Injured workers - what medical evidence is needed to get a job back?
Part 8 of the Workers Compensation Act 1987 (NSW) allows workers who 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:
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the quality of the medical certification provided by a worker to an employer when first seeking reinstatement; and
- 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 should 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 produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement.
Although 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 should the employer refuse the application. Under the Act, the 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.
The facts
Ms Betts struggled with her managerial role at HealthShare NSW and suffered a significant psychological 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 whole-person impairment assessment 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 practitioner and treating psychiatrist. Ms Betts’ general practitioner 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 practitioner was questioned, she said, “I cannot in a good conscience provide my opinion on whether Ms Betts should 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 hours 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 without relapses”.
HealthShare NSW investigated and discovered:
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there was little evidence of Ms Betts obtaining meaningful medical treatment for her psychological condition after her dismissal in 2018
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Ms Betts obtained a low-level administrative role, working part-time, but appeared to struggle in that employment
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Ms Betts experienced relapses in her condition and had a dependence on alcohol to cope with anxiety and stress. This was impacting her psychological 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, though 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 showed 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:
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inferences from HealthShare’s expert witness, Dr Smith, that Ms Betts had moved from early remission to sustained remission from alcohol use disorder and for this reason was much less likely to relapse at that point than during the first 12 months
- the way Ms Betts conducted her case before the Commission, including the way in which she competently cross examined HealthShare’s witnesses.
In my opinion, Ms Betts presented with symptoms consistent with the diagnosis of severe Alcohol Use Disorder, in early remission, although there would need to be independent verification that she is not currently consuming alcohol. 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 alcohol 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 alcohol 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 alcohol 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 Alcohol 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 practitioner 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:
We agree with HealthShare that in circumstances of fraud, the requirements of s 241(3) will not have been met because in effect, there is no certificate of fitness. As we already observed, there was no allegation that the production of the relevant certificate by Ms Betts or Dr Rastogi involved any fraud by either of them. We also agree with HealthShare that it may be that a certificate is so ambiguous or contradictory that it does not in fact certify that the employee is fit for the position for which they have applied. However, we do not agree the requirements of the gateway are not met when the medical opinion is based upon an incorrect factual foundation, even where it can be argued that this has made the opinion unreliable.
“The plain words of s 241(3) do nothing more than require the worker to produce a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement”, the Full Bench said.
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:
… although an employee may have produced an unreliable certificate (as occurred here), if the reinstatement is contested, it would be open for the Commission to take into account the passage of time since the worker was dismissed in deciding whether to make any order for reinstatement sought.
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 should 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 assessment of Ms Betts’ fitness at the time of the hearing,” the Full Bench said.
The Full Bench said Commissioner Muir was not entitled 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 shopping,’ 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 gain fitness, Parliament should consider either:
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reducing the time allowed to re-apply for reinstatement or imposing a timeframe to apply to the Commission; or
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reinforcing the gateway to not permit reinstatement if an employee is not actually fit for employment at the time of applying.
In dealing with an application for reinstatement, employers should promptly:
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collate detailed information of the original injury, medical opinions and any recovery (or lack thereof) before dismissal
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critically analyse any medical certification of fitness provided when reinstatement is sought
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seek all relevant medical records and other information relating to health and recovery post dismissal
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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.
Authors: James Mattson & Jonathan Yassa