Industrial Relations Commission New South Wales Medium Neutral Citation: Glen Robinson v Commissioner for Police, NSW Police Force [2013] NSWIRComm 1027 Hearing dates: 30 September - 3 October 2013, 11 November 2013, 22 November 2013, 29 November 2013 Decision date: 05 December 2013 Before: Newall C Decision: Application for reinstatement of injured worker dismissed Catchwords: Application for reinstatement pursuant to s.241 of Workers' Compensation Act 1987 - police officer previously medically retired as unfit - psychological injury - award made on basis of permanent partial disability - whether retirement of police officer pursuant to s.72A of Police Act a dismissal - held, medical retirement by the Commissioner of Police is a dismissal - estoppel by convention - held, no estoppel by convention as no reliance on assumption - medical evidence of return to fitness for work - relevance of evidence of risk of reinjury - nature of police work - Commission not satisfied worker fit for the kind of work - alternative positions considered - applicant not fit for police work at large - relevance of payment to retired officer under Award not requiring determination - as applicant not fit no power to effect reinstatement - application dismissed. . Legislation Cited: Crown Employees (Police Officers Death and Disability) Award 2005 Industrial Relations Act 1996 s.171, s.405; former s.93 Police Act 1990 s.6, s.13, s.14, s.72A, s.201 Police Regulation 2008 cl 9 Public Sector Employment and Management Act 2002 Public Sector Employment and Management Regulation 2009 cl. 4(1) Technical and Further Education Commission Act 1990 s.20 Workers' Compensation Act 1987 Part 8, s.241, s.243 Cases Cited: Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305 Blackadder v Ramsay Butchering (2005) 221 CLR 539 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226 GE Healthcare Australia v Medica Radiology and Nuclear Medicine Pty Ltd [2013] NSWSC 414 Jones v Dunkel (1959) 101 CLR 298 Norville v NSW Fire Brigades [2007] NSWIRComm 45 Public Service Association of NSW (on behalf of Sahra Gulbis) v Commissioner of Police [2008] NSWIRComm 87 Riley v Workcover Authority of NSW (2006) 151 IR 396 Robinson v Commissioner of Police [2013] NSWIRComm 1019 Ryledar v Euphoric (2009) 69 NSWLR 603 Smith v Director-General of School Education (1993) 31 NSWLR 349 State of Victoria v Australian Teachers Union (1993) 49 IR 149 State Rail Authority of New South Wales v The Honourable Justice Bauer (1994) 55 IR 263 Tasovac v New South Wales Police Service [1999] NSWIRComm 436 Category: Principal judgment Parties: Glen Robinson, (Applicant) Commissioner of Police, NSW Police Force, (Respondent) Representation: A Howell - Applicant B Hodgkinson SC with M Seck - Respondent Henry Davis York - Respondent File Number(s): IRC 304 of 2013 Publication restriction: No DECISION 1This is an application by Mr Glen Robinson for reinstatement in employment pursuant to s.241 of the Workers' Compensation Act 1987. ('the WC Act') The respondent employer opposes the application. Facts 2The facts leading to this application coming before the Commission are very largely not in contest. They can be summarised in this way. 3Mr Robinson was a police officer from April 1991 to June 2011. 4On 2 June 2011 he was medically discharged pursuant to the provisions of s 72A of the Police Act 1990. ('the Police Act') He was made an award payment pursuant to the Crown Employees (Police Officers Death and Disability) Award 2005. ('the D&D Award') 5At the time of his medical discharge, Mr Robinson held the rank of Sergeant at the Eastern Beaches LAC. He had held the rank of Sergeant since 2003. 6In November 2008, Mr Robinson read some newspaper articles describing a riot in 2001 in which he had been tangentially involved in circumstances where he had been placed in considerable danger. On reading the articles he experienced symptoms which led to his being diagnosed as suffering from the psychological injury of post-traumatic stress disorder ('PTSD'). 7He had some absence from duties and returned to full duties in August 2009. On 6 September 2009 he went on pre-arranged leave and returned to work in February 2010. He returned to a new place of work, the Eastern Beaches LAC, under a new Commander, Superintendent Dengate. 8In June 2010, Mr Robinson reported a back injury associated with wearing his police belt. He was certified fit for suitable restricted duties by his general practitioner, Dr Tilmann Rust, from 2 July 2010. 9Mr Robinson had not hit it off well, to use neutral language, with his new Commander, Superintendent Dengate. Following this report of injury there were further interactions between them, from which Mr Robinson formed the view that Superintendent Dengate had an adverse view of him. On 5 July 2010 there was a meeting between the two men which Mr Robinson characterised as an altercation. 10On that day, 5 July 2010, Mr Robinson terminated his shift and attended a medical practitioner. He was provided that day with a medical certificate stating that he was suffering from anxiety, and certified unfit for duties within the NSW Police Force. 11Mr Robinson lodged an incident notification form concerning his interaction with Superintendent Dengate. He alleged harassment, intimidation and bullying by Superintendent Dengate. 12On 6 July 2010 Mr Robinson lodged a workers' compensation claim alleging incapacity arising from a recurrence of the psychological injury he sustained on 15 November 2008, that is, the post-traumatic stress disorder arising from the 2001 incident. 13In support of that claim he provided a WorkCover medical certificate issued by Dr Rust dated 7 July 2010 describing Mr Robinson as suffering from 'anxiety' and stating that he was unfit for any work. That certification was continued by Dr Rust until 16 February 2012. 14This workers' compensation claim was disputed but was ultimately settled. Relevantly, it is not said that Mr Robinson is not an 'injured worker' within the meaning of the WC Act. 15From 7 July 2010, Mr Robinson was treated by Dr Rust and a psychologist, Ms Suzie Sharman. He did not return to duty after that date. 16On 15 October 2010 Mr Robinson lodged a complaint with the Anti-Discrimination Board (NSW) alleging disability discrimination by the respondent and referring particularly to Superintendent Dengate. 17In a series of communications with the respondent in November and December 2010, Ms Sharman stated that she did not support a return to work on Mr Robinson's part and suggested that he be medically discharged. 18In December 2010, the Workplace Injury Management Team within the NSW Police Force arranged an appointment for Mr Robinson to be medically assessed by Dr Jeff Bertucen, an independent psychiatrist, in relation to his fitness to continue employment with the respondent and consideration for medical discharge. Mr Robinson attended that appointment on 25 January 2011. 19On 31 January 2011 Dr Bertucen provided a report stating that Mr Robinson was not fit to be an operational police officer in the foreseeable future, but saying that his prognosis was uncertain and that he may be fit to return to non-operational duties after his condition stabilised further. 20Mr Robinson appealed against the recommendations made in Dr Bertucen's report. In part, Mr Robinson's appeal was based on his assertion that he could not return to work with the NSW Police Force in any capacity, contrary to Dr Bertucen's suggestion. 21On 3 March 2011 the respondent's Injury Management Advisor dealing with Mr Robinson's case, a Ms Angus, spoke to Dr Rust. Dr Rust said that he agreed with Dr Bertucen's recommendations, and said that Mr Robinson could commence a return to work plan if it did not involve a return to his substantive command. 22On that same day, 3 March 2011, following her conversation with Dr Rust, Ms Angus wrote to Mr Robinson saying that both return to work in another position and medical retirement were being considered, based on Dr Rust's advice that continuing employment might be possible and Dr Bertucen's report. She suggested that a case conference involving Dr Rust be organised. 23Within two hours of receiving that communication from Ms Angus, Mr Robinson wrote to the respondent at some length. That letter was a detailed argument to the effect that he could not return to work with the respondent in any capacity. It comprehensively refuted any suggestion that work in an administrative capacity, for example, might be open; it advanced a number of matters that, if accepted, effectively meant that only discharge was an available option. Mr Robinson did not, he said, wish to participate in any case conference. 24In that letter Mr Robinson expressly identified the symptoms he was suffering as being related to PTSD arising from his police duties over his whole career. 25Later on the same day, 3 March 2011, Mr Robinson wrote to Ms Angus again saying that Superintendent Dengate's actions which Mr Robinson characterised as bullying, intimidation and harassment, had 're-exacerbated' his PTSD creating another psychological illness. 26Shortly after this, and after a further consultation with Mr Robinson, Dr Rust advised the Respondent that Mr Robinson was unfit for work in any capacity inside and outside the NSW Police Force, that he, Dr Rust, did not support a return to work within the NSW Police Force and that it was in everyone's best interest for Mr Robinson to be medically discharged. 