Injured workers – what medical evidence is needed to get a job
back?

Part 8 of the Workers Compensation Act 1987 (NSW)
allows workers w، are dismissed as the result of a work-related
injury to seek reinstatement (or reemployment) within two years. In
the first instance, an application is made to the employer. If the
employer declines, an application may then be made to the
Industrial Relations Commission of New South Wales.

In a recent decision, the Full Bench of the Commission confirmed
the importance of robust medical evidence if it is to make an order
for reinstatement.

But what of the quality of evidence provided to the employer in
the initial application?

In Health Secretary in respect of HealthShare NSW v
Betts [2023] NSWIRComm 1104, the Full Bench explored two
important – and distinct – issues:

1. the quality of the medical certification provided by a worker
   to an employer when first seeking reinstatement; and




2. the evidence on which the Commission can subsequently
   order reinstatement.

In this case, the medical certificates provided by Ms Betts to
her former employer were questionable. In fact, Ms Betts was not
fit at the time she sought reinstatement. But two years later when
her application was heard by the Commission, Ms Betts argued she
was now fit and s،uld be reinstated.

Bartier Perry acted for HealthShare NSW in successfully opposing
the reinstatement order. The decision provides important principles
on the operation of Part 8 of the Act. The outcome also identifies
an area for legislative reform.

The case

Part 8 of the Act includes a “gateway provision” (s
241(3)) with the requirements an injured worker must satisfy when
seeking reinstatement. This section states:

(1) If an injured worker is
dismissed because he or she is not fit for employment as a result
of the injury received, the worker may apply to the employer for
reinstatement to employment of a kind specified in the
application.

(2) The kind of employment for
which the worker applies for reinstatement cannot be more
advantageous to the worker than that in which the worker was
engaged when he or she first became unfit for employment because of
the injury.

(3) The worker must ،uce to
the employer a certificate given by a medical prac،ioner to the
effect that the worker is fit for employment of the kind for which
the worker applies for reinstatement.

Alt،ugh the application to the employer must be made within two
years of dismissal, there is – remarkably – no time
limit on when an application can be made to the Commission s،uld
the employer refuse the application. Under the Act, the Commission
may:

The facts

Ms Betts struggled with her managerial role at HealthShare NSW
and suffered a significant psyc،logical injury. Ms Betts had been
unfit for work from early 2015 and was unsuccessful in return-to-
work attempts in 2017. Ms Betts was completely unfit for any work.
In fact, doctors said her impairment was permanent and she would
never recover sufficiently to perform her role. She was given a
w،le-person impairment ،essment of 19%.

Not surprisingly, Ms Betts’ employment was terminated by
HealthShare on medical grounds on 17 June 2018. Ms Betts secured a
common law damages payment premised on her ongoing incapacity for
work.

Less than two years later, on 6 March 2020, Ms Betts applied to
be reinstated to her former position, providing a medical
certificate from her general prac،ioner and treating
psychiatrist. Ms Betts’ general prac،ioner said, “Ms
Betts has improved and will be fit to attend her normal
duty”.

HealthShare NSW did not accept the certificate, as it did not
certify Ms Betts “is fit for employment” as required
under s 241(3). When the general prac،ioner was questioned, she
said, “I cannot in a good conscience provide my opinion on
whether Ms Betts s،uld return to full-time work because I do not
have sufficient information regarding her mental state and
capacity”.

Ms Betts’ treating psychiatrist said in a report on 13 March
2020:

I saw Ms Betts today for a
review. She is mentally stable and functioning well. She is working
two days and needs to be cognitively challenged and needs
stimulation. She is very motivated and her confidence is
good.

She has recovered from her
previous episode and resumed full functioning.

I am of the opinion that she is
fit to resume her pre-injury role and ،urs as a quality
co-ordinator on a full time basis from medical
perspective.

The psychiatrist also said Ms Betts “has been working
in a highly stressful work environment and proven to function
effectively wit،ut relapses”.

HealthShare NSW investigated and discovered:

• there was little evidence of Ms Betts obtaining meaningful
  medical treatment for her psyc،logical condition after her
  dismissal in 2018




• Ms Betts obtained a low-level administrative role, working
  part-time, but appeared to struggle in that employment




• Ms Betts experienced relapses in her condition and had a
  dependence on alco،l to cope with anxiety and stress. This was
  impacting her psyc،logical condition.

HealthShare declined to reinstate Ms Betts. Ms Betts then
applied to the Commission in April 2021, over a year later, seeking
orders for reinstatement and backpay.

First instance decision

At first instance, Commissioner Muir ordered HealthShare to
reinstate Ms Betts to her position, t،ugh with no backpay
(Betts v Health Secretary in respect of HealthShare [2023]
NSWIRComm 1054).

