Begovic v WorkCover/CGU

"We have accepted your claim for soft tissue injuries to back sustained on 6/06/2000. CGU workers Compensation (SA) Pty Ltd as claims agent acting on behalf of WorkCover Corporation has determined that you are entitled to income maintenance payments for the disability you sustained on 6/06/2000 and which subsequently resulted in you having incapacity for work from 22/6/2000 to 15/8/2000. This determination is based on the medical certificates of Drs Zuvela and Papps dated 20/6/2000 and 23/6/2000 respectively ..."

1. On 7 August 2000 the worker's solicitor responded with a Notice of Dispute:-

"1 The applicant worker disputes the determination of the managing agent dated 31st July 2000, which accepts the worker's claim for a closed period only namely from 22/6/00 to 15/8/00. A copy of the determination dated 31st July is attached hereto.

1. 2 The applicant worker says that the managing agent has no justification for only accepting his claim for a closed period. The worker says that this tactic of the managing agent is designed to overcome s 36 of the Act.
2. 3 The applicant worker says that this is the second determination for closed period only."

On 4 August 2000 the worker filed another claim for compensation for an injury to the lower back, head, bilateral hips and psychological sequelae.

1. That claim was not determined until 15 May 2001 (Dispute 3904/01). Why it took eight months to determine was never explained to me. The applicant did not take advantage of s 97 of the Act to obtain an expedited decision.

14 The material part of that determination reads:-

"... CGU has rejected your claim for further compensation for a lower back injury as we are satisfied that you have received your full entitlement to compensation by way of weekly payments of income maintenance and medical expenses for lower back injury which was the subject of claim no 8186317/1 and determinations dated 20/6/2000 and 31/7/2000." (Dispute of 4178/00N).

1. The relevant reasons for the determination say:-

You do not suffer from an injury to your legs. ..."

1. The opinions on which the compensating authority relied come from Dr Kalnins, Mr McCulloch, Dr Hall and Dr Thoo. There is no complaint that these reports were not provided to the applicant as required by the Act. The Notice of Dispute filed on 5 June 2000 says:-

"... The applicant worker says that the determination is against the evidence and/or the weight of evidence.

The applicant worker says that the determination is contrary to the law as the managing agent has already accepted the worker's claim by way of a determination dated 31 July 2000.

The applicant worker says that it is contrary to the law for the management agent now to reject the worker's claim in total."

1. Counsel for the applicant submits the above raises two preliminary points, which emerged on the first morning of the trial.
   1. (a) On 31 July 2000 the compensating authority accepted the claim for the period from 22 June 2000 to 15 August 2000.

(b) In none of the prescribed medical certificates did the doctor certify that the worker would be fit for work on 15 August 2000.

(i) Does the compensating authority have the power to determine what is obviously an ongoing claim for a closed period.

(ii) Can the compensating authority determine such a claim prospectively ie for a period to end at a date later than the determination ie the determination is dated 31 July applicable to a period determined to end on 15 August.

1. Whether the terms of the determination of 15 May 2001 complies with s 53(6) of the Act.

(a) All of the prescribed medical certificates certified the applicant unfit for work up to a future date. Those of Dr Zuvela 13 June to 20 June 2000; Dr Papps 23 June to 27 July 2000.

(b) None of the certificates certify the applicant would be fit for work on the expiry date of the certificate.

(c) Each certificate said the certifying doctor would re-assess the applicant on the date that the certificate expired.

19 The applicant submits that by accepting these claims the agent has accepted an ongoing claim. Hence the applicant has established a right to compensation. That right cannot be terminated or reduced other than in accordance with s 36. The authority for that proposition is said to be Mitsubishi Motors Australia v Sosa (1995) Supreme Court of South Australia 5084 and in particular the celebrated dicta of King CJ at 15 beginning "The legislature in prescribing procedures for the discontinuance or reduction of weekly payments etc."

