Supreme Court New South Wales Medium Neutral Citation: Johnston v State of New South Wales [2017] NSWSC 493 Hearing dates: 13 March 2017, 14 March 2017, 15 March 2017 and 17 March 2017 Date of orders: 01 May 2017 Decision date: 01 May 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Orders sought be made in favour or Mr Johnston. The parties should bring in short minutes of those orders, including as to costs. In the event of any disagreement as to costs, the parties should approach within 14 days. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. Catchwords: INDUSTRIAL LAW – New South Wales – awards and agreements – application pursuant to s 365 of the Industrial Relations Act 1996 (NSW) – ambulance officer – Ambulance Service of New South Wales Death and Disability (State) Award – Operational Ambulance Officers (State) Award – Operational Ambulance Managers (State) Award – Ambulance Service of New South Wales' Policy and Procedures for the Management of Return to Work – whether Service complied with obligations under the applicable Award and Policy – entitlements for partial and permanent disability – suitable employment – retraining and rehabilitation – consequences of failure to comply with the Award PRACTICE AND PROCEDURE – Jones v Dunkel inferences – referral to the Industrial Relations Commission of New South Wales Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Industrial Relations Act 1996 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 George A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 State of New South Wales v Stockwell [2017] NSWCA 30 Thompson v Groote Eylandt Mining Co Ltd (2003) 173 FLR 72; [2003] NTCA 05 Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis) Category: Principal judgment Parties: Michael Raymond Johnston (Plaintiff) State of New South of Wales (Defendant) Representation: Counsel: Mr P Bingham (Plaintiff) Ms D Dinnen (Defendant) Solicitors: Maurice Blackburn Lawyers (Plaintiff) Landers and Rogers (Defendant) File Number(s): 2016/18535 Publication restriction: None Judgment 1. When Mr Johnston resigned his employment as an Ambulance Service officer in January 2013, to accept its offer of casual employment, he was a highly trained and experienced paramedic, with some 22 years' service. In 2011, Mr Johnston had injured his back when, as a member of a two-man ambulance crew, he was required to lift a patient weighing in excess of 135 kg. In 2012, his back was injured again when, with four other officers, he was required to lift a patient weighing some 250 kg. Two other officers were also injured in that lift. In December 2012, after he returned to his pre-injury duties following another period of workers compensation leave, he was finally not required to be involved in the lift of a 110 kg patient, which he was initially directed to undertake. 2. In April 2013, following a holiday and after working only one shift as a casual, Mr Johnston suffered a career ending exacerbation of his back injury, while putting on his pants one morning at home. 3. The Ambulance Service of NSW Death and Disability Award applied to Mr Johnston while he was employed as an officer. It did not apply to him in his casual employment. In 2015, the Service refused his claim for a lump sum payment under that Award. 4. The question which now has to be determined is whether Mr Johnston is entitled to orders under s 365 of the Industrial Relations Act 1996 (NSW), requiring the Service to pay him a lump sum under clause 9 "Rehabilitation and Lump Sum Payments for Officers who suffer partial and permanent disability" of the Disability Award. 5. Amongst what is in issue is the reason for Mr Johnston's resignation from his position as an officer and whether both before and on termination of that employment, the Service complied with the obligations imposed upon it by that Award. 6. For reasons which follow, I have concluded that Mr Johnston is entitled to have orders made in his favour. The parties' cases 1. Mr Johnston's case was in essence that even before his resignation, the Service had not complied with the obligations imposed upon it by the Disability Award, in respect of his back injury. 2. He claims that unbeknownst to him, in 2013, when he resigned from his position as an officer, accepting casual employment in order to reduce the strain which his paramedic work was continuing to place on his injured back and to pursue other work, by which he could support himself, he was suffering a partial and permanent disability. He was also then not aware that because of his disability, he was unable to perform all of the duties of his paramedic position. That was soon revealed by the further injury which resulted from the simple task of putting on his pants. 3. The Service's case was, in essence, that it had complied with its Award obligations and that Mr Johnston was not entitled to a lump sum payment under clause 9 of the Disability Award on termination of his employment as an officer, because the purpose of that Award had been achieved before that employment came to an end. Beforehand, he had not only recovered from his 2012 back injury, he had, in fact, returned to his pre-injury employment as a full-time paramedic and had performed all of his pre-injury duties. Further, he had not resigned because of his injuries, but in order to pursue various business ventures. 4. The Service contended that on resignation, Mr Johnston was not suffering a partial and permanent disability; he did not cease his employment as an officer by reason of such a disability; and he was not then by reason of that disability, unable to perform the duties of his position as a paramedic. To the contrary, they were the duties which he had in fact performed, both before and after his resignation. The circumstances in which Mr Johnston's claim for payment under the Disability Award was refused 1. The Disability Award confers various benefits on injured officers, in addition to those to which they are entitled under superannuation benefits, the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW): clause 6 "Other Benefits Applicable to Officers of the Disability Award". 2. Before his resignation as an officer, Mr Johnston had made contributions of his salary to the Service, in accordance with clause 5 "Contributions by Officers" of the Disability Award. No payment was made to him under that Award, however, either on resignation from his officer position in 2013, or when his casual employment ended, or in 2015, when he first sought a payment under the Disability Award. 3. It was on 14 August 2011 that Mr Johnston first injured his lumbar spine when his two-man crew was called to lift an elderly patient weighing in excess of 135 kg, from where she had fallen at a nursing home. During that retrieval the patient fell towards the left, requiring Mr Johnston to strain vigorously to control her. His back was twisted and he suffered immediate pain in his lower back, which increased and travelled into the right side of his groin. 4. Mr Johnston pursued treatment for this injury while he took time off work, for a period during which he received workers compensation. He initially returned to light duties, before returning to his full pre-injury duties in September 2011. 5. It was in April 2012 that Mr Johnston was required to lift the 250 kg patient, together with four other paramedics. For Mr Johnston the result was increasing pain in his lower back and right buttock, down his leg to the knee. After pursuing further investigation and treatment, while again in receipt of workers compensation, he returned initially to light duties on reduced hours and then to his pre-injury duties, it appears on the evidence of Mrs Fryer, the Services' Paramedic Insurance and Benefits Manager, from 1 September 2012. 6. Both Mr Johnston's 2011 and 2012 injuries fell within the definition of "on duty injury" in clause 3 "Definitions" of that Award. In the result clause 9.3 of the Disability Award required the Service to provide Mr Johnston with rehabilitation/retraining, under its "Policy and Procedures for the Management of Return to Work". 7. In 2012 Dr Fernandez, Mr Johnston's treating GP, did not certify that he had achieved "maximum medical improvement", as Mrs Fryer described in her evidence, the Service's procedures required, even after he returned to full-time duties. Professor Ryan, to whom the insurer had twice referred Mr Johnston, advised in August 2012 that Mr Johnston had limited capacity to undertake lifts, but that he would be fit to resume his pre-injury duties, albeit at a later time than that which Dr Fernandez had advised. 8. In October 2012, Dr Fernandez provided the Service's insurer with the last of the provisional workers' compensation certificates which he provided. There he certified that Mr Johnston was continuing to receive identified treatment for his back; that he was to have further MRI investigation; and that he had been referred to another specialist. Still, he was assessed to be fit to perform his pre-injury duties. On the evidence of Mr Clark, the Service's Superintendent, Zone Manager – Mid North Coast, it was not unusual for injured officers who returned to pre-injury duties, to continue pursuing treatment, during what was effectively a trial return to those duties. 9. Despite this, in November 2012 the insurer closed Mr Johnston's worker's compensation case, with the result that proposed investigations were not pursued and Dr Fernandez never provided the final workers' compensation certificate, which the applicable procedures also contemplated. While Mr Johnston continued to pursue various treatment for his back, he could not afford to pursue all of it. 10. While the reason for his resignation in January 2013 was in issue, Mr Johnston's unchallenged evidence was that the time he had earlier spent off work while in receipt of workers' compensation payments for his back injuries, had placed him under financial pressure. On resumption of his duties, he pursued part-time and casual paramedic work, in order to reduce the strain on his back and so that he could find other work with which to support himself, which he also investigated at considerable cost, albeit unsuccessfully. 11. The evidence of Mr Mair, the Service's Inspector/Duty Operations Manager and Mr Clark, to whom Mr Mair reported, was that Mr Johnston was offered casual employment in 2013 because the Service did not wish to lose his services, and not because of any concern about his ability to perform his work. Nevertheless, Mr Clark agreed that the Service was not prepared to offer him casual work before his workers compensation claim was finalised, as was Mr Johnston's evidence. 12. When he accepted employment as a casual and resigned his employment as an officer in 2013, in documents which he provided to the Service, Mr Johnston made no reference either to his back injury being a reason for his resignation, or that he was then suffering ongoing problems with his back. He was, however, then still pursuing treatment for that injury. 13. The further injury which Mr Johnston suffered in April 2013, was not an "on duty injury" as defined in clause 3 of the Disability Award. The Disability Award did not, in any event, then apply to him, casual employees being excluded from the definition of "officers" in clause 3 of that Award. 14. Mr Johnston then made a further claim for workers' compensation which was initially refused, but later settled. Mr Johnston's casual employment ceased on 28 April 2014. Neither any claim or payment was then made under the Disability Award. 15. On the evidence of Mrs Fryer, the Service accepted that claims for payment of partial and permanent disability under that Award could be made by former injured officers, such as Mr Johnston, even after the termination of their employment. 16. It was in January 2015 that Mr Johnston first enquired with the Service as to his entitlements under the Disability Award. On 28 January, the Service advised him that he had none 17. He commenced these proceedings in November 2015. The issues finally identified by the parties 1. In September 2016 the parties were ordered to confer, with a view to producing an agreed set of issues, which was to be filed on or before 12 December. That order was not complied with, nor was any application made, as it should have been, to have the matter brought back into the list for further directions. 2. Despite the parties being again directed to file that document in the week before the hearing; during opening submissions the inadequacy of the issues the plaintiff had identified being acknowledged; and the parties being directed to provide an agreed list of issues before submissions were addressed, a list was not finally produced until after the hearing had concluded. Even then, what was provided was repetitive and did not capture all of the issues which the parties had addressed in their submissions and which it will be necessary to resolve. 3. That document identified what was in issue to be: "1. Whether the Plaintiff, when he ceased to be employed by the Service on 1 February 2013, was permanently unable, by reason of that disability, to perform the duties of the position for which he was substantively employed. 2. If not, whether the Plaintiff attempted to identify suitable employment available within the Service on 1 February 2013, and if he did not, whether the absence of such attempt deprived him of an entitlement to a lump sum payment for partial and permanent disability benefit under the Award. 3. Whether the Plaintiff ceased being an officer on 1 February 2013 in order to pursue alternative career options. 4. Whether the termination of the Plaintiff's permanent employment was substantially due to his permanent physical or mental disability. 5. Whether the defendant provided rehabilitation/retraining consistent with the Service's Policies and Procedures for the Management of Return to Work. 6. Whether, by 1 February 2013, the Plaintiff had returned to pre-injury employment and, if he had not, whether it was possible for him to do so? 7. What were the defendant's obligations under the Award? 