Attorney General v. Gabell [1968] S.A.S.R. 44.

City of Woodville v. Balassone [1968] S.A.S.R. 147.

Ms. M. Shaw Q.C. and Mr. J. Warren and later Mr. C. Kourakis Q.C. (of counsel) for the Applicant.

Mr. S. Apps and Mr. D. Rostrin (of counsel) for the Respondent.

This is a judicial determination of a dispute between Deborah Ann Butler (`the worker') and G.H. Michell and Sons (Australia) Pty. Ltd. (`the employer') which concerns the employer's rejection by determination dated 11 October 1996, of a claim for compensation that the worker made on 7 October 1995. Strictly speaking that is the only claim and determination that is before me. However this matter proceeded before me on the basis that the employer's determination included a consideration of and rejection of claims for compensation for income maintenance from 9 March 1996, based upon alleged physical and/or psychological disabilities suffered by the worker arising out of or in the course of her employment with the employer up until that date and I approach the determination of this dispute from that premise. In doing so, to the extent that it is necessary, I enlarge the issues in dispute between the parties pursuant to section 88DA of the Workers Rehabilitation and Compensation Act 1986.

The key issue in this case is why the worker, a woman aged 42 years who sustained an injury to her back on 14 September 1993, who underwent surgery in relation thereto on 2 February 1995, was cleared by her treating specialist to returned to work on 17 August 1995, commenced a graduated return to work on alternate duties on that day, progressively increased her hours of work such that by February 1996 she was working 6 hours per day, stopped work altogether on 9 March 1996 and has not returned to work since.

The worker's case is that over the period of time up to 9 March 1996, as a result of: the original injury to her back; and/or aggravations to that disability occasioned by her work with the employer; and/or the depression she experienced because of the chronic pain associated with the disability or disabilities; and/or the stress and anxiety that she experienced because of problems in the workplace, she was unable to work after 9 March and that has been the case ever since.

I now turn to consider whether the evidence establishes that to be so.

The worker commenced employment with the employer in May 1991, as a machine operator involved in the refinement of wool.

At or about 8.30 a.m. on 14 September 1993, whilst she was pulling a can from a machine in the course of her work for the employer, the worker felt a sharp twinge of pain in her lower back. She sought medical attention and reported the injury. Thereafter, she consulted with her general practitioner and she sought and obtained from him medical certificates, certifying her unfit to work. She subsequently was referred to a number of medical specialists, some by her doctor and others by her employer. She also underwent a series of tests, one of which was CT scan which revealed that she had suffered an L4-5 disc lesion. Eventually she was referred by her doctor to Mr. Carney, neurosurgeon. In a report dated 22 December 1994, Mr. Carney recorded that he first saw the worker on 15 August 1994. He stated that he arranged for a dexography and differential spinal block which were carried out on 17 and 22 November 1994 respectively. He said that these results revealed degeneration of the L4-5 disc with a large fissure. He reviewed the worker with these results on 13 December 1994 and discussed with her the prospect of surgical intervention. He made tentative arrangements to carry out an inter-body fusion and disc clearance.

Mr. Carney then made arrangements to carry out the inter-body fusion and disc clearance on 2 February 1995 but these were cancelled as a result of an indication from the employer on 19 January 1995, that it was not prepared to pay for this surgical procedure. The employer eventually resolved to approve the surgery which was undertaken by Mr. Carney on 12 April 1995. Following the surgery the worker was certified as totally incapacitated for work until 17 August 1995, whereupon she was certified fit to resume modified duties on a graduated return to work.

The worker returned to work on 17 August 1997. Initially she worked two hours per day building up to three hours per day and beyond. Apart from some absences from work, particularly in October 1995, her hours of work increased progressively such that by January 1996 she was working six hours per day, which she continued to work until she stopped altogether on 9 March 1996.

The worker's return to work was undertaken in accordance with rehabilitation and return to work plans that were prepared from time to time in consultation with medical experts such as Mr. Carney and the worker's then general practitioner, Dr. Shimeld. No doubt they, in stipulating the number of hours that the worker could perform and the range of duties she was to undertake, took into account her physical capabilities. Although the worker indicated that she intended to call Mr. Carney, he ultimately was not called. The respondent submits that in those circumstances I ought draw an adverse inference against the worker. In view of the fact that Mr. Carney's medical reports were tendered by consent, I think that the only inference to be drawn is that the evidence he would have given had he been called is along the lines of that which is reflected in his medical reports. And, that is, that subject to the note of caution in his report of 29 June 1995, that a graduated return to work would have to be pursued in easy stages and that `Mrs. Butler will probably be sensitive to any aggressive rehabilitation program', the worker should have been physically capable of undertaking rehabilitation and work of the type formulated.