1. That submission fails. The argument is circular in that it assumes what has to be proven ie that a determination for a closed period is in fact expressly or impliedly either the acceptance of an open ended claim or operates as a "termination" of weekly payments as the term "termination" is used in s 36 of the Act.
2. Furthermore, the facts of Sosa were quite different. Mr Sosa had an established and accepted continuing claim - what was in dispute was the quantification thereof.
3. S 53(4) enjoins upon the Corporation to determine the claim. It puts no limits and prescribes no formula as to how and on what terms a claim is to be determined. A claimant's redress is through Pt 6A of the Act ie the Dispute Resolution processes at s 89 and following. That is precisely what occurred here. The Notice of Dispute was lodged on 7 August 2000. It raised only the assertion that the determination itself was ultra vires. Strangely it did not explicitly raise the very gravamen of the dispute ie that the worker's incapacity continued after 15 August 2000.
4. The compensating authority being furnished with prescribed medical certificates certifying unfitness for work up to a particular date is entitled to determine the currency of the acceptance as being co-terminus with the date of the certificate. A further claim by way of a prescribed medical certificate or a Notice of Dispute appropriately drawn will, along with the expedition procedure in s 97 (if so advised), protect the worker's position.
5. In short, the acceptance of a claim for a closed period does not confer by itself a right to ongoing weekly payments such as will invoke s 36 of the Act.
6. Further, the compensating authority has the right to determine the period for which the claim is accepted. The best evidence of the period is the Certificate. If the compensating authorities did not have that power - closed period claims would become open claims.
7. As to the second preliminary point:-

The applicant submits that the determination does not assert that the worker ceased to be incapacitated for work in consequence of the back disability or specify any other grounds that would justify a discontinuance of weekly payments.

1. The answer to that is set out above. The argument is essentially circular. It was not necessary for the determination to set out either or both of the matters contended for.
2. To the extent that the ground further asserts that the rejection of the back claim (as distinct from the claims for the other four alleged disabilities) is not supported by reasons I reject that submission.
3. In s 53(4) the Act requires a determination of a claim. It is to be done as soon as practicable and the notice is to be given to the claimant (s 53(5)).
4. If a claim is rejected the notice must contain such information as the regulations may require (s 53(6)). Neither counsel could assist me with the text of any regulation that is said to have been disregarded. Nor was such a regulation tendered. I was informed by Mr Walsh for the respondent that the regulation referred to was the old reg 17, now revoked and never replaced.
5. In practical terms the compensating authority did give a reason for rejecting "back claim". It is:- "We are satisfied you have received your full entitlement to compensation by way of weekly payments" - which was subject to claim 8186317/1 etc.
6. Indeed, by 15 May 2001 the worker had long since undergone examinations by Dr Thoo, Mr McCulloch, Dr Hall and Dr Kalnins. The reports had been served on the worker. There could have been no doubt whatsoever of the compensating authority's reasons for rejecting the back claim.
7. If the submission's foundation is that the text of the rejection should have appeared below the heading "The Reasons for Determination" along with the other four alleged disabilities, and the failure to so place it vitiates the determination - the short answer to that is that firstly it is unnecessary and not required by the Act. More fundamentally it attempts to elevate style over substance to an unwarranted extent. Certainly to the extent that would require total ignorance of s 85 ie the duty of the Tribunal to act according to equity, good conscience and the substantial merits of the case.
8. Therefore I conclude that the applicant's submission on both preliminary points fail.

1. No issues for trial appear in the Trial Book. I divine the issues as:-

1 Did the applicant sustain an injury in the course of his employment.

1. If the answer to the above is in the affirmative did the applicant suffer a disability arising therefrom.

(b) Did the disability persist after 15 August 2000.

1. If the answer to (b) is in the affirmative for how long thereafter was the applicant disabled.

1. The applicant provided a statement and was cross-examined at length thereon.
2. Lay evidence was also given by John Doig, Muhamed Corrick and Vernes Nuker about observations of the applicant captured on film on 12 May 2001.
3. I do not propose to deal with that material other than to say that I am not persuaded that the person filmed by Mr Doig between 6.20 and 6.45 that night was in fact the applicant.

1. Dr Keith LePage. Both provided reports and were cross-examined thereon.
2. Mr Albert W Russell who provided a report and was not required for cross-examination.
3. A report of an MRI scan dated 16 September 2001. The scan was performed at Memorial Hospital by Perretts. The report was made by a radiologist Shaun Fowler. Its provenance is from Mr Albert W Russell.
4. A report from John Maroulis registered psychologist. Mr Maroulis was not required for cross-examination.
5. The respondent relied upon reports from Dr AK Thoo occupational physician, Mr GAJ McCulloch neurosurgeon, Dr Andris Kalnins psychiatrist. They gave evidence and were cross-examined.
6. Dr RJ Hall neurologist provided a report and was not required for cross-examination.
7. A copy of the notes of the Emergency Department of Royal Adelaide Hospital were in evidence. Neither party sought to cross-examine the authors of the notes.
8. I have carefully re-read the applicant's evidence as contained in the Trial Book 103 - 129 and tr 5 - 24 in-chief and the cross-examination at 24 - 43. I have had regard to all of the evidence. I summarise the applicant's evidence as:-