8. Whether the defendant complied with its obligations under the Award? (a). If not, what the consequences in the context of these proceedings were. 9. As at the Plaintiff's cessation of employment, was he permanently unable by reason of physical or mental disability, to perform the duties of the position for which he had been substantively employed? 10. What is the proper construction of clause 9 of the Award, in particular what criteria, if any, must be met in order for an entitlement to arise under the Award? 11. Did the criteria referred to in [10] above, include all or any of the following? (a) The Plaintiff received rehabilitation/retraining consistent with the defendant's Policy and Procedures for the Management of Return to Work. (b) A return to pre-injury duty was not possible for the Plaintiff, or a medical assessor contracted by the defendant assessed the plaintiff and determined a return to pre-injury employment was not possible. (c) The plaintiff was declared as suffering a partial and permanent disability. (d) Permanent placement in suitable employment within the defendant was not possible. (e) The employment of the plaintiff was terminated, because permanent placement in suitable employment within the defendant was not possible. (f) The plaintiff was otherwise eligible for a benefit under the provisions of the Award. (12) Were the requisite criteria met in this case? (13) Credibility issues that arise in respect of the evidence of Mr Clark and Mr Mair. (14) Whether a Jones v Dunkel inference arises in respect of Ambulance Service Personnel supervising the provision of rehabilitation and retraining pursuant to clause 9 of the Award to the plaintiff." 1. Section 56 of the Civil Procedure Act 2005 (NSW) imposes a duty on parties to assist the Court to further the overriding purpose there specified, namely the just, quick and cheap resolution of the real issues in the proceedings. It also requires the parties to participate in the Court's processes and to comply with its directions and orders. By s 56(4) it also imposes relevant obligations on the parties' legal representatives. 2. These are important obligations for a number of reasons, including because it is only evidence which, if accepted, could rationally affect the assessment of the existence of a fact in issue that is relevant under s 55 of the Evidence Act 1995 (NSW) and thereby, admissible under s 56. 3. Regrettably, the approach which the parties pursued did not adhere to these obligations. What are the terms of the Ambulance Service's Policy and Procedures for the Management of Return to Work - clause 9.3 of the Disability Award? 1. There were a number of unusual features of this litigation. One was that despite what was identified to be in issue, neither party tendered the Service's Policy and Procedures for the Management of Return to Work, which by clause 9.3 of the Disability Award the Service was obliged to apply to Mr Johnston after he injured his back in both 2011 and 2012. 2. That Policy is given force of the Award by clause 9.3, but it is not quoted in or annexed to the Award, as ideally it should have been. 3. The terms of the Policy were, however, referred to in paragraph 6 of Mr Johnston's amended application filed in December 2015, in terms summarised at [59 ] - [ 60] below. At paragraph 10, Mr Johnston claimed that he did not receive rehabilitation/retraining in accordance with the requirements of that Policy. In its Notice in Reply of 26 February 2016, the Service did not put in issue either that the terms of the Policy were those which appeared at paragraph 6 of the application, or that it had failed to provide Mr Johnston with the rehabilitation/retraining which it was required to provide him. Nevertheless, whether it had complied with its obligations was in issue at trial. 4. In her affidavit, Mrs Fryer explained that it was her responsibility to establish and implement the Service's strategic direction for its management of insurance applications arising under the Disability Award and to oversee payments made under the Award. A copy of the Award was annexed to her affidavit, but the Policy was not. 5. While Mrs Fryer explained in her affidavit the "general policy" she applied to determine entitlements under the Disability Award, she did not explain how what the Award and the Policy required, was provided to Mr Johnston by the Service, in either 2011 or 2012. Nor was anyone else called to give such evidence. 6. In cross-examination, however, Mrs Fryer confirmed that the provisions of the Policy referred to in clause 9 of the Award were those appearing in Mr Johnston's application at paragraph 6. She also agreed that the procedures which she had described in her affidavit which the Service followed, mixed the requirements of the workers compensation legislation and the Policy. 7. The Service then sought, in re-examination, to show that Mrs Fryer's evidence was incorrect. In the circumstances, Mr Johnston's objection to that course had to be upheld. That the terms of the Policy and Procedures for the Management of Return to Work referred to in clause 9.3 of the Award were different to those referred to in Mr Johnston's application, could then only be established by the tender of that document. Still, the Service did not tender the Policy before its evidence concluded. 8. During the course of its submissions several days later, however, without either first seeking leave to reopen its evidentiary case, or even serving the document, MFI 9, on Mr Johnston, the Service sought to tender what it then claimed to be the Policy and Procedures for the Management of Return to Work. 9. The tender was soon withdrawn, the Service accepting that MFI 9 was not that Policy. That was established by a simple comparison between documents already in evidence with MFI 9. The Service next foreshadowed, but finally did not press, an opportunity to find and locate the Policy. That would have required an adjournment of the hearing. 10. In the result, what lay in issue between the parties had to be resolved on the basis that the Policy and Procedures for the Management of Return to Work is in the terms outlined in the application, as was Mrs Fryer's evidence. The proper construction of the Disability Award: What were the obligations imposed on the Ambulance Service by clause 9? 1. The intent of clause 9 of the Disability Award was not in issue, namely, to provide benefits and obligations in respect of officers to whom the Award applies. 2. Clause 4 "Coverage of the Award" of the Disability Award specifies the officers to whom it applies. An "officer" is defined in clause 3 by reference to classifications provided in Clause 5 "Classifications" of the Operational Ambulance Officers (State) Award and Clause 4 "Definitions" of the Operational Ambulance Managers (State) Award. But it excludes temporary and casual employees to whom both awards apply. 3. In order to be eligible for benefits under the Disability Award for either an "off duty" or "on duty" injury, an injured officer must have been at work after the operative date, 10 November 2006, for a continuous period of not less than 30 days: clause 4.3. There was no issue that Mr Johnston had the requisite service. "On duty injury" is defined in clause 3 to mean: "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." 1. It was also not in issue that officers to whom the Award applies, who suffer "partial and permanent disability", are entitled to receive all of the additional benefits specified in clause 9, including those contained in the Service's Policy and Procedures for the Management of Return to Work: clause 6 "Other Benefits applicable to Officers". 2. Any failure to provide those additional benefits involves the Service in a breach of the Disability Award, as would any breach by officers of the obligations which clause 9 imposes upon them. For example, the mutual obligation imposed by clause 9.2 on both injured officers and the Service to identify suitable employment. How the Award must be interpreted 1. There was also no issue as to the principles which must be applied when an award is interpreted. 2. They were recently discussed in State of New South Wales v Stockwell [2017] NSWCA 30 at [68] - [72]. There it was the provisions of the Operational Ambulance Officers (State) Award which arose for consideration, in circumstances where another officer had suffered back injuries in the course of his employment and, as a consequence of those injuries, had become an Operations Centre Officer. 3. As there discussed at [68], in construing an award attention must be paid to the language used, "understood in the light of its industrial context and purpose and its operation as a whole as well as the legislative background against which it was made and in which it was to operate": Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10. Further, as observed by Street J in George A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498 at 503 – 504: "… [S]peaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it 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 ... 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. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award." 1. In the case of the Disability Award, that approach requires that what lies in issue between the parties be resolved in light of the "intention and commitments" of the Award. They are specified in Clause 1 "Introduction, Intentions and Commitments" to be: "1.2.1 Provide benefits on cessation of employment in the event that an on duty or off duty injury results in the death or total and permanent disablement or partial and permanent disability of an officer. 1.2.2 Provide rehabilitation and retraining in the event that an on duty or off duty injury results in an officer suffering partial and permanent disability. 1.2.3 Agreed health and wellness program for officers." 1. In construing clause 9 of the Disability Award account must thus also be taken of what is provided by Clause 6. It specifies that the benefits conferred by the Disability Award "shall be in addition to" the benefits there identified, namely superannuation benefits payable to officers, as well as payments under the Workers Compensation Act and Workplace Injury and Management Act. 2. It must also be born in mind that just like in the case of a statute, an award cannot be interpreted in a way that permits a party bound by the award to take advantage of his, her or its own wrongdoing: see Thompson v Groote Eylandt Mining Co Ltd (2003) 173 FLR 72; [2003] NTCA 05 (in the case of employers who fail to make PAYE tax deductions) and the discussion in D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis) at 2.41 Interpretation Permitting a Person to take Advantage of His or Her Own Wrong resited. The provisions of clause 9 of the Disability Award 1. Officers who suffer an "on duty injury" are granted various benefits by clause 9 of the Disability Award, which the Service is obliged to provide them, in addition to the superannuation and legislative entitlements referred to in clause 6. Clause 9 also imposes obligations on both officers. It relevantly provides: "9.1 The lump sum payments prescribed by this clause are payable to officers. In order to be entitled to a benefit pursuant to this clause, an officer must engage in the provisions outlined within this clause. 9.2 There is a mutual obligation on both the Service and the injured officer to identify suitable employment. However, it is the injured officer's responsibility to accept a reasonable offer of a suitable employment made by the Service, which may include transfer to another location. A failure to accept one of three offers of suitable employment will jeopardise any benefits or entitlements payable under this Award and may result in termination of employment. 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. … 9.5 The objective of the rehabilitation/retraining program creates mutual obligations, which is for every officer who suffers partial and permanent disability to be placed in suitable employment with the Service, wherever reasonably practical. 9.6 An adequate opportunity will be given to the officer concerned and the Union (unless the officer expressly declines to agree to the Union being informed) to consider the Service's opinion that no suitable employment is available and to put that opinion into dispute in accordance with the dispute resolution clause of this Award prior to cessation of employment. Such opportunity will also be given in situations where it is disputed that any alternate employment is genuinely suitable. Suitable employment does not include employment that is merely token in nature and does not involve useful work in relation to the activities of the Service, or is demeaning in nature having regard to the officer's incapacity and pre-injury employment, age, education, skills and work experience. The officer's place of residence will also be considered when determining suitable employment." 1. "Suitable employment" is defined in clause 3 of the Award to have the same meaning as the definition in s 43A of the Workers Compensation Act 1987 (NSW), which is now repealed. Clause 16 "Area Incidence and Duration of the Award" provides that changes made to the Award pursuant to the Principles for Review of Awards, took effect on and from 19 March 2012. As at that date, s 43A of the Workers Compensation Act provided: "43A Suitable employment (1) For the purposes of sections 38, 38A and 40: suitable employment, in relation to a worker, means employment in work for which the worker is suited, having regard to the following: (a) the nature of the worker's incapacity and pre-injury employment, (b) the worker's age, education, skills and work experience, (c) the worker's place of residence, (d) the details given in the medical certificate supplied by the worker, (e) the provisions of any injury management plan for the worker, (f) any suitable employment for which the worker has received rehabilitation training, (g) the length of time the worker has been seeking suitable employment, (h) any other relevant circumstances. (2) In the case of employment provided by the worker's employer, suitable employment includes: (a) employment in respect of which: (i) the number of hours each day or week that the worker performs work, or (ii) the range of duties the worker performs, is suitably increased in stages (in accordance with a rehabilitation plan or return-to-work plan or otherwise), and (b) if the employer does not provide employment involving the performance of work duties - suitable training of a vocationally useful kind provided: (i) by the employer at the workplace or elsewhere, or (ii) by any other person or body under arrangements made with the employer, but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends the training concerned. (3) However, in any such case, suitable employment does not include: (a) employment that is merely of a token nature and does not involve useful work having regard to the employer's trade or business, or (b) employment that is demeaning in nature, having regard to subsection (1) (a) and (b) and to the worker's other employment prospects. (4) A worker is to be regarded as suitably employed if: (a) the worker's employer provides the worker with, or the worker obtains, suitable employment, or (b) the worker has been reinstated to the worker's former employment under Part 7 of Chapter 2 of the Industrial Relations Act 1996." 