriorating that condition. In answer to this question, Mr Elliott is not suffering from a degenerative condition. 5. If applicable, is it your opinion that our client's condition would have arisen at or about the same point in time regardless of the nature and conditions of his employment. In my opinion, Mr Elliiott's adjustment disorder would not have arisen at about the same point in time. He had worked for many years in the Ambulance Service and had been in a senior role for several years without displaying emotional problems. Capacity 6. Do you consider our client is fit to perform all the duties required of him in his pre-injury occupation (ie his pre-injury work)? In my opinion, Mr Elliott is not fit to perform all the duties of his pre-injury occupation. He is in my opinion, partially unfit for such work. Mr Elliott remains moderately depressed and lacking in confidence in his ability to deal with issues related to his work and which remain unresolved. He could however in my opinion, return to work on a part-time basis to an area which is relatively stress free and which would enable him to build up his self-confidence. ... 9. Could you please comment on incapacity for employment from 24 October 2007 to date and continuing. Mr Elliott in my opinion, has been totally incapacitated for work from 24 October 2007 until recently. He is in my opinion, partially incapacitated for employment as stated above. 10. Please provide us with your opinion as to whether you believe the depression and anxiety has been substantially associated with Mr Elliott's employment with the NSW Ambulance Service. In my opinion, Mr Elliott's adjustment disorder with depressed mood is substantially associated with his employment. 44The applicant stated that he had not worked in any capacity since 24 October 2007. 45During oral evidence, the applicant stated that Mr Rochford had contacted him and advised that he was aware that he was not going back to the Southern Operations Centre and was putting together a plan for his return to work in the position of a Risk Educator as a job had become available because Mr Allan had resigned and gone to Canberra. 46The applicant stated that he thought this was "a bit of a fall down the ladder" from an Operations Centre Manager, but he needed to return to work, so he agreed. He confirmed that his annual leave concluded on 14 September 2007 and he made no application for any further annual leave. His evidence was he recommenced work on 15 September 2007. He was put in "no man's land" or "left in limbo". He stated there were no jobs available for him and it was at this time that Mr Beavan contacted him and advised that there could be a job "in the wind, wait to hear from the CEO". 47The applicant's evidence was that on or around 22 or 23 October 2007, whilst he was in the Goulburn Sector Office, he was provided with a letter by Mr Beavan advising that he was the subject of a disciplinary investigation. The investigation concluded that there was no substance in the allegations made against the applicant and he received a formal apology from Mr Rochford. 48As a result of being advised that he was the subject of a disciplinary investigation, the applicant suffered anxiety, became depressed, and proceeded on sick leave. On 24 July 2008, he received an unqualified apology from the Chief Executive officer of the Ambulance Service. This was prior to his termination. 49The applicant explained that this email was received in circumstances where Mr Kanti (his supervisor) had informed him that part of his job was to liaise with all Clinical Educators within the Southern Division and that he should contact them, get their contact details and ascertain what training procedures there were and how they marry risk management within their training. He stated that he contacted Mr Hutchins who forwarded him the information. 50The applicant confirmed that he had received a letter dated 31 October 2007 advising him that the Ambulance Service had in place a Return to Work Policy and Program to assist employees returning to the workplace following injury or illness. The letter was from the Ambulance Service's Return-to-Work Co-ordinator who advised the applicant that it was the role of the co-ordinator to facilitate a return to work. 51During cross-examination, the applicant confirmed that the Department of Social Security - Centrelink, had certified him as being totally unfit for employment because of his Xantho condition and other conditions. 52The applicant acknowledged that Dr Kana, in his medical report on incapacity to the SAS Trustee Corporation stated that in his opinion the applicant will never be able to be employed in his normal occupation due to his incapacity. He stated that he has not undertaken any paid or voluntary work since his incapacity. 53Mr Mahendra asked the applicant whether his return to work was part of a formal return to work program within the meaning of the Ambulance Service's policy and procedures. The applicant's evidence was that it could have been part of a Return to Work Program because he was offered training, rehabilitation and new skills. He disagreed that his return to work was subject to a medical clearance. The applicant's evidence was that he received the letter from Mr Rochford dated 17 October 2007, which is set out earlier in this judgment, on the last day of work, after which he went on workers compensation. He strenuously denied that during any meetings with Mr Kanti that Mr Kanti had advised him that he needed a medical clearance before he could commence his new role. He stated that he commenced work in Mr Allan's position three weeks before Mr Allan returned after resigning from the position he had obtained in the ACT. This was on or around 15 October 2007. 54The applicant disagreed that he had commenced in Mr Allan's position. He described himself as a probationary person in training. He stated that under no circumstances would he train anyone as a risk educator until the Ambulance Service or Mr Kanti had fulfilled their requirements and had him directly trained. He stated that he did the job which included researching all the materials, the handbooks and the legislation. He did work for his Divisional Manager, Mr Beavan. However, he stated that he did not work as an Educator at this time as he was not qualified, that was Mr Kanti's role and he did nothing in that regard. The applicant stated he ascertained the costs of and commissioned a course in Sydney. 55Subsequently, Mr Beavan and the applicant, together with Mr Allan eventually ascertained training with a consulting firm in Bega. He reiterated that Mr Kanti did nothing to assist the applicant. He stated that he was back at work for over 35 days from 15 September 2007 to 24 October 2007. This included being on call in accordance with his substantive position as an Operations Centre Manager. The applicant stated that he was an ambulance officer who was on call 24/7. He stated that Mr Rochford had confirmed in his letter that if he provided with a temporary placement that he would maintain all his conditions which included that he was not merely required to work 9 to 5. 56The applicant says that he worked from 24 September 2007 to 23 October 2007 and this included working on weekends which he was directed to do by Mr Beavan because the Division did not have a Risk Educator and he was required to therefore learn the requirements of the position quickly. 57The applicant stated that in accordance with his diary records, he started work in the Wollongong office on 1 October 2007. The applicant's diaries indicated that he worked between 24 and 28 September 2007 in one of two offices of the Ambulance Service located in Goulburn. He agreed that he had not seen Mr White who worked out of one of the Goulburn offices on the Monday, Tuesday, Thursday and Friday of that week. He observed that Mr Woods, the Operational Support Manager based in Goulburn had recalled seeing the applicant in one of the Goulburn offices but not for more than two days in a row. The applicant agreed that this may be correct as he spent the rest of his time at what is known as the St John of God Hospital in Goulburn which is where the Personnel Manager is located. That was where he got documentation and information. 58The applicant was asked whether he worked as his records showed in the Wollongong office from 1 to 3 October 2007 and 15 - 23 October 2007. He stated that he had worked out of the Wollongong office and also worked from home during that time. 59The applicant rejected that in October 2007, Mr Morrow who was based in the Wollongong office gave the applicant a key to that office and showed him a cupboard in which to house his laptop and printer. The applicant's evidence was that this occurred in July 2007 when he initially returned to work. He further stated that in October 2007, he did not have a printer and that his memory was totally clear and that Mr Morrow was mistaken. 60The applicant stated that his time in the Goulburn office would have been approximately four hours per day as there was two hours travel from his home in the Wollongong area to Goulburn and two hours back. He was not there for the full shift because he had to travel. 61The applicant stated that a meeting had been arranged to discuss the suitability of OHS Workplace training programs with a woman from Bega and Mr Allan. He could not remember her name. He was informed by Mr Beavan that Mr Allan would advise him of the date of the meeting. This was on around 20 or 22 October 2007. The meeting was ultimately scheduled for a Sunday and then subsequently cancelled by Mr Allan. It was suggested to the applicant that it was rescheduled for early November 2007. However, the applicant's evidence was he had never been informed that it was rescheduled and he had ceased work due to ill-health before then. 62In respect of the applicant's certification that he was unable to return to work in any capacity, he stated that his understanding of this was in any capacity as an ambulance officer. 63During re-examination, the applicant's evidence was that he undertook training with the assistance of Centrelink to do a Certificate II course in upholstery. He participated in the course over two years and he refurbishes furniture at home. A transcript of his academic record as at 20 December 2010 confirming the partial completion of a Certificate II in Upholstery was tendered. Evidence of Dr Kana 64Dr Kana, in his affidavit of evidence, stated that he was a general practice physician, who had cared for the applicant for approximately 16 years. His conclusion, based upon the applicant's health over many years was that: It is my medical opinion, stated within a reasonable degree of medical probability [is] that Neil Elliott will never be able to be employed in his occupation due to his incapacity and that the cessation of his employment was substantially due to his permanent state of ill health and by reason of his disability he is unable to perform the duties of his employment with the NSW Ambulance Service. 