Glenn Robson and GWA Group Limited [2015] NSWIRComm 9

Industrial Relations Commission New South Wales Medium Neutral Citation: Glenn Robson and GWA Group Limited [2015] NSWIRComm 9 Hearing dates: 7 and 8 October 2014 Date of orders: 12 March 2015 Decision date: 12 March 2015 Jurisdiction: Industrial Court of NSW Before: Walton J, President Decision: The Commission makes the following order:

(1) The application by Glenn Robson filed on 16 August 2013 is dismissed. Catchwords: INJURED WORKER - application for reinstatement under Workers Compensation Act for previous position of storeperson and alternative relief - meaning of medical certificate - medical certificate not conclusive - legal requirement for application under Pt 8 of Workers Compensation Act - meaning of employment or employment of a kind - fitness central issue in proceedings - relevant principles re determination of fitness - meaning 'satisfied' - standard of persuasion - occupational health and safety considerations - relevant principles re availability - nature of employment - pre-termination history - termination of application and post termination history - absence of via voce expert medical evidence - medical and allied health professional reports - issues regarding appointment of approved medical specialist - assessment of medical and allied health professional evidence - not satisfied applicant fit for work of storeman with lifting restriction or forklift driver - risk of aggravation of injury - other tasks sought by applicant do not constitute employment - availability - no storeperson position with restriction available - respondent discharges onus that employment sought cannot reasonably be made available - application dismissed. Legislation Cited: Evidence Act 1995 Health Practitioner Regulation National Law (NSW) (2009 No 86a) Industrial Relations Act 1996 Workplace Injury Management and Workers Compensation Act 1998 Workers Compensation Act 1987 Workers' Compensation (Dust Diseases) Act 1942 Cases Cited: Bindaree Beef v Riley [2013] NSWCA 305 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; (1999) 130 IR 1 Chau and Hofman v Penford Australia [2008] NSWIRComm 1026 Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 PSA obh Peter Riley v Workcover Authority of NSW [2006] NSWIRComm 108 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108; (2006) 151 IR 396 Robertson v Police [1957] NZLR 193 Robinson v Commission of Police [2014] NSWIRComm 35 Terminals Pty Limited v NUW, NSW Branch (on behalf of Todd Bell) [2008] NSWIRComm 247 Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited [2008] NSWIRComm 157 Texts Cited: Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia, March 2014 Category: Principal judgment Parties: Glenn Robson (Applicant) GWA Group Pty Ltd (Respondent) Representation: Counsel: R J de Meyrick (Respondent)