27On 30 March 2011, Mr Robinson's appeal against the recommendations made in Dr Bertucen's report was disallowed. On the same day, Mr Robinson was advised that his injury management file had been referred to the respondent's Fitness to Continue Unit ('FTCU') for consideration of medical discharge. 28On 26 May 2011, the respondent's Medical Discharge Review Panel ('MDRP') recommended that Mr Robinson be medically discharged. 29On 27 May 2011, Mr Robinson provided the respondent with executed copies of his medical discharge documents. 30The respondent was also provided with a certificate prepared by Ms Sharman dated 27 May 2011 for purposes related to the Australian Taxation Office stating that: "because of ill-health, it is unlikely that Glen Robinson can ever be gainfully employed in capacity for which he is reasonably qualified because of education, experience or training" 31The respondent was also provided with a similar certificate prepared by Dr Rust dated 2 June 2011 stating that "it is unlikely that Glen Robinson can ever be gainfully employed in capacity for which he is reasonably qualified through experience or training" 32On 2 June 2011, Mr Robinson was medically retired from the NSW Police Force pursuant to section 72A of the Police Act. 33As a consequence of being medically retired, he received a lump sum payment, that being a partial and permanent disability benefit of $545,067 gross pursuant to the D & D Award. After tax the net payment amounted to some $487,000. 34In order to receive the payment that he did, Mr Robinson had to satisfy certain criteria. They included that he had to be found to be suffering from a "permanent physical or mental disability" and that, as a result, he was "permanently unable, by reason of that disability, to perform the duties that the Police Officer was required to perform before the police officer suffered the disability." 35In January 2012 Mr Robinson applied for work as a cabin crew member with Jetstar. He was accepted and commenced employment in early April 2012. 36On 27 February 2012, in the context of the settlement of his claim for disability discrimination that Mr Robinson had brought, he received a letter from Superintendent Dengate in which that officer, referring to Mr Robinson's allegations of harassment, said 'I acknowledge that you feel aggrieved and I sincerely regret that you feel that way.' 37On 5 April 2012, Dr Rust prepared a WorkCover Medical Certificate certifying that Mr Robinson "is fit for pre-injury duties from Thursday 5 April 2012". This was not provided to the respondent at that time. 38On 29 August 2012, Ms Sharman prepared a report stating that Mr Robinson "has fully recovered". Referring to the letter dated 27 February 2012 from Superintendent Dengate, she expressed the view that 'Mr Robinson's mood and overall functioning improved dramatically once the bullying issue was satisfactorily resolved'. 39 On 4 October 2012 Dr Rust prepared a certificate that provided: "This is to certify that I believe Mr Glen B Robinson will be fit to return to duties in the NSW Police Force in his previous or similar position as a general duties team leader, Sergeant. He was previously medically discharged in June 2011 on the grounds of a medical condition (Adjustment disorder with anxiety). He has had extensive treatment for this condition by a psychologist and his symptoms have resolved. I am confident he is able to return to full duties since the causative issues have also been dealt with." 40On 18 October 2012 Mr Robinson wrote to the Commissioner of Police seeking reinstatement to his former position as a Sergeant, Team Leader at Eastern Beaches LAC under s 241 of the WC Act, referring, inter alia, to the fact that he had been certified as fit for pre-injury duties, and saying that he was "fully recovered and fit to return to my employment as a police officer". 41On 21 November 2012 the respondent's workers compensation insurer asked Mr Robinson to confirm his then most recent medical certificate was accurate and that he was fit for pre-injury duties because "this will have implications for your ongoing weekly benefits which are being paid to you". The insurer advised Mr Robinson that "if it is confirmed that you are deemed fit for pre-injury duties, you will no longer be entitled to any benefits under the workers compensation scheme". 42Mr Robinson confirmed he was certified as fit for pre-injury duties by way of email dated 22 November 2012 and further that "I am looking to return to the Police Force". 43 On and from 3 December 2012 the respondent ceased paying benefits under the workers compensation legislation, on the basis that Mr Robinson was fit for his pre-injury duties. 44Following his letter in October 2012 to the respondent requesting reinstatement, Mr Robinson communicated with the respondent a number of times and received a number of communications from the respondent. 45On 21 March 2013 the respondent wrote to Mr Robinson saying 'If you satisfactorily meet the requirements for reinstatement, the NSW Police Force will reinstate you to the duties and rank at the time of your discharge.' 46This did not occur. At the same time, the respondent did not indicate that there was opposition to Mr Robinson being reinstated. 47On 30 April 2013, no step having been taken to reinstate him since October 2012 despite what had been said in the respondent's communications to him, Mr Robinson commenced these proceedings. 48The matter came before the Commission on 10 May 2013. On that day it became apparent that notwithstanding what had been held out to Mr Robinson, the respondent in fact intended to oppose any reinstatement. At that time it was proposed by the respondent that a question be referred to a full bench of this Commission. More time was taken while that was considered but ultimately that proposal fell away. It caused, however, a delay which meant that the substantive matter did not begin to be heard until 30 September 2013. 49In the course of the proceedings on 10 May 2013 I made a number of comments to senior counsel for the Respondent which were intended to convey, and I hope were understood to convey, sharp disapproval of the length of time that the Respondent had taken to form a view that it would oppose Mr Robinson's reinstatement, doing, so far as I could ascertain nothing at all, including failing to obtain early and relevant advice, while at the same time holding out to Mr Robinson that it would reinstate him subject to a medical assessment. The Commission's critical view of that course of conduct by the Respondent has not altered; it does not, however, touch on or influence my view of the matters for determination here. The question before the Commission 50As I say, the facts set out above are essentially uncontroversial. On one view, the matter is a very simple one; given that Mr Robinson is conceded to be an injured worker within the meaning of part 8 of the WC Act, is the Commission satisfied that Mr Robinson is 'fit' for work within the meaning of s.243 of the WC Act? 51The respondent, however, submits that before that question may even be considered by the Commission two things stand in its way. The first issue - whether Mr Robinson was dismissed 52As I note above, it is not in contest that Mr Robinson is an 'injured worker' within the meaning of the WC Act. 53However, the respondent advances that the Commission's jurisdiction in respect of the application he has made is not enlivened because Mr Robinson was not 'dismissed' within the meaning of Part 8 of that Act. 54The respondent correctly points out that the Commission's power to reinstate an injured worker pursuant to part 8 of the WC Act is not enlivened unless the injured worker has been dismissed, as only an injured worker who has been 'dismissed' can make an application; WC Act s.241(1), s.243(4), s.244(1) and (2), s.247, s.248(1), (3) and (4) and s.249. 55The respondent submitted that 'dismissal' both generally and in this context means a termination of employment at the initiative of the employer without the consent of the employee, calling in aid Smith v Director-General of School Education (1993) 31 NSWLR 349 at 366, and State of Victoria v Australian Teachers Union (1993) 49 IR 149 at 157, 160 and 163, that consent being able to be implied as well as expressly given. A dismissal, it was said, does not mean a termination by consent of the parties nor a termination effected by operation of law. 56It was then said that Mr Robinson was not 'dismissed' within the meaning of the WC Act on three bases. 57They were, first, that Mr Robinson consented to the medical discharge, so that the cessation of his employment was itself simply by consent, and accordingly not a dismissal, on the basis of the authorities cited above. 58Second, it was said that in any event the respondent had no option other than to exercise the discretion under s.72A of the Police Act in favour of medical discharge once the medical evidence established that an employee had satisfied the circumstances for medical discharge. 59Third, it was put that where the employer and employee acted on the consensual basis that the employee is unfit to discharge the duties of the employee's position, the employer had, again, no option other than to exercise its discretion in favour of medical discharge in order to conform with the principles of natural justice and in order to exercise the power under s.72A for bona fide purposes and reasonably. 