65Dr Kana detailed the applicant's various medical conditions including Xantho, type 2 diabetes, back and neck issues. He confirmed that the applicant was medically unfit to work his normal work duties in a fulltime capacity from 13 November 2006 through to the date he returned to work on or about 20 September 2007. 66In a letter to the applicant's solicitors dated 16 April 2008, Dr Kana stated that the applicant's employment with the Ambulance Service was a substantial contributing factor in the development of depression. 67During cross-examination, Dr Kana was taken to the above letter, in particular to paragraph 11 which he acknowledged read: "yes - total incapacity continues". 68He was then taken to a confidential medical report on incapacity that he provided to SAS Trustee Corporation dated 15 July 2008. In this document under the heading "Opinion on Incapacity" Dr Kana acknowledged that he had ticked a box alongside which the words "will never be able to be employed in his/her normal occupation due to this incapacity" appeared. 69Dr Kana also acknowledged that he had signed the document certifying that the applicant had been suffering from this condition for a period of 30 months. He agreed it was 30 months from September 2008, going backwards. Evidence of Mr Harry Lynas 70Mr Lynas stated in his affidavit that he had been working in the Wollongong Sector Office of the Ambulance Service as District Officer on or about July 2007. When he was working at the Wollongong Sector Office, he was aware that the applicant had an office upstairs at the Sector Office as he saw him on the premises. He stated that he observed the applicant performing his duties in the Sector Office over September and October 2007. 71Mr Lynas' evidence was that he had previously held the position of Support Officer to the Southern Division Manager, Mr Beavan and was involved in discussions with Mr Beavan regarding the placement of the applicant upon his return to the workplace in September 2007. He stated that he was also aware that it was a common practice in the Division for Mr Beavan and others to work from home. 72His evidence was that on numerous occasions during September and October 2007, he also attended upon the applicant at his home to enquire regarding his progress in his new role as an OH&S officer. He stated he was fully aware that the applicant was working in the position of an OH&S officer and was carrying out his duties in the months of September and October 2007 because he observed him doing so back at the Wollongong Sector Office and from his home. 73Mr Lynas adopted the contents of a statutory declaration declared on 18 November 2010, which contained similar evidence to that set out above. 74During cross-examination, Mr Lynas agreed that he did not see the applicant every day at the Wollongong office. Evidence of David Garvey 75Mr Garvey stated that he was employed at the Southern Operations Centre, Wollongong in the position of Acting Assistant Operations Centre Manager. He stated in September 2007 and October 2007, he made numerous visits to the Illawarra Sector Office to see the applicant who was working in the position of OHS Risk Management Officer, Southern Division. 76The reason for his attendances upon the applicant was due to his request for Mr Garvey's assistance and guidance in OHS risk management matters, which he was able to provide to him in his capacity as the OHS Chairperson for the Southern Operations Centre OHS Committee. 77He stated that the applicant had an enormous amount of documentation relating to OHS matters which Mr Garvey understood from his conversations with the applicant were provided to him by the Sydney office for background reading. 78In order to assist the applicant, Mr Garvey addressed many topics on OH&S, such as "Continuous Improvement of OHS Systems, OHS Effective Communications, Consultation in the Workplace, Workplace Health and Safety and Risk Assessment". 79Mr Garvey's evidence was he agreed to provide the applicant with this assistance in order to help him gain the knowledge and the tools to perform adequately in his position as the OHS Risk Management Officer. He stated that he met with the applicant to continue his training in October 2007 prior to his ceasing work in the position of the Southern Divisional Risk Management Officer and his transfer to Sydney. 80Mr Garvey stated that during September and October 2007, he met the applicant approximately six to eight times in his office upstairs at the Wollongong Sector Office in his capacity as a Southern Divisional Risk Manager. Furthermore, he stated he met the applicant twice at his home also in his capacity as a Southern Divisional Risk Manager. 81Mr Garvey also adopted the contents of a statutory declaration declared at Albion Park on 18 November 2010, which included some of the evidence set out above. 82During cross-examination, Mr Garvey agreed that he did not see the applicant every day. Mr Garvey stated that the reason he had various conversations with the applicant in respect of OHS documentation was that the applicant had explained to him that he had not been given any formal training in respect of his role and undertaking risk assessments. 83As a training officer, Mr Garvey took the opportunity to give the applicant some training on the risk assessment side of matters. Evidence of Mr Guleksen 84Mr Guleksen stated that he met the applicant at the Wollongong Ambulance Station in the months of September and October 2007 in his capacity as a Southern Divisional Risk Management Officer. He stated that he visited the applicant at the Sector Office in Wollongong many times as this was where his office was located. He also stated that he met the applicant at his home a couple of times in his capacity as a Southern Divisional Risk Management Officer. 85Mr Guleksen stated that the applicant in his capacity of employment as a Southern Divisional Risk Manger, made representations on Mr Guleksen's behalf to Mr Rochford in relation to his WorkCover claim. 86Mr Guleksen also adopted the contents of a statutory declaration sworn on 18 November 2010 which contained much of the evidence set out above. 87During cross examination, Mr Guleksen stated that he understood the applicant used the old office of Mr Trevor Noel in the Wollongong Office. He agreed that he did not see the applicant every day. 88In re-examination, Mr Guleksen's evidence was he saw the applicant working in Goulburn in September 2007 and October 2007 "six or seven times". Evidence of Mr Jeffrey Woods 89Mr Dixon read an affidavit of Jeffrey Woods who had provided it to the Ambulance Service. It was not read by Mr Mahendra. Mr Woods is the Zone Manager for the Southern NSW Zone of the Ambulance Service. He stated that he had read the applicant's affidavit and recalled that the applicant had a temporary office which was located next to his office, which is based in Goulburn. He recalled seeing the applicant attend the Goulburn Office infrequently. He stated he did not recall the applicant attending the Goulburn Office for more than two days in a row. Mr Woods worked from Monday to Friday during September and October 2007. His rostered hours of duty were 8.00am to 5.00pm each day and he was mostly based in Goulburn although he would sometimes attend meetings outside the Goulburn Office. He further stated that he could not recall how many times the applicant attended the Goulburn Office, however, he stated that the applicant was given a work vehicle (a Subaru Forrester) and the laptop computer used by Mr Allan, who had previously held the role of OHS Educator. Medical evidence 90Mr Dixon tendered a medical report of Professor Wilfred Winston Yeo, who assessed the applicant in 2011. Professor Yeo's report stated that he had been the applicant's specialist physician since 6 April 2011 and had seen him on seven occasions with the last visit being on 9 May 2012. 91Professor Yeo set out the applicant's medical history which was based on the applicant's medical records from 2007 provided to him by his general practitioner. 92Professor Yeo concluded his report stating: I confirm that I have reviewed the applicable definition of partial and permanent disability and understand it's definition as supplied to me by Mr Elliott's legal team. It is my medical opinion that Neil Elliott is partially and permanently disabled and has been so since 24 October 2007 when he left his employment. The reasons for expressing this opinion is that Mr Elliott continues to have frequent disabling episodic symptoms that last from 1-2 hours to 1 or 2 days resulting in nausea, right-sided headache, pain in the right side of his chest, tenderness in the right submandibular region and profuse sweating and pallor. In addition, Mr Elliott suffers from depression which has in a significant part resulted from his xanthogranulomatous inflammation and extensive neck dissection to remove this mass. A further contributor to his problems is that xanthogranulomatous inflammation is a rare condition and appears to have been the trigger for the episodic symptoms. The failure to eliminate the symptoms over the past four and a half years, despite extensive investigations and consulting several doctors, makes it unlikely that there will be resolution in the foreseeable future. 93Mr Dixon also tendered a report from Dr Kipling Walker, Psychiatrist, dated 19 November 2007. Relevantly, after setting out the applicant's history including that the applicant had been the subject of a disciplinary investigation, Dr Walker's analysis was as follows: Analysis Mr Elliott's depression was substantially contributed to being formally disciplined at work. He was placed on a performance improvement program. He was demoted. His depression was contributed to by his medical problems. Return to Work and Treatment Recommendation Is the Worker fit to resume normal or partial duties? Mr Elliott was psychiatrically fit to resume normal duties. Ambulance Service's evidence Mr Joseph Kanti 94Mr Mahendra read an affidavit of Joseph Kanti, who is the Manger of Events and Special Projects in the Health Emergency Management Unit of the Ambulance Service. 95Mr Kanti stated that during the period 1 April 2007 to 1 November 2007, he held the position of Acting Risk Management Coordinator and was based at Rozelle. His evidence was that Mr Allan worked in the position of Southern OHS Educator from approximately 2005 until some time prior to September 2007. When Mr Allan left this position, Mr Kanti took steps to begin the recruitment process to advertise his position. Very shortly after he had commenced this process, he was directed by the Ambulance Service to stop the recruitment process as there was a possibility that the applicant would be undertaking he OHS Educator role. 96His evidence was he stated to the applicant that he should not have face to face contact with employees until he was appropriately trained for the role. Mr Kanti was concerned that the role required a depth of knowledge about OHS legislation and policies. He was aware that the applicant had a back condition which he thought might affect his capacity to perform OHS duties such as demonstrating manual handling and lifting techniques. 