1. It follows, in summary, that in order to become entitled to a lump sum payment under clause 9: 1. An injured officer must identify "suitable employment" and accept reasonable offers of "suitable employment": cl 9.2. 2. Where a medical assessor contracted by the Service determines that despite rehabilitation/retraining in accordance with the Policy, a return to pre-injury duties is not possible, the officer is to be declared to be suffering a "partial and permanent disability": cl 9.3(a). 3. In that event, if permanent placement in "suitable employment" is also not possible, the officer is to be paid a lump sum on termination, subject to eligibility being established: cl 9.3(b). 1. It follows, nevertheless, that an officer's eligibility for a lump sum payment under clause 9 cannot be lost as the result of any failure on the part of the Service to abide by its Award obligations. That includes the Service's failure either to provide rehabilitation/retraining in accordance with the Policy, or to contract a medical assessor, to determine that an officer's return to pre-injury duties is not possible. The terms of the Policy referred to in clause 9.3 of the Disability Award 1. The "rehabilitation/retraining consistent with the Service's Policy and Procedures for the Management of Return to Work" which clause 9.3 required the Service to provide was that outlined in clause 6 of Mr Johnston's application. That included: 1. advising the Return to Work Co-ordinator of an injury, within 24 hours of the Service becoming aware that an officer had been injured; 2. releasing the officer from work to pursue treatment; 3. cooperating and participating in the establishment of the injury management plan; 4. cooperating with and assisting the Return to Work Coordinator in the rehabilitation process and provide the officer with suitable duties/ modified hours where possible; 5. notifying the Coordinator if the officer is experiencing difficulties with the injury management plan; 6. notifying the Co-ordinator before changes are made to the officer's hours or duties; 7. investigating the injury/illness according to local OHS policy and procedures to identify system breakdown and rectify problems. 1. The Policy at (h) also required the Return to Work Co-ordinator to: 1. Ensure that contact is made with the officer within 3 days of injury and workplace rehabilitation being initiated in accordance with the nominated treating doctor's advice; 2. Liaise and maintain contact with the officer, the treating doctor, other treating professionals, accredited rehabilitation providers and where appropriate, the union representative; 3. Ensure that the injury management plan is written within 5 days of notice of a significant injury; 4. Liaise and participate with the officer and treating doctor in the injury management plan; 5. Ensure that all parties understand their role in the return to work process and decisions which may affect them; 6. Provide information to injured officers and managers on the injury management process, legislative entitlements and responsibilities in relation to workers compensation and return to work; 7. Where appropriate, refer the officer to an accredited rehabilitation provider of the officer's choice and continue to coordinate the activities of the accredited provider; 8. Monitor and evaluate progress and effectiveness of all injury management plans, including provider services. Jones v Dunkel inferences must be drawn 1. It is convenient at this point to deal with the Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inferences which arise against the Service, as to its compliance with the obligations imposed upon it by clause 9 of the Disability Award. 2. Those principles are concerned with a party's unexplained failure to give evidence or call a witness, where it would be natural for that evidence to be led, or where the party might reasonably be expected to lead that evidence. In RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75] - [96] the three relevant considerations were identified to be: first, that the missing witness would be expected to be called by one party rather than the other; secondly, that this evidence would elucidate a particular matter; and thirdly, that the absence is unexplained. 3. When those conditions are satisfied, the inference that the evidence would not have helped the party's case may be drawn. That inference can then be used in two ways. First, in deciding whether to accept any other evidence given, whether for or against that party, which relates to a matter about which the person not called could have given evidence. Secondly, in deciding whether or not to draw inferences of fact which are open, about matters that person could have given evidence about. 4. By answers which Mrs Fryer repeatedly gave in cross-examination, it became apparent that she had no responsibility for the Service's provision of the rehabilitation/retraining which it was required to provide to its injured officers, under clause 9.3 of the Disability Award. Nor did she have any direct knowledge as to whether the obligations imposed on the Service by clause 9.3 of the Policy had been complied with in Mr Johnston's case. What she was aware of had been gleaned from her examination of files. Those files were not tendered. 5. The Service led no evidence from the person who had the relevant responsibility, or from those who documents in evidence established were involved in its response to Mr Johnston's 2011 and 2012 injuries. His direct supervisor, the Station Manager at Coffs Harbour, who should also have been involved, was also not called. 6. On the evidence of Mr Mair and Mr Clark, they, too, were not involved in the Service's provision of rehabilitation/retraining to Mr Johnston. On their evidence they had little knowledge of the nature and cause of his injuries; his rehabilitation; the work restrictions imposed upon him in 2011 and 2012; or the state of his back and the treatment which he was receiving after he returned to full-time duties in 2012. Their credit was in issue, as was that of Mr Johnston and another ambulance officer, Mrs McKay. 7. There was no explanation given for the Service's failure to call evidence from those who could have given relevant evidence about what was in issue between the parties, as to the Service's compliance with its obligations under the Disability Award, before Mr Johnston resigned his employment as an officer. 8. In the result, Jones v Dunkel inferences must be drawn against the Service's case. Credibility findings 1. The credibility of Mr Johnston, Mrs McKay, Mr Mair and Mr Clark was in issue, given the cases which the parties respectively advanced, even though Mr Johnston and Ms McKay's credit was not identified to be in issue by the issues document which the parties finally filed. Mr Johnston 1. There were questions as to the credibility and reliability of Mr Johnston's evidence, in particular because of the documents which he had signed in 2013. In his resignation notice he explained the reasons for the termination of his employment. He did not there refer to the back injuries which he claims in these proceedings motivated the resignation of his employment as an officer. Rather he identified his pursuit of other business opportunities as the reason. In his application for casual employment and his later application for a bus driver's licence, he also did not refer to then suffering ongoing back problems. 2. There were also conflicts between both Mr Johnston's evidence and that of Mr Mair and Mr Clark. 3. The Service also relied on answers which Mr Johnston gave in cross-examination about matters which he had not dealt with in his affidavits, to submit that he would not be accepted as a credible witness. 4. I have concluded that, nevertheless, Mr Johnston must be accepted as both a credible and reliable witness. 5. In resolving these questions it is necessary to bear in mind that while certified fit to resume his pre-injury duties in 2012, the Service was then on actual notice from advice it had received from Professor Ryan, that Mr Johnston was vulnerable to further injury to his back, as I will explain below. Mr Johnston's approach to the documents he signed must also be considered in light of the Service's attitude to his desire to decrease his working hours and his need to be able to continue working to support himself. 6. The reasons Mr Johnston gave for his resignation in the documents he provided the Service were undoubtedly incomplete and his bus driver's application inaccurate. As Mr Johnston readily accepted in cross-examination, these documents did not assist his case. The absence of any reference to the state of his back was inconsistent with the treatment which he was then still pursuing for his ongoing back pain and the evidence of what he told others about that pain, including after his resignation, when he told others who gave evidence that his career with the Service had ended, because of his back. 7. Mr Johnston's uncontested evidence was that he had suffered adverse financial consequences while off work and in receipt of workers compensation. He said that the result was that while he believed that he needed to reduce his working hours, because of the state of his back, he also needed to continue working as a paramedic, so that he had an income while he continued to pursue other work and business opportunities. Even at expenditure of some $70,000 in one case, that had not resulted in him acquiring the income which he needed, to leave the Service's employ. Opportunities which he pursued after his casual employment ended, had also not achieved such income. 8. That after his return to pre-injury duties, Mr Johnston pursued a casual position, in order to reduce his working hours and the strain which his work as a paramedic was placing on his back, was supported by other documents created before his resignation. There, doctors who had treated and examined him recorded what he had told them about his reasons for considering casual employment. Those reasons were supported by medical advice he had earlier received about his back injury and his prognosis, as well as by evidence given by the doctors who had treated him. 9. Mr Mair's evidence was, however, that before Mr Johnston's resignation, while he had discussed business opportunities which Mr Johnston wished to pursue, which Mr Mair encouraged, as well as the possibility of part-time and casual work, they had not discussed the back problems Mr Johnston claims he was then continuing to experience. 10. Mr Johnston's evidence was that he did not pursue an application for part-time work with the Sector Manager, Mr Piller, to whom Mr Mair had directed him, because he was informed by others that such work was not available. Instead, he pursued the possibility of casual work. 11. Mr Mair confirmed that the position at the time was as Mr Johnston understood it to be, namely, that the Service had no part-time work for paramedics. Mr Clark also confirmed that was the position at that time. 12. Also consistent with Mr Johnston's evidence was Mr Clark's evidence that he had advised Mr Johnston that an application for casual work could not be entertained, until his workers compensation claim for his 2012 back injury was resolved. 13. It was in cross-examination that Mr Johnston gave an account of attending a heavy patient weighing about 110 kg in December 2012, who another crew had refused to lift. His evidence was that he had objected to that lift because of his continuing concern about the risk of injuring his back further, when lifting equipment was not available. Whether that occurred was in issue. It was, however, common ground that Mr Johnston was not finally required to participate in the lift, despite initially being directed to do so. This lift was finally undertaken by other officers, without the use of lift equipment. 14. I will return to the conflict between the evidence of Mr Johnston and Mr Mair as to what occurred that day. For reasons which I will explain, I prefer Mr Johnston's recollection. 15. In the result, however, I am satisfied that Mr Johnston's evidence cannot be approached simply on the basis that he was neither a credible nor reliable witness, as the Service contended. In the case of conflict between his evidence and that of Mr Mair and Mr Clark, I have concluded that his evidence must be preferred. 16. That conclusion is also supported by the conclusions I have reached as to the credibility of Mrs McKay, Mr Mair and Mr Clark and the corroboration of Mr Johnston's evidence by the evidence given by other witnesses, including Mr Waters and treating and examining doctors, whose evidence was not attacked as being either not credible or unreliable. Mrs McKay 1. Mrs McKay was a member of the crew which in December 2012 had first refused to lift the 110 kg patient Mr Johnston was later directed to lift. The Service submitted that her evidence should not be accepted, given that: "She had an obvious issue in relation to the 2012 incident, and is subject to disciplinary proceedings as a result of her actions on that date. We say that her evidence of what occurred on that date can go no further than she was initially called out to that incident and then left, and we say she cannot provide any evidence that should be accepted by the Court in relation to Mr Johnston's involvement in that incident." 