Gomez-Soto v Unisure Pty Ltd [2004] SAWCT 42

Workers Compensation Tribunal (SA)|2004-04-22

1 This is a judicial determination of various disputes between Dr Enrique Gomez-Soto ("the worker") and Unisure Pty Ltd which administers workers compensation claims on behalf of the Flinders University of South Australia and to which I shall collectively refer to as the employer. The disputes concern the employer's rejection of a claim made by the worker for expenses pursuant to s 32 of the Workers Rehabilitation and Compensation Act 1986 ("the Act") and the worker's challenge to a series of loss of earning capacity (LOEC) determinations that the employer made pursuant to s 42A of the Act.

4 In January 1971 the worker commenced work with the employer as its senior tutor in the then Department of Spanish and Italian Language. After tutoring in Spanish and Italian for two years, the worker was offered the position of lecturing in Spanish and by January 1980 had progressed through the various ranks to the position of senior lecturer in Spanish.

5 In 1986 he assumed the position of acting Head of the Department of Spanish and he remained in that position until January of 1990. At that point the acting position as Head of the Department of Spanish was filled. The worker took leave of various sorts and returned to work for the employer in 1991 to his former substantive position of senior lecturer in Spanish.

6 The worker sustained a compensable disability in December of 1992. Immediately prior to this he had been informed by the then Head of the Spanish Department that complaints had been received from students relating to one of the courses in Spanish concerning his teaching and his assessment of an examination that he had set earlier that year.

7 Following this complaint the worker woke one morning feeling very tense and he was concerned that he was developing Parkinson's Disease or some other neurological disorder and as a result he made arrangements to see Dr Susan O'Brien who conducts a health clinic at the employer's campus.

8 Dr O'Brien's findings on examination and opinion are recorded in a report prepared by her on 25 February 1993 (TB 335) as follows:-

"On examination, Mr Gomez-Soto had limitation of forward flexion and some lumbar paraspinal spasm. (He suffered right sciatica and low back pain in 1988 which arose in the context of work, and was associated with the L4, 5 disc prolapse. This was treated conservatively and responded to programmed exercise and lumbar support). No sciatica was complained of on this occasion.

I recommended that Mr Gomez-Soto again institute his program of back exercises, and that he take Feldene 20 mg (an anti-inflammatory agent) daily and Temazepan 10 mg as required for sleep. I judged that many of Mr Gomez-Soto's symptoms arose from anxiety and uncertainty stemming from not having access to relevant reports. Given that this time coincided with the long vacation break from classes, I judged that Mr Gomez-Soto did not require time off work."

9 The worker returned to see Dr O'Brien on 15 January 1993 and Dr O'Brien records in her report (TB 348) that on that occasion:-

"He reported some improvement in lower back pain but an increase in tension headaches, sleeplessness and gastro-intestinal distress characterised by alternating diarrhoea and constipation."

10 Dr O'Brien prescribed diazepan to treat the worker's anxiety and arranged for further reviews. By 17 February 1993 she was satisfied that he was clinically depressed and so she prescribed an anti-depressant.

11 In the meantime the worker had served a claim for compensation upon the employer asserting that he was entitled to compensation pursuant to the Act. The claim form was completed on 23 December 1992 and alleged the injury as being "stress".

12 On 20 May 1993 the employer resolved to accept the worker's claim.

13 Thereafter, the worker came to be in receipt of weekly payments of income maintenance.

14 Throughout this period the worker continued to consult with Dr O'Brien and she continued to prescribe an anti-depressant. In June 1993 she referred him to a psychologist, Mr Luciano Guglieman. In a report dated 16 January 1995, Dr O'Brien records that the worker was "highly motivated to resume his full teaching load". She stated that his "control depends on continuing anti-depressant and hypertensive medication." She stated that his anxiety and reactive depression would significantly diminish with conflict resolution.

15 On 2 December 1994 the employer issued a determination that the worker had ceased to be incapacitated for work as a result of a compensable disability.

16 The worker sought a review of that determination and that came on for hearing before a Review Officer. The Review Officer made a determination that the worker continued to be incapacitated for work for reason of the accepted psychological condition.

17 The employer appealed that decision to the Workers Compensation Appeals Tribunal.

18 In the course of that appeal the employer contended that the Review Officer exceeded his jurisdiction by wrongly taking into account events which took place after the original claim was lodged.

19 The Workers Compensation Appeal Tribunal accepted that submission and allowed the appeal.

20 The worker then appealed that decision to the Full Supreme Court of South Australia. It disagreed with the conclusion of the Workers Compensation Appeal Tribunal and accordingly, it allowed the appeal and remitted the matter back to the Tribunal.

21 During this period there were some settlement discussions between the parties. The worker sought, amongst other things, re-instatement to a promoted position. Dr O'Brien in her report of 5 February 1996 said that the worker should be able to return to the workforce once issues concerning the circumstances surrounding the original incident and his later dealings with the employer had been resolved. They were not in fact resolved.

The employer makes a series of LOEC determinations and rejects a claim for medical expenses

22 On 26 August 1996 the employer resolved to make an interim LOEC determination pursuant to s 42A(4) of the Act for the period of 12 months from 4 June 1996 to 3 June 1997.

23 S 42A enables a compensating authority to extinguish its liability to pay weekly payments of income maintenance to a permanently incapacitated worker by the payment of a single or series of lump sum payments, the quantum of which must be determined in accordance with the statutory formula prescribed.

24 The statutory formula requires a determination of the worker's notional weekly earnings, an estimation of the income tax payable on such earnings for the relevant period, an assessment of the worker's residual earning capacity and the income that that could produce, an estimate of the income tax payable upon the presumed income and the application of a prescribed discount rate fixed at three per cent.