97Mr Kanti stated that on or around two weeks after he learnt that Mr Elliott would potentially be joining the Risk Management Department in September 2007, he received a telephone call from Mr Allan who in effect stated that he felt he had made a terrible mistake leaving the Ambulance Service and could he have his old job back. Mr Allan returned to the Ambulance Service to perform his former role as OHS Educator in about October 2007. He again left the Ambulance Service in about February 2009. 98Mr Kanti stated that although the Ambulance Service offered the applicant the temporary role of OHS Educator, he never assumed the role and did not undertake the OHS Educator duties. He stated that: "Practically speaking, his temporary placement in the role was just an idea that never came to fruition because he never actually assumed or carried out the role". 99During his employment as the Acting Risk Management Coordinator, Mr Kanti stated that all OHS Educators were required to report to him. At no stage during the period September 2007 to November 2007 did any of his seniors, Mr Lyttle, Mr Beavan and Mr Rochford confirm that the applicant would actually begin working in the Risk Management Unit as an OHS Educator. He agreed that the had discussions with them about the possibility of the applicant commencing work in his Department. As a result of these discussions, he considered that it was necessary and began to facilitate the process of identifying appropriate OHS training for the applicant to attend so that he could obtain appropriate qualifications if he was to become an OHS Educator. 100Mr Kanti stated that if the applicant was to take up the role, he needed training and a medical clearance. His evidence was this was confirmed in a document authored by Ms Fowler, Acting Director, Workforce dated 11 October 2007 (set out earlier in this judgment). He stated that the applicant never produced medical evidence to confirm his fitness for the role. Mr Kanti stated that he met the applicant on two or three occasions during the period September 2007 to November 2007, but never observed him do any work or perform any duties. He stated that the applicant never underwent an initial needs analysis and as such the Ambulance Service did not get the opportunity to assess his suitability (or unsuitability) for the role. 101Mr Kanti stated that he had attended a meeting with the applicant on 11 October 2007, together with Mr Lyttle and Mr Beavan but did not recall the applicant being told to work from the Sydney Office. His understanding was that the applicant needed to be assessed and attend training at that stage. He did recall, however, that around this time the OHS Educator for Sydney had left the Ambulance Service and Mr Allan had returned to his former role. He stated that engaging the applicant as the OHS Educator for Sydney was mooted as possibility but nothing eventuated from this. 102He stated that his initial discussions with the applicant on or about 19 September 2007 related only to the types of training that would need to be considered for him once he had been assessed by the relevant training organisation and also whether or not the role posed any further risks to the applicant's health. 103Mr Kanti stated that he was aware that the applicant had attended a meeting with Mr Lyttle in Rozelle but could not recall the date. He did recall that the applicant came to see him afterwards and advised him that he had just come from a meeting with Mr Lyttle. Mr Kanti stated that Mr Lyttle's background was in industrial relations. He was aware of the letter forwarded by Mr Rochford to the applicant dated 17 October 2007. He stated he assisted in drafting this letter (set out earlier in this judgment). 104Mr Kanti referred to the applicant's diary entries and stated that he did not see the applicant perform any OHS Educator duties between 24 September 2007 and 24 October 2007, or at all. He further stated that he did not direct or expect the applicant to work on weekends. He was not aware that he was working on weekends. Similarly, he stated that he did not direct the applicant to perform any OHS duties from home. If that had been the case, it would have been necessary for a risk assessment to be undertaken for the applicant to work at home and this did not occur. 105Mr Kanti stated that on 3 October 2007, he wrote to Mr Lyttle stating that the applicant could not train and hence he has endeavoured to find something within his limited field of experience for him to do in the meantime. He stated that this had been met with either resistance in the way of his history with certain people in the southern region or because of his lack of experience and qualifications. He denied that he had asked the applicant to source necessary training. He agreed that he had asked Mr Allan to source training for the applicant. He did not recall having any discussions with the applicant regarding training costs or being presented with costing materials. He stated the only discussions he had with the applicant about financial matters was to confirm his salary would be paid out of the Southern Operations budget and not the Risk Management budget. 106Mr Kanti acknowledged that he attended a meeting with Mr Paul Burke, the Western Division OHS Educator and that Mr Burke provided the applicant with a bundle of documents to give him a general background understanding of occupational health and safety and gave him some guidance as to how to approach the material. He stated in his role as Acting Coordinator, he did not receive a single timesheet relating to the applicant. However, he stated he did not expect to see the applicant's timesheets as he continued to be paid through the Operational Division and was not performing risk management duties. 107Mr Kanti acknowledged that he did provide the applicant with some materials "to assist him to get his head around the OHS Educator role". He denied that he directed him to "research all these documents". 108Mr Kanti accepted that he had asked Mr Allan to arrange training for the applicant. He was aware that Mr Allan had arranged a meeting with the applicant and a training facilitator. He understood a meeting was occur in Kiama. The meeting was arranged for 31 October 2007 and was to be held at the applicant's home in accordance with the applicant's request. Mr Kanti stated that on 30 October 2007, Mr Allan was informed by Mr Beavan that the applicant was on sick leave and therefore not likely to be available for the meeting. 109Mr Kanti stated that to his knowledge, the applicant was not at work performing duties for a continuous period of not less than 30 days on or after September 2006, and in particular, between 24 September 2007 and 24 October 2007. He stated that he had reviewed the Ambulance Service's leave record for the applicant for the period September to October 2007. These records showed that the applicant was on annual leave in lieu of sick leave during this period. Copies of the Ambulance Service leave records were annexed to his affidavit. 110Mr Kanti stated that from reviewing the Ambulance Service's records, he was aware that on 12 September 2008, Mr Elliott made an application for a partial and permanent disability benefit under the Award, stating that his date of injury was 1 September 2006, the injury suffered being Xantho. 111During cross-examination, Mr Kanti's evidence was that the applicant was not under his supervision at all during the period September to October 2007. He stated that during this period he had dealings with the applicant relating to whether he would be placed in the position as an OHS Educator. He was unable to say if anyone supervised him during this period. 112Mr Kanti stated that his understanding of the meaning of 30 days in the Award was 30 calendar days. Mr Kanti stated that he had not identified any person as at 24 September 2007 to train Mr Elliott. He subsequently decided to use Mr Allan in this role when he returned to the Ambulance Service which was in early October 2007. Mr Kanti agreed that the applicant's position was slightly unusual in that although he was earmarked to work as the OHS Educator, he was still holding down his previous substantive position. He agreed that in a statutory declaration dated 2 July 2009, that he had stated that the applicant would report to him as his manager in relation to the role he would be undertaking as the Sydney Divisional Educator. Mr Kanti's evidence was: At that stage it was proposed that he would tag along with Rod Allen [sic] to observe what Rod Allen [sic] did and get a feel for the job as all the educators role basically undertake the same duties but for their respective divisions... ... Although different to Neil's account, this is consistent with Neil's comments ... about Rod Allen [sic] providing training to him, although I stressed it was in relation to the Sydney role to which Neil had yet to agree. 113Mr Allan forwarded an email to Mr Kanti dated 16 October 2007 in which he advised that he made contact with the managing director of Individual Solutions Australia to meet with himself and the applicant at Wollongong Station within the next week or so. He advised that the company had offices in Goulburn, Wollongong and Bega and they were happy to assist in the training of the applicant. The initial plan was to get the applicant into some OHS training which they were able to do in the near future. Mr Allan stated that he had also asked that the company assist the applicant with a training/study plan in order to make the process more desirable for him. 114Mr Kanti explained that the OHS role in Sydney had become vacant and the applicant could fill that role. Mr Kanti was asked about his evidence that the applicant never came to work at all during the period September and October 2007. His evidence was: He never came to me for work. I can only speak for the times that I met and had any dealings with Mr Elliott, so in that respect I can only speak in relation to that. 115He was subsequently asked: Q. Do you say that as at 24 September Mr Elliott did not ever come to work in the Ambulance Service at all in the role ear marked for him? A. No, he didn't. Q. He didn't? A. No. Q. Is your evidence that he was simply on annual leave the whole time? A. I've come to learn afterwards since reviewing the HR records that's what he was receiving annual leave. At the time I spoke to Mr Elliott and when he came to see me on two or three occasions, I didn't know what his circumstances were, what he was actually doing at all. Q. When you just said then that he was being paid annual leave. I asked you a question: Is it your understanding that he was on annual leave in the period from 24 September 2007 as opposed to turning up to work? A. Yes, that's my understanding. Q. You did not ever see Mr Elliott at work in the period from 24 September 2007 onwards? A. No, I did not. Q. You did not see him in any sort of work related capacity whatsoever? A. No, I didn't. 116Mr Kanti was taken to the letter dated 17 October 2007 from Mr Rochford. He agreed that he assisted Ms Colleen Fowler, who was in the Human Resources Unit at the time, in drafting the letter. 