1. I do not accept this submission. 2. There is no proper basis for rejecting Mrs McKay's evidence as not being credible. It must be considered in light of that given by Mr Johnston, Mr Mair, and that of other witnesses, including Mr Waters. 3. Mrs McKay's evidence was of limited compass. Her affidavit evidence was not objected to. 4. She and Mr Johnston had been work colleagues since 2009. Mrs McKay said that in December 2012, her crew had been sent back to base, after attending the 110 kg patient. After Mr Johnston returned to base, Mrs McKay said that he had said to her in passing that: "I refused to lift this patient because of my bad back, but I was told by my supervisor that I had to do it." 1. In cross-examination it emerged that her crew had left the scene and returned to the station, before two supervisors, Mr Mair and Mr Lassau, as well as two other crews attended. Mr Johnston was a member of one of those crews. 2. Mrs McKay also said that her view was that this job was better suited for a bariatric truck, which she thought was coming, together with other crews. 3. Mr Mair's evidence was, however, that her crew had left the scene, contrary to applicable procedures. Those procedures were not in evidence. In cross-examination he agreed that what had occurred had been unusual, but denied that the crew had left because the appropriate equipment was not in place. He said that it was because they knew that a supervisor was attending. When pressed, Mr Mair said, however: "I wasn't in charge on that case, Mr Lassau was, but I'm aware that the patient needed transporting, because the patient had injuries and the six hour wait was not appropriate, and the patient was moved quite easily without any risk to the patient." 1. That disciplinary proceedings against Mrs McKay resulted, as well as a dispute before the NSW Industrial Relations Commission, was not in issue. There was, however, no evidence as to what the outcome was. In the circumstances, these developments do not cast doubt on the credibility of her evidence. 2. There was no issue that from time to time Mrs McKay and Mr Johnston had worked together, in circumstances she described in her cross-examination. 3. Mrs McKay's affidavit evidence was that on such an occasion Mr Johnston had told her that that he had been off work, because of his back problems and that his back injury caused him pain. That evidence was entirely credible, given the evidence as to Mr Johnston's injuries; the treatment he had received; the circumstances in which he had returned to work in 2011 and 2012; his initial restrictions on each occasion; and his eventual return to full-time duties in 2012, while he was still pursuing treatment for his back. 4. In cross-examination it was not suggested to Mrs McKay that this evidence was untrue. She was rather asked whether Mr Johnston had told her that his back injury was work related and whether she was aware of his injury claims, or return to work programs, which she said she was not. Nor was she aware of why he had ceased work. 5. Mr Waters was another paramedical specialist who had known Mr Johnston for some 20 years, through his work for the Service. He also gave evidence that while working together in 2012 and 2013, he and Mr Johnston had discussed his back pain, the challenges it was causing him and the treatment he was pursuing. Mr Johnston had made comments to him such as "I've experienced ongoing back pain over a long time and have tried to manage pain at work" and that his back pain "makes it difficult for me to perform the lifting, twisting and the other physical expectations I am exposed to as a Paramedic". 6. Given the evidence of the cause and nature of Mr Johnston's injuries, the treatment he received and the restrictions imposed on his work at certain times, to which I will return, this was unsurprising evidence. Mr Waters' evidence was also that in February 2013 Mr Johnston told him: "Full time work does not allow me to recover properly, and I think that working fewer hours would provide me with some respite for my back but I am not sure if that would work out". 1. In March 2013, Mr Johnston also told him that "I doubt I can continue as a paramedic". 2. In cross-examination it emerged that Mr Waters was a union representative and the Service's Health and Safety officer at Coffs Harbour. He was then pursuing workers compensation claims himself, but denied being subject to any disciplinary proceedings, or ever having been subject to such proceedings for a refusal to take lawful directions. The Service led no evidence to establish that this evidence was untrue. 3. Mr Waters was cross-examined as to the dates on which the conversations to which he deposed had occurred. He said that he had not discussed Mr Johnston's back with him before 2012, but he could not remember the dates in which particular conversations had occurred. Nor could he remember the dates of Mr Johnston's injuries, or the circumstances in which he returned to his full pre-injury duties. Nor was he was aware of how Mr Johnston's back pain was being managed by his treating doctor or the Service, even though he was the health and safety officer. 4. Mr Waters said that he had not discussed the specifics of Mr Johnston's changed employment status in 2013, but that they had discussed it being due to Mr Johnston finding it difficult to cope with full-time employment because of his back. That was something Mr Waters believed they had discussed in late 2012, but he was not aware that Mr Johnston had resigned from his full-time employment. 5. Nothing in the evidence cast any doubt on Mr Waters' credibility. It was not challenged and he must be accepted as a witness of truth. His evidence must, accordingly, be accepted. It was not dissimilar to that given by Mrs McKay, another of Mr Johnston's workmates, as to what Mr Johnston told her about the state of his back, after he returned to work in 2012. Their evidence is also consistent with that of Mr Johnston, which is supported by documentary evidence, as well as that of treating and examining doctors. Even after his return to work he was suffering back pain. That he discussed this with his work colleagues from time to time, was entirely credible. 6. In the result, I consider that Mrs McKay's evidence, particularly about her conversations with Mr Johnston, were also credible and must be accepted. Mr Mair 1. While some of Mr Mair's evidence corroborated that given by Mr Johnston and Mr Clark, I am not satisfied that he was an entirely frank witness, ready to make concessions which ought to have been made. 2. Mr Mair's affidavit evidence was that he became Mr Johnston's indirect manager in January 2010, Mr Johnston reporting directly to the Coffs Harbour Station Officer, who reported to him. In his affidavit Mr Mair responded to aspects of the affidavit Mr Johnston had affirmed in June 2012. 3. Mr Mair there agreed that he had discussed both part-time and casual work with Mr Johnston, but denied that he had told Mr Johnston that he could return to full-time work after becoming a casual, if he wanted, as was Mr Johnston's evidence. He also said that while that was possible, the casual "would need to go through the NSW Ambulance's operational recruitment process". That evidence was patently incorrect, but in cross-examination Mr Mair refused to accept that it was. 4. Clause 9 "Appointment of Officers" of the Operational Ambulance Officers Award, to which Mr Mair was taken, provides in clause 9(h) that casuals engaged in a regular and systematic basis for a sequence of periods of employment during a calendar period of 6 months, have the right to elect to have their contract converted to permanent full-time employment. If that election is not exercised, as clause 9(h)(v) provides, thereafter conversion to full-time employment can occur by written agreement. Neither is subject to such a casual going through the Service's "operational recruitment process". 5. Nothing much finally turned on this aspect of his evidence, but Mr Mair's refusal to accept that under the applicable award, in such a case conversion to full-time employment did not depend on the casual undertaking the "operational recruitment process", he insisted applied, raised a concern as to his strict adherence to the requirements of his oath. This was a concession which plainly ought to have been made, given the award provisions to which his attention had been drawn, but, it was resisted. 6. There were other problems with Mr Mair's evidence. 7. Mr Mair denied being aware in December 2012 that Mr Johnston's back had been injured in 2011 while lifting a 135 kg patient and in 2012, when assisting four others lift a 250 kg patient. He also denied Mr Johnston saying anything in December 2012 about making another claim, if his back was injured when called on to lift the 110 kg patient. In cross-examination Mr Mair said amongst other things, that this lift was a simple, easy one and while initially directed to undertake it, that Mr Johnston was not finally required to be involved. 8. When asked whether at that time, too many paramedics were injuring their backs during these kinds of lifts, Mr Mair's evidence was: "Predominantly because of the bariatric patients who do not fit on our stretchers due to their weight, we have developed new ambulances, a bariatric ambulance, quite big with the additional equipment that we have." 1. Still, Mr Mair denied being aware that Mr Johnston was then at risk of further injuring his back, even though he had already twice injured himself before, even though on the second occasion, he was injured when required to undertake the lift of a 250 kg patient, during which 3 of the 5 officers involved were injured. 2. While human memory and understanding is undoubtedly fallible, this and other aspects of Mr Mair's evidence was simply not believable, given his position; Mrs Fryer's evidence as to the Service's approach to safety and the investigation of incidents in which its officers are injured; and his own evidence as to what the Service then expected its officers to lift, to which I will return. 3. In the result, I have come to the conclusion that when resolving conflicts in the evidence of Mr Mair and Mr Johnston, Mr Mair's evidence cannot be preferred. Mr Clark 1. I have reached a similar conclusion in relation to Mr Clark's evidence. 2. In his case, there was real difficulty in understanding what Mr Clark intended to convey by his evidence, given his refusal, repeatedly, to explain what he meant when he used the term "I don't recall". 3. Mr Clark was asked whether he meant either "I deny it happened" or, "it might have happened but I don't remember". This is a question witnesses are frequently asked and answer. Yet even after I explained to Mr Clark that he needed to pay close attention to the question he was being asked, as to what he meant when he used that term, the question was still not answered. Instead, Mr Clark reverted to a non-responsive explanation of what he and Mr Mair had discussed about these proceedings, prior to giving their evidence, instead of explaining what he meant when he said "I don't recall". 4. There were various resulting difficulties. 5. Mr Clark's evidence was that while he was aware of the injuries to Mr Johnston's back, he was not aware of Professor Ryan's reports, or all of Dr Fernandez's certificates. He explained that they were the responsibility of injury management personnel, who developed action plans in response to them. But he could not recall the cause of Mr Johnston's injuries or what steps were taken by the Service to ensure that it didn't happen again. 6. Mr Clark also did not recall that Mr Johnston was one of the officers injured in 2012 when they were required to lift the 250 kg patient. He could also not recall whether that was the incident which had led to new lift equipment, which he described, being introduced in 2013. Beforehand, he explained, while the Service had such equipment, it was centralised and not available in regional New South Wales. Still Mr Clark denied having sent Mr Johnston back to full-time duties at a time when he was aware that such equipment was not available. 7. Given Mr Clark's position; the evidence as to the circumstances in which Mr Johnston, along with two other officers was injured during the lift of the 250 kg patient; and Mrs Fryer's evidence as to how such an incident was dealt with by the Service, I am simply unable to believe this evidence, even if Mr Clark was intending to convey that he simply had no recollection of any of those matters. 8. In the result, in the case of conflict I am satisfied that Mr Clark's evidence also cannot be preferred over that given by Mr Johnston. Was it possible for Mr Johnston to return to his pre-injury employment? 1. On the evidence I will discuss, I am satisfied that while Mr Johnston returned to his pre-injury duties as a paramedic in September 2012, they were not "suitable duties". Nor, in truth, was it possible for him to perform all that was required of him in that position, as what occurred in December 2012 and April 2013, soon revealed. Did Mr Johnston suffer a "partial and permanent disability" to his back during his employment as an officer? 1. As an officer who had suffered another "on duty" injury in 2012, Mr Johnston was then entitled to all of the benefits of clause 9 of the Disability Award. The lump sum payments there prescribed are only payable to officers who "engage in the provisions" there outlined: cl 9.1. The evidence establishes that Mr Johnston complied with his obligations under the clause, following his injuries in both 2011 and 2012, including when he resumed his pre-injury duties, even though in 2012 he was not, in reality, fit to do so. 2. "Partial and permanent disability" is defined in clause 3 of the Disability Award: "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." 