He started work at about 6.30 am. At about 7.00 am he was taking down a scaffold. He fell 4.2 metres to the floor which was concrete. He was wearing a hard hat. He then lost consciousness. During the fall he was concerned about some stairs close to the path of his fall but he missed them by a few inches. During the fall he made a twisting movement in the air and tried to land "as better as possible". He landed on his back mostly on his left side. He was frightened of the stairs because the edges (of the steps) were sharp. He woke up at the Royal Adelaide Hospital. He was told by the doctor that he had a light ie (minor) back injury and a bit of a head injury. He was told 'You will be alright'. He left the Royal Adelaide Hospital that day at his own insistence even though the staff wanted him to stay in overnight. He left because he wanted a cigarette and needed friends around to talk to him.

The doctor actually said him "I insist you stay in hospital". He replied "I insist I leave hospital". The doctor said "All right. But you must return if you are not right". He was taken home by his cousin at about 3.30 pm. He felt very very bad physically. He could not dress himself. He was experiencing significant pain.

At home he realised something was not right. He had a lump on his head and a very strong headache.

The next day he had a significant headache and considerable pain in the neck and the back so he returned to Emergency at the RAH. There the level of his symptoms had not abated. He had considerable pain and was having extreme difficulty walking.

At the RAH he was told that he could not get crutches. He was told he would have to wait for three hours to see a doctor and that the doctor who saw him the day before was not on duty.

He was told by a nurse to go to a chemist to get crutches.

He therefore left the hospital and made an appointment to see Dr Zuvela. He hired crutches from a chemist. He saw Dr Zuvela either later that day or the next day. Dr Zuvela prescribed Panadeine Forte.

He completed WorkCover claim documents at the Royal Adelaide Hospital on the day he was injured. He went to see solicitors the day he saw Dr Zuvela (this seems to have been 7 June 2000). The solicitor told him to see Dr Papps whom he then saw on 23 June 2000.

He continues to use crutches. The pain in his back has subsided but has not gone away. He continues to have headaches. At the time he saw Dr Papps on 23 June he was having problems with his hips.

He consulted Mr Albert W Russell at the direction of his solicitor. He is seeing a psychologist Mr Maroulis fortnightly and he sees Dr LePage regularly and Dr Papps fortnightly.

Currently he has constant headaches, constant pain in the lower back, pain and weakness in the lower limbs and hips and a sleep disorder. He has also complained of loss of vision. He has a host of physical and psychological problems. He has been victimised by the WorkCover system. He has been left 'hung out to dry'. Because of the physical problems he is no longer capable of coping psychologically.

His statement at TB 129 says "I continued to be totally incapacitated for work and I am suffering from chronic pain problems and other psychological sequelae".

The applicant continues to use crutches and he asserts total physical incapacity. To the extent that the physical incapacity is not the cause of his total incapacity, then the psychological sequelae of the physical injuries combined with the residuum of the physical injuries render him totally incapacitated.

1. Dr Michael Papps reported that on 23 June 2000 the applicant suffers from low back pain and a closed head injury. He presented as being virtually unable to walk without crutches.
2. On examination he found that the central nervous system was normal. Screening neurological assessment was unremarkable. In particular there were no localising signs in keeping with his history of headaches. There was only a minor restriction to the cervical range of movements.
3. Examination of the lumbar spine revealed a generalised disfuse discomfort throughout the entire length of the lumbar spine. He also described generalised deep discomfort in both groin regions. Movements of the lumbar spine were grossly restricted with more than 50 per cent loss of the extreme range of movement in all directions.
4. Mr Begovic was unable to lay on the bench due to discomfort therefore it was not possible to assess straight leg raising. However assessment of sciatic nerve stretch in the seated and standing positions do not reveal significant pathology. Examination of both hips reveal generalised reduction of approximately 30 per cent in the extreme range of movements. Hip movements were significantly restricted by the ongoing low back pain. CT Scans had been conducted on 22 June on the head and the results were normal. On 27 June there was a CT Scan on the lumbar spine, hip and x-rays. Dr Papps reports the CT lumbar spine reports "The CT lumbar spine revealed a disc bulge at L3/4 and a further disc bulge at L4/5. In addition there was also evidence of a facet joint degenerative change at L4/5".
5. Mr Albert W Russell said that Mr Begovic remembers falling through the air and hitting the ground. He was unconscious until he woke up in the Royal Adelaide Hospital. It was approximately six hours until he fully regained consciousness. He was admitted but left hospital approximately 2.30 pm. Mr Russell's diagnosis was:-