117Mr Kanti agreed that he had been present during a meeting between Mr Lyttle, Mr Beavan, the applicant and himself, although he was not sure whether it took place on 11 October 2007. He was asked: Q. When you saw a draft of this letter did he speak to someone and say: Why are you backdating this? This person has never been at work? A. No, I didn't. Q. Did it come as a surprise to you that someone had referred to a commencement date of 24 September as of, if you look at the bottom there it's dated 17 October? A. No, I wasn't really privy to any of the detail in this letter apart from the input that I provided. Q. You had seen a draft of this particular paragraph on a number of occasions prior to it being sent, had you not? A. I wouldn't say a number of occasions, possibly one occasion. Q. If you just go over to JK10 page 34? If you look at the second last sentence in relation to clause 22 I think that means paragraph 22 of Mr Elliott's statutory declaration you state: "I sighted more than once several versions of a proposed agreement letter from management to Mr Elliott. Indeed, I played a part in drafting paragraphs in relation to training requirements he would need to undertake as well as health and safety concerns regarding his safely undertaking the duties that would be required. I personally recall seeing at least three versions of this agreement that required amendments as developments unfolded. I do not recall seeing a final letter." Do you recall that evidence now? A. Do I recall? Q. Do you recall that evidence that you gave previously? A. Yes. Q. Back to your letter JK1, I asked the question whether you said or did anything about the first paragraph in the draft that you saw, which referred to a temporary placement commencing on 24 September 2007? A. I played no part or even noticed paragraph 1. I was solely focused on the element that I was asked to be involved in. Q. In the three drafts that you saw, you didn't ever read the first paragraph; is that we are to take from your evidence? A. Yes. I had no reason to. I was asked to play a very specific part in drafting the letter. Q. Do you see in the first paragraph: "During the temporary placement your reports should go to Joe Kanti, risk management advisor, in terms of the position, responsibility, accountability and the training plan identified." Do you see that? A. Yes. Q. This aspect directly concerned you, yet you say that none of these matters particularly concerned you? A. No. The ones that directly relate to my the role that I would play I was obviously concerned about and played a role. I didn't forensically look over the letter and cross check dates, I had no reason to; I was not particularly interested in that element of it. Q. Is it your evidence that this letter from the CEO, of which you saw three previous drafts, is now to be taken as inaccurate? A. I can't comment on the accuracy or inaccuracy of those dates. I can't even recall whether I was part of that 11 October meeting. 118Mr Kanti's evidence was that his understanding of the letter of 17 October 2007 required the applicant to obtain a medical clearance prior to commencing work. He was asked: Q. Do you see it says: "Prior to undertaking activities such as extensive travel, carrying training equipment or conducting manual handling" then he is to take the letter and a copy of the position description to his treating medical practitioner to obtain a medical report? A. Yes, that's what it says. Yes. Q. Does it say anywhere: Prior to undertaking the role or any work associated with it that you are to obtain a medical clearance? A. Prior to sorry, again, I don't understand the distinction? Q. Do you accept that there is no requirement in this letter to obtaining a medical clearance prior to commencing any activities in the role? A. I understood the role to be the role, nothing less nothing more. I don't understand? 119Mr Kanti's evidence was that he met with the applicant on two or three occasions during September to November 2007. The first meeting he stated was late September 2007. They introduced themselves and had a discussion for about 15 to 20 minutes, no more "about the situation generally". On the second occasion the applicant came to see Mr Kanti. He was too busy to see him. On the third occasion that the applicant came to see Mr Kanti, it was in respect to the prearranged meeting with the OHS Coordinator, Mr Burke, to discuss the applicant's role. Mr Kanti recalled a fourth occasion when he met with the applicant, together with Mr Beavan and Mr Lyttle in Mr Lyttle's office. He could not recall the date of the meeting, but placed it towards the middle to the end of October 2007. 120Asked whether it was Mr Kanti's view that the applicant was on annual leave when the last meeting took place, his evidence was that he " hadn't formed any view of what he was on". 121Mr Kanti agreed that the position of Educator had been advertised and then he was told to discontinue the advertising because the role had been identified for the applicant. His evidence was that before the applicant could take up the role, he had to complete training and there were other issues in relation to the applicant's ability to undertake the role. These were explained by Mr Kanti to be a back condition and there were also issues in respect of travel. 122Mr Kanti recalled at the last meeting, the applicant was advised that as a result of Mr Allan returning to his previous role, the only position now available for the applicant in an Educator role was in Sydney. He recalled that the applicant was very upset about being relocated to Sydney. Asked whether he was effectively in limbo at this stage, Mr Kanti stated: "I can't comment on that. I don't know". 123Pressed on this issue, Mr Kanti stated: "Okay, I accept that". 124Mr Kanti's evidence was that as the applicant had not undertaken training for the role, then whatever he was doing could not be called work for the purposes of the Award. His view was that anything the applicant did at home could not be considered work, including the reading of materials that related to the OHS Educator role. This included the situation even of the applicant reading the materials as part of his training for the role at home. 125Mr Kanti also agreed that he had made enquiries of Mr Peter Payne, a Superintendent, whether the applicant could be used as an extra resource elsewhere. He noted in an email to Mr Lyttle dated 3 October 2007: Basically, at this stage Neil cannot train and hence I have endeavoured to find something within his very limited field of experience to do in the meantime. This has so far been met with either resistance in the way of his history with certain people in Southern or resistance by way of his lack of experience and qualifications. Neil also mentioned again the issue travel in terms of both his back (long distances) and being away from his elderly mother for whom he is the primary carer. 126Mr Kanti could not recall what he meant with his reference in the email to the applicant "cannot train". 127Mr Kanti was unable to explain what he meant by "I have endeavoured to find something within his very limited field of experience to do in the meantime". He rejected a proposition put to him that these words suggested that the applicant was not on annual leave and that Mr Kanti was trying to find something for him to do whilst he was there waiting at work. 128Mr Lyttle responded by email to Mr Willis and Mr Beavan on 4 October 2007. He stated: My immediate view is that we probably need to be a bit tough with the people who don't want to have anything to do with Neil because of past history and at the same time lay down the law to Neil to say this is real job with real and genuine requirements to cover the needs of the Division and if we are going to support him in the field, he needs to step up and play his part. An interesting twist. Rod Allen [sic] has contacted Joe [Kanti] and asked about coming back. Apparently he thinks he was misled about the job he was going to and isn't happy. 129Mr Kanti stated that he was aware that the applicant could not identify his own training provider. Mr Kanti was also asked about the meeting that he attended with the applicant and Mr Burke and conceded that it did seem strange that someone would attend a meeting with the OHS Coordinator while they were on annual leave. 130Mr Kanti was asked if he accepted that while the applicant was reading general background material provided to him by the OHS Coordinator that he was at work. In his view, work was not being done by the applicant in reading the material. He gave the following evidence: Q. So given a bundle of documents to learn a new role is not work in your view? A. There was no obligation for Mr Elliot to go away and read the documents, this was given to him to show him what the work would entail. There was no agreement that the work that he would perform the duties. I mean. 131Mr Kanti was then reminded of Mr Rochford's letter and asked: Q. When it states that the position is there while you undertake a relevant training programme in OHS risk management, do you accept that reading forms part of that training? A. It may be interpreted that way, yes. Q. If we were to go back to the position description and the job advertisement, there is a requirement, was there not, to get across a large range of policies, legislation and the like? A. Yes. That role does involve that, yes. Q. And for someone coming into the role fresh, that would, one would expect, initially require a large amount of training to get across those policies, legislation and the like? A. Yes to finally get to that role where they are self sufficient in undertaking the duties. 