1. That definition has to be understood in light of the definition of "total and permanent disability'' in clause 3, but that is unnecessary to refer to further in Mr Johnston's case. 2. The evidence establishes that the injuries which Mr Johnston suffered to his back in 2011 and 2012, before he returned to his pre-injury duties in 2012 and resigned from his employment as an officer in 2013, resulted in such a "partial physical disability", which became permanent, even before the termination of that employment. 3. Dr Fernandez' evidence in cross-examination was that Mr Johnston had first injured himself in 2010. He had then recommended treatment by a physiotherapist, but Mr Johnston had preferred chiropractic and acupuncture treatments, which he considered suitable. After his later injuries, Mr Johnston also pursued physiotherapy and pain management for which Dr Fernandez referred him. 4. During overseas travel Mr Johnston undertook after he was injured in 2011, he attempted a diving activity, the difficulty of which he described in his evidence. Plainly then, neither Dr Fernandez nor Mr Johnston properly understood the true nature of his back injury and its consequences. 5. Even after his second injury, neither the Service nor Mr Johnston appreciated, his true position, although it was soon identified by Dr Wong, a specialist in rheumatology, musculoskeletal medicine and osteoporosis, who advised in his May 2012 report that: "Michael is very concerned that he will aggravate his back pain if he returns to full duties. Due to the unpredictable nature of his work which involves significant amounts of physical lifting this is highly likely to occur. As his back pain has lasted over 18 mths, I think it's unlikely he will return to full duties. I've explained this to him." 1. It is apparent that even though Dr Fernandez discussed this advice with Mr Johnston, the nature of the ongoing consequences of his back injuries were not then fully appreciated, either by them, Professor Ryan, the insurer, or the Service, when Mr Johnston was later assessed to be fit to resume his pre-injury duties in 2012. 2. For her part, Mrs Fryer agreed that Mr Johnston's prognosis depended on the absence of further re-injury. It may be inferred from her evidence and that of Mr Clark, that had the Service appreciated the true condition of Mr Johnston's back in 2012, he would not have returned to his pre-injury duties; his workers compensation file would not have been closed as it was in November 2012; the Service would not have offered him casual employment as a paramedic in 2013; and he would not then have resigned his employment as an officer. 3. If the Service had complied with its Disability Award obligations in 2012, the true condition of Mr Johnston's back, which was causing the ongoing pain he was suffering even after he returned to his pre-injury duties, is likely to have been identified. That should have resulted from the advice Professor Ryan gave in his 2011 and 2012 reports. 4. In his evidence in chief, Professor Ryan explained his concern in 2011 was that Mr Johnston and his colleagues were being called on to do lifts which put them at potential risk. While standards were set in hospitals which enabled heavy lifts to be planned and easily undertaken safely, he was concerned that adequate provisions had not been made by the Service, for the unpredictable types of lifts its officers were being called on to perform. 5. In his 2011 report Professor Ryan considered Mr Johnston's prognosis to be good, provided he pursued exercise and weight loss, but he advised as to the circumstances of Mr Johnston's injury that: "It would seem inappropriate for staff at the nursing home to a call upon members of the ambulance service to perform a task which they themselves perceived dangerous. Some form of strategy needs to be developed to deal with similar problems in the future. Guidelines for lifting patients who have to be lifted have been developed in Spinal Injury units such as that at the Royal North Shore Hospital." 1. Mr Johnston agreed that the Service had guidelines for lifting heavy patients, but said that they were difficult to adhere to. They were also not tendered by the Ambulance Service. 2. Dr Fernandez's July 2012 progress certificate reflected that he had assessed Mr Johnston fit to resume light duties in August 2012. He then imposed no specific weight restrictions, but indicated that he "has to take it easy". Finally there were no restrictions imposed on his return to pre-injury duties. The Ambulance Service received very different advice from Professor Ryan. 3. By August 2012, when Professor Ryan saw Mr Johnston again, he had been off work for some four months. Professor Ryan then considered that Mr Johnston could have suffered an aggravation of his 2011 injury; that the aggravation had ceased; that his current symptoms included that he could not sit or stand for too long; and that he would be fit for "suitable duties" on 1 September. What those duties were, was not there identified. He considered that Mr Johnston would be fit to return to pre-injury duties, some six weeks later. 4. In his August 2012 report Professor Ryan also advised, however: "Mr Johnston could not be responsible for assisting lifting or carrying an individual over 50kg. Individuals who are morbidly obese or super obese, as described above, appropriate lifting devices should be used to prevent injury. This applies not only to Mr Johnston but to all of his colleagues in the NSW Ambulance Service." 1. That the guidelines about which Mr Johnston was cross-examined took heed of Professor Ryan's advice, or that his advice was conveyed to Mr Johnston's managers, as the Service's Policy envisaged it would be, was not sought to be established by the Service. 2. Professor Ryan certainly never appears to have advised the Service that Mr Johnston would recover so as to be able to resume duties which required him to assist with manual lifts by a two-man crew, of patients weighing up to 200 kg, as was Mr Mair's evidence that the Service then required of its officers. Nor did Professor Ryan give oral evidence that Mr Johnston ever recovered that capacity. 3. Dr Fernandez explained that in his 2012 progress certificates, he had certified Mr Johnston fit to return full-time duties on the trial basis that Mr Johnston and Mr Clark understood, even though he was then suffering ongoing pain, because "people work through pain all of the time". 4. Dr Fernandez came to agree, however, with the opinions which Dr Bodel, an orthopaedic surgeon who examined Mr Johnston in July 2014, later reached as to the actual state of Mr Johnston's back in 2011 and 2012. 5. In his July 2014 and October 2016 reports, Dr Bodel's view was that Mr Johnston had suffered disc injuries at the lumbosacral junction and an aggravation of some degenerative change caused by lifting events at work. He concluded that as at 1 February 2013, Mr Johnston was unfit to perform all of the regular full-time duties of an ambulance officer, because of the injury to his back in August 2011. 6. Dr Bodel also considered that despite Mr Johnston's return to full-time duties in 2012 after treatment following the second, 2012 injury, his back was not normal and it steadily deteriorated so that following the aggravation in April 2013, he was not able to return to paramedic work. 7. Dr Bodel also considered that Mr Johnston has "no capacity to work in unrestricted work as an ambulance officer. He should be able to tolerate permanently modified duties, avoiding repetitive bending, twisting or lifting. The 10 kg lifting limit that I have seen in the certificates would be appropriate as long as he avoids repetitive bending, twisting and heavy lifting. He will need to be retrained in alternative duties." 8. In his 2017 reports, Dr Fernandez advised that he agreed with Dr Bodel; that since February 2013 Mr Johnston had been unfit to perform all of his regular full-time duties; and that from his original injury in August 2011, there had been exacerbations which Mr Johnston had managed with physical therapies, but that there had been a slow, progressive decline in his ability to function. The result was that in early 2013, those injuries forced his resignation from his position with the Service. 9. I am satisfied that these views must be accepted. 10. Had the investigations which Dr Fernandez noted in his October 2012 progress certificate Mr Johnston still needed to pursue not been abandoned as they were, following the insurer's November decision to close his workers compensation file, the Service having failed to investigate the cause of his injuries as it did, the correctness of Dr Wong's view that he would never recover sufficiently to resume his normal paramedic work may earlier have been identified than it was, only following the further exacerbation which Mr Johnston suffered in April 2013. 11. The true nature of Mr Johnston's deteriorating back condition, while not appreciated before his resignation, well explained why, after he returned to his normal duties in 2012, he had to be careful with his back, as said he was. His objection in December to participating in the lift of the 110 kg patient thus accorded not only with common sense, given the injury he was still recovering from and the advice Professor Ryan had given, but also with obligations imposed on employees to take care of their own safety at work and those arising under clause 9 of the Award. So, too, did his pursuit of reduced working hours. 12. When Mr Johnston was finally not required to participate in the 110 kg lift, his true inability to perform the normal duties of an ambulance officer which Mr Mair described in his evidence, became apparent. That should have resulted in a notification under (e) of the applicable Policy, to the Return to Work co-ordinator. 13. That did not eventuate even though both Mr Mair and Mr Lassau, both supervisors, were present and one of them, on Mr Johnston's evidence Mr Mair, finally directed him not to perform that lift. The result was that Mr Johnston was never referred for assessment in accordance with clause 9 of the Disability Award, as to whether he had suffered the partial and permanent disability which Dr Bodel's evidence in these proceedings establishes that he was then suffering. 14. Had the true state of his back condition then been identified, undoubtedly the Service would not have offered him casual employment as a paramedic in 2013. The paramedic work which he performed after his 2012 injury, both as an officer and a casual, continued to put him at the significant risk of further injury, to which he succumbed in April 2013. In reality, that work was not suitable, given that he was then permanently unable to perform the duties of his substantive position as a paramedic, because of the disability from which he was then suffering as the result of the prior injuries to his back. The Ambulance Service did not provide Mr Johnston with the rehabilitation/retraining required by the clause 9.3 Policy 1. The evidence of the witnesses called by the Service establishes that it did not recognise the nature of Mr Johnston's disability. That was the result of it not providing Mr Johnston with all of the benefits to which he was entitled under the Disability Award, after his on duty injuries in 2011 and 2012 and before his resignation in 2013. 2. It is sufficient to concentrate on the Service's failure to identify that Mr Johnston's return to his pre-injury work was not "suitable employment" and its failure to investigate his injury. 3. In both 2011 and 2012 the Policy required the Service to cooperate and participate in the establishment of its insurers' injury management plans, aimed at identifying the "suitable employment" with which clause 9.2 of the Disability Award is concerned. It also imposed other obligations directly on the Service. They included in (g) an obligation to investigate Mr Johnston's injury, to identify system breakdown and to rectify the problems which had caused it. That would have helped the Service to identify what suitable employment in his case in reality was. 4. While it was Mrs Fryer's evidence in cross-examination that the Service was concerned, not only to return injured workers to their pre-injury duties, but also to ensure that they were able to continue to perform those duties safely and durably in the long term, the evidence establishes that the normal duties of a paramedic were not "suitable duties" for Mr Johnston. 5. Given the Service's failure to call evidence from those who could have given evidence as to how that obligation to Mr Johnston to investigate his injuries was met and how it came to be that his pre-injury duties were identified to have been suitable ones, I am satisfied that Jones v Dunkel inferences must be drawn against it in relation to this issue. The nature of the benefits which the Ambulance had to provide Mr Johnston under the Disability Award 1. Contrary to Mrs Fryer's apparent understanding, neither the Disability Award nor the Policy referred to in clause 9.3 envisage that the "additional benefits" which injured officers are granted by the Award, replicate those granted by the workers compensation legislation referred to in clause 6. 2. In its terms, the Disability Award also does not contemplate that the "additional benefits" which it confers on officers will be provided simply by the Service adhering to other obligations imposed upon it, either in respect of superannuation, or by the legislation referred to in clause 6. Nor did the Service undertake any comparative exercise to establish that any of the "additional benefits" conferred by clause 9 on officers who suffer an on duty injury, merely replicate those which flow from what is referred to in clause 6. 