The worker in her evidence before a Review Officer in separate proceedings which was tendered as part of her evidence in the proceedings before me, stated that in about March 1995 she and her husband had purchased tickets to attend a Joe Cocker concert the following September (tr. R.O. p.130). The concert took place on the evening of Tuesday 12 September 1995. The worker had not attended work that day or the proceeding day, Monday 11 September 1995. Prior to attending the concert the worker consulted with Dr. Shimeld. She said that he told her that she could return to work the next morning when she was due to start at 7.45 a.m.. She said that she raised with him the effects of starting early in the morning on the basis that when she first got out of bed she was very stiff and sore and that she took a while to get going in the mornings (tr. R.O.p. 131). She said that when she attended the Joe Cocker concert she was wearing a back brace and that she had taken a considerable amount of medication. She said that the concert took place at the Festival Theatre such that she was seated in a comfortable chair (tr. 10). She said that the first time she raised the possibility of a late start with Dr. Shimeld was on that occasion (tr. p.89). The day after the Joe Cocker concert, the worker arrived at work an hour or so later than she normally would have (tr. p.90). She said that she felt under no obligation to inform her employer of the fact that she would be arriving for work later than usual because having discussed the matter with Dr. Shimeld, she thought it was permissible for her to start later. She said:-

`I wasn't running late as far as I was concerned. As far as I was concerned my doctor and me basically discussed it and, fair enough, now in hindsight, yes, I should have probably gone in at the exact time that day and discussed it with Michells before, but at that stage I thought that my doctor said that I could do this, so that it was all right to do it, and I would go in and I would just tell Michells that my doctor had just said that I can start late. That was my understanding of it. It was not a matter of I was ignoring Michells and just going off and doing what I wanted.' (tr. p.100)

Throughout this period Ms. Tracey Zilm, an employee of the employer, was managing the worker's compensation claim and was acting as her rehabilitation coordinator. On the Tuesday of the concert Ms. Zilm contacted the worker to find out why she was not at work and she was told of the worker's scheduled consultation with Dr. Shimeld later that day (tr. p.102 and tr. p.456).

On 13 September 1995, Ms. Zilm met with the worker and she inquired as to what Dr. Shimeld had said on the previous evening. She asked the worker what she did after she had attended Dr. Shimeld's appointment and the worker volunteered the fact that she attended the Joe Cocker concert. Ms. Zilm said that she had not been advised of that in a conversation with the worker the day before (tr. p.459). Ms. Zilm asked the worker how it was that she could attend the concert given that she was unable to attend work for two hours but was still able to attend the concert. She ended the conversation with words to the effect, `If you're unable to attend work because of your back or you're running late for work that you telephone me'. A further meeting was arranged for Friday 15 September 1995 between the worker, Ms. Zilm, Mr. John Warren, the worker's Union Representative and the day shift supervisor, Mr. David Beacham. Ms. Zilm discussed the rehabilitation programs that had been prepared and the expectation during that week it was expected that the worker would work three hours per day and would have been progressing to four hours a day but because she was reporting problems her hours had been reduced to two hours per day. She discussed the fact that when she contacted the worker on the day of the concert the worker told her that she was having real problems with her back and that she had arranged to see Dr. Shimeld at 5.15 p.m. that night. She recorded that the worker had indicated that she was expecting to come in to work the next day and would phone if she was not and that the worker arrived at work at 10 a.m. on Wednesday 13 September complaining of back problems. She then discussed the meeting that she had with Mr. Beacham and the worker at about 11 a.m. on that day and the worker's disclosure that she had attended the Joe Cocker concert the preceding evening. She recorded that the worker indicated that after the concert she had had a few drinks and then went home and that she had got home at about 1.00 a.m.. It was put to the worker that that is where Ms. Zilm had a problem, namely, that despite the company's attempts to try and effectively rehabilitate her the worker was not doing the right thing. Ms. Zilm declared that the worker's stated capacity for work was inconsistent with what she was doing outside work.