60The asserted lack of any option under the statute other than to bring the employment to an end was said to mean that the employment ceased by operation of law, not by any action of the employer to bring it to an end. .The provisions of the Police Act 61These propositions must be examined in the context of the provisions of section 72A of the Police Act, which is the source of power for the retirement of non-executive police officers based on medical grounds. That section provides: 72A Incapable non-executive police officer may be retired If: (a) a non-executive police officer is found on medical grounds to be unfit to discharge or incapable of discharging the duties of the officer's position, and (b) the officer's unfitness or incapacity: (i) appears likely to be of a permanent nature, and (ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control, the Commissioner may cause the officer to be retired. 62In my view it is sufficiently apparent from the words of s.72A themselves that the proposition that Mr Robinson was not dismissed within the meaning of Part 8 of the WC Act cannot be accepted. 63 S.72A of the Police Act provides not only that the Commissioner has a particular discretion, conferred on him by the word 'may'; it sets out in terms what it is that the Commissioner may do, that is, he may cause an officer to be retired. 64'To be retired' is a construction involving a transitive verb. It speaks of an action to be performed with respect to someone, in this case an officer, by the Commissioner. 65The act 'to retire' is, as counsel for Mr Robinson submitted, correctly understood in the context of s 72A as meaning: "To remove from active service or the usual field of activity, as an officer in the Army or the Navy ..." "To compel (a person) to leave active military service. Later also: to remove (a person) from office or employment, esp. before the usual retirement age" 66That means that the Commissioner when acting under s.72A takes an active step to bring the employment to an end. The Commissioner 'brings about' the end of the employment: NSW Technical and Further Education Commission v Kerrison [2004] NSWIRComm 269 at [48]. The employee may not wish to contest this decision; indeed, might even have asked that it be made, but the sole causative force bringing the employment to an end is the action of the Commissioner. 67No matter what the medical evidence, no matter what the parties' agreed view of the situation, and indeed no matter however much in this case Mr Robinson may have been desirous of being medically retired, and even pressed for such an outcome, a matter to which I return below, Mr Robinson could not on any basis bring about his medical retirement himself, or even be a party to the decision to bring the employment to an end. The decision was not consensual. Only the Commissioner could, and did, bring the employment to an end by means of medical retirement. 68Accordingly, the end of the employment therefore properly is characterised as a dismissal. 69On this approach, it matters not whether there was in fact an operative discretion, because the cessation of the employment was only able to be effected pursuant to the statutory provision by the Commissioner. 70But even without that, the proposition that the Commissioner had no discretion to exercise in this case is, in my view, not correct. 71It was put that the satisfaction of the criteria in subss(a) and (b) of s.72A determined of themselves that the Commissioner must act only in one way, to cause the officer to be retired. 72On the plain words of s.72A that is not so. Such an approach improperly conflates the actual structure of the section. The satisfaction of the matters set out at subss(a) and (b) are only sufficient to bring the matter to the Commissioner's attention; they do not conclude the issue. Even if the requirements of subss(a) and (b) are met, the Commissioner must necessarily decide whether or not he will do what the Act provides that he 'may' do. 73The decision in Kerrison supra, which was called in aid on this point by the respondent, does not hold otherwise. 74In that case, which considered relevantly identical provisions in the Technical and Further Education Commission Act 1990, the Full Commission in Court Session held: In our opinion, without straining the ordinary meaning of "may cause", these words mean "to bring about". The discretion to take steps to bring about the medical retirement of a particular employee arises once the conditions in ss20(a) and (b) are met. Given that the basis for the exercise of the discretion is a medical opinion, it is a discretion one would expect would normally be exercised in favour of retirement if the pre-conditions in ss(a) and (b) of s20 have been satisfied. (at [48] - [49]) 75That one would normally expect the discretion to be exercised in a certain way if the preconditions for its exercise are met does not at all mean that there is no discretion if they are in fact met, or even that it would necessarily be unreasonable in a given case to exercise the discretion otherwise. Were that to be the intended effect of the statute the parliament may have been expected to so provide, rather than granting an unfettered discretion by the plain words of the statute. 76As to the proposition that there was a consensual position adopted which deprived the Commissioner of a real or operative discretion, it is defeated for the reason I set out above. It is in any event defeated for reason that for the powers under s.72A validly to be exercised there must be a finding on medical grounds, as provided by subs.72A(a). That requirement could not be satisfied by an assumption of a consensual position absent a medical basis for the finding. If a consensual position as to fitness were all there was, the necessary statutory precondition - that the officer is found on medical grounds - would not be satisfied. 77The respondent called in aid the decision of the Commission in Norville v NSW Fire Brigades [2007] NSWIRComm 45, an application brought under the then-section 93 of the Industrial Relations Act 1996 ('the IR Act'). In that matter Sams DP held that the applicant was not an injured worker within the meaning of the relevant statutory provisions. Having so held, the learned Deputy President also stated (at [53]): "... a medical retirement is not a dismissal, either at law, or how that term is generally understood according to ordinary English usage." 78It is not clear to me that this statement forms part of the ratio of the decision. If it does, I am obliged to say that I respectfully disagree with the learned Deputy President on this point. 79In my view the proposition that the termination of Mr Robinson's employment was not a dismissal for reason that he consented to his medical retirement cannot be sustained for the reasons that the arguments regarding discretion, which I have addressed above, cannot be sustained. However, it cannot succeed for another reason. 80It was said that Mr Robinson consented to the medical discharge by bringing relevant medical evidence, by rejecting opportunities to return to work, by claiming throughout the process that he was incapable of returning to work, by actively participating in and cooperating with the medical discharge process, and by collaborating with the respondent to bring about the finalisation of his employment so as to receive a substantial death and disability payment under the D&D Award. 81I accept that Mr Robinson actively pressed for medical discharge. His letter of 3 March 2011, which was a response to the respondent's suggestion that based on Dr Bertucen's report and Dr Rust's then opinion, redeployment might be an option as well as discharge, was in my view directed, and eloquently directed, toward establishing that only medical discharge was an appropriate outcome. That is consistent with what Mr Robinson told his treating psychologist at and indeed before that time, according to her notes. 82I accept too that Mr Robinson, as the Respondent put it, took active steps to give effect to the decision to enable him to receive the death and disability benefit. 83I do not however accept that this active assistance and indeed pressing for a medical discharge was 'consent' in the sense that it vitiated any decision the employer had to make under the statute or rendered the employer's decision a non-decision. 84However much Mr Robinson may have wished to be medically discharged, and whatever he might have done to provide information and encouragement toward the process, even to the extent of arguing his case, he had no control at all over the recommendation put by the respondent's FTCU to the MDRP, nor did he have any input into or control over the recommendation that the MDRP made to the Commissioner. Either recommendation might have been, for all Mr Robinson knew, a recommendation that he not be discharged. 85His consent or otherwise was not a determining factor. The decision was out of his hands. 86And it was out of his hands for a further reason made clear by the words of s.72A of the Police Act to which I have earlier referred, that is that the Commissioner was required to exercise a discretion bestowed by the use of the word 'may' in s.72A. Mr Robinson patently could not and did not exercise the statutory power to cause him to be retired which only the Commissioner could, and did, exercise. 