Fire Service justifiably dismissed fireman who couldn't climb ladders

File photo / Mark Mitchell

The Fire Service Commission was justified in dismissing a fireman of 40 years who was no longer able to climb ladders because of an accident that affected his balance.

In an Employment Relations Authority (ERA) ruling, the commission was found to have acted correctly by medically retiring David Marsh, a senior officer at Dunedin's central station, because he "could no longer be deemed capable of safely fulfilling his role".

The decision followed a long-time battle by Mr Marsh to keep his job.

The incident happened in October 2008 during an emergency callout when Mr Marsh bent down to turn off a switch and as he was rising he hit his head on an overhanging object.

He suffered "significant pain in his neck", which continued to get worsen, and pain in his left ear that affected his balance, said the finding.

Over the following months he visited several doctors for advice.

Seven months after the incident he was rushed to Dunedin Hospital Emergency Department when he was suddenly unable to walk because of significant balance problems.

When he returned to work in July he was placed on a rehabilitation plan that would see him perform only non-operational light duties.

The Fire Service organised for him to see two medical specialists.

The first, Mr Dawes, concluded Mr Marsh had progressive cochlear vestibular failure and likely to have ongoing balance problems, which would limit his ability to perform as a fireman.

"Because of the permanent vestibular dysfunction on the right side he may experience difficulty climbing ladders or being at heights without adequate support," he said.

Another specialist, Mr Mossman, found he may have balance issues in the future caused by migraines, and would not be safe climbing ladders, therefore was unsafe to return to work.

Mr Marsh rejected both diagnoses so sought a third opinion, from Christchurch Consultant Physician Dr Barrie Tait, who diagnosed whiplash, saying the conditions was manageable and treatable.

Because of the first diagnoses, Fire Service National Medical Officer Dr David Hartshorne found Mr Marsh's problems were permanent, making his unable to return to operational fire fighting.

Mr Marsh disagreed, writing to the Fire Service twice.

A third specialist found Mr Marsh was incapable of performing his work duties.

"In Mr Marsh's case, now 14 months after onset, the probability of an excellent symptomatic recovery is unfortunately low. I believe it is unlikely he will now make a dramatic enough recovery to be able to perform all of the (demanding) functional duties of a fire fighter that are listed," said Dr Robinson.

Mr Marsh was dismissed on February 22, 2010.

ERA member Michael Loftus said Mr Marsh was "effectively shopping around to gather support for the answer he sought" in an attempt to keep his job.

He sided with the Fire Service, finding there was "more than sufficient medical evidence" to show Mr Marsh was incapable of safely fulfilling his role.