"Mr Begovic has sustained a concussion with an injury to the soft tissues at the top of the head.

He has suffered an injury to his lumbar spine where he has a minor broad based disk bulge at L3/4 and L4/5 levels with facet joint degeneration at L4/5. At L5/S1 he has bilateral pars defect. He has a minor acquired spinal stenosis at L4/5 level. Mr Begovic has suffered depression since the work injury."

1. Dr LePage saw the applicant in June 2001. He said "he was reported to have been unconscious somewhere between six to twelve hours". He initially thought that the applicant had a dissociative reaction caused by the fear for his life experienced in the fall.
2. The degree of invalidity does not correspond to the identified pathology and must be related to his emotional reactions to the fall.
3. The applicant had a chronic pain syndrome. Dr LePage could not determine how much of the applicant's symptomology was a conscious exaggeration. After seeing the MRI report of September 2001 Dr LePage changed his opinion. He said that the scan report demonstrated annular tears. These tears provided a pathological basis for the applicant's continued complaints of pain. The applicant's psychological state was a reaction to his having been told - incorrectly at the Royal Adelaide Hospital - that his condition would improve rapidly. His reaction was to the pain caused by the tears - as well as his inability to no longer work and engage in a productive life.
4. Dr Thoo examined the applicant on 25 July 2000. The physical examination is set out at TB 44. On that date the groin was not tender.
5. The rigidity of the spine could not be explained by the CT Scan of 27 June.
6. The applicant's presentation was inconsistent with the physical findings. His physical limitations under test were inconsistent with his capacity to move about in a non-test situation or indirect observation. His neurological examination showed normal results (this finding is identical with that of Dr Papps and the Royal Adelaide Hospital notes).
7. The applicant had no ongoing disability from the fall. Dr Thoo adhered to these views in cross-examination.
8. Mr McCulloch found significant restriction of movement and tenderness of the spine.
9. He said the applicant described a head injury ie a sound in the head like metal rubbing on metal which he had 80 per cent of the time. Mr McCulloch could not find the lump that the applicant complained about.
10. Mr McCulloch said that the "alleged sound in the head" is a non-organic feature. The cervical and lumbar spines manifested no organic abnormality.
11. Mr McCulloch said that the use of crutches is not necessary and that the applicant had absolutely no reason for using them. They are not used even for a significant lumbar injury. His presentation was inconsistent with an organic abnormality.
12. In evidence Mr McCulloch had the report of the MRI Scan of 16 September 2001 - but not the film. This was not produced by the applicant. There was no evidence that Dr Papps or Dr LePage had anything other than the report of the scan.
13. As to the annular tears mentioned in the report of the MRI Scan neither Dr LePage nor Dr Papps were qualified to express an opinion on them. Their interpretation of the significance of the tears was wrong.
14. It was absolutely untrue to suggest as Dr LePage did at tr 84 that the tears were "highly significant". Dr McCulloch said that the annular tears are part of the aging process. "Tear" does not import a traumatic causation. All that the MRI report says is that some microfissures are joined to a larger fissure which is then visible under an MRI Scan. In the applicant's case there is absolutely no correlation between the symptoms and the physical findings.
15. There is no evidence of a long term aggravation of a pre-existing degenerative state. The MRI report does not describe the tears as being those where the central liquid of the disk has escaped into the sensitive structures. If a person has a severe annular tear there is immediate pain but the tear heals and the pain becomes less severe over one or two years. and the tear heals completely or to a fairly complete degree and the patient gets only intermittent pain thereafter. Even given the scenario advanced by the applicant of a twisting fall it would be unlikely to produce an annular tear. That is not what can be seen here.
16. Waddel signs correlate complaints of pain to a non-organic origin. The applicant has all of the Waddel signs.
17. Dr Hall, neurologist, examined the applicant on 7 November 2000. He could find no neurological abnormality. No scalp tenderness. No groin tenderness. No abnormal sensory signs. No lump in the head. There was no organic basis for the "sound in the head". There was no sign that the applicant sustained a neurological injury. There are significant non-organic signs.
18. Dr Kalnins psychiatrist, examined the applicant on 13 September 2000. The worker said that he did not know what had happened. All that he knew was that he had fallen.
19. Dr Kalnins said that the applicant was not suffering from a psychiatric disorder. The applicant was frustrated and angry about his inability to carry out tasks, and about the doctors he saw, and about his employer and the insurance company. He was angry with the progress of his claim. Dr Kalnins disagreed with Mr Maroulis' opinion ie anxiety, depression. These are not a DSM IV diagnosis. Chronic pain is not a diagnosis, it is a description, and the applicant does not have a somatoform pain disorder which converts some form of psychological conflict into a pain problem. The applicant does not suffer from a disassociation reaction which occurs when very severe trauma produces an altered psychological state. The patient in that condition switches off from the external world and becomes "very dazed and a zombi like". The RAH case notes show this not to be the case.
20. Dr Kalnins was cross-examined with a full account of the applicant's evidence ie:-