87Mr Robinson was, it is not in contest, an injured worker. In my view he was dismissed when he was medically retired. In my view this is an application properly brought under Part 8 of the WC Act. Estoppel by convention 88The Respondent also advanced the submission that an estoppel operates to prevent Mr Robinson from denying that he is permanently unfit or permanently incapacitated from working as a police officer. 89The estoppel was expressly said to be an estoppel by convention. 90The estoppel is said to lie on the basis that the applicant and respondent conducted their relations with each other on the agreed or assumed basis that the applicant had been permanently unable to perform the role of a police officer upon which the respondent acted in granting the medical discharge and the making of the death and disability benefit that was made to Mr Robinson. 91In an earlier interlocutory decision 1 I held that no estoppel by convention operated so as to prevent the respondent asserting, by way of leading evidence, that Mr Robinson was unfit for duty. That does not of itself mean that no estoppel by convention as now argued by the respondent lies. Nature of estoppel by convention 92Put shortly, an estoppel by convention comes into existence when parties agree on an assumption abut some fact, or matter of mixed fact and law, and make it the basis of their transaction or relationship. 93If the parties' assumption as to the relevant matter is communicated and adopted by each of them, it will bind them, and each will be estopped from denying the assumed facts: GE Healthcare Australia v Medical Radiology and Nuclear Medicine Pty Ltd [2013] NSWSC 414 at [5]; Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226 at 224. 94In Ryledar v Euphoric (2009) 69 NSWLR 603 the Supreme Court held (at [200] per Tobias AJ) that the following were the matters necessary to establish an estoppel by convention: (1) The plaintiff has adopted an assumption as to the terms of its legal relationship with the defendant; (2) the defendant has adopted the same assumption; (3) both parties have conducted their relationship on the basis of that mutual assumption; (4) each party knew or intended that the other act on that basis; and (5) departure from the assumption will occasion detriment to the plaintiff. 95It is clear that an estoppel by convention is not founded on the basis of a representation of fact made by a representor and acted on by a representee, but rather on an agreed or assumed state of facts: Con-Stan Industries loc cit at 244. 96In my view no estoppel by convention operates against the applicant in the way argued by the respondent. 97The respondent argues that it discharged Mr Robinson and made the death and disability payment based on the mutual assumption that he satisfied the requirements of s 72A of the Police Act and the definition of "partial and permanent disability" in the Award. 98In my view that is simply not so. It is not so because there was no joint or mutual assumption or agreement on which the parties acted. 99Rather, there was the advancement of a medical fact based on evidence, that fact being that Mr Robinson was unfit for duty. The respondent was entitled to and did test that fact. The respondent was not obliged to and did not assume anything. Rather, it acted on the basis of what medical practitioners told it were the medical facts. 100In my view what occurred is precisely what the High Court in Con-Stan supra held was not an estoppel by convention: that is, a party, here Mr Robinson, has made a representation of fact and it has been acted on by the representee, the respondent. More, the respondent was perfectly entitled to check that fact for itself; it was not invited to proceed on the basis of any assumption. 101So far as any further comment need be made, when one looks at the criteria set out in Ryledar v Euphoric supra, the position is yet clearer. Again, neither party has adopted an assumption or acted on the basis of an assumption, let alone a mutual assumption. 102Mr Robinson in any event does not assert that the proposition that the was unfit for duty in 2011 was or is wrong. He asserts, as a matter of medical fact, that while he was not fit then he is fit now. 103In my view an estoppel by convention does not lie to prevent Mr Robinson asserting that the is now fit for duty. Whether the Applicant is fit for his pre-injury duties 104As Mr Robinson was 'dismissed' within the meaning of the WC Act, and as no estoppel lies against his asserting his fitness, the application under s.241 of the WC Act falls to be considered. 105Without reproducing the statutory provisions in this decision, it is clear that the Commission may take no step to order a worker to be reinstated pursuant to subs. 243(2) of the WC Act unless the worker is 'fit for that kind of employment' to which reinstatement is sought. Under subs.243(3) the Commission may, in the alternative, order that a worker be reinstated to employment 'of any other kind for which the worker is fit'. In both circumstances the question of fitness is a necessary precondition to any order re-establishing an employment relationship. 106It is necessary to examine the meaning of the term 'fit'. 107In s.243 the word "fit" appears as part of the expression "fit for that kind of employment", where the 'kind of employment' is the employment to which the injured worker is seeking reinstatement as defined in Part 8. 108I accept the respondent's submission that the surrounding textual context means that the concept of being "fit" for employment goes to the worker's capacity to perform employment of the relevant kind. 109It is not to be doubted that the assessment of whether a worker is relevantly 'fit' within the meaning of this provision is one to be made on medical evidence: Riley v Workcover Authority of NSW (2006) 151 IR 396. 110It is further, in my view, not to be doubted from the words of the statute themselves that fitness is not assessed against any abstract standard but in relation to the duties and nature of the work to be performed: State Rail Authority of New South Wales v The Honourable Justice Bauer (1994) 55 IR 263 at 267. ('Tyrrell's case') 111Indeed, in that case, Sheller AJA (with whom Kirby P and Meagher JA agreed) observed that "[t]he relevant sections of the Act have to do with "fitness" in a medical sense to perform work: such provisions are only understandable when the duties and nature of the work are reviewed having regard to the injury and any permanent or chronic disability". 112As the applicant very properly in my view conceded (if indeed concession it be) there can be no doubt that the requirement that the Commission be satisfied that the worker is fit for the kind of employment sought necessarily contemplates an actual return to work of that kind, and that that would involve the Commission being required to consider what may be described as the "inherent requirements" of that kind of employment; that is to say, both the tasks and activities required of that kind of employment and the environment in which that work is to be performed. 113It is not contested, and in my view it is correct, that this brings the Commission to a consideration of whether that kind of employment could be performed safely: Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305 at [65] per Bathurst CJ. 114In my view that takes the question beyond a simple one of whether a worker appears to be fit on the day that the application is made. It is clear enough that a consideration of whether or not the worker could safely perform that type of employment extends the consideration of fitness for employment beyond the question of physical or mental health at the time the order is sought to be made, to an assessment of the worker's capacity to perform the inherent requirements of the position during the prospective employment. 115This approach is, I note, consistent with the relevant provisions for conducting health assessments of police officers to ascertain their fitness for employment. 116The Police Regulation 2008 prescribes at cl.9 that health assessments for police officers must be in accordance with the Public Sector Employment and Management Act 2002. ('the PSEM Act') Pursuant to cl. 4(1) of the Public Sector Employment and Management Regulation 2009, a person must not be appointed to a position unless the person's "fitness to carry out the duties of the position" has been confirmed by a health assessment. Pursuant to cl. 4(2) and cl 13 of the Regulation, a person's "fitness to carry out the duties of the position" includes the ability to carry out duties without endangering the health and safety of the public, other employees and the person concerned. 