132Mr Kanti agreed that the formal meeting between the training provider, Mr Allan and the applicant was to take place at the applicant's home and he did not have any difficulties with that. 133He said he was not aware of whether the applicant was given an office in the Wollongong Ambulance Centre, nor in Goulburn or, in Sydney. He had no knowledge of this. 134During re-examination, Mr Kanti's evidence was that the applicant had not taken on the role of OHS Educator because he had not undertaken any of the duties that came with the position, nor had he commenced any training as that was to be structured for him and to be undertaken by him. 135His also stated that he had raised with the applicant the need to obtain a medical clearance on each occasion that he met with him, including at the meeting with Mr Burke. Evidence of Mr Terry Morrow 136Mr Morrow is the District Inspector of the Wollongong Sector of the Ambulance Service. He stated that he was instructed by the then Superintendent (Mr Michael Bray) to provide the applicant with a key as he was going to be involved in an occupational health and safety role including OHS investigations and would be working out of the Wollongong Sector Office. 137Mr Morrow stated that the applicant arrived at the Wollongong Office in about October 2007 and he gave him a sector Level 2 security key which granted him access to the offices. He took him to the office area and recalled that he had a laptop and printer with him. 138He stated he saw the applicant use the laptop at his desk on the first day. He was not aware of what duties he was performing. He stated, in the afternoon of the first day, the applicant came to his office and stated "I have this computer and printer - is there any way of securing it?" 139Mr Morrow stated that he had a separate cupboard in his office which was secure. There was no key. It had a sliding door. He offered the applicant the cupboard in his office and the applicant put the items in the cupboard. He stated that there was an old computer in the applicant's office, but his understanding was that he would have needed to use his laptop to perform any work. He stated he did not see him take his laptop out of the cupboard after the first day. Other than when he met the applicant initially, he did not see him again, even though he was often in and out of the office on a regular basis at Wollongong. At that time, Mr Morrow was working seven days on, two days off in the Wollongong Sector Office between 7.00am and 5.00pm. 140Mr Morrow stated that approximately two weeks later, the applicant's laptop computer and printer were collected from his office. He did not recall seeing the applicant pick them up. He stated he did not observe the applicant performing any duties at the Wollongong Sector Office. 141During cross-examination, Mr Dixon suggested to Mr Morrow that the time when the applicant worked in the Wollongong Sector Office and he provided him with a security key was during a week in July 2007 and not in October 2007. His evidence was that he had no reason to doubt that may have been the correct time, that is, July 2007. 142During re-examination, Mr Morrow stated that when the applicant came to the office, he stated to him that he was doing "some occupational health and safety investigation stuff". He did not have a date, time, place in his brain that could actually identify whether it was July or October. However, he stated that at the relevant time he knew that Mr Rod Allan the Occupational Health and Safety Manager for the Southern network had resigned from the Ambulance Service and they needed someone to take over the role and that the applicant fulfilled that role for them. 143His evidence was that the incident in respect of the applicant attending the Wollongong Office with his laptop occurred after Mr Allen had resigned. He could not say whether that was July or October. Principles of construction of an award 144In Director of Public Employment (by her agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [37] - [46], the Full Bench identified four principles to be applied in connection with the interpretation of an award which may be summarised as follows: (1) award construction must involve a purposive approach. That is to say, a construction that would promote the purpose or object underlying the award (whether or not that purpose or object is expressly stated in the award) shall be preferred to a construction that would not promote that purpose or object. However, in interpreting an award a tribunal must determine what was meant by the words used, not what the framers of the award intended to say. What is involved is the search for an objective intention of the framers of the award, not their subjective intention; (2) it is the context to be construed in the first instance, not merely at some later stage when ambiguity might be thought to arise, and context is used in its widest sense to include such things as the existing stage of the law and the mischief which, by legitimate means one may discern the award was intended to remedy; (3) extrinsic materials may be considered for certain specified purposes in ascertaining the meaning of legislation: see s 34 of the Interpretation Act 1987. However, the content of any extrinsic material cannot be used to simply rewrite the terms of the statutory provision; (4) whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between the statutes and awards. "[I]t must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament": George A Bond & Co Ltd (in liquidation) v McKenzie [1929] 28 AR (NSW) 498 at 503. 145And at [47] the Full bench stated: Nevertheless, it would be untenable to attempt to construe the terms of an award according to the subjective intentions of the parties if, in doing so, it resulted in an unreasonable and unnatural construction having to be placed on the words of the award. In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ). 146In Re Union of Postal Clerks and Telegraphists re; ex parte Australian Telephone and Phonogram Officers' Association (1996) 66 ALR 227, it was held that notwithstanding "the general rule of construction is that eligibility provisions should be construed liberally rather than narrowly or technically... it does not follow... that a proviso should also be construed liberally" (at 235). Consideration 147There are two issues for determination in respect of this application. Firstly, for the purposes of cl 4.3 of the Award, was the applicant "at work on or after 10 November 2006 (the operative date of the Award) performing normal duties for a continuous period of not less than 30 days [so as] to be eligible for the benefits payable under the Award in respect of pre-existing injuries or diseases (the 30 day issue)? 148The second issue is whether the applicant, by reason of his incapacity, suffered a "partial and permanent disability" as defined in cl 3 of the Award, such that the "cessation of his employment was substantially due, to the permanent, physical or mental disability of the officer" and that the applicant was "when he ceased to be employed by the Ambulance Service, permanently unable, by reason of that disability to perform the duties of that position for which he was substantially employed (the disability issue)". 149Each question should be answered in the affirmative. 150It was common ground that the Award applied to the applicant because he was an employee as at the date that the Award came into operation. He had been employed by the Ambulance Service for the past 27 years. 151It was also common ground that the applicant commenced sick leave on 1 October 2006. He had major surgery in February 2007. He returned to work on 2 April 2007 for two days, but there was no position available for him, and accordingly, he commenced annual leave. He worked for one week in early July 2007. His previous position of Manager, Southern Operations Centre, had been filled by another officer while he was on sick leave. 152It is convenient to repeat the terms of cl 4.3 of the Award which are: 4.3 Subject only to subclause 4.1, this Award applies to all officers employed on or after the operative date of this award. Officers must have been at work on or after that date performing normal duties for a continuous period of not less than 30 days to be eligible for benefits payable under this award in respect of pre-existing injuries or diseases. Transitional Arrangements These arrangements also apply to officers at work at the operative date of this award who are participating in a Return to Work Program or who return to work after that date and participate in a Return to Work Program. 153In my view, an entitlement pursuant to cl 4.3 requires an officer to have been employed "on or after" the operative date of the Award and to have been at work "on or after" that date performing normal duties for a continuous period of not less than 30 days. Mr Dixon submitted that the preposition "or", in cl 4.3 is disjunctive. I agree with this submission. In my view, the use of the disjunctive was significant in that quite different tests were involved, one or the other of which is sufficient to satisfy the purposes of cl 4.3. The clause does not require a person, like the applicant who had completed over 27 years of service, to be working "on and from" the operative date for a period of 30 days. The purpose of the exclusionary provision (working 30 days) could not have been intended to deprive employees with extensive service of a benefit under cl 4.3. It was presumably to exclude malingerers who return and work less than 30 days. 154This is confirmed by the transitional arrangements which apply to existing employees with pre-existing injuries which makes no reference to the requirement of working 30 days. The purpose of this provision in my view, is that it is intended to apply to existing employees who return to work but do not perform normal duties as otherwise required under the 30 day rule. For example, an employee returning after an incapacity. The Ambulance Service conceded that the reference to 30 days should be interpreted to mean 30 calendar days and not 30 working or business days. This was an appropriate concession. In my view, the proper interpretation of 30 days is that it means 30 calendar days. 155In those circumstances, such as arise here, the Award should be applied beneficially to the applicant: Director of Public Employment (by her agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union. 156The first issue, therefore, to be resolved is whether the applicant worked at least 30 days after the commencement of the Award on 10 November 2006. The applicant's evidence is that he did. 157In my view and I find, the applicant was a witness of truth whose evidence should be accepted. I reject the contention by Mr Mahendra that the applicant "demonstrated a tendency to change or produce evidence to suit his case as the proceedings progressed". I did not find the applicant to be evasive or to tailor his evidence to suit his case. 158Importantly, as will become clear, the applicant's evidence that he worked for 30 days between 24 September 2007 to 24 October 2007 is corroborated by various witnesses called by the applicant and also by the evidence of Mr Woods. The Ambulance Service had filed an affidavit on his behalf, but subsequently did not read the affidavit. Mr Dixon read part of his affidavit. 