"Q What I'm proposing to you that having regard to this man's personal background, his work ethic, cultural factors and all the things that go together to make up his personality this was a sufficient trigger for him to start converting this psychological conflict about his disability into physical symptoms.

1. The Royal Adelaide Hospital notes appear between 84 - 100 of the Trial Book. Pursuant of 45A of the Evidence Act they are admissible and no-one contended otherwise. They are also evidence of the facts stated therein.
2. The ambulance attended the scene at 7.06 am. It left the scene at 7.44 am arriving at RAH at 7.50 am. The patient was drowsy and lethargic but able to move all limbs.
3. The applicant was examined in the Emergency Suite at 8.00 am. He was noted as being drowsy, with slurred speech and T 12 pain. He was then subjected to examination and observation. The neurological observation showed that at 9, 10 and 11.00 am the worker could obey commands and he was orientated.
4. When the primary survey commenced at 8.00 am he responded to voice stimulus.
5. The notes indicate that at 8.30 am on examination there were no bruises or cuts to the scalp. The chest and extremities were normal.
6. The applicant was given a thorough neurological examination that did not disclose any significant abnormalities.
7. The notes stated at 98:-

"Neuro status improving observe in trauma (room) 4/20.

At 12.30 pm "Complaining of slight back pain mobilise with assistance to toilet. Wants to go home. Cousin at home to aid him. Will return if any problems."

1. The nursing notes at 99 are signed by J Harty RN:-

"Plan - observation ? D/C (discharge) later this shift."

At 10.10 am the social worker interviewed the applicant. The notes read in part:-

"Says that he lives with his cousin who has already been in and who will return to get him later. Keen for me to check with his boss re WorkCover."

1. The social worker apparently spoke to the employer and informed the applicant there was no problem with compensation. A prescribed medical certificate was provided for the period 6 June 2000 to 12 June 2000. The worker's report form was also supplied.
2. The notes say "13.00 Patient discharged to home with cousin. D/C (discharge) information given ..."

1. 1 I find the RAH notes accurately set out the applicant's condition on 6 June. In particular I find that the applicant was drowsy and had a reduced state of consciousness for some time which gradually improved up to about 10 - 10.30 am. By 10.10 am when he was interviewed by the social worker he was orientated.

I find that the plan was to keep the applicant under observation. As early as 9.00 am it was contemplated that he would be discharged that day.

I find his main complaint of pain was minor in the lower back.

I find that he was discharged at 1.00 pm. He returned the next day complaining of back pain and seeking a review and wanting crutches.

80 I find that there is no evidence to support the following propositions, and I reject them:-

(ii) That he discharged himself against the advice of the Royal Adelaide Hospital staff. (Indeed all of the evidence in the notes is to the contrary).

(iii) That at the time he was discharged he suffered or complained about severe pain in the lower back, or headache being severe or otherwise.

(iv) There is no evidence that he was unconsciousness for up to six hours (Mr Albert W Russell).

(v) There was no evidence that he was unconscious between six and twelve hours (Dr LePage).