117While this matter turns on the provisions of the WC Act, not the Regulation, I cannot see how a different standard could be applied to an assessment of whether an employee is 'fit' for the purposes of the WC Act. 118For want of any doubt, it is clear in my view that consideration of whether an officer is 'fit' within the meaning of part 8 of the WC Act necessarily requires consideration of the officer's fitness to undertake his duties going forward, that is, a consideration of the officer's fitness must necessarily include consideration of how he would be able to perform those duties as a whole and over time, beyond the circumstances of the day on which the application is made or heard, and indeed beyond the first day of his return to work. It necessarily includes an assessment of the impact of the work to be performed on the worker concerned, but also may involve an assessment of the safety of others if the worker is returned to duty. Duties of the position to which reinstatement is sought 119The position to which Mr Robinson seeks reinstatement in the first instance is that of General Duties Sergeant at Maroubra Police Station within the Eastern Beaches Local Area Command. I note that I address below the question of alternative positions as the structure of s.243 makes it open to the Commission to do, and as the applicant's counsel asked the Commission to do. 120I accept, and indeed it was not put in contest, the respondent's submission that the role of General Duties Sergeant has significant operational dimensions and involves dealing with high stress situations. 121The responsibilities of the role include supervising a large number of probationary police officers, addressing major and dangerous incidents such as riots, public disorder, hostage situations, attempted suicides, drug overdoses, fatalities and car crashes as well dealing with potentially dangerous prisoners and criminals. So far as it takes the matter any further, the Eastern Beaches Local Area Command has, on the evidence of Superintendent Dengate, the Local Area commander, a higher incidence of these matters than other commands in New South Wales. 122 I accept that the role of General Duties Sergeant is exposed to the risk of stressful and dangerous situations on regular occasions. The nature of police work is, as the respondent submits, that these situations can happen at any time without warning. The medical evidence 123It is in the context of the duties and responsibilities of the position to which Mr Robinson has sought to be reinstated, but also to the duties and responsibilities of police officers at large, that I turn to the medical evidence which is the basis on which the Commission must, as I set out above, form its view of whether Mr Robinson is 'fit'' within the meaning of Part 8 of the WC Act. 124Medical evidence was brought from, in the applicant's case, Dr Zhen Zhang, Mr Robinson's consulting psychiatrist and Ms Suzie Sharman, Mr Robinson's treating psychologist; in the respondent's case, from Dr Julian Parmegiani. 125The medical evidence before the Commission cannot be divorced from, and must be read in the context of, the medical evidence that was provided to the respondent in 2010 and 2011 concerning Mr Robinson's fitness. 126That is the more so as Ms Sharman and Dr Zhang were two of Mr Robinson's treating clinicians during the period leading up to his medical retirement. 127The medical opinions expressed in the period immediately before Mr Robinson's medical retirement were that Mr Robinson was permanently incapable of returning to perform duties as a police officer within the NSW Police Force. Dr Rust, his treating GP, stated that he considered that Mr Robinson was unfit for work both within and outside the NSW Police Force and that he did not support his return to work as "the risk of relapse was too high". Ms Sharman stated that Mr Robinson's mental condition "had become so bad that she was worried for his health/safety" Both Dr Rust and Ms Sharman certified that "because of ill-health, it is unlikely that [Mr Robinson] can ever be gainfully employed in a capacity for which he is reasonably qualified through experience or training". 128That certification was the culmination of a significant period of Mr Robinson's medical history as it is set out in the materials before the Commission. That history can be summarised in the following way. 129Mr Robinson had the first onset of his psychiatric symptoms in November 2008. The immediate trigger for these symptoms arose, as I say above, from his reading news clippings about the Waterloo riots in 2001, in the context of which he had been placed in a highly dangerous and threatening situation. His GP diagnosed PTSD. Mr Robinson remained absent from work between January 2009 and April 2009 when he returned to restricted duties. He was cleared to return to full duties in August 2009. 130In July 2010, Mr Robinson suffered further psychiatric symptoms. He submitted a claim to the respondent alleging ongoing harassment, intimidation and bullying by Superintendent Dengate, his commander. At that time Dr Rust, Mr Robinson's treating GP, certified him as unfit for work due to anxiety. Dr Zhen Zhang, Mr Robinson's consulting psychiatrist, subsequently diagnosed a major depressive illness. Ms Suzie Sharman, his treating psychologist, diagnosed an adjustment disorder with mixed anxiety and depressed mood. 131On 3 March 2011, as I have noted above, Mr Robinson wrote at some length to the respondent about his circumstances. 132Leaving aside his references to conditions such as sleeplessness, anxiety, depression, and anger, which are properly seen as symptomatic of his illness at that time, Mr Robinson described a wide range of police functions that he could not perform. 133He said, for example, 'I must guide junior staff and give the right advice I cannot trust myself to give my colleagues the right direction and advice and make split second decisions when the need arises, which often does due to my rank and position. I'm afraid and scared I'll make the wrong decision which may be life altering to me, a colleague or member of the public.' He further said 'I worry what I will do if I'm involved in any confrontation at the workplace and fear what I may do. This is a major concern. I do not want to put myself at risk nor anyone else I work with.' 134He said 'Working desk duties continually reminds me of what I'd been through.' He said that hearing the radio and calls for help by police 'makes me very anxious and my heart race. I put myself and others at risk as I cannot respond due to the anxiety I feel at the sound of the radio.' He said 'If placed back into [my job] in any capacity would put others at risk.' 135Counsel for Mr Robinson makes the valid point that this is what Mr Robinson wrote when he was, from Ms Sharman's records, really unwell, and that what he then said reflected his state of mind at that time. I accept that that is so. 136It is nevertheless clear, and nobody has suggested otherwise, that Mr Robinson genuinely had the beliefs he expressed in that letter at that time. Nor has anybody suggested that what he then said was not an accurate assessment of what would occur if he did return to police work and his illness recurred. It is in part in this context then that I return to the question of recurrence below. 137Lastly, on 11 March 2011, when Mr Robinson's medical retirement was being actively considered, his treating GP Dr Rust provided his medical opinion to the respondent as Mr Robinson's employer by means of communication with the respondent's Injury Management Advisor. 138Dr Rust stated that Mr Robinson could not return to work because "the risk of relapse was too high". He said that if Mr Robinson ever returned to work with the NSW Police Force, "the smallest incident would set [him] off and he would again be [unfit] for work for several months' and that he, Dr Rust, felt 'the process will continue on and on". 139Dr Rust further expressed the medical opinion that it would be a 'waste of time' attempting a [return to work] within the NSWPF' as he felt that 'if we ever do get [Mr Robinson] to the point where he can return to work, the smallest traumatic incident or conflict would send him backwards at this point". 140He added that it would be "in everyone's best interest for this man to be [medically discharged]' as he expected 'ongoing problems"; and that he, Dr Rust, expected "little improvement until he can detach himself from the NSWPF". 141I have said that the Commission must rely on medical evidence to determine whether a person is 'fit' within the meaning of Part 8 of the WC Act. I now turn to the medical evidence tested before the Commission. The applicant's expert evidence in the proceedings 142Mr Robinson relied on two experts in support of his contention that he is fit to be reinstated in work with the respondent: Dr Zhang and Ms Sharman, to each of whom I have referred above. 143They were two of Mr Robinson's treating clinicians during his illness. No point was taken to the effect that they were not properly appearing as expert witnesses, but Dr Parmegiani in his evidence pointed to the possible effect of a treating clinician's potential unconscious or subconscious desire to help their patient in giving their expert evidence. 144I observe here that Dr Rust, Mr Robinson's other treating clinician, did not attend to give evidence. No explanation was given for this. 145I was urged by the respondent to draw the Jones v Dunkel 2inference - that is, that Dr Rust's evidence would not have assisted the applicant. 146I am unable to avoid the view that Dr Rust's evidence would have had a capacity to be relevant, given the opinions he expressed in March 2011 set out above, and that he had in June 2011 certified that 'it is unlikely that Glen Robinson can ever be gainfully employed in capacity for which he is reasonably qualified through experience or training'. In 2012, of course, Dr Rust opined that Mr Robinson was fully fit to return to his former duties. 