3. The Award also does not contemplate that the Service's obligations under the Disability Award will be met by its workers compensation insurer, although the Policy does require the Service to work with its insurer, when meeting certain of its Award obligations to its injured officers. Some obligations imposed by the Disability Award and the Policy were complied with 1. Various documents Mr Johnston tendered and the affidavit and oral evidence which he and witnesses called by the Service gave, established that some aspects of the Disability Award and the Policy were applied to him. 2. Mr Johnston took time off work in both 2011 and 2012, while he pursued treatment and recovered from his injuries. On 26 August 2011, for example, the Service's injury management co-ordinator, Ms Munz, sent Dr Fernandez a fax message, advising that Mr Johnston had been referred to her "to facilitate the Injury Management process" under its "Injury Management Policy" and that she would "ensure all medical restrictions are adhered to in the workplace so we can facilitate a safe and durable return to work". She also advised that: "We endeavour to accommodate all our injured workers and assist them back to full pre-injury duties in a timely manner, thus suitable duties are available" 1. The Plan then devised included Mr Johnston returning to administrative duties there specified on 23 August 2011 for specified hours, with medical restrictions in relation to lifting, (up to 10 kg bilateral), sitting, travelling and standing. 2. In September 2011 the insurer provided Dr Fernandez an injury management plan said to have been created in consultation with "all relevant stakeholders". That plan identified Ms Munz as the "responsible person" for receiving WorkCover Certificates. The Plan made reference to its referral of Mr Johnston to Professor Ryan, his obligations to attend the appointment, to continue obtaining updated certificates from Dr Fernandez and to forward them to the Service's Injury Management Co-ordinator. 3. In his October 2011 report Professor Ryan referred to both Mr Johnston's 2010 and 2011 injuries. He then considered that Mr Johnston did not require further massage, chiropractic, osteopathy or physiotherapy treatment, but that he needed to pursue exercise, to strengthen his cervical and lumbar spine and to improve his general fitness. 4. Mr Johnston returned to full-time duties in 2011. There was a further injury management plan produced by the insurer on 10 February 2012. It envisaged a further review by Ms Kentish, also an Ambulance Service Injury Management Co-ordinator, on 6 April and a re-assessment by Professor Ryan in September 2012. 5. Beforehand, in April 2012, however, Mr Johnston injured his back for the second time. The insurer again referred Mr Johnston to Professor Ryan, who did not examine him until 20 August 2012, when he considered Mr Johnston's April and June MRI scans. 6. Before he saw Professor Ryan, Ms Kentish sent other return to work plans to Dr Fernandez. The 19 June plan proposed a return to work from 12 June 2012 in order for Mr Johnston to perform administrative duties. Medical restrictions of lifting 2 kg and performing a maximum of 8 hours per week on up to 4 days, were then proposed. That resumption did not eventuate, although he later returned to light duties. 7. On 6 July 2012 Dr Fernandez provided a "progress" WorkCover Certificate in which he advised that Mr Johnston's work had been a substantial contributing factor to his injury; that his management plan involved the pursuit of specified therapies; that he had been referred for MRI and specialist examination; and that he would be fit to resume suitable duties from 26 July and his former duties from 11 August. 8. Professor Ryan did not agree with that assessment, but Mr Johnston returned to his pre-injury duties in September 2012, before Professor Ryan advised that he was fit to do so. 9. While there were other failures on the Service's part, the result in December 2012, when Mr Johnston was finally not required to participate in the lift of the 110 kg patient, did accord with its obligations under the Policy, although its failure then to refer Mr Johnston to the injury management co-ordinator, did not. Other obligations imposed by the Disability Award benefits were not complied with 1. Mrs Fryer agreed that she had not ensured that the Policy adopted by clause 9.3 of the Disability Award was applied to Mr Johnston in either 2011 or 2012. Nor was she able to confirm that anyone else had. That important aspects of it were not adhered to was established by her evidence, as well as the evidence of Mr Johnston, Mr Clark and Mr Mair. 2. As Mrs Fryer agreed in cross-examination, the explanation which she gave in her affidavit mixed together what the Service did to provide its injured officers their benefits under the Disability Award and what its workers' compensation insurer might provide its injured workers. That various of the steps Mrs Fryer described in her evidence were not taken in Mr Johnston's case, was the result, it appears, of steps taken on the one hand by the insurer and on the other, inaction by the Service. 3. Mrs Fryer said that if a treating doctor determines that a return to pre-injury duty is not possible, then a vocational assessment is sought by the Service and steps pursued to identify the most appropriate return to work goal for the officer, taking into account capacity, skills and interests and the Service identifying whether retraining is required, or alternative roles are available within the workplace. If such permanent placement is not available, job seeking assistance is provided for six months, during which various assistance is provided, while the officer is provided with suitable duties, to offer upskilling and financial assistance. Medical retirement only occurs after a "fitness to continue" assessment is undertaken by an external medical provider. 4. Mrs Fryer's evidence was also that the Service's injury management advisors work "alongside" injured officers, the goal being a return to pre-injury duties; that suitable duties are offered throughout the rehabilitation and re-training procedures, within the officer's certified capacity, as the nominated treating doctor certifies; and that such rehabilitation continues "until it is determined that maximum medical improvement has been met and the goal of a return to the officer's pre-injury role is no longer achievable." 5. Mr Johnston returned to his pre-injury duties in September 2012, on the trial basis Dr Fernandez and Mr Clark described. In January 2013, the Service offered and he accepted casual employment, despite the problem with the December lift. That he was not fit to perform all of his pre-injury duties was not then identified and dealt with as the Award and the Policy required. In the result, the steps Mrs Fryer described, were clearly not all followed in his case. 6. The result of the Service's approach to its obligations under the Disability Award and the Policy was a failure, itself, to consider whether Mr Johnston was fit to perform all of the work it then required of its officers, when it allowed him to resume his pre-injury duties in September 2012, contrary to Professor Ryan's advice. No evidence was led to explain why that decision was made. 7. For his part, Mr Clark claimed to have no direct knowledge of how the Service approached its obligations to Mr Johnston under the Disability Award. His understanding was that the Service had no choice but to require Mr Johnston to perform all of his normal duties, once he returned to his full duties, which included the heavy lifts Mr Mair described in his evidence. This was inconsistent with what the Disability Award required. It contemplated a return to "suitable duties" after injury. Pre-injury duties can obviously only fall within the Award definition of that term, as "employment in work for which the worker is suited", if they do not put an injured officer at risk of further exacerbation of the injury from which he or she is still recovering and worsening of any incapacity it has caused. 8. Mr Clark explained, however, that on a resumption of pre-injury duties, injured officers such as Mr Johnston were treated by the Service as being at the same risk of injury which it recognised that all of its paramedics were exposed to, in the performance of their duties. 9. That assumption was not consistent with either Mrs Fryer's description of the Service's approach to its injured officers, or with its obligations under clause 9 of the Disability Award and the Policy. 10. On Mr Clark and Mr Mair's evidence, while after the termination of Mr Johnston's employment electric lifting equipment which was then already in use elsewhere in the State, was introduced in the Coffs Harbour area by the Service, that was not in response to any investigation instituted after either Mr Johnston's 2011 or 2012 injuries, despite the way he had been injured, when required to manually lift heavy patients. 11. That approach was also inconsistent with the Service's obligations under the Policy, which required that the cause of his injuries be investigated and steps taken to address them. 12. In fact, Professor Ryan's advice had thrown considerable light on the cause of both Mr Johnston's 2011 and 2012 injuries and his resulting incapacity. It also drew attention to the obvious risk of further injury to his back, to which the Service exposed Mr Johnston when it returned him to his pre-injury duties, which required heavy lifts of the kind which had earlier resulted in injury to his back, in both 2011 and 2012. 13. Mrs Fryer was asked whether, when the Service sent Mr Johnston back to his pre-injury work on 1 September 2012, it knew that it was exposing him to further back injury. Her response was that his doctor had sent him back to work, when he was cleared fit to return to his pre-injury duties. 14. That missed the point. 15. The Service undoubtedly had to take into account the advice it received from time to time in the form of the certificates which Dr Fernandez provided, before and after Mr Johnston's return to work, when pursuing its obligations under the Disability Award. It also had to take account of Professor Ryan's advice. It could not just rely on conclusions reached by its workers compensation insurer in November 2012, as to Mr Johnston's workers compensation claim, given what clause 9 of the Disability Award and the Policy required in relation to a return to "suitable employment". 16. One obvious consideration which the Service had to take into account in Mr Johnston's case, given Professor Ryan's advice, was whether, on return to his pre-injury duties, requiring him to perform work of the kind which had already caused significant injuries to his back, would put him at risk of further injury. That no consideration was given to this is apparent from the evidence of Mr Mair and Mr Clark. 17. Amongst Mr Mair's evidence was that: * WorkCover medical certificates such as those provided by Dr Fernandez only came to him, if provided by the injured worker. Otherwise such documentation was dealt with at a higher level. In the result, he did not have knowledge as to the full extent of an officer's injuries; * He had received no instructions from Mr Clark about Mr Johnston's injuries. He was aware that Mr Johnston had been off work with a back injury, but he had no knowledge of the number of injuries he had suffered, what they were, or what they had been caused by. * He only became aware that Mr Johnston's 2011 injury had been caused by lifting a 135 kg patient when he read one of Mr Johnston's affidavits. Nor could he recall knowing that Mr Johnston's 2012 back injury had been caused by a heavy lift, or that two other ambulance officers had been injured in the lift of that 250 kg patient. * While he received advice from the human resources manager and the zone manager as to what capability an injured officer had, he believed officers with restrictions could not perform ambulance duties. Once returned to full duties, officers could have no restrictions and were expected by the Service to perform all of their duties; * He only became aware when there were restrictions because those officers were off roster. 1. This approach simply did not accord with the obligations imposed on the Service by the Disability Award and the Policy. The result was that the Service failed to act on relevant information which it had in its hands, which suggested that Mr Johnston's pre-injury duties could not constitute "suitable employment" of the kind with which clause 9.3 of the Award is concerned. 2. Mrs Fryer was also unable to explain how the Service had responded to Professor Ryan's advice, even though she had reviewed Mr Johnston's files. On her evidence the Service constantly developed strategies based on reports it received in relation to injuries its employees suffered, in order to make improvements. But she could not say whether it had reacted specifically to any of Professor Ryan's reports. 3. Mrs Fryer also said that she herself had seen no evidence that the Service had taken any steps to avoid Mr Johnston suffering further injury. She was also unable to say whether anyone else at the Service had addressed that risk, before Mr Johnston returned to his pre-injury duties. 4. On 13 August 2012 the insurer sent Dr Fernandez another injury management plan, said to have been developed in consultation with "all parties". It required the Service to: "Reasonably assess and monitor the workplace in attempts to minimise further injury occurring and actively participate in injury management with a view to achieve progress." 1. On the evidence of Mr Clark and Mr Mair this also did not occur after Mr Johnston returned to his full paramedic duties, as this plan envisaged. There was also no evidence that the Service monitored or evaluated the effectiveness of this plan, as the Policy required. 2. On Mr Mair's evidence, once Mr Johnston resumed full duties, his work was unrestricted and he was not then aware that Mr Johnston was in danger of further injury to his back, if he lifted patients of similar weight to those who had caused his 2011 and 2012 injuries. 3. Further, Mr Mair described his normal duties as including "heavy lifts", they being lifts which exceeded the weight of a stretcher, or put paramedics at risk because of an awkward position, or someone who was overweight or a bariatric (heavy) patient. In those cases an additional crew responded. Mr Mair explained that initially the maximum stretcher weight was 160 kg, but newer stretchers had been upgraded to hold 200 kg. Now, however, the Service predominantly uses electric stretchers for all patients. 