Subsequent to the meeting of 15 September 1995, the worker was provided with a letter dated 18 September 1995 (Exhibit R22) which included the following:-

`You failed to attend for work on Monday 11th and Tuesday 12th September and when phoned on Tuesday lunch time you advised me that you're having `real problems' with your back.

At a meeting on Wednesday 13th September you admitted that after your medical appointment with Dr Shimeld at 5.15pm you attended the Joe Cocker concert. When questioned further over this matter on Friday 15th September it was established that you had been out from 5.00pm on 11th September until 1.00am on 12th September, attending the casino after the concert.

You arrived late for work on Wednesday 13th September arriving at 10.00am instead of 7.45am.

Michell does not accept and will not tolerate the apparent inconsistencies in presentation regarding your capacity for work. This letter also serves as a first written warning in relation to your employment....'

The worker was also advised in that letter that Ms. Zilm had resolved to use the services of an outside rehabilitation provider, Ms. Sandra De Poi.

The evidence establishes that the worker thought that her attendance at the Joe Cocker concert was none of the employer's business; that she regarded Ms. Zilm's interest in it as an unnecessary and inappropriate intrusion upon her private life; and that she was extremely angry about the fact that the employer had put this incident in issue and that it had taken disciplinary action against her.

The significance of this incident is that as a result of it, the worker harboured much antipathy to Ms. Zilm and to the employer and this serves as a possible explanation of what followed.

The worker alleges a further injury to her back on 4 October 1995

The worker's evidence was that she aggravated her back whilst she was throwing lengths of wool over a tension bar at work on 4 October 1995. She said that she felt sharp pain and that she found this upsetting. She said that this made her feel particularly despondent because of the realisation that she might never get better. (tr. R.O. pp. 126, 127, 140 and 142 and tr. pp.11, 12 and 29).

A claim for compensation is prepared in October 1995

In mid-October 1995, a meeting took place between the worker, Ms. De Poi and Ms. Zilm at which time the worker indicated that she would be pursuing a claim for stress (tr. p.145). The notice of disability dated 7 October 1995, makes as allegation of injury on 4 October 1995 citing `lower back injury, left leg injury and mental injury including anxiety and depression' and it refers to a certification from Dr. Shimeld. The worker acknowledged that the WorkCover documents were prepared by her solicitor (tr. pp.132, 133). She also acknowledged that at that time the only certificate that Dr. Shimeld had provided was one relating to the physical aspects of her medical condition (tr. p.136).

The evidence establishes that the worker was absent from work on workers compensation benefits for about 4 weeks throughout October 1995.

On 10 October 1995, the worker asked Dr. Shimeld to refer her to Dr. Graham Craig, a psychiatrist.

On 19 October 1995, in response to complaints of pain, Dr. Shimeld gave the worker a steroid injection, which apparently brought her some relief.

On 26 October 1995, she was examined by Mr. Brian Cohen at the request of her solicitors, for medico legal purposes. He recorded a history of injury along the lines described above. He also recorded a complaint that the worker was quite depressed and was very emotional and that she could not cope with the extra hours that she was being pushed into.

On 22 November 1995, the worker consulted with Dr. Craig for the first time. By letter dated 7 January 1996, Dr. Craig reported back to Dr. Shimeld. Amongst other things he stated that the worker was despondent and that she had lost confidence. he said:-

`She may well be on her way to brewing a somatoform pain disorder, which is a psychogenic pain disorder arising from the mental anguish of chronic pain being channelled back into the body with a resultant aggravation of the level of pain.'

Over the months of November and December 1995, the worker progressively increased her hours of work from 3 to 4 to 5 per day.

In mid January 1996, the worker had a week off work on workers compensation.

In December 1995 and on 16 January 1996, Dr. Shimeld provided the worker with further steroid injections. These gave the worker some relief but they were not as effective as the earlier injection.

Towards the end of January 1996, the worker progressed to 6 hours per day. She worked 8 hours on a day in mid February but complained that this was beyond her. She then had 3 days off on workers compensation, had one further day on 8 hours, and then reverted back to 6 hours per day.

On 8 March 1996, the worker was examined by Mr. Harold Schaeffer for medico legal purposes. The relevant history that he recorded is as follows:-

`It seems that she has in the interim period continued with part-time light duties with some interruptions. In January of this year she was working on a six hour per day basis. She experienced intermittent pain when working and I understood that on 27 February she left work early in order to see a doctor and acupuncture was administered. She advised that she had received acupuncture treatment over a three week period. She did return to work the following day and I understood that she is currently doing some light machine operating work. This is done in the standing position but she is provided with a chair on which to sit if it proves to be necessary. No heavy lifting is involved. The cans which she has to handle are on wheels.