147I have, however, proceeded to determine the matter before me without relying on, or indeed drawing, that inference. 148That is because in my view there is sufficient medical evidence before the Commission which was able to be rigorously tested, including evidence from clinicians who had attended Mr Robinson during his illness and had reviewed him since, and also from Dr Parmegiani who provided a different view, that I regarded the Commission as adequately equipped to determine the matter on the evidence actually before it without calling inferences in aid. 149I do not, of course, ignore the opinions Dr Rust expressed in 2011 which were put before the Commission in evidence, including that going to Mr Robinson's potential to relapse, about which Dr Rust said nothing directly in his 2012 opinion. 150I now turn to the expert evidence brought before the Commission. 151Dr Zhang gave an expert report in which he diagnosed, retrospectively, that Mr Robinson had suffered from PTSD and an adjustment disorder with mixed anxiety and depressed mood, rather than a diagnosis of major depression, which had been Dr Zhang's earlier opinion. 152Dr Zhang stated that Mr Robinson now displayed 'no signs or symptoms of mental illness.' Dr Zhang nevertheless did not regard it as appropriate that Mr Robinson be reinstated to operational police duties immediately but recommended a "gradual return" to work to be supervised and reviewed within the NSW Police Force and an independent mental health professional. 153In giving oral evidence, Dr Zhang stated that his diagnosis of the applicant changed during the course of his clinical treatment. He said he had made an initial or provisional diagnosis that Mr Robinson had suffered from an adjustment disorder with mixed anxiety and depressed mood and not a major depressive illness. He then reviewed his diagnosis, based on a change of the applicant's symptoms and formed the view that a reasonable assumption was that Mr Robinson had a major depressive disorder. In light of this diagnosis, Dr Zhang said that he prescribed anti-depressants. He increased the dosage when Mr Robinson complained that there had been no change in the depressive symptoms. 154In his expert report, Dr Zhang said that he considered that Mr Robinson had suffered from, rather than a major depressive illness, an adjustment disorder. He explained the new diagnosis as being on the basis that, because Mr Robinson said that his symptoms had been relieved after having stopped taking medication, and after having received what was said to be an apology from Superintendent Dengate, and further having been able to deal without difficulty in meeting with Superintendent Dengate, his mental illness was consistent with an adjustment disorder rather than a major depressive disorder. 155On his evidence, Dr Zhang placed weight in forming his diagnosis on the presumed fact that there had been an increased dosage and then a sudden cessation of medication resulting in the improvement he noted. He agreed, however, that he did not have an objective basis to know how much, and the times during which, the applicant had taken medication. Mr Robinson himself gave evidence that he had not wished to take medication, and, as I understood his evidence, that he had not consistently taken it even when prescribed. 156As I set out above, Dr Zhang changed his diagnosis based on Mr Robinson's account of having reconciled with Superintendent Dengate after receiving a letter from him and having at least one positive face-to-face meeting with him. I note that the evidence on this point was not wholly resolved; Superintendent Dengate gave a quite different account, including that Mr Robinson had had no more than a short, uncomfortable interaction with him in September 2012. It was not put to Superintendent Dengate in cross-examination that his account was incorrect; I draw no inference from that in circumstances where Superintendent Dengate was aware that a contrary position had been put by Mr Robinson; the matter simply remains unresolved. 157I also note that Mr Robinson was well enough to apply for flight attendant positions before receiving the letter from Superintendent Dengate. 158 Dr Zhang's expert report did not expressly address the risk of relapse or recurrence eof Mr Robinson's psychological illness if he returned to his former duties. His report did, as I note above, recommend that Mr Robinson return to work on a gradual basis, leading to the inference that he regarded Mr Robinson as less than fully fit to return immediately to full-time operational police duties. 159In his oral evidence, Dr Zhang expressed the view that Mr Robinson had a higher risk of relapse of PTSD compared to a person that has not suffered PTSD in the same circumstances. He gave the opinion that a return to administrative work would be "less likely to cause post traumatic disorder symptoms than the confrontation of frontline work": tpt 30 Sep p 43 ll.40-43. 160Dr Zhang stated that he could not guarantee that the same kind of triggers identified in Mr Robinson's letter to Ms Angus on 3 March 2011 could not similarly impact on his mental state in the future: tpt 30 Sep p 35 ll.16-50, p 36 ll 32-37. 161Dr Zhang agreed that the fact that Mr Robinson had suffered from PTSD in November 2008 was significant in his relapse in July 2010: tpt 30 Sep p 33 ll.20-23. That is consistent with the evidence that a previous sufferer from the illness has a greater chance of its recurrence. 162Ms Sharman gave expert evidence in Mr Robinson's case. I observed Ms Sharman to be enthusiastic in her support for Mr Robinson's reinstatement and at times almost argumentative in dealing with propositions put to her in cross-examination. I accept that this came from her long association with Mr Robinson and her satisfaction, as his treating clinician, in seeing him recovered from his illness, as she expressed it. I did not however form a view that her evidence was biased or other than expert evidence. It falls to be evaluated on its merits and against the other expert evidence and the evidence of fact. 163Ms Sharman stated unequivocally that Mr Robinson was 'currently fit to return to operational policing duties within the NSW Police Force in his former role as a general duties sergeant.' 164Ms Sharman's report provided that while Mr Robinson had previously met the diagnostic criteria for an adjustment disorder with mixed anxiety and depressed mood, he now no longer suffered from any psychological conditions or injuries and had fully recovered. Further, she said that Mr Robinson was much more resilient and had acquired skills to identify potential triggers and intervene early to avoid relapse. 165In cross-examination, Ms Sharman agreed that she could neither predict the risk of relapse nor guarantee that Mr Robinson would not suffer a relapse: tpt 1 Oct p 78. She did say, when asked about the evidence that a person who has suffered PTSD is more likely to experience it again than someone who has not, that in her professional opinion Mr Robinson represented an exception to the rule. That appeared to be based on the proposition that he had been though therapy and had developed skills to identify potential stressors and address them to avoid relapse. 166 Ms Sharman further said, however, that she could not exclude the possibility that the trigger for Mr Robinson's PTSD, as she characterised it, represented the culmination of several unresolved stresses of his policing career rather than arising out of specific incidents; in other words, as I understood it, that it may be that neither she nor Mr Robinson had identified the stressors that triggered or might trigger again his illness. 167Ms Sharman agreed that she had wrongly assessed Mr Robinson's psychiatric condition when she certified that 'because of ill-health, it was unlikely that [he] would ever be gainfully employed in any capacity for which he is reasonably qualified because of education, experience or training.' She said that based on her observations she had now changed her opinion. I do note that her earlier opinion was expressed as recently as 2011. 168In this respect I note that her opinion was, as it had to be as a psychologist, based on Mr Robinson's presentation to her, and that the tools which can be used to measure mood and psychological state are subjective measures in the hands of a patient completing them. In the light of her admission of an error in her earlier certification, I was not wholly convinced by Ms Sharman's explanation that Mr Robinson's rapid and in her view complete and permanent recovery could be accepted as medical fact, despite the evidence of the literature suggesting vulnerability to relapse, on the basis that Mr Robinson was simply as she put it 'a rare case'. The respondent's expert evidence 169 The respondent relied on the expert evidence of Dr Julian Parmegiani. I do not set out his qualifications here but I was satisfied that he was a person appropriately qualified and experienced to give authoritative expert evidence. 170Dr Parmegiani had not treated Mr Robinson. He had seen him for only one consultation. 