1. As to the physical injuries there is no evidence of any injuries to the neck, hip and legs. There is no objective evidence of any disability thereto. I reject any evidence to the contrary. As to the lumbar spine I prefer the opinions of Drs McCulloch, Hall and Thoo to those of Dr Papps.

1. Dr Papps is qualified as a general practitioner and practices according to the letterhead as "medico-legal services". He is also involved in a skin cancer clinic.
2. Dr Papps initial neurological examination disclosed no abnormality. The CT Scan of 27 June 2000 showed minor disk bulges at L3/4 and L4/5. It was never suggested that these were of traumatic origin. They are more likely degenerative changes consistent with the facet joint degeneration of L4/5.
3. Given that the applicant's presentation was not consistent with the physical findings - the methodology of Dr Papps reaching his opinion is significantly flawed. There is an absence of any demonstrated pathology. I find that Dr Papps' opinion is based on nothing else than Dr Papps accepting the applicant's complaints at face value.
4. T 54 Dr Papps says:-

1. Of more concern is that Dr Papps was attending to a worker using crutches for a back injury. Dr Papps' diagnosis was that the worker was totally unfit for work. However the worker was not referred by Dr Papps for a neuosurgical opinion. Nor was he referred as a candidate for a pain clinic. Dr Papps said that he formed the opinion early on that the problem was "not neurosurgical". He did not refer the applicant for an orthopaedic opinion "because an orthopaedic surgeon would only delay the matter".
2. In spite of his unwillingness to seek guidance and assistance from a specialist in the area of neurosurgery and orthopaedics, Dr Papps saw fit to refer the applicant to Mr Albert W Russell. Mr Russell appears in the South Australian Register of Medical Practitioners as having specialist qualifications in general surgery, obstetrics and gynaecology. Dr Papps did not refer to any enlightenment he obtained from Mr Albert W Russell. Mr Albert W Russell saw the applicant apparently, it is said, on Dr Papps referral, on 13 September 2000. Yet his only report in evidence dated 11 December 2000 is directed to the applicant's solicitor.
3. Dr Papps tr 61 expressed the view that "if someone has ongoing acute pain that defies normal radiological description an MRI Scan is indicated to verify that". However Dr Papps did not arrange for an MRI Scan.
4. In my view Dr Papps came to the conclusion that there was no pathology that explained the applicant's complaint of pain hence such a referral was a waste of time.
5. Dr Papps continued to see the applicant fortnightly for at least 15 months for the purpose of providing prescribed medical certificates.
6. If Dr Papps came to the view that the worker had a functional overlay or there was a non-organic condition producing almost total invalidity it is difficult to see why the applicant was not referred immediately to a competent psychiatrist for an opinion or treatment. Dr Papps referred the applicant to a psychologist who has continued to see the applicant fortnightly with little result.
7. The referral for Dr LePage, when it did come, was apparently at the instigation of Mr Russell. The first consultation with Dr LePage did not occur until 12 months after the fall.
8. I reject Dr Papps view of the significance of the annular tear shown on the MRI Scan report. I adopt Mr McCulloch's view that Dr Papps is not qualified to offer an opinion and furthermore it is in conflict with Mr McCulloch's (who is qualified) view.
9. The applicant came to see Dr Papps on the instigation of the solicitor, not on the referral of Dr Zuvela.
10. In my view Dr Papps has confused the boundaries of a provider of medico-legal assistance with those of a treating doctor. His evidence was significantly unsatisfactory.
11. Dr LePage first saw the applicant in late June 2001 some 12 months after the fall. The referral was instigated by Mr AW Russell.

1. I reject Dr LePage's opinion for these reasons.
   1. It is postulated, in part, on the proposition that the applicant was unconscious for six to twelve hours. That is plainly wrong. Dr LePage said he sourced that information from Mr Albert W Russell.

That sourcing is wrong, Mr Russell said "unconscious for up to six hours" and even as a statement of fact that was wrong - and it was wrong in spite of the fact that it could easily have been checked against the Hospital notes. It is not an insignificant slip of the pen. Being unconscious for 6 - 12 hours is a much different proposition from being unconscious for an hour - semi-conscious for an hour and thereafter orientated.