I also learned that she had been referred to a psychiatrist, Dr Craig. This was because, as she put it, she had became a "nervous wreck". She was very upset because of the enforced changes in her lifestyle. She just goes to work and when she is at home she rests and there is very little active social life these days. She described loss of libido. She also described a conflict with her original rehabilitation officer at work. She suggested that the actions of this rehabilitation officer caused her to suffer a form of nervous breakdown and she was then transferred to the attentions of another rehabilitation officer. She feels that this has improved the situation. She is in receipt of psychotherapy from Dr Craig and she takes Doxepin apparently for symptoms of tension and anxiety.

I discussed this current situation with her in more detail and to use her own phraseology she advised that she is "not great but better than I was". This constituted an ambivalent type of response.' (Book of Documents p.146, 147)

The worker also saw Dr. Shimeld on 8 March 1996. His evidence does not record any substantial change in the worker's circumstances at that time (see for example tr. p.432).

The worker's attendance with Dr. Craig on 9 March 1996

On 9 March 1996 the worker attended at a routine follow up consultation with Dr. Craig (tr. p.380), at which time she presented differently than had previously been the case.

`This was quite a turnaround. This was quite a major change in the way she presented. She was in fact beside herself, one could say, on that occasion. She cried for most of the interview, and indeed not only cried but sobbed. She was again complaining of back pain. She said that at work she was really sore and that she wondered how much she was expected to take, and I think that referred to the role of management in expecting the number of hours that they had chosen or that the doctors had chosen for her to work. She felt that she was being asked to work a longer time than she could emotionally handle. She was working 6 hours a day, and her quote was, "I go through hell to do it". The extent of working under these conditions was having an effect on her relationship with her husband, was having an effect on her decision-making ability, was having an effect on her concentration ability, was having an effect on her overall level of energy through the day. She was feeling tired and languid. It was having an effect on her sleep. It was having an effect on her overall sense of being comfortable both mentally and emotionally. She said to me, "I am at desperation point. My husband sees what I'm going through and he gets upset about what they do", and I think there she's referring to the extent to which she was being humiliated at work and the feeling that she had that she was not being given credibility. She in fact indicated that there was one instance where the personnel and the personnel department had indeed been laughing about her, the fact that she was having great difficulty, and she felt that she was being harshly treated. She said, "I can't handle it any longer. It's all too much, the way it's going." and there was a reference that if it was all too much then she might as well get out of life. So that indeed was the suicidal ideation, it was indeed something which had been mentioned in the past and had been overcome. But this particular episode on this particular occasion, she had, I felt, reached the point where it would be cruel to have kept her at work. She needed to have an escape from the environment where her back was being aggravated and where her mental state was being aggravated, and I felt that she needed to have a good, reasonable time away from work to enable to emotionally recover so that she would have a better chance of resuming activities and resuming work at a later time. I therefore decided that she should have time off and gave her a certificate for 3 months on the grounds of psychiatric illness.' (tr. pp.357,358)

Dr. Craig described the psychiatric illness in his certificate as major depression. The certificate was issued for the period 11 March 1996 to 11 June 1996. He has issued further certificates of incapacity since that time.

A compensable disability as at 9 March 1996 that has incapacitated the worker for work from that date?

I return to the question I posed for myself at the commencement of these reasons. Why did the worker stop work altogether at this time? Was she suffering from some physical or psychological condition that prevented her from working, or is there some other explanation as to why this occurred?

I accept that the worker aggravated her back on 4 October 1995 as she said she did but whatever injury she may have sustained at that time it, at least in pure physical terms, does not provide the explanation as to why the worker has been unable to work from 9 March. It is I think sufficient to refer to the medical report of Dr. Shimeld dated 30 August 1996, where he said that as regards to her lumbar back condition she is fit to perform modified duties. (Book of Documents p.189)

As to the allegation that this brought about a psychological disability, I accept that the fact of the aggravation and the associated pain caused the worker to be upset.

The evidence in this case clearly establishes that the worker sustained an injury to her back at work. From early on she exhibited signs that non organic elements were present. Before the issue of a psychological disability was ever raised there was mention in medical reports of anxiety.