4. It is apparent that when he returned to his pre-injury duties in 2012, requiring Mr Johnston, as a member of a two-man crew, to lift either up to 160 kg or 200 kg, without use of an electric stretcher or additional crew, was contrary to the advice Professor Ryan had given only in August. It was also inconsistent with the obligations imposed on the Service by the Disability Award and the Policy. How, in those circumstances, the Service complied with other of its applicable obligations, such as those imposed by legislation such as the Work Health and Safety Act 2011 (NSW), to which the Service was then also subject, is difficult to see, but need not be considered further. 5. On the evidence I have discussed, what the Service then required as part of his normal duties put Mr Johnston at considerable risk of further injury and cannot have involved "suitable employment", for him. 6. Mrs Fryer heard the evidence given by Mr Johnston. She agreed that the lift he was initially directed to perform in December 2012, when he was called on to lift the 110 kg patient, would have exposed him to a risk of further injury and that it was then reasonable for him to have feared continuing to perform duties which exposed him to that risk. 7. At that point Mr Johnston was clearly experiencing difficulty with the duties he was being required to perform, but still there is no evidence that the Return to Work Co-ordinator was advised, as the Policy required. 8. The evidence which Mr Clark gave confirmed the Service's failure to adhere to its obligations under the Disability Award and the Policy. On his evidence Mr Clark: * Understood that Mr Johnston had received a certificate that he was fit to resume normal duty, even though the last progress certificate Dr Fernandez had provided in October 2012 was not final and had indicated that Mr Johnston was still pursuing further treatment and had been a referred to a specialist rheumatologist; * Explained that it was commonplace for an officer to be certified fit to return to pre-injury duties, while still pursuing ongoing treatment, in order to rebuild themselves; * Considered, nevertheless, that even though Dr Fernandez never issued a final certificate, the Service then had no choice but to "allow" Mr Johnston to resume all of his duties; * Denied that the pursuit of Mr Johnston's ongoing treatment evidenced the risk of re-injury; * Denied that the absence of the new equipment introduced in 2013, put Mr Johnston at risk of further injury, when he resumed his full duties; * Denied having refused to approve Mr Johnston taking leave, unless a certificate certifying him to be fit for pre-injury duties was provided, as was Mr Johnston's evidence; * Accepted, however, that his position had been that he would not agree to Mr Johnston taking up a casual position, before his workers compensation claim had been finalised; * Claimed that it was not his role to read reports or WorkCover certificates that the Service received and that he had not seen Professor Ryan's reports. That, he said was the role of injury management personnel in HR, who looked after injured workers and developed action plans out of the requirements of those reports. But, no evidence was called from such personnel; * Said that even when he read those reports when preparing to give his evidence, he had not focussed on them and did not notice Professor Ryan's advice that Mr Johnston should not lift more than 50 kg; * Professed not to be aware of the nature or cause of Mr Johnston's injuries in 2011 or 2012. Nor could he recall any action he had taken in relation to those injuries at the time. He also could not recall knowing, when he signed off on Mr Johnston's return to work plan, that he had been referred to an independent medical specialist. He considered that it was not his role to know who injured officers were going to, nor would he be provided with the resulting report; * Recalled discussing with Mr Johnston his desire to transfer to casual work and that he told him that his workers compensation claim first needed to be resolved. But he did not recall Mr Johnston ever telling him that his back was not good enough to lift a patient. What he meant by that evidence is unclear, as I have explained; * Was concerned that Mr Johnston's compensation claim be resolved before he became a casual, because once he had resigned, if he needed to return to light duties, he would not be able to do so; and * Denied being aware that his return to his pre-injury work had put Mr Johnston at substantial risk of re-injury, even despite his own evidence that "there's always a risk of injury". 1. Mr Clark said, however, that after Mr Johnston and two other paramedics were injured while lifting a 250 kg patient, he and his team identified that: "… we needed to get some additional equipment, which we went out to seek through business case to receive, which we did, and we had strategic cases of that equipment located in the North Coast, and then we subsequently were able to move towards specialist vehicles that were capable to additionally also be able to move those larger bariatric patients." 1. There was no suggestion that any of Mr Clark's concerns were ever conveyed to Mr Johnston, or the Return to Work Co-ordinator who the Policy required be involved in the rehabilitation process prescribed by the Policy. 2. In the face of this evidence, that in November 2012 Mr Johnston felt pressure to accept the insurer's decision that his workers compensation claim had to be finalised, is understandable. He was then not only facing financial difficulties, but was anxious to reduce his working hours, having been assessed fit to perform his normal duties, but still concerned about the state of his back. 3. That, Mr Johnston did not challenge the closure of his workers compensation claim, did not relieve the Service of its obligations under the Disability Award and the Policy. The insurer's decision does not explain its failure to investigate or address what had caused Mr Johnston's 2011 and 2012 injuries, nor its failure to address his obvious risk of further injury, when he returned to his pre-injury duties, which were plainly not suitable, given the advice it had been given by Professor Ryan. 4. Mrs Fryer explained that such an investigation system existed and that the cause of Mr Johnston's 2012 injury, when two other paramedics had also been injured, should have been investigated. The Service led no evidence to establish that this system had been implemented, or if it had, what problems were identified, or what steps were taken to address them. The evidence of Mr Johnston, Mr Mair and Mr Clark was inconsistent with that system having been implemented in Mr Johnston's case, as Mrs Fryer understood it ought to have been. 5. Further, while injured officer's managers should have been involved in those investigations, Mrs Fryer did not know which manager should have been involved, or if Mr Mair had been in Mr Johnston's case. These were not matters she had investigated, she explained, because at the time that Mr Johnston made his claim, the Disability Award did not apply to him. 6. All of this evidence well establishes that before Mr Johnston's resignation, the Service was in breach of its obligations under the Disability Award and the Policy. 7. That was confirmed by what occurred in December 2012, when initially Mr Johnston was directed to lift the 110 kg patient. 8. From this evidence it must be inferred that Mr Johnston's direct supervisor, the Station Manager who reported to Mr Mair, was not provided with information which the Policy envisaged he would have and that he adopted the same approach as Mr Mair described, to the allocation of work to Mr Johnston. 9. Mr Clark was asked whether it was his role to give instructions to Mr Johnston's direct manager, in relation to documents and information he had received about his injuries. Mr Clark's response was "Yes, where relevant". When asked what instructions he had given, he could not recall any specific instructions, explaining: "I don't recall. I - I have a lot workers that are - I have a lot of workers - injured workers in my workplace at times and I often do discuss about action plans or all the duty plans in that respect and then we - and we have - I have a communication with my - those report - they write reports to myself and in terms of how to go forward to support or - or what - what action's required with a - a different individual." 1. That explains how it was that in December 2012 Mr Johnston was directed to assist with the lift of the 110 kg patient, about which he objected and which he was finally not required to perform. 2. Mr Johnston's evidence that after his return to full-time duties he was mindful of not aggravating his back and that when called on to lift heavy patients, his co-workers assisted him, was entirely understandable. He was then suffering ongoing pain and pursuing treatment, but he not seeing Dr Fernandez, who agreed that there was little further he could do for him at that time. 3. It was in cross-examination as to his compliance with applicable guidelines for lifting heavy patients, which Mr Johnston said that they could not always be adhered to and referred to the occasion in December 2012, when he was required to lift a heavy patient, which another crew had already turned down. I accept Mr Johnston's evidence that he then said: "Well you know I have a back issue and I'm just putting you on notice, that if my back gets injured, I will be making a claim." 1. The result was that just before the lift was undertaken, he was instructed not to perform the lift and it was undertaken without him. Even though Mr Mair denied that it was he who finally decided that Mr Johnston should not perform that lift, that Mr Johnston was not required to do so, was entirely consistent with he having protested, as was his evidence. 2. In his July 2012 report Dr Wong had encouraged Mr Johnston to pursue work with a personal trainer. Dr Fernandez had referred him to an exercise physiologist. In his August report Professor Ryan had advised that he needed to pursue this "assiduously and indefinitely". 3. It ceased, however, after the insurer closed the workers compensation claim in November and the Service took no account of Professor Ryan's advice. The result was that Mr Johnston, then still pursuing further treatment, unfunded either by workers compensation or the Service under the Disability Award, could not afford to continue with the exercise physiologist. Mr Johnston continued to pursue those exercises himself, but struggled with his fitness and weight, fearing the risk of further injury to which he was exposed by the work he was then performing full-time. That fear was understandable, given the manual lifts Mr Mair described. 4. Had the Service complied with its obligations, including that imposed by the Policy to investigate the cause of Mr Johnston's back injuries, or if it had acted in accordance with the August 2012 management plan, which required it to assess and monitor Mr Johnston's workplace, in order to minimise his risk of further injury, it is unlikely that he would have been directed to perform the December 2012 lift, to which he objected. 5. It may readily be inferred that had Mr Johnston actually been required to perform that lift, there was a very obvious risk that the exacerbation of his back injury which manifested in April 2013, merely from putting on his pants, would then have materialised. 6. The proper conclusion on all of this evidence is that Mr Johnston did not receive all of the benefits to which he was entitled under the Disability Award and the Policy, before the termination of his employment as an officer, nor did the Service comply with all of the obligations thereby imposed upon it, to Mr Johnston. The consequences of the Ambulance Service's failure to comply with its Award obligations 1. As I have explained, the Service cannot profit from its failures to comply with its award obligations, so as to deprive Mr Johnston of his rights under clause 9 of the Disability Award. 2. For reasons which will explain further, I am satisfied that Mr Johnston did have an entitlement to a lump sum payment under clause 9 of the Award, on the termination of his employment as an officer. 3. The Service's failure to comply with its Award obligations prior to his resignation could not deprive him of that right. Nor did his acceptance of its offer of casual employment. Contrary to the Service's case, at that point, the purpose of the Disability Award had not been achieved. 4. To conclude otherwise would not only be a triumph of form over substance, but would fail to interpret the Disability Award in the way the parties agreed it must be. It would also frustrate what the Award intends and requires, wrongly relieving the Service of the consequences of its failures to abide by the obligations imposed upon it by the Disability Award, in circumstances where, during his employment as an officer, Mr Johnston made the contributions from his salary on which his Award entitlements depended. 5. That is a result which, undoubtedly, the Service would not have sought to achieve, had it appreciated all that the evidence has revealed, when in 2015 it came to consider his application for a lump sum payment under the Award. Did Mr Johnston's employment as an officer cease because of a permanent physical disability or because he wished to pursue alternative career options? 1. The evidence establishes that in reality, the cessation of Mr Johnston's employment in 2013 as an officer was "substantially due" to his permanent physical disability, not so that he could pursue alternative career options which he began to explore before his resignation. 2. In refusing Mr Johnston's application in his letter of 2 June 2015, despite the additional material Mr Johnston then provided to establish that the cessation of his employment on 1 February 2013 was in fact substantially due to his permanent physical disability, Mr Whitehorn, the Service's Chief Risk and Safety Officer, concluded that Mr Johnston's resignation had been for "personal career reasons", not physical ability. The result was a decision that he had no entitlement to a lump sum payment under the Disability Award. 