1. Dr LePage's opinion takes as a fact, that the RAH wanted the worker "to remain in hospital overnight" This indicates severe trauma. That is wrong. The worker was observed from 8.00 am to 1.00 pm and then discharged. He was not discharged contrary to the advice of the RAH staff - and the inference of severe trauma is unjustified.
2. It does not require a sophisticated analysis to discount the "six-twelve hours unconscious" scenario.

(i) It is quite inconsistent with the patient being discharged after five hours.

(ii) Such a lengthy period of unconsciousness would surely have called for the early intervention of a staff neurosurgeon.

(iii) It is hardly credible that the RAH staff would willingly release such a patient who has been unconscious for six to twelve hours.

(iv) That statement is flatly in conflict with the hospital notes.

1. Dr LePage's views on the significance of the MRI report is plainly wrong.
   1. There is no suggestion in that report supporting the proposition of two ruptured disks. The report does not say that at all.
   2. I accept Mr McCulloch's view that Dr LePage is not qualified to expatiate upon annular tears or fissures.
   3. The MRI Scan does not provide a basis for asserting that the applicant has a "traumatically caused pathological condition in the lumbar spine".
   4. Dr LePage's opinion on the physical and pathological condition is in complete contradiction to that of Dr Hall, Mr McCulloch and Dr Thoo who are all experts in that area of physical medicine.
   5. To the extent that Dr LePage's views depend upon the applicant suffering a "death invoking experience" that description does not appear until Dr LePage becomes involved in the case. It is absent from Dr Papps, Mr Maroulis, Dr Kalnins, Dr Hall, Mr McCulloch and Mr Albert W Russell.
2. My impression of Dr LePage's evidence was that he become an advocate rather than an expert. He assumed an erroneous and indeed rather flamboyant version of the critical facts - facts that could have been checked with very little effort.
3. As to Mr Albert W Russell I reject the opinion in his report.
   1. The opinion is based partly on erroneous facts ie the length of the unconsciousness.
   2. There is essentially no evidence of an injury to the soft tissues in the head. Indeed the evidence in the RAH notes is to the contrary.
   3. There is no reason for making the diagnosis of an injury to the lower spine. The material on which he relies ie the CT Scan of 27 July 2000 in no way suggests that the pathology there demonstrated, was traumatic in origin.
   4. His view is contrary to that of the physical doctors Mr McCulloch, Dr Hall, and Dr Thoo whose views I prefer.
4. As to the applicant's evidence I would accept it with only serious reservations. It is marked by exaggeration.
   1. His description of what passed through his mind at the time he fell - the narrow escape from death etc does not surface until 12 months after the accident, strains credulity.

Indeed he told Dr Kalnins "He did not know what had happened." "He was unsure and did not know what had happened."

1. I do not accept his evidence about the Royal Adelaide Hospital ie that he discharged himself contrary to advice.
2. I do not accept his evidence that when he left RAH he was in significant pain with a headache.

When his account of what happened there is tested against the objective and undeniable evidence in the RAH notes, his evidence is not persuasive.

1. At 10.00 am on the morning of injury he was alert enough to have a social worker make worker's compensation inquiries. As I said at the trial I do not hold that against the injured worker - especially as the inquiry may well have been (very properly) provoked by the social worker. But at least, the incident demonstrates that he was conscious and alert.
2. Mr Doyle with his characteristic assiduity has assisted me with 30 pages of written submissions and two pages of authorities. I summarise these as follows:-
   1. The onus of proof is said to be on the respondent to show that the applicant ceased to be incapacitated after 15 August 2001. Mason v Mayne Nickless [2001] SAWCT 90 is relied upon.

The facts of that case are quite different from this case. There, the respondent wished to raise the s 35(2) Hornhardt point that certain work was suitable for an undoubtedly disabled worker (Hornhardt v WorkCover [2000] SAWCT 157). It was held on the facts that the respondent's assertion was not made out. In both Hornhardt and Mason the fact of the disability was not in dispute. In this case it is at the centre of the dispute. I have rejected the proposition that prior to 15 August 2000 the applicant had established an entitlement to weekly payments. An oblique method of testing the contrary would be to ask "What would be the likely outcome of an application to enforce the entitlement or how could the applicant enforce the entitlement?" S 87 and s 87A would be of no assistance. I agree that the whole of the evidence must be examined and I agree that injured workers develop psychiatric conditions in reaction to those injuries - but the facts in Arrowcrest Group Pty Ltd v Nguyen [2000] SAWCT 121 are quite different from those in this case. In Nguyen's Case it was accepted that the worker had suffered severe physical injuries. The debate revolved around whether the worker had to run the gamut of s 30A to succeed on the psychiatric case. Parsons J held that the worker did not have to meet the s 30A criteria. The Full Tribunal upheld this. Nguyen is not an authority for the proposition that was expressed in the written submissions:-

"The Tribunal is also entitled to take judicial notice that where there is an underlying physical disability it is often difficult to discern what aspects of the resultant disability are attributable to the physical consequences of the disability and what aspects are attributable to the psychological consequences of the disability."