The worker believed that the employer had reservations about the genuineness of her disability. The worker was entitled to form that view. After all, the employer had on its own initiative cancelled surgery that the worker had agreed to undertake at the suggestion of her treating surgeon and, it had engaged the services of private investigators who had placed the worker under surveillance on at least forty one separate days between August 1995 and March 1996, during the course of which extensive video evidence was obtained. The worker may not of been aware of that fact at that time but it is indicative of the employer's scepticism of the worker and I am sure that the worker would have been aware of that.

I accept that as a result of this the worker felt much anger and frustration about the employer's attitude towards her disability.

I also accept that she was extremely angry about the Joe Cocker incident. Whether she was justified in feeling that way is another matter, but the evidence clearly establishes that this was a matter of some significance. Dr. Craig records the worker's problems with management stem from this incident (tr .pp 370,371 and 373) and that the worker `was very dark and very upset about [this]' (tr. p.371).

Moreover, I have not the slightest doubt that the worker presented to Dr. Craig in the way he described it.

These matters all tend to support the worker in her assertion that the physical and psychological effects of her disabilities and the conflict at the work place have rendered her unable to work for the employer and I have given them due weight.

But there are a number of matters that in my view point the other way.

First there is the fact that the rehabilitation and return to work programs were formulated in consultation with those who were treating the worker and what was asked of her by them was within the limitations that they had imposed. One would not expect that such a regime would lead to the intensity of the complaints that the worker later made, nor would one expect that these programs would have been formulated in the way in which they were, had the worker revealed to her treating doctors that she was as disabled as she later described.

The worker's evidence before a Review Officer and her evidence before me, painted a picture of this period being a dire struggle that overwhelmed her. She said for example to the Review Officer:-

`Q. I think some of those you have already dealt with, but just in summary what were the pressures that you weren't able to cope with.

A. Well, it was as I said the problems with certain things that Michells were pushing me for, etcetera. There was also the pain level, it was affecting me mentally. The hopelessness of it all, that it didn't work. I was becoming very introverted, I didn't want to be near people, I was crying a lot, I was becoming - yes, I was spending so much time on my own that I got to the point where I didn't want to spend time with anyone. I didn't want to - well, I couldn't make the effort, I couldn't force myself to make the effort to even socialise with friends. They would come around, I would stay in the bedroom, my husband would entertain them out in the other areas. I wasn't spending much time with my sons or my husband because, like, they would be out in the other area and I would be in bed. I found that what I was doing was mainly - basically what I was doing what I was going to work and then I was going home to bed. I had no interaction with anything but work which was causing me the pain. Yes, it just seemed my whole life was just revolved around the pain in my back.'

And of the period from January 1996 to March 1996:-

`Well, you know, I had decreased to the point where mentally I was a complete hermit. I didn't see people or - yes, crying all the time, you know, just not coping with the pain. It was just - I couldn't cope, I just couldn't cope any longer with what was happening. You know, as I said, it's just an increase in what I have just told you about what was happening to me, that just continued to increase and increase. My psychiatrist was trying to help me get around those things, but it wasn't working because the pain was increasing. I was having - I was just becoming worse, just more dependent on pain-killers. How to describe it - yes, I just couldn't cope with anything at all, from - you know, anything at all. I wouldn't make a single simple decision through to anything at all. As I said, you know, I nearly had several accidents on the way home from work.'

Moreover, the worker's description of how she fared at this time seems somewhat inconsistent with the assessment of those who were treating her. Dr. Shimeld in his evidence spoke of the period between October 1995 and February 1996 as a successful one `because she was having a good response to the pain management at that stage'. (tr. p.413).

Dr. Craig also spoke of this period in positive terms. He said:-

`Q. I take it then that from November when you saw her until January that the situation remained pretty much the same, because you've summarised in page 3 of the first report what appears to have been the situation throughout that time.

A. Yes, she in fact I think did pick up to some extent with the addition of the antidepressant medication, and then again - I think that was the only medication she'd had up until January, and I think overall that her condition was pretty much the same although she was feeling less despondent.' (tr. p.376)

To this I add my concern regarding the unsatisfactory evidence that the worker gave regarding the certification in connection with the notice of disability of 7 October 1995. It is quite apparent from Dr. Shimeld's evidence that he had not given any consideration to an allegation of the psychological injury at that time, let alone discussed with the worker the provision of a certificate of incapacity based upon such a disability. But when cross-examined about this, the worker said:-

`Q. That's your evidence. On whose medical advice did you include in the notice of disability that you were suffering from anxiety and depression. Was it Dr Shimeld. I mean, just go through the doctors that you were seeing at that time.

