In this interesting workcover NSW case -wherein an injured worker who, despite the fact that he performed his duties as a slicer, without further injury or incident was terminated after he received his lump sum – we explore whether impairment equals incapacity and whether the employer had a leg to stand on when terminating said injured worker.
We believe that this issue of “fitness for duty” and “risks associated with the undertaking of duties by injured workers” is probably going to become a hot topic of discussion, given the new OHS laws and OHS harmonisation.
Workcover case: does impairment equal incapacity
Summary of the workcover case: Riley and Bindaree Beef Pty Ltd  NSWIRComm 1057
In the course of his employment as a slicer for Bindaree Beef, the worker sustained injuries to his shoulders for which he received weekly compensation. Following surgery,Mr Riley (the injuerd worker) also receive a lump sum compensation for 40% loss of efficient use of both arms.
However and despite the fact that Mr Riley performed his his duties as a slicer, without further injury or incident, between May 2009 and October 2010, his employment was terminated by Bindaree Beef (the employer) about one month after he received his workcover lump sum.
The employer (Bindaree Beef) stated and maintained the decision to terminate the injured worker was due to the risk of re-injury. They further stated that they did so in order to fulfill its obligations under OH&S legislation to ensure the health and safety of its employees (and avoid any OH&S liability).
The injured worker commenced proceedings in the NSW Industrial Relations Commission (NSWIRC) seeking an order for reinstatement pursuant to Sections 242 and 243 of the Workers Compensation Act 1987 (NSW).
Section 242 :Application to Industrial Relations Commission for reinstatement order if employer does not reinstate
- If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order.
- An industrial organisation of employees may make the application on behalf of the worker.
- The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed.
- The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order.
- The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment.
- If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being:
(a) employment of a kind that is available but that is less advantageous to the worker, or
(b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation).
- If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission.
Main evidence of the injured worker as provided at the Hearing
- There was medical evidence from both his GP and Orthopaedic Surgeon that the injured worker was/is fit to work as a slicer
- The injured worker had well demonstrated that he could (and did) perform his duties as a slicer without further injury or incident, after his surgery/treatment
- The injured worker had acquired skills to avoid re-injury with the help & training of his rehab providers
- The injured worker’s colleagues also gave evidence that the Mr Riley could perform his job to the necessary level /standard required
- The termination issue interestingly only occurred AFTER the injured worker received his lump sum (never before, i.e during return to work, first year etc)
- The Orthopaedic Surgeon stated that he was of the opinion that the risk of injury was no greater than would apply to any other slicer
- The Orthopaedic Surgeon confirmed that impairment does not equal incapacity.
- The IR Commission should only concern itself with whether the Worker is fit for his job not whether there is a risk of re-injury.
Main evidence of the employer (Bindaree) as provided at the Hearing
- A rehabilitation provider engaged by Bindaree (read workcover NSW) maintained the opinion that the injured worker was at risk of re-injury
- The injured worker said he had modified some of his work methods to take into account his injuries.
- The treating doctors did not fully understand the nature of the duties performed by slicers
- The Application was flawed because the reason for termination was not the Worker’s unfitness rather it was the risk of re-injury. Therefore Section 241(1) of the Workers Compensation Act 1987 (NSW) was not satisfied that section required that a worker has been terminated on the basis of their unfitness for work.
- Bindaree had to fulfil its OH&S obligations by taking steps to prevent an identifiable risk eventuating and by providing a safe workplace.
The workcover case decision
Commissioner MacDonald made the following comments:
- The Worker was clearly terminated, at least in part, on the grounds that the Bindaree considered he was unfit to perform the inherent requirements of his slicer role due to his injuries, therefore the Commission had jurisdiction to determine the matter.
- Bindaree had not produced any evidence from medical qualified person/s stating that the Worker was unfit or was at risk of re-injury whereas the Worker had evidence from his GP and an orthopaedic surgeon that he was fit for work as a slicer and at no risk of re-injury.
- The Worker had evidence from two fellow workers that he could perform his job as a slicer without risk of injury and that he had performed his role without further incident.
- Bindaree did not raise any issue about the Worker’s ability to work as a slicer until the lump sum settlement.
If an injured worker has a degree of permanent impairment (total body impairment as calculated under the AMA guide 4th Edition – in Vic) it does NOT necessary mean that the injured worker should be deemed incapacitated to perform their duty/job!
The total opposite can also apply, for example an injured worker can have zero or a very low degree of permanent impairment (as calculated with those ANCIENT AMA 4th edition guidelines) but yet be totally UNFIT for work