159The applicant's evidence was that he accepted an offer of employment from Mr Rochford, the Chief Executive of the Ambulance Service, to take up a temporary placement from 24 September 2007, while he undertook "a relevant training program in OHS Risk Management". The offer of employment was subsequently confirmed in a letter from Mr Rochford dated 17 October 2007, which was clearly backdated. 160The Ambulance Service contends that prior to the applicant commencing work, he was required to provide a medical clearance. However, Mr Kanti conceded during cross-examination, that the letter from Mr Rochford did not stipulate that as a precondition to employment, the applicant was required to provide a medical clearance. The reference to a medical clearance in Mr Rochford's letter, properly read, only applied to certain situations such as "extensive travel, carrying training equipment, or conduct manual handling training". It would be curious if the letter dated 17 October 2007, which was clearly intended to be backdated, to refer to the commencement of a position from 24 September 2007, if it was known at the time that Mr Rochford signed the letter, that the applicant had not in fact been working, or ever commenced duties. The proper inference to be drawn from the letter is that the applicant had actually commenced working in the temporary position as it was sent 20 days after he commended this work. 161This is further confirmed in the memorandum by Ms Fowler dated 11 October 2007 (set out earlier in these reasons (at [31])) which makes clear that the position of OHS & Risk Management Educator was unconditional and that a medical clearance would be required only "if undertaking the duties in the position other than training". 162The memorandum appears to assume that the applicant might have spent his first weeks back at work undertaking training. 163All of the applicant's lay witnesses indicated that they had variously seen the applicant working in either Goulburn, Wollongong or at his home, as permitted by cl 9.6 of the Award. Mr Lynas' evidence was that he observed the applicant in the Wollongong Sector Office in September and October 2007. Mr Garvey's evidence was he saw the applicant six to eight times in the period between September and October 2007 at the Wollongong Sector Office and Mr Guleksen's evidence was he saw the applicant working in Goulburn in September and October 2007 "six or seven times". 164Mr Woods' evidence was that he saw the applicant attend the Goulburn Office "not more than two days in a row". This evidence suggests that he saw the applicant two days in a row on more than one occasion. The applicant was also given a work vehicle and a laptop computer at this time. 165Mr Morrow who was called by the Ambulance Service gave evidence that he provided an access key to the applicant. The applicant's evidence was that this occurred when he returned to work in July 2007. 166Mr Morrow accepted that this may have been the case. However, in re-examination, his evidence was it was after the period of time that Mr Allan had retired and the applicant was involved in OHS investigations. There was no evidence before the court regarding the date that Mr Allan retired. Mr Morrow's evidence is clearly based on a recollection dating back to 2007 in respect of matters of which Mr Morrow was clearly not certain. This evidence, in my view, is such that it cannot establish anything with any certainty and it appears likely that the witness is merely conflating historical matters. 167Mr Dixon submitted that the failure by the Ambulance Service to call Mr Rochford and also Mr Beavan, the applicant's immediate supervisor, would permit the court to draw an inference that any evidence these witnesses could have been expected to give would not have helped the Ambulance Service's case. For example, on the issue of whether the applicant worked 30 days: Jones v Dunkel (1959) 101 CLR 298 at 308, 312, 320, 321. 168In my view, it is appropriate that such an inference be drawn in favour of the applicant in circumstances where there is any doubt as to whether the applicant worked 30 days. 169The second pre-condition that the Ambulance Service submitted that the applicant had not fulfilled was that the applicant upon his return to work was not performing normal duties which was required to meet the purposes of the Award. The respondent sought to put in issue the quality of the work which the applicant undertook during the relevant period. In such circumstances, it was submitted, he was clearly not carrying out the duties of a substantive position. This was based on Mr Kanti's understanding that the applicant was required to work 30 days carrying out his normal pre-injury duties. This could never have been the case because of his injury and the failure by the Ambulance Service to return him to his pre-injury position. It was, of course, the Ambulance Service's duty to provide adequate work having offered him the temporary position. In my view, the language used in cl 4.3 does not require that the clause should be construed such as to require an assessment of the quality of work performed. 170Mr Kanti initially gave evidence that he was the applicant's supervisor but then retreated from this position stating that he could only give evidence in respect of his attendance with the applicant at four meetings. Apart from attendance at those meetings, Mr Kanti was unable to say whether the applicant was at work or not. He conceded that the applicant may have been doing work for his other supervisor, Mr Beavan. This was in accordance with the applicant's evidence who stated he reported to Mr Beavan who I have already observed, was not called by the Ambulance Service. 171Mr Kanti's evidence was, as far as he could tell directly, that the applicant had not worked 30 days in his presence. 172The letter from Mr Rochford clearly assumes that the applicant would not immediately assume the role of OHS Educator. The offer was to undertake a temporary placement from 24 September 2007 while the applicant undertakes a "relevant training program in OHS Risk Management". It acknowledged that it was necessary to obtain some experience and it was for this reason that Mr Kanti gave evidence that it was important to identify a training provider for the applicant. 173When confronted with the letter from Mr Rochford, Mr Kanti's evidence was that he did not read that aspect of the letter which was backdated and confirmed a starting date of 24 September 2007, despite the fact that he was referred to in the letter. He was unable to say whether this letter was forwarded in error, but accepted it may have been reflective of the true position, which I find was the case. A further basis upon which Mr Kanti sought to reject the applicant's claim of having worked 30 days was that there had been no initial training analysis undertaken. However, the responsibility for identifying training must have fallen to Mr Kanti. He gave evidence that he did not expect the applicant to source his own training, yet he did nothing to source any training for the applicant until the return of Mr Allan, which was on or about 15 October 2007, some three weeks after the applicant had commenced in the position. It will be recalled that Mr Allan did not ultimately source any training for the applicant until 1 November 2007 after he had proceeded on workers compensation. 174Furthermore, the memorandum from Ms Fowler dated 11 October 2007 which was signed by Mr Rochford and Mr Lyttle contemplated that the applicant may spend his entire time (between September 2007 to December 2007) simply training. This observation was made after noting the applicant was returning from a long period of sick leave. 175Upon Mr Allan's return, the applicant was effectively pushed to one side while further enquiries were made regarding a position for him. Mr Kanti accepted that the applicant at this point was in limbo. It would be in my view, most unfair to find in such circumstances that the failure by the applicant to undertake work could be held against him to defeat his contention that he had met the requirements of cl 4.3. Upon Mr Allan's return, the evidence demonstrates that he diligently attempted to source training for the applicant, something that Mr Kanti did not do during the initial three weeks after the applicant returned from leave. 176I reject the contention that there was any responsibility falling upon the applicant to initiate his own training and that his failure to do so defeats his claim. 177Properly analysed in my view, and I find, the applicant was in limbo as a result of the Ambulance Service's delays in providing him with appropriate training, so as to undertake the role of OHS Educator. It cannot rely on its own dilatory approach to now attempt to deny that the applicant worked 30 days. 178I find that the evidence establishes that the applicant worked 30 days between 24 September 2007 and 24 October 2010. This finding is made independently of the earlier days that the applicant worked in April and July 2007. 179The third basis upon which the respondent sought to defeat the applicant's claim, which appeared to be inconsistent with its earlier contentions, was that the applicant was on annual leave during the period September to October 2007. The factual basis for the Ambulance Service's contention is that computer records state that the applicant was on annual leave. 180The Ambulance Service relies on annual leave records to ground a submission that the applicant was not at work when, even on the Ambulance Services' case, the applicant was seen at work at various times by its own witnesses and he was given material to read and attending meetings. Furthermore, during the relevant period the applicant was required to respond to correspondence and attend meetings in respect of a disciplinary investigation. The evidence of Mr Kanti that he did not understand what the applicant was doing at work because he was on annual leave, which only came to his attention subsequently when he looked at the records and not at the relevant time, stretches credulity. I reject this evidence. 181The proper inference to be drawn from Mr Kanti's evidence is that he accepted that the applicant was at work. The annual leave records are clearly incorrect and completely inconsistent with the evidence including that of the respondent, that the applicant was at work. I reject the contention that the applicant was on annual leave during 24 September 2007 to 24 October 2007. 182An employee covered by the Award may qualify for a benefit if he or she is partially and permanently incapacitated, if the Transitional Provision in cl 4.3 is applicable. In my view, although it is not necessary to decide this issue, in light of the applicant satisfying the 30 day rule, the transitional arrangements as found in cl 4.3 would also apply to the applicant and to other existing employees who come back to work but who do not perform normal duties as otherwise required under the 30 day rule. To my mind, if a longstanding employee who had a pre-existing incapacity, but continued his or her employment and returned to work, such employee would be captured by the transitional arrangements. The clause would be unnecessary if the standard 30 day rule was to apply to all employees. 