A. Probably Dr Shimeld seeing he was the one I was seeing at that time.

Q. ... Do you say he certified you as unfit in respect of not only the physical aggravation of your back, but for anxiety and depression.

A. I don't know. I know I was certified off work. I can't tell you the exact wording on the form.

Q. Let me put it another way to you: was it your idea to include in that notice of disability a notification about anxiety and depression. Was that idea, your initiative.

A. No, I was suffering from anxiety and depression. It wasn't hard to see.' (tr. p.120)

It is difficult to reconcile this evidence with the evidence Dr. Shimeld that during the period between October 1995 and February 1996 the worker was experiencing success (tr. p.416).

Dr. Shimeld stated that he has no record in his notes of the worker ever putting in a stress claim.

`Q. Whichever it was anyway, she didn't say to you, `Doctor, look, I've put in a stress claim. I am stressed and I would like a certificate'.

Q. In any event, you didn't think her condition at that stage warranted it.

These questions were in respect of questions concerning a consultation that took place with Dr. Craig in November 1995, a month after the stress claim was completed.

The following passage of the worker's evidence adds to my concern regarding this issue.

`Q. Just on that point, you put in a claim or a claim was submitted - can just call it a stress claim or a psychological claim was put in by you before any certificate was given to you in that respect by a doctor.

A. I think you'll find that the claim was delayed until after I'd seen medical personnel. I don't think it was immediately submitted to Michells for months afterwards. I'm not sure.

Q. I see. Thank you. So, what, until you'd seen whom? Dr Craig or someone else?

A. I'm pretty sure it was delayed. I couldn't swear, because as I said, my lawyer submitted that because at that stage they were dealing with Michells, not me.' (tr. pp.177, 178).

All of this suggests that it was the worker who determined that she was suffering from stress and anxiety; that she had as at 7 October 1995 resolved to make a claim in relation thereto, despite the absence of supporting medical evidence; and that she held back the lodgement of the claim until she had the medical evidence to back it up.

Whilst all of these matters may simply reflect the fact that the worker had some insight into her problems, they might also reflect a belief by the worker that feelings of hurt, anger and frustration justified the pursuit of a claim for compensation. They might even reflect a conscious decision on her part to facilitate the prosecution of a claim for compensation based upon stress which was in the nature of an act of retribution against a employer to whom felt much anger and whom she perceived had a relentless determination to give her a hard time and to restore her to the work force at a level which she regarded as beyond her.

Thirdly, there is the lack of consistency between the worker's presentation to Dr. Craig and those who examined her the previous day. Why for example, if the worker was genuinely at the end of her tether at the time she consulted with Dr. Craig on 9 March 1996, is it that she made no mention of that to Dr. Shimeld and Mr. Schaeffer the day before? After all, Dr. Shimeld was consulting the worker quite regularly in the period prior to this and appears to have had the sort of relationship with her that one might have been expected to have resulted in the worker confiding in him the particular difficulties that she was having, that she spoke of to Dr. Craig the next day.

Next, there is Ms. De Poi's assessment of the situation. Although she recorded the worker's complaint that she was unable to work 8 hours a day, and she was clearly aware of antipathy the worker felt towards Ms. Zilm, her evidence indicates that the events of 9 March 1996 took her by surprise. Ms. De Poi has been involved in rehabilitation for over 10 years and clearly has much experience in this field. It is I think significant that she had no appreciation that the worker's psychological condition was deteriorating and that a mental incapacity for work was imminent.

Fifthly, is my conclusion about the psychiatric evidence. Notwithstanding Dr. Craig's evidence, I am persuaded by the evidence of Dr. John Burvill, a psychiatrist to whom the worker was referred by the employer for medico-legal purposes, that major depression:-

`... can't occur overnight, no onset - there is no classic. It is insidious but it is not sudden. It is not abrupt. It is over a period usually of - look, there is no hard and fast rules but it's usually over weeks before the established irrefutable syndrome is present.' (tr. p.562).

