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22 Oct 12
Morbidly obese employee returned to work after finding no 'current' risk

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MBR v David Parker [2012] QCA 271

The Queensland Court of Appeal has overturned a decision not to allow a morbidly obese coal mine employee back to work after he was deemed unfit to operate machinery due to a ‘significant risk’ of a heart attack.

Background

The employee, a 47 year old operator of heavy machinery at a Bowen Basin coal mine, was deemed permanently unfit to undertake his current position which was, within the meaning of the legislative scheme, employment in a task that was not ‘low risk’.

This determination was made by Dr David Parker after he had, in his capacity as the Nominated Medical Adviser (NMA), completed a Health Assessment Report on 16 March 2011 (Report). The Report was completed using the form approved under the Coal Mining Safety and Health Regulation (2001) (Regulation). 

The employee in question was 179 cm tall and weighed around 163 kilograms, giving him a body mass index (BMI) of approximately 50.8. A healthy BMI for an adult is between 18.5 and 24.9. 

In deciding that the employee was unfit to operate heavy machinery because of a ‘significant risk’ of a sudden cardiac arrest, Dr Parker considered the employee’s then present ability to perform duties and whether his health posed a future risk to himself and others at the coal mine. Weighing up the available evidence, Dr Parker determined that the employee should not be permitted to return to work.

On the Report form, this restriction was recorded as ‘permanent’ and no further assessment was stated as being necessary. However, in later correspondence, Dr Parker indicated that the determination of the condition being permanent had been wrongly assessed, but had been based on his assessment that the employee would not lose sufficient weight to alter his obesity in the foreseeable future. It was not ruled out that future assessments may have an impact on the findings in the Report.

The employee brought an unsuccessful challenge to his assessment in the Supreme Court of Queensland and then appealed to the Queensland Court of Appeal, seeking a judicial review of the conclusions reached by Dr Parker. 

Health assessment

The Court of Appeal found that the Report form did not require Dr Parker to address whether the employee may be at risk of developing a restriction making him unfit to undertake his current position in the future. Rather, it only required him to assess whether the employee ‘is fit to undertake’ his current position, and further whether and restrictions applied.

In other words, having regard to the Regulation requirements and the manner in which the Report form was drafted, Dr Parker as the NMA was required to identify whether there were present restrictions which showed that the employee was ‘unable to carry out [his] tasks at the mine without creating an unacceptable level of risk'.

The Court of Appeal noted that if the Report form had intended a NMA to predict whether a worker was at risk of developing future restrictions, it could be expected to have clearly stated this and to have also addressed other future risk factors including:

  • the employee’s family history of sleep apnoea
  • cardiac disease
  • cancer, and
  • diabetes. 

The Court of Appeal noted that despite the employee’s obesity, he may never develop cardiac disease, cancer or diabetes and he may never have a sudden cardiac event. 

Dr Parker was therefore found to have not conducted the health assessment in accordance with the relevant instructions set out on the Report form. As a result, Dr Parker’s finding that the employee was unfit to undertake his current position because of the restriction that he is unfit to operate due to a significant and foreseeable risk of sudden incapacity was set aside. 

The Court of Appeal also concluded that Dr Parker had wrongly assessed the employee’s ‘restriction’, being his obesity, as permanent or that no further assessment was necessary. Therefore, Dr Parker’s findings about those matters were also set aside.

As a result of these findings, the employer was precluded from relying on this assessment as a reason to not allow the employee to return to work.

Effect of this decision

The approach taken by the Court of Appeal in this case means that coal mining employers cannot rely on potential health risks (as opposed to existing conditions) to determine whether an employee is fit for work. 

The Regulation provisions surrounding health assessments include a specific statement that nothing within the relevant division makes the employer responsible for the treatment of any physical or medical condition of the person assessed. However, the Court of Appeal’s findings in this matter, together with the legislative requirement that coal mining employers are required to keep risks to an acceptable level, means that coal mining employers will be responsible for otherwise managing their employee’s health conditions (such as obesity) in circumstances where those conditions may lead to risks for them or other employees (e.g. where an obese employee operating heavy machinery may be at risk of suffering a cardiac arrest). 

In the current legal landscape, Queensland coal mining employers should therefore consider:

  • what medical conditions may cause risks to workers in its operations
  • what steps can be taken to lawfully identify and monitor the condition of workers who may have those conditions, and
  • whether changes are required to lower risks to an acceptable level for those workers (noting potential discrimination issues or broader industrial concerns if workers are to be restricted or prevented from performing tasks).

The conundrum faced by Queensland coal mining employers is that there are limitations on the ability to require medical assessments to be undertaken. The Regulation has the effect that before a coal mine’s fitness for work provisions can include a right to direct an employee to undergo a medical examination, the majority of workers at the mine must agree to this. 

Absent such a provision, Queensland coal mining employers are left in the difficult position of not being able to lawfully assess the fitness of a worker for their position outside of the limited circumstances provided for in the Regulation. This position was confirmed in Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242, and see also CFMEU v North Goonyella Coal Mines Ltd (PR943615, 21 February 2004).

The only present circumstances that fall outside of the Regulation’s limitations on being able to require assessment are for workers performing ‘low risk tasks’ or for those who can show that their workers do not fall within the Regulation’s fitness for work requirements, see Macmahon Contractors Pty Ltd (Moura Project Certified Agreement 2005) v CFMEU (PR965459, 24 November 2005).

Given the difficulties faced, absent the consent of a majority of workers to allow directions for assessments to be given under fitness for work requirements, it appears the only manner in which the ability of Queensland coal mine employers will be able to properly manage these issues for workers engaged in tasks that are not ‘low risk’ will be through legislative change.

 

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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