171In his written report, Dr Parmegiani disagreed with Dr Zhang and Ms Sharman about the actual illness that Mr Robinson had suffered. He expressed the opinion that Mr Robinson was likely to have suffered a major depressive illness, rather than PTSD, during his first period of psychological illness around November 2008, and that in mid-2010, M Robinson suffered a relapse of this major depressive disorder. 172Dr Parmegiani also said that, consistently with the evidence of Ms Sharman and that of Dr Zhang, at the time of clinical assessment on 29 August 2013, Mr Robinson displayed no symptoms or signs of psychiatric illness. In Dr Parmegiani's view, the condition which he diagnosed, a major depressive disorder, was in remission. 173However, Dr Parmegiani expressed the opinion that Mr Robinson's history suggested he had a vulnerability to psychiatric disorder. As police duties are inherently stressful, "he is more likely than not to experience a relapse of his major depressive illness if he returns to work as a police officer". 174Dr Parmegiani concluded his report by saying this: 'In summary, whilst Mr Robinson is currently well and wishing to resume his pre-injury duties, exposure to the stresses associated with police work is likely to precipitate a relapse of his Major Depressive Disorder. This risk is real and foreseeable.' 175In cross-examination, counsel for Mr Robinson put to Dr Parmegiani that a treating practitioner in a clinical setting has an advantage in making a correct diagnosis over a practitioner making a retrospective diagnosis as he had done. Dr Parmegiani accepted this as a general proposition but pointed out that a treating clinician is often 'biased by wanting the patient, and colluding with the patient, hoping to get better, wishing for that person, and encouraging that patient to improve, and perhaps maintaining an overly optimistic view of that particular person, because that's their role': tpt 2 Oct p 47. He considered, indeed, Dr Zhang's opinion to be "overly optimistic". 176Dr Parmegiani further gave the opinion that whether a person has suffered from an adjustment disorder with mixed anxiety and depressed mood or PTSD, rather than a major depressive disorder as he diagnosed it, it is the case that each of these disorders are serious psychiatric disorders producing disability and creating psychiatric vulnerability to stress: tpt, 2 Oct p 39, and particularly p.60-61. Regardless of the diagnostic label, he considered that, in light of the inherently stressful nature of police work and previous occurrences of psychological disorder, Mr Robinson would be more likely than not to have a relapse of his psychiatric disorder if returned to work as a police officer. .The effect of this medical evidence 177I found Dr Parmegiani's evidence persuasive. In particular, I had regard to the evidence that he gave that, regardless of the diagnosis of the disorder that was made, Mr Robinson, as a person who had suffered the psychological disorders which he had for the reasons that the had, was vulnerable to relapse if returned to the environment containing the stressors. 178So far as there was disagreement between Dr Parmegiani and Dr Zhang and Ms Sharman - which differences in the end may not amount to a great deal in practical terms, given Dr Parmegiani's evidence to which I turn below - I preferred the evidence of Dr Parmegiani. His views were consistent and coherent; both Dr Zhang and Ms Sharman had changed their diagnoses and prognoses more than once, and Ms Sharman candidly admitted error in her earlier certification of Mr Robinson as permanently unfit. I accepted too that, as Mr Robinson's treating clinicians, each of Dr Zhang and Ms Sharman might well take the most generous view possible of Mr Robinson's case, without of course in any way compromising their professional positions. 179I certainly accept what Dr Parmegiani says: Mr Robinson is 'currently well'. That conforms with the views of Dr Zhang and Ms Sharman. 180But I also accept the unequivocal evidence Dr Parmegiani gave that Mr Robinson that "is more likely than not to experience a relapse of his major depressive illness if he returns to work as a police officer". 181There is also the evidence of what Dr Rust said in mid 2011, in particular that a return to work was not appropriate because "the risk of relapse was too high". I appreciate that Dr Rust has since expressed the view that Mr Robinson is fit for work, without addressing the question of the potential for relapse. 182The Commission therefore has before it evidence from Dr Zhang that Mr Robinson is well enough for a graduated return to full duties, Ms Sharman's evidence that he has fully recovered, although there can be no absolute guarantee that he might not suffer a relapse, and Dr Parmegiani's opinion that at present Mr Robinson is 'well' and displays no signs of psychological illness. 183It is apparent that as of today, or as of the day the evidence was given, Mr Robinson is not suffering from the effects of a psychological condition. He is 'currently well' as Dr Parmegiani says. That is of course while he is not and knows that he is not a police officer and not subject to the stressors of being one. 184In my view, however that does not make him, on the medical evidence, 'fit' within the meaning of Part 8 of the WC Act. In a case such as the present, where the very stressors that caused the illness - and there were more than one on Mr Robinson's evidence - are not present, it is not surprising that Mr Robinson is well. That is not the test. 185That is because in my view 'fit for the type of work to be performed' involves assessment of the effect of the work on the worker if he is returned to duty, and also the potential effect on any reinstatement upon the safety of others. 186It is certainly the case that Part 8 of the WC Act does not on its face require a return to employment pursuant to its provisions to be entirely risk-free. Indeed, I accept the submission of counsel for the applicant that to require satisfaction that reinstatement would be wholly risk-free, a 'counsel of perfection' as he characterised it, would be contrary to the beneficial purpose to which Part 8 of the WC Act is directed. 187And I accept, of course, what was said in Blackadder v Ramsay Butchering (2005) 221 CLR 539 at [34] per Kirby J: 'The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante. It is not to anticipate every eventuality that might thereafter arise; nor is it to provide the employee the subject of it with employment for life. What happens in the future, and what follows from what happens, depends on all the circumstances then obtaining.' 188I note too what Callinan and Heydon JJ observed in that case (at [78]) "It is not for this Court to anticipate, by making an order in advance, what may follow" upon an order for reinstatement. 189Kirby J, agreeing with this statement, further held that it had the consequence that the Court should "not attempt ... to anticipate unknowable future events". (at [35]) 190It was submitted by counsel for the applicant that 'the Commission does not need to, nor could it, anticipate every eventuality likely to arise in the foreseeable future, in making a finding that a worker is "fit" for the relevant kind of employment.' I agree, and regard myself as bound by authority to agree. 191That is an entirely different matter, however, from having regard to medical evidence that a worker 'is more likely than not to suffer a relapse' if returned to duty. 192To have regard to that evidence is not 'anticipating every eventuality that might arise', nor is it 'attempting to anticipate future unknowable events'. Rather, it is having regard to an event that is, on medical evidence, more likely than not to occur if there is a return to duty. 193'More likely than not' means that on the balance of probabilities it will occur. That is the stark effect of the evidence. It is not necessary or appropriate to attempt to calculate the percentage chance of that occurring from studies to which the medical experts referred, as I was invited to do by the applicant. Dr Parmegiani's evidence was straightforward and unequivocal; it is more likely than not to occur. 194That that evidence is to be taken into account is in my view the more so when it is the case that the effect of a relapse in a given moment in the context of policing duties could well be, as Mr Robinson has said, to put himself, his colleagues and the public at serious risk. 195If there is a relapse, the very matters which Mr Robinson spelled out so clearly in his 3 March 2011 letter to the respondent are likely to occur. On the evidence, there will be, if there is a relapse, a high risk of danger to Mr Robinson, his colleagues and potentially, in a number of foreseeable circumstances, the public. And the dangers are not minor; policing work deals with situations that are dangerous beyond that which is experienced in ordinary civilian employment. 196That then is the situation which is 'more likely than not to occur' if Mr Robinson is returned to policing duties. 197And these situations could not be avoided. I turn below to the question of alternative positions, but the inescapable point is that even in the sort of alternative positions posited by Mr Robinson he would necessarily be exposed to the stressors which are, on the medical evidence, more likely than not to lead to recurrence of his psychological condition. 