The worker's presentation before Dr. Craig on 9 March 1996 was clearly extreme. Otherwise he would not have issued a certificate of incapacity for 3 months. Given my acceptance of Dr. Burvill's evidence on this point, in my opinion had that level of mental disability been genuine, it should not have occurred spontaneously, but rather it would have been developing for some time. And, had that been so, others such as Ms. De Poi and Dr. Shimeld would have been aware of it and the worker the day before this consultation would not have said to Mr. Schaeffer, as I find she did say, that she is "not great but better than I was". For these and the other reasons that I have stated above I find on the balance of probabilities that the worker's presentation to Dr. Craig on 9 March 1996 was contrived and that she consciously exaggerated to him her mental state, how her injury was affecting her and how she was coping in the work place.

Why it was that the worker presented herself to Dr. Craig as she did on that day I do not know. Perhaps she did so because she was beside herself with anger and frustration with her employer and she had a genuine belief that these feelings entitled her to compensation and she carried on before Dr. Craig to fulfil that expectation. Perhaps she regarded her attendance with Mr. Schaeffer the day before, which attendance had been at the behest of the employer's solicitors and was no doubt undertaken for medico-legal purposes, as the final straw. Perhaps she had simply had enough and had come to the realisation that if she did not take drastic measures, it was inevitable that Ms. De Poi and the employer would succeed in requiring her to work a full 8 hour day and that was a situation that she was not prepared to tolerate. Wherever the truth lies, in the end, I am simply not persuaded to the requisite degree that any physical or psychological disability was sustained by the worker prior to 9 March 1996 that caused her to be incapacitated for the work that the worker was performing for the employer immediately prior to that date.

The observations of Bray C.J. in Attorney General v. Gabell [1968] S.A.S.R. 44 at 50, 51, and his reference to the observations of Lord Shaw in G. v. G. [1924] A.C. 394 at 367, are as apt now as they were then. His Honour said:-

`The word in s18 is incapacity, not unwillingness. The distinction is the familiar one made in cases of nullity on the ground of impotence. In G. v. G., Lord Shaw of Dunfermiline referred to an incapacity-

"Not being a mere hostile determination of the mind arising from obstinacy or caprice, but such a paralysis and distortion of will as to prevent the victim thereof from engaging in the act of consummation."

Lord Shaw's language may not correspond with the latest terminology of psychiatry, but it illustrates the difference for legal purposes well enough.'

But for section 36(1a)(g) of the Act, the effect of my conclusion is that the worker would be entitled to receive compensation commensurate with the hours that she was unable to work for the employer as at 9 March 1996. However, in view of that provision, for the reasons I explained in Hagean v. WorkCover A.42/1997, finding as I do that the worker's conduct in misrepresenting the situation to Dr. Craig on 9 March 1996 amounts to a breach of mutuality, the worker has no entitlement to weekly payments from the date of that breach.

It follows, that in my view, the employer's determination to reject the worker's claim for compensation should be upheld. I order accordingly.

Because this case was conducted before me in a way which did not strictly conform with the claim and determination upon which the notice of dispute was based, I think that I should add that this decision is only in respect of the worker's claim for compensation for income maintenance from 9 March 1996.

Although for the reasons explained, I have concluded that the worker's presentation before Dr. Craig on 9 March 1996 was exaggerated and led to a certification which was not warranted, my observations of the worker in the hearing before me suggest that what started out as a case of malingering might have actually progressed to a debilitating psychiatric disorder. I make no finding in relation thereto and I have not concerned myself with questions such as whether if in fact the worker has subsequently developed an illness or disorder of the mind it has resulted in an incapacity for work, whether such illness or disorder if it exists can be causally linked to a compensable disability, what the potential impact of section 30A might be upon such a condition and what effect my finding of a breach of mutuality might have. I simply make the point that as can be seen from cases such as City of Woodville v. Balassone [1968] S.A.S.R. 147, my determination in this case might not necessarily preclude the successful lodgement of a further claim in relation thereto.

Finally I note that the worker's written closing submissions makes reference to medical expenses. My findings do not necessarily preclude such a claim but as the employer's closing submissions refer only to the issue of weekly payments and given that that is as I understood the case was to be run, I make no ruling in relation thereto. If the parties agree that this issue is before me or if there is a dispute about that, I grant them liberty to apply.

Parties are advised that if a party wishes to appeal against any part of this decision which raises a question of law such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.