1. I do not see that Dibbens v Dibbens (1978) LSJS 165 or Donjerkovic v Adelaide Steamship (1980) 24 SASR 347 assist the applicant.
2. In the final analysis all of the evidence must be weighed and a conclusion reached.
3. In Corporation of the City of Woodville v Balassone (1968) SASR 147 the Full Court held that "a worker was entitled to payments even though there was conscious malingering side by side with a genuine neurosis attributable to the injury". That is an unremarkable proposition simply affirming that if the employment caused the injury the disability is compensable. It does not attempt to answer the question of "Did the employment cause the injury".
4. Mr Doyle's able submissions may be summarised in the proposition that the presentation can be explained as a functional overlay. If that state is produced not by malingering - the fact that the manifest symptoms are not congruent with a physical pathology is not to the point. What is to the point is that the functional overlay itself is an injury and is being produced ie caused by ie arises out of or in the course of the employment.
5. In this case I do not have to make a finding on the allegation of malingering.
6. Zienkiewicz v Smiths Snack Foods [2001] SAWCT 18 is a case where the worker had a genuine strain but her recovery was prolonged by the emotional reactions of the employer's unjustified rejection of the claim and unreasonable action.
7. There is nothing of that activity in this case.
8. In Godfrey v WorkCover Corporation/Royal and Sun Alliance Workers Compensation (SA) Limited (Port Adelaide Construction Pty Ltd) [2000] SAWCT 187 the worker was incapacitated by panic and disorder and anxiety. These were brought on as a result of respiratory problems suffered at work. Gilchrist J found the mental disorder of anxiety and depression were the result of the physical injuries. That is again a different case from this case.
9. What is called for is not an exegesis on causation - but an application of the dicta of Lander J in WorkCover Corporation v Sherriff Supreme Court of South Australia Judgment No S5831 "... the tribunal of fact is simply called upon to establish whether the facts, as established, allow it to be said as a matter of common sense that the disability proved ... arises from the employment as defined in s 30". My findings are:-
   1. The worker's physical disability ceased on or about 15 August 2000 ie broadly the opinions of Drs Thoo, McCulloch and Hall. I reject the views of Mr Albert W Russell, Dr Papps and Dr LePage to the extent that Dr LePage expresses an opinion on the physical condition of the applicant.
   2. I reject Dr LePage's opinion on the applicant's psychological and psychological state. I accept the view of Dr Kalnins summarised and expressed at TB 146 which is expressed in the following exchange:-

"MR DOYLE: What I'm proposing to you is that having regard to this man's personal background his work ethic, cultural factors, all the things that go together to make up his personality, this was a sufficient trigger for him to start converting the psychological conflict about his disability into physical symptoms, given that there was - - -.

1. Q Given that there was some underlying organic problem.
2. A No, I wouldn't see it quite as that type of mechanism."

Hence I reject the thesis that the psychological problems were the basis of or could explain the worker's physical complaints.

1. I accept Dr Kalnins' view that this worker does not have a psychiatric disorder.

Absent a physical explanation for the applicant's symptoms and absent a finding of malingering - it does not necessarily follow that the explanation for the applicant's condition is some undefined psychological disability attributable to injuries that once existed but do not now exist, and therefore the disability arises from the employment.

1. At the most he has a manifestation of anger, frustration about the Workers' Compensation system. Such disturbances are not compensable see Vanderdoes v WorkCover Corporation/VACC Insurance Worksafe (Seanco Pty Ltd) JD68/1998 and Trinne v WorkCover/MMI Workers Compensation (SA) Ltd (Rexco Pty Ltd) JD57/1999 at 12 - 18.
2. I am unable on the state of the evidence to come to the conclusion that the nexus required by Sherriff's Case can be drawn by me.
3. Therefore I confirm the determination.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.