Tribunal dismisses employee's application to return to work

Published 13 Mar 2015

The NSW Industrial Relations Commission has dismissed a man's application for employment reinstatement, ruling that injuries he sustained on the job prevent him from performing essential tasks.

In 2005, the storeperson suffered a back injury while lifting cartons from a pallet to a trolley, which led to him taking 16 months leave. Just three weeks after returning to his job in 2007, he hurt his right shoulder and aggravated the existing back injury.

Two years later, a medical practitioner diagnosed the man as having significant disabilities, with notable ongoing symptoms due to his workplace injuries.

"[The applicant] may be regarded as being permanently incapacitated for physical work involving heavy lifting/carrying, frequent bending, prolonged stooping or working in awkward situations, or work involving being on his feet for long periods of time, handling a lot of steps/stairs or ladderwork," the doctor said in a report.

"He is not able to sit or be in the one position for more than short periods. He presents as well motivated."

The doctor claimed the man had 15 per cent whole person impairment due to his back injury.

Employee terminated

By 2012, the applicant's employer said it could not offer him any suitable employment that would fit his current physical limitations, particularly as the company had recently experienced widespread redundancies and required a workforce with maximum efficiency. Specifically, the back injury was deemed serious enough that the employee was unlikely to ever return to his duties.

However, the man disputed the decision and underwent numerous medical examinations in order to prove he was capable of work. For example, he secured professional health reports that said he was now able to lift 22.5 kilograms from a standing position.

Despite this, the Industrial Relations Commission dismissed the man's claims, adding that it did not believe he was fit for work. Firstly, he was described as an "unreliable witness" when it came to assertions about his capabilities.

Secondly, having already claimed compensation for permanent impairments, the courts questioned how he had been able to recover enough to return to work in such a short time. The commission highlighted one medical report in particular that showed marked inconsistencies.

Before the man's termination, the doctor had argued the man would never return to his pre-injury role. However, soon after the applicant was terminated, the medical practitioner changed their diagnosis to suggest this wasn't the case.

"No other kind of employment within the employer's operations has been identified from the evidence in the proceedings for which he is fit," the tribunal's president added.

"In conclusion, the applicant is not fit for the kind of employment specified in the application."

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