198I observe here that I am, with respect, unable to regard the decision in Tasovac v New South Wales Police Service [1999] NSWIRComm 436, urged on me by counsel for Mr Robinson in support of the proposition that no regard ought be had to the possibility of relapse in an application of this kind, as authoritative or correct on this point. Even were I to do so, I observe that in that case there was no evidence to the effect of Dr Parmegiani's evidence that a relapse will, on the balance of probabilities, occur. Indeed all the doctors in that case agreed that the applicant was fit for work. Issue of differences in diagnoses 199I deal here with a further matter; it was put to the Commission by the applicant that a great difference would result if the diagnoses expressed by Dr Zhang and Ms Sharman, rather than the diagnosis expressed by Dr Parmegiani of a major depressive episode, were accepted. I do not agree, from the evidence before the Commission. 200Dr Parmegiani gave the opinion that whether a person has suffered from an adjustment disorder with mixed anxiety and depressed mood or PTSD, rather than a major depressive disorder as he diagnosed it, it is the case that each of these disorders are serious psychiatric disorders producing disability and creating psychiatric vulnerability to stress: tpt, 2 Oct p 39, and particularly p.60-61. Regardless of the diagnostic label, he considered that, in light of the inherently stressful nature of police work and previous occurrences of psychological disorder, Mr Robinson would, as I have set out above, be more likely than not to have a relapse of his psychiatric disorder. The worker is not fit 201In short, in my view Mr Robinson is not fit because, on the medical evidence, it is inherent in any return to work as a police officer that it is more likely than not that he will have a relapse into his medical condition, with the consequences to himself and others to which I refer above. Alternative positions 202As an alternative to reinstatement in his previous position, Mr Robinson pointed to several other roles to which he might be reinstated. It is clear, of course, that such a course is contemplated by the WC Act in certain circumstances set out in s.243. 203It was said by the respondent that no position had been identified which was vacant, and that Mr Robinson had not proven himself to have the qualifications for all those positions. In my view those are matters which could be readily dealt with. 204What cannot be dealt with in my view, however, is that each of these alternative positions, and, as I understand the evidence, effectively any position as a police sergeant or indeed a police officer, necessarily has operational components, so that the occupants of those positions are necessarily exposed to stressful situations. 205I accept the evidence from Superintendent Dengate that any such position, even if on its face an administrative role, requires that its occupant be deployed to general duties from time to time, the precise degree of that requirement differing between commands. 206The evidence did not reveal the existence of a purely administrative position. But even if it were possible to identify a purely administrative position, or even if it were said that subs.243(3)(b) of the WC Act empowered the Commission to direct the respondent to create such a position or provide such work, in my view, and having regard to Mr Robinson's own earlier comments, that does not remove the risk to which Dr Parmegiani refers. 207In Mr Robinson's letter to the respondent of 3 March 2011 to which I refer above, he identifies stressors likely to be triggers for a relapse of his psychological condition, including auditing event records, reviewing coronial reports, reading telephone messages and e-mails and listening to radio calls. 208Dr Parmegiani, Dr Zhang and Ms Sharman all accepted that Mr Robinson could be affected by the stressors to which he refers in his letter of 3 March 2011 if he were returned to the workplace. 209In this context it is relevant that the initial PTSD disorder was brought on by his reading newspaper reports of a relatively old incident. Even in the most closeted administrative role such a trigger could not, on the evidence, be avoided. Effect of oath of office 210I further observe in this context that every police officer has, pursuant to s. 14 of the Police Act, the functions conferred or imposed on a constable at common law. Further, every police officer is and remains bound by his oath of office: Police Act s.13. 211The effect of this is that any police officer, whether on duty or off, whether employed in an operational or administrative capacity, is bound to obey lawful commands of his superior officers (Police Act, s 201). He is also, for example, required to come to the aid of members of the public who are put put in danger (Police Act, s.6), subject to his capacity to do so. 212As I say, this obligation is subject to the officer's capacity to lend aid or otherwise to act. As counsel for Mr Robinson correctly submitted, an officer confined to a wheelchair is not required to crash-tackle a miscreant in pursuit of his obligation to lend aid or obey orders. 213It is perhaps not difficult to draw that line in dealing with an officer with a biomechanical injury or limitation. However, the position with an officer with a psychological incapacity, or to go directly to the point, an officer with a medically recognised elevated risk of mental or psychological injury if confronted with certain stressors, is different. 214An officer with a medically recognised elevated risk of mental or psychological injury if confronted with certain stressors is not, for reasons of ss.6, 13 and 14 of the Police Act, in the position of being able to make a decision not to be involved in a situation that may give rise to those stressors on the ground that it may cause a relapse or a further injury, or on any ground. Such an officer, even if employed in a wholly administrative role, would be obliged to be involved in such a situation without limitation, if such a situation arose. 215Further, it will not be possible to predict the particular stressors that might act to cause relapse; accordingly, it will not be possible to plan to avoid them. One notes the very wide range of matters, for example, that Mr Robinson describes as triggers to his psychological condition in his letter of 3 March 2011 to the respondent to which I have referred above, and the fact that his initial PTSD was brought on by his reading newspaper clippings. 216Accordingly, it is not possible to find that 'employment of any other kind for which the worker is fit', the relevant provision of s.243(3), is available or could be made available by the respondent. Other matters 217Two other matters of potential significance were argued in this case which do not now require determination because of the view to which I have come that Mr Robinson is not 'fit'. I turn to them briefly. 218The first was an argument advanced by the respondent, and resisted by the applicant, that if Mr Robinson were ordered to be reinstated within the meaning of Part 8 of the WC Act, the Commission ought to exercise its powers under s.171 of the IR Act to attach a condition to any such order that he repay all or part of the money he received under the D&D award. 219I observe here that a payment under the D &D Award has been characterised by a judicial member of this Commission as a compensation for an officer's loss of career: Public Service Association of NSW (on behalf of Sahra Gulbis) v Commissioner of Police [2008] NSWIRComm 87 at [61]. 220Any view I express on this matter now is patently obiter, and I do not deal with the matter at length, but had I formed a different view about Mr Robinson's fitness and effected a reinstatement, I would have made an order pursuant to s171 of the IR Act requiring repayment of a greater part of the monies. That is because the sum under the D&D Award was paid for loss of a career as a police officer, and it would have been inequitable to permit Mr Robinson to retain the money if he had not in fact in fact lost that career, which would be the effect of the reinstatement he has sought. 221The second was a proposition raised by the respondent at the heel of the hunt that for the Commission to make an order under Part 8 of the WC Act would be inconsistent with a function under the Police Act with respect to police officers who are hurt on duty, and therefore would not able to be made having regard to s.405(1)(b) of the IR Act. 222I was not attracted to this proposition. I found no basis for it in authority, even accepting that the IR Act was varied only in 2010 following the abolition of the Government and Related Employees' Appeal Tribunal. 223More, I could not see that s.405 of the IR Act touched in any way on the operation of s.72A of the Police Act. 224However, I am not required to determine the question and do not do so, not least in the interests of providing this decision to the parties in a timely fashion. Summary and conclusion 225In this matter I am not persuaded than Mr Robinson is fit within the meaning of Part 8 of the WC Act. Accordingly, I have no power to make any order of reinstatement as a finding of fitness is a necessary precursor to the making of any such order. Orders 226It follows that the Order I make in relation to this application is as follows: (1)The application is dismissed. PETER NEWALL Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2013