183The applicant left his employment with stress/anxiety and depression which was substantially as a result of his employment and Xantho. This is relevant as the Return to Work Policy is directed to on duty injuries. That is, the policy is mandatory for employees who suffer a workplace injury. It is not for off-duty injured employees. 184This explains why the applicant was sent a letter from the Return to Work Coordinator on 31 October 2007, after he had left work on workers compensation after 24 October 2012. He was not sent any correspondence from the Return to Work Coordinator prior to this time, notwithstanding he was returning to work after an extended absence on sick leave following major surgery. 185There is a clear disconnect between cl 4.3, cl 9.3 and cl 9.4 of the Award which deal with officers suffering on-duty and off-duty injuries and the receipt of rehabilitation/retraining and the Return to Work Policy which applies to all on-duty injuries, but not off-duty injuries. 186Clause 9.3 and cl 9.4 provide: 9. Rehabilitation, Retraining and Lump Sum Payments for Officers Who Suffer Partial and Permanent Disability ... 9.3 An officer who suffers an on duty injury shall receive rehabilitation/retraining consistent with the Service's Policy and Procedures for the Management of Return to Work, leading to a return to pre-injury employment wherever possible. 9.3.1 Where a return to pre-injury employment is not possible, as determined by a medical assessor contracted by the Service, the officer will be declared as suffering a partial and permanent disability and opportunities for permanent placement in suitable employment will be sought. 9.3.2 If permanent placement in suitable employment within the Service is not possible the employment of the officer may be terminated. In such circumstances the officer, subject to eligibility being established, shall be paid a lump sum payment in accordance with Annexure B to this Award. 9.4 An officer who suffers an off duty injury shall receive rehabilitation/retraining consistent with the Service's Policy and Procedures for the Management of Return to Work for non work related injuries/illness, leading to a return to pre-injury employment wherever possible. No medical or rehabilitation costs will be met by the Service for off duty injuries. 9.4.1 Where a return to pre-injury employment is not possible as determined by the medical assessor, the officer will be declared as suffering a partial and permanent disability and opportunities for permanent placement in suitable employment will be sought wherever reasonably practical. Suitable employment can include redeployment to an administrative position. 9.4.2 If permanent placement in suitable employment within the Service is not possible the employment of the officer may be terminated and, in such circumstances, the officer shall be paid a lump sum payment equivalent to the unexpired portion of the two year full salary or full salary to age 60 (whichever is the lesser). In the case of permanent part time officers, the entitlements under this sub clause are calculated on a pro rata basis. The two year period commences when medical evidence indicates that an officer is not able to return to their pre-injury employment. 187The Policy should be brought into line with the intent underlying the Award. Absent this anomaly in the Policy, the applicant would have come within the express terms of the transitional arrangements in the Award by being on a mandatory Return to Work Policy. 188Mr Kanti's evidence was that he considered the applicant to be on a return to work arrangement as a basis of explaining why he required a medical clearance. Although this was not the case, in my view, the memorandum of Ms Fowler dated 11 October 2007 together with the letter from Mr Rochford dated 17 October 2007 on their face, should be treated as representing a return to work arrangement for the applicant, such arrangement being consistent with the Return to Work Policy. 189The applicant was returning to work after major surgery and an extended period of time off work. It therefore seems incongruous that such a situation does not attract return to work arrangements under the Award. 190Mr Kanti, by requesting the medical certificate from the applicant treated him as if was on a return to work program and he was in charge of the Department that oversaw the Return to Work Policy. 191What is lacking is a formal letter similar to the one that the applicant received dated 31 October 2007. In these circumstances to the extent necessary, I would construe the Award to recognise the applicant's circumstances as being captured as part of the return to work provisions found in the transitional arrangements in cl 4.3 and being in accordance with cl 9.3 and cl 9.4 of the Award. 192The applicant should be treated, for the purposes of the Award, as if he was on a return to work program and therefore entitled to the benefits of cl 4 of the Award. 193It follows that even if I am wrong about the construction of cl 4.3 of the Award, the applicant as I have found, worked 30 days after the commencement of the Award on 10 November 2006 and has therefore established an entitlement to the benefits provided pursuant to cl 4 on that basis subject to satisfying the disability issue. The disability issue 194The Ambulance Service contends that the applicant's medical evidence is that he is totally and permanently disabled rather than partially and permanently disabled. The applicant contends that by reason of his incapacity, he suffered a partial and permanent disability as defined in cl 3 of the Award and is therefore entitled pursuant to cl 4.2, to a payment for partial and permanent disability. 195Clause 3 which is set out earlier in this decision requires that the cessation of employment was "substantially due" to the disability. It is clear from the evidence that, but for the condition of Xantho and the applicant's operation, the applicant would not necessarily have been permanently incapacitated. The applicant returned to work after the operation caused by Xantho. It was the effects of the operation and the subsequent symptoms that he suffered which were contributed to by his employment that resulted in his incapacity. 196The issue of whether an injury was an on-duty injury has been held to be a question of fact and a matter of impression and degree: Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; (2001) 22 NSWCCR 46. 197The applicant was subject to disciplinary action and this caused him stress, anxiety and depression which contributed to him going on sick leave on 24 October 2007. This on-duty injury was a significant contributing factor in the applicant being declared unfit. Clause 10.10 provides that an officer is not entitled to the benefits under the Award if the injury was caused by the taking of disciplinary action. This clause does not apply if the action was not reasonable. Although adverse findings were made shortly before the applicant went on sick leave, on 24 July 2008, prior to the termination of his employment on 1 August 2008 Mr Rochford wrote to the applicant offering a personal unqualified apology. The disciplinary action was therefore unreasonable and does not impact on his rights under the Award. 198The Ambulance Service in filing its outline of contentions made no submissions at that time in respect of the disability issue. Although it has not had the applicant medically assessed it submitted that in light of the applicant's evidence from his treating doctors, it is clear that he is not partially and permanently disabled within the meaning of the Award. 199In opening the Ambulance Service's case, Mr Mahendra raised what was contended by counsel for the applicant to be a new point that was not a feature of the pleadings, or written submissions. That point was, in effect, that the applicant was beyond partial and permanent disability and was in fact totally and permanently incapacitated within the meaning of the Award. 200Reliance was placed by the Ambulance Service on cl 10.6 of the Award which provides as follows: 10.6 Members can only receive one benefit either a "partial and permanent disability benefit" or "total and permanent disability benefit". An employee will be required to sign a deed of undertaking when making a claim for benefits for partial and permanent disability. This deed ensures that any benefits obtained under partial and permanent disability will be repaid to the Service should the employee be successful in claiming total and permanent disability. 201It is clear that this clause provides, in effect, that employees can only receive one benefit, either a "partial and permanent disability", or a "total and permanent disability". I do not read this clause to mean that you cannot receive a benefit outside of the Award. 202The intention of the clause is that an employee receives one benefit for either a "partial and permanent disability", or a "total and permanent disability", both of which are defined in the Award. This is, no doubt, the reason why these terms are in inverted commas in the clause as they refer back to their Award definitions. 203The additional benefits payment has been subtracted from the quantum of the calculations in the application, so there is no question of "double dipping". 204The respondent called no evidence in respect of the definition of "total and permanent disability" in respect of the additional benefits cover that the applicant received. In my view, the evidence clearly shows that the applicant is not "totally and permanently disabled". 205His evidence is that he can, and does, do some work. For example, upholstery. He therefore does not fall into the "total and permanent disability" definition, found in cl 3 of the Award, where "total and permanent disability" is defined as a: a) An officer suffers the loss of: the use of two limbs, or the sight of both eyes, or the use of one limb and the sight of one eye where limb is defined as the whole hand or the whole foot: or ... b) ... the officer unlikely to ever engage in any gainful profession, trade or occupation for which the officer is reasonably qualified by reason of education, training or experience. 206The medical evidence supports the finding that the applicant is "partially and permanently disabled". Dr Kana certified that on 15 July 2008, the applicant was incapacitated. His affidavit was filed in support of the "partial and permanent disability" application, not an application for total and permanent disability benefits. His evidence was that the incapacity was a combination of a number of factors, including the anxiety and depression which were as a result of on-duty employment matters. The reason for the disability included the back problems that had occurred as a result of the applicant working many years as an ambulance officer. This is clearly an on-duty injury. 