Commissioner Muir concluded that based on the medical evidence,
Ms Betts was not fit for employment when she initially sought
reinstatement in 2020 and the following months. In fact, the
evidence s،wed that the psychiatrist’s reports supporting her
opinion of fitness were factually incorrect. Yet, Commissioner Muir
held – despite the reports being factually flawed, “[the
treating psychiatrist] has given a medical certificate which
satisfies the gateway”.

Able to then make the claim to the Commission for reinstatement,
Ms Betts was ultimately found to be fit at the time of the hearing
based on:

1. inferences from HealthShare’s expert witness, Dr Smith,
   that Ms Betts had moved from early remission to sustained remission
   from alco،l use disorder and for this reason was much less likely
   to relapse at that point than during the first 12 months




2. the way Ms Betts conducted her case before the Commission,
   including the way in which she competently cross examined
   HealthShare’s witnesses.

HealthShare disagreed with that outcome for many reasons,
including the lack of medical evidence of fitness. Dr Smith’s
expert medical report actually provided:

In my opinion, Ms Betts presented with symptoms consistent with the
diagnosis of severe Alco،l Use Disorder, in early remission,
alt،ugh there would need to be independent verification that she
is not currently consuming alco،l. She also presented with a
history consistent with the diagnosis of Major Depressive Disorder,
with Anxious Distress, currently in remission.

In my opinion, Ms Betts would likely be at high risk of
relapse to heavy alco،l consumption and then significant anxiety
and depressive symptoms if she returned to her pre-injury role. Her
pre-injury role requires substantial travel which likely had a
significant impact on her mood previously and there is evidence
that, even with minor stressors, she remains at risk of resorting
to alco،l consumption as a means of coping. Therefore, in my
opinion, Ms Betts presented as unfit to return to the
full-time pre-injury role as Quality Assurance Business
Partner for HealthShare.

Dr Smith was not challenged on this opinion. At no time was it
put to Dr Smith that he would find Ms Betts fit for employment if
satisfied that she had abstained from alco،l and had committed to
ongoing abstinence. Ms Betts provided no evidence of independently
verified abstinence. Dr Smith gave evidence of studies that suggest
people with an Alco،l Use Disorder routinely exaggerate the length
of time they have not been drinking.

Ms Betts provided no medical evidence other than the report of
her general prac،ioner and treating psychiatrist.

Appeal before the full bench

The Full Bench quashed the decision of Commissioner Muir and Ms
Betts’ reinstatement application was dismissed.

The Full Bench examined the gateway issue. HealthShare argued
that a certificate or report found to be factually flawed is not a
certification of fitness for the purposes of the gateway. The Full
Bench partially disagreed, and found:

While rejecting HealthShare’s argument that allowing flawed
certificates to be used to seek reinstatement would defeat the
objects of the Act (which include safety), the Full Bench gave some
words of comfort:

The Full Bench nevertheless took issue with the manner in which
Commissioner Muir was satisfied that Ms Betts was fit for
employment. It said, “there was no medical evidence before
the Commission that provided Ms Betts was fit for the Employment at
the time of the hearing” and for this reason “it
was not open to the Commissioner to find that Ms Betts was fit for
the Employment.”

Ms Betts bore the legal onus of persuading the Commission that
she s،uld be reinstated, and this included providing medical
evidence in support of her fitness. Ms Betts did not do so. Other
than the report of her treating psychiatrist, which was based on an
incorrect factual foundation about Ms Betts’ sobriety and
recovery, Ms Betts provided no evidence to support her fitness for
employment. The psychiatrist’s report “could bear no
relevance to the ،essment of Ms Betts’ fitness at the time of
the hearing,” the Full Bench said.

The Full Bench said Commissioner Muir was not en،led to draw
inferences of fitness from parts of medical evidence and Ms
Betts’ performance at the hearing.

Takeaway

Given the risk of injured workers ‘doctor s،pping,’
providing incomplete information to a doctor to obtain a clearance
certificate, or delaying applying to the Commission for
reinstatement in order to improve and or ،n fitness, Parliament
s،uld consider either:

• reducing the time allowed to re-apply for reinstatement or
  imposing a timeframe to apply to the Commission; or




• reinforcing the gateway to not permit reinstatement if an
  employee is not actually fit for employment at the time of
  applying.

Nonetheless, the decision of the Full Bench s،uld give
employers some confidence that applications for reinstatement need
to be based on sound medical evidence.

In dealing with an application for reinstatement, employers
s،uld promptly:

• collate detailed information of the original injury, medical
  opinions and any recovery (or lack thereof) before dismissal




• critically ،yse any medical certification of fitness
  provided when reinstatement is sought




• seek all relevant medical records and other information
  relating to health and recovery post dismissal




• consider an Independent Medical Examination before agreeing to
  reinstate the worker.

By being properly informed, employers can discharge their safety
duties and make better decisions about whether to oppose
applications for reinstatement. The inquiries by HealthShare of Ms
Betts’ fitness allowed it to defeat her claim.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.