3. The evidence establishes that these conclusions were incorrect. 4. That Mr Johnston had a proper basis for the concern which drove him to pursue reduced working hours in 2012, given the state of his back, after his return to pre-injury duties was well established by the evidence of Dr Wong, Dr Fernandez, Professor Ryan, Dr Bodel and Mr Mair, as I have explained. 5. Dr Fernandez's evidence in re-examination was that he discussed Dr Wong's 28 May 2012 report and Mr Johnston's concerns with him. They were concerns which he then shared and continued to hold, despite having later assessed him fit to resume his pre-injury duties. They had also discussed Mr Johnston reducing his hours of work, so that he could continue working in the longer term with the Service, while looking at other forms of work. But Dr Fernandez had no oral conversations with anyone from the Service, about Mr Johnston. 6. In his August 2012 report Professor Ryan also referred to Mr Johnston telling him about his plans to take up casual work as an ambulance officer and to gradually change his occupation to that of an independent share trader. He also discussed those plans with Dr Fernandez, but they did not succeed. 7. In 2012, Mr Johnston when began pursuing the alternative avenues of work he described in his evidence, he also discussed them with Mr Clark and Mr Mair. That was what he referred to in his resignation notice. Those avenues did not bear fruit before he resigned his employment as an officer to accept the casual employment he was offered. Nor were they successful afterwards. 8. On all of the evidence I have discussed, Mr Johnston's evidence that he pursued both part-time and casual work before his resignation, because he needed to reduce his working hours, in order to reduce the risk to his back arising from his paramedic work, while still maintaining a means of supporting himself, must be accepted. 9. Had the part-time work with the Service which he first sought been available to him, his employment as an officer would not have come to an end. It was not and so he sought and accepted the offer of casual work the Service made to him in 2013. 10. Mr Johnston's explanation of why he did not refer to his back injury in either his resignation notice, or in his application for casual employment, must also be accepted, given that Mr Clark agreed that it was only after the Service was satisfied that Mr Johnston's workers compensation claim had been resolved, that it was prepared to offer Mr Johnston that casual work. 11. Those documents which Mr Johnston and Dr Fernandez signed in March 2013, explain the scepticism with which Mr Whitehorn no doubt approached his application in 2015. Even in the bus drivers licence application which he made, notification was not given that Mr Johnston had had a prior spinal injury and it was noted that all of his locomotor issues were then normal. Mr Johnston was clearly also not entirely truthful in that application. 12. Dr Fernandez's explanation was that he had overlooked the reference to the prior spinal injury in that form and had there indicated that Mr Johnston's locomotor issues were normal, because he then understood Mr Johnston to be quite well. That he was not, was of course soon confirmed by the career ending exacerbation of his injury, which occurred in April. 13. That exacerbation led to a further MRI investigation, which revealed deterioration in his lumbar spine and eventually resulted in Dr Fernandez certifying in September 2014, in a State Super certificate of incapacity, that Mr Johnston was suffering ill health, which made it unlikely that he could ever be gainfully employed in a capacity for which he is reasonably qualified, by his education, training or experience. It also led to Dr Bodel's assessment, which I have already discussed. 14. Mrs Fryer in cross-examination conceded that Mr Whitehorn had misread Dr Fernandez's September 2014 certificate as providing that Mr Johnston had been incapacitated from August 2011. Both that understanding and the other conclusions Mr Whitehorn reached were wrong. 15. Despite what Mr Johnston had failed to reveal as to the then state of his back in the various documents which he signed in 2013, as I have explained, the evidence establishes that the cessation of Mr Johnston's employment as an officer in 2013 was "substantially due" to the permanent physical disability caused to his back in 2011 and 2012. 16. That both before and after his resignation, Mr Johnston pursued other career options, was entirely consistent with a real concern that he could not have a long term career with the Service, given the state of his back. That concern existed even before his resignation. 17. In June 2015 Mr Whitehorn did not have the advantage which I have had in these proceedings, of considering all of the evidence which the parties have both led, as to the circumstances which led to Mr Johnston resigning his employment as an officer in 2013. 18. That evidence establishes that Mr Johnston returned to his pre-injury duties in 2012, as he was obliged by clause 9.2 of the Disability Award to do, when certified fit by Dr Fernandez. Also consistently with his obligation under that clause, he sought to reduce his working hours, in order to reduce the strain undoubtedly being placed on his back by the resumption of his pre-injury work, by seeking part-time employment. He then protested when instructed to assist with the lift of a 110 kg patient in December 2012. 19. The result for Mr Johnston was that reducing the stain on his back, by reducing his working hours, was not practically achievable, in the situation he found himself, unless his workers compensation claim was brought to an end and he accepted casual employment. 20. When that was what the Service offered him, once satisfied that his workers compensation claim had been resolved, he accepted its offer, resigned his employment as an officer, took a month's leave to rest his back and worked only one shift as a casual, before his back injury was catastrophically exacerbated in April. 21. All of that evidence, I am satisfied, establishes that in truth, Mr Johnston's employment as an officer ceased because of his permanent physical disability, not because he wished simply to pursue alternative career options. Mr Johnston did attempt to identify other suitable employment within the Ambulance Service, but his employment came to an end because permanent placement in suitable employment was not possible 1. Clause 9.4 of the Disability Award provides that if it is established that a return to pre-injury employment is not possible, as determined by a medical assessor, then "suitable employment will be sought wherever reasonably practical". Mr Johnston was not referred for such an assessment by the Service, because, surprisingly, it never identified that there was any problem with it requiring him to perform all of his pre-injury duties, even after his objection to the heavy lift in December 2012. 2. Clause 9.2 provides that it is not only the officer who must seek deployment to roles which he or she considers to be suitable. It also requires the Service to identify suitable employment. As the employer, it has not only the necessary information, but also the authority and resources necessary for such employment to be identified and offered to an injured officer. 3. Clause 9.2 also obliges injured officers to accept reasonable offers of suitable employment. The evidence establishes that Mr Johnston wrongly believed that the casual employment he was offered was suitable and so he complied with his obligation to accept it. 4. Mr Johnston did not apply for other positions with the Service before his resignation, on his evidence considering either that he was not qualified or suited to certain positions he identified, or understanding that others, such as call centre positions, were not available to former paramedics such as he. In the circumstances, that cannot deprive him of his entitlements under the Disability Award. 5. As I have explained, prior to the termination of his employment as an officer in 2013, Mr Johnston did seek other employment with the Service. He considered that both part-time and casual paramedic work would be suitable, given that he had been assessed fit to resume his normal duties as a paramedic, even though he had ongoing concerns as to the vulnerability of his back to further injury, to which that work exposed him. 6. Part-time employment would have permitted Mr Johnston to perform his normal paramedic work on a less than full-time basis, but under a permanent placement. Such work not being available, he sought and was offered casual employment, which he accepted. That was what induced him to resign his employment as an officer. 7. While the Service did not share Mr Johnston's concerns about the vulnerability of his back, as it ought to have, given all that was also known to it, it plainly also considered casual paramedic work to be suitable. 8. Mrs Fryer's evidence was that other non-operational work was available to injured officers in the Service, at the time of Mr Johnston's resignation. It must be inferred, however, that none was ever considered for, or offered to Mr Johnston, given that Mrs Fryer's review of the files seemingly did not provide her with information about such work having been considered for, or offered to Mr Johnston. Mrs Fryer was unable to comment further on these matters, as she explained, never having been involved in any of Mr Johnston's case conferences. 9. When pressed, Mrs Fryer explained that Mr Johnston always had an opportunity to apply for other roles and that the Service did have non-operational positions other than call centre operators available, but she could not identify particular positions. She was also not aware of restrictions on paramedics becoming call centre operators, which Mr Johnston understood to be in place. 10. Mrs Fryer was also not aware that administrative positions were not available on an ongoing basis for Mr Johnston, her understanding being that they were advertised regularly. She also understood that accommodations such as sit/stand desks could assist employees with back injuries and that injured officers had been placed in other such suitable employment in the past. 11. The difficulty with all of this evidence was that Mrs Fryer could not say that any suitable permanent places were ever identified by the Service as having been available, or offered to Mr Johnston, prior to his resignation. Further, on her evidence, even when on workers compensation, an officer would have to apply for such employment, if identified by the Service. The six injured officers of whom she was aware, had not been placed in suitable positions, but rather they had to apply for them. 12. That evidence was also inconsistent with the Service's obligations under clause 9.2 of the Disability Award, which requires it not only to identify suitable employment, but also to offer it to an injured officer. That did not occur. 13. In the result it must be concluded that while both Mr Johnston and the Service considered in 2012 that casual paramedic work would be suitable for him, the evidence establishes that it was not. Mr Johnston's employment as an officer thus only came to an end because he accepted the only offer he received, namely casual employment which was not "suitable employment" as defined. 14. The objective of the rehabilitation/retraining with which clause 9.3 of the Award and the Policy there referred to are concerned, which creates mutual obligations and aims to place every officer who suffers partial and permanent disability in suitable employment with the Service, was thereby not achieved. 15. That was the result of the Service not abiding by its Award obligations, as I have explained. 16. It follows that contrary to the Service's case, Mr Johnston was eligible for a lump sum payment under clause 9 of the Disability Award when he applied for it in 2015, as it then should have accepted. In the result the orders which he seeks under s 365 of the Industrial Relations Act must be made. Referral to the Industrial Relations Commission of New South Wales 1. I have discussed the difficulties caused in these proceedings by the Policy given force by clause 9.3 of the Disability Award, not being either quoted in, or annexed to the Award. That has clearly caused other unnecessary problems. Firstly, in Mr Johnston being denied benefits which the Award plainly intended that he should have received, before his employment as an officer came to an end. Secondly, when he later pursued his entitlements to payment of a lump sum under the Award and thirdly, when he pursued proceedings for the enforcement of his Award rights. 2. There is an obvious public interest in the awards which the Commission makes not suffering from such deficiencies and thereby causing such avoidable problems. They could readily be addressed by the Policy given force by clause 9.3 of the Award being annexed to the Award, so that there can be no misunderstanding or dispute about its terms. 3. As I have explained, the Award also contains a definition of "suitable employment" in the Award, by reference to a repealed section of the Workers Compensation Act 1987 (NSW), which it would be preferable to include in the Award itself. 4. Sections 11 and 17 of the Industrial Relations Act 1996 (NSW) empowers the Industrial Relations Commission of New South Wales, acting of its own initiative, to deal with problems of this kind. 5. In this case, I will direct the Registrar of the Court to take steps to draw these difficulties to the attention of the Commission, so that it may consider whether its powers should be exercised in the case of the Disability Award. Orders 1. For these reasons, I am satisfied that orders should be made in favour or Mr Johnston. The parties should bring in short minutes of those orders, including as to costs. 2. In the event of any disagreement as to costs, the parties should approach within 14 days. 3. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. ********** 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: 01 May 2017