207Dr Kana deposed that the applicant had no previous history of depression. However, from 24 October 2007, the applicant received a series of WorkCover certificates confirming that he was suffering "anxiety and depression as a result of incidents at work". 208Dr Kana states that his employment was a substantial contributing factor in the development of depression that he suffered during 2007. 209Dr Kana found, as part of his certification, that he considered that the applicant's back surgery precluded him from performing the normal role of an ambulance officer. This limited his ability to undertake employment as an ambulance officer, who is required to drive vehicles. 210In a response to the applicant's solicitors' letter dated 16 April 2008, Dr Kana noted that the applicant had no prior episodes of anxiety or depression and that his employment with the Ambulance Service was a substantial contributing factor in the development of the depression and that he suffered a post traumatic stress disorder. 211Dr Walker's evidence was that notwithstanding the applicant suffered a psychiatric injury caused by his working environment, he did not consider him to be unfit for work. 212In his report dated 19 November 2007, Dr Walker states in response to the following question: Is the Worker fit to resume normal or partial duties? Mr Elliott was psychiatrically fit to resume normal duties. 1. Does the injured worker have a psychological diagnosis? If yes, please specify according to the DSMIV. Did the diagnosis render them unfit for work either at the time of the initial absence at the time of assessment? Mr Elliott had an adjustment disorder with depressed mood. This did not render him unfit on 24th October 2007, or at the time of my assessment. 2. Please outline causative factors, both work related and on-work related. Please indicate if any of these factors were substantial to be development of the injured worker's disorder or emotional distress? Please weight the predominant factor to the injured worker's disorder or emotional distress. Non Work Medical problems. Work On 7th November 2007, the CEO met with Mr Elliott. Mr Elliott was cautioned about abusing and intimidating two ambulance officers. He was to be placed on a performance improvement plan. On 16th October 2007, the CEO informed Mr Elliott by letter that Mr Elliott was to be disciplined over abusing and intimidating the two ambulance officers. 3. Has the psychological disorder or emotional distress predominantly or wholly stemmed from industrial factors such as transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of worker's or provision of employment benefits to workers etc. Mr Elliott's adjustment disorder was predominantly contributed to by the industrial factors noted above. He was recently disciplined and placed on a performance improvement plan. ... 6. Please comment on appropriate return to work goals and strategies. Mr Elliott was psychiatrically fit for usual duties. 213In his opinion, the applicant's adjustment disorder with depressed mood was substantially associated with his employment. 214Dr Gertler and Professor Yeo both gave the opinion that the applicant was "partially and permanently disabled" and that he suffered an on-duty injury. 215The Ambulance Service, in a letter to the applicant's solicitors dated 13 October 2009, rejecting the applicant's claim for "partial and permanent disability", does not contend that the applicant was "totally and permanently disabled". Nor did it seek to have the applicant medically assessed. It notes that as the applicant has received an SASS additional benefits cover payment in accordance with cl 5.8 and cl 5.9 of the Award, and that any benefit payable in relation to his claim for "partial and permanent disability" benefits, is to be reduced by the SASS ABC" payment. 216Clearly, this is the correct approach as required by cl 5 of the Award. In particular, cl 5.4.3 provides that officers who elect not to relinquish the SASS additional benefits cover, contribute a lower portion of their salary and "will be entitled to receive the benefits prescribed by this Award in relation to partial and permanent disability". 217There is nothing in the Award which precludes a "partial and permanent disability" benefit being paid in addition to the SASS ABC payment. 218There can be no doubt, in light of the medical evidence, that the applicant suffered an on-duty injury as a result of his employment. His poor health was no doubt exacerbated by Xantho. However, after the operation for Xantho, the applicant came back to work for two days in April 2007, then for one week in July 2007 and worked between 24 September 2007 and 24 October 2007. It was both the Xantho and the depression and anxiety suffered by the applicant in October 2007 that were substantial contributing factors to the applicant's incapacity. The latter arose out of the applicant's employment. It follows that the applicant suffered an "on-duty injury" and a partial and permanent disability as defined in cl 3 of the Award. 219As I determined in Police Association of New South Wales (on behalf of Sahra Gulbis) v Commissioner of Police [2008] NSWIRComm 187, there can be two substantial contributing factors that cause incapacity. See also Mercer v ANZ Banking Group [2000] NSWCA 138; (2000) 48 NSWLR 740. 220The applicant said that he had two meetings with Mr Rochford and the HR Manager, Mr Ian Peters in approximately July 2008. His evidence was that Mr Rochford stated to him: "go off and talk to [your] doctors about whether you can work and get back to me with your decision" or words to that effect. 221At a second meeting, Mr Rochford asked him what was the outcome with his meeting with his doctors, to which the applicant replied: "Both my doctors stated that I was unable to return to work in any capacity" or words to that effect. 222The applicant showed both Mr Rochford and Mr Peters a certificate of incapacity completed by Dr Kana. 223The applicant's evidence was that Mr Rochford stated: "sorry to see you go" or words to that effect, and for Mr Peters to "accommodate me". A copy of the Confidential Medical Report of Incapacity provided by Dr Kana, was shown to Mr Rochford during their meeting. 224As has already been observed, Mr Rochford was not called to give evidence. It follows that this evidence enables a conclusion to be reached that a cessation of employment occurred as a result of the medical evidence relied upon by the applicant at that time. According to the applicant's evidence, both Mr Rochford and Mr Peters stated that they were sorry to see him leave the Ambulance Service. In these circumstances, nothing precluded the applicant from making an application under the Award. 225I should observe that to the extent that the Ambulance Service sought to criticise the evidence of Professor Yeo, in that there was nothing in his report to identify what definition of partial and permanent disability was provided to Professor Yeo so that it is impossible to determine upon what basis Professor Yeo came to his conclusion that the applicant was "partially and permanently disabled", I reject such a submission as being disingenuous. 226Furthermore, I reject the submission that in light of Professor Yeo first examining the applicant in March 2011, his opinion regarding the applicant's medical condition as at the operative date of the Award and in October 2007, is of limited assistance. 227Professor Yeo is an experienced medical specialist, whose evidence I propose to give weight. Similarly, the Ambulance Service's submission that the applicant's evidence indicated that he was "totally and permanently disabled", rather than "partially and permanently disabled", is not made out. Although the applicant has not engaged in any paid or voluntary work, his evidence was that he is capable of undertaking upholstery work. 228Furthermore, the first occasion that the Ambulance Service made any submissions that the applicant's injury was not an on-duty injury and that therefore the applicant failed to fall within cl 9.3 of the Award, was raised in the Ambulance Service's final submissions. The applicant therefore was given no opportunity whatsoever to meet this contention with evidence. In such circumstances, and as a matter of fairness and to avoid an injustice being visited on the applicant, I reject the Ambulance Service's submission. 229Mr Dixon submitted that evidence was available that in any event would have contradicted the Ambulance Service's submission and the reason why such evidence had not been called was that it had never been a point taken by the Ambulance Service. 230For these reasons, I find that the applicant is entitled to receive a "partial and permanent disability" benefit pursuant to the Award. Conclusion 231I find that the applicant worked 30 days following the operative date of the Award, including 30 continuous calendar days from 24 September 2007. 232Furthermore, pursuant to s 370(1) of the IR Act, in the exercise of the court's broad discretion in matters such as this, I find that the applicant could and should have been and was on a Return to Work Policy as contemplated by the Award (but not by the Policy itself). 233In light of this finding, the applicant would also have fallen squarely within the transitional provisions of cl 4.3 of the Award. In such circumstances, no issue arises as to a requirement to work 30 calendar days which I have found occurred, upon a proper assessment of the evidence. 234I further find that the applicant has satisfied the requirements of cl 3 of the Award, and has suffered a "partial and permanent disability" arising from suffering an on-duty work-related injury. This finding has been reached upon a proper analysis of the evidence of the applicant, the medical evidence, and in circumstances where the Ambulance Service led no evidence on this issue and sought to erect a technical point against such a finding during final submissions. I rejected this submission. 235It follows that the applicant having satisfied both the 30 day requirement (and the transitional requirement) in cl 4.3, together with the disability requirement, is accordingly entitled to the benefits available pursuant to cl 4 of the Award. 236I therefore grant the application. 237The parties are directed to file within 14 days of the date hereof, short minutes of order, which reflect the findings made together with the amount that the applicant is entitled to receive pursuant to cl 4 of the Award. If agreement cannot be reached in respect of costs, I will hear the parties. ********** Amendments 25 February 2013 - Amended 07/11/12 to read as 07/12/12 Amended paragraphs: Coversheet/Decision date 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: 25 February 2013