25 The Act lays down guidelines as to how the worker's residual earning capacity is to be assessed. It speaks in terms of "...the amount that the worker could earn in suitable employment that the worker has a reasonable prospect of obtaining...": s 42A(2)(b). It stipulates that the nature and extent of the worker's disability, his or her age, level of education and skills, experience in employment and ability to adapt to new employment must be considered and given fair and reasonable rate: s 43A(3)(c). It makes provision that a worker will be treated as in effect, having no residual earning capacity, if it can be established that the suitable employment is not available and "...the worker establishes that the worker is, in effect, unemployable because employment of the relevant kind is not commonly available for a person in the worker's circumstances irrespective of the state of the labour market...": s 42A(3)(d)(ii).

26 The employer's determination of 26 August 1996 identified the relevant suitable employment as being lecturer in Spanish at level B, and based upon that, it determined that the worker's capital loss for the period was $4,254.22, a sum based on notional weekly earnings of $1,165.44 per week, an assertion that the worker could earn a weekly amount of $963.67 in suitable employment and calculations based upon estimates of tax and that the application of the prescribed discount rate.

27 The worker contested that determination and the matter came on for hearing before an Arbitration Officer who upheld the worker's challenge on the grounds that the determination was made at a time when the worker was not in receipt of weekly payments and was therefore invalid.

28 I mention this simply by way of background. That matter is not before me.

29 During the intervening period the matter that had been remitted back to the Workers Compensation Appeals Tribunal was listed for hearing, but it did not proceed. On 12 June 1997 an order was made by consent, dismissing the employer's appeal.

30 On 11 July 1997 the employer made a determination rejecting a claim made by the worker for medical expenses in connection with alleged disabilities to the worker's flexor hand muscles and jaw. This is an issue that is before me. The worker's claim was based upon the opinion of Dr O'Brien as expressed in her report of 31 January 1997 that the worker's hand problems and jaw trismus were related to tension and to the accepted compensable disability. The employer rejected the claim on the basis that the medical expenses were in the circumstances inappropriate and unnecessary and that in any case they did not arise out of a disability that occurred in the course of the worker's employment.

31 On 20 November 1997 the employer made a further interim LOEC determination for the period 4 June 1997 to 3 June 1998 It identified the relevant suitable employment as being lecturer in Spanish at level B or a lecturer in Music level B, and based upon that, it determined that the worker's capital loss for the period was $4,254.22, a sum based on notional weekly earnings of $1,165.44 per week, an assertion that the worker could earn a weekly amount of $963.67 in suitable employment and calculations based upon estimates of tax and that the application of the prescribed discount rate.

32 The worker challenged the correctness of the determination and that is one of the matters before me.

33 On 3 June 1998 the employer made a further interim LOEC determination for the period 4 June 1998 to 3 June 1999. It identified the relevant suitable employment as being lecturer in Spanish at level C, and based upon that, it determined that the worker's capital loss for the period was $0.80, a sum based on notional weekly earnings of $1210.20 per week, an assertion that the worker could earn a weekly amount of $1210.18 in suitable employment and calculations based upon estimates of tax and that the application of the prescribed discount rate.

34 The worker challenged the correctness of the determination and that is another of the matters before me.

35 On 28 May 1999 the employer made a further interim LOEC determination for the period 4 June 1999 to 3 June 2000. It identified the relevant suitable employment as being lecturer in Spanish at level C, and based upon that, it determined that the worker's capital loss for the period was $0.82, a sum based on notional weekly earnings of $1293.64 per week, an assertion that the worker could earn a weekly amount of $1293.62 in suitable employment and calculations based upon estimates of tax and that the application of the prescribed discount rate.

36 The worker challenged the correctness of the determination and that is another of the matters before me.

37 On 30 May 2000 the employer resolved to make a final LOEC determination for the period from 4 June 2000 to 15 November 2009 being the date upon which the worker will reach the age of 65 years. It identified the relevant suitable employment as being senior lecturer in Spanish, and based upon that, it determined that the worker's capital loss for the period was $30.17, a sum based on notional weekly earnings of $1293.64 per week, an assertion that the worker could earn a weekly amount of $1293.55 in suitable employment and calculations based upon estimates of tax and that the application of the prescribed discount rate.

38 The worker challenged the correctness of the determination and that is the final matter before me.

A series of questions in connection with this hearing are referred to the Full Bench

39 When this matter first came on for hearing before me the parties raised a number of technical arguments and it seemed to me expedient to refer a series of questions to the Full Bench of the Tribunal. The President agreed and made an order pursuant to s 94A(2) of the Act.

40 The questions and answers which I take from the decision of the Full Bench [2003] SAWCT 27 were as follows:-

"1 Is it permissible in the hearing of a dispute arising out of a determination made pursuant to s 42A of the Act for the compensating authority to assert that the worker is no longer incapacitated for work as a result of a previously accepted compensable disability?

2 If not, does the Tribunal possess the jurisdiction to enquire into the reasons underpinning a decision to invoke s 42A including the level of incapacity?

3 If so, is it permissible for a compensating authority to make a determination pursuant to s 42A if the reasoning underpinning its decision to do so is a belief that the worker has ceased to be incapacitated for work as a result of the previously accepted compensable disability? Or if the reasoning underpinning its decision to do so is a belief that the work has ceased to be incapacitated for work in the occupation he pursued prior to his compensable disability?

4 If not, is the worker entitled to an order for summary judgment or some other order (and if so what) as a result thereof, on the basis that the determination is an abuse of process, or for some other and if so what reason?

5 Is it permissible in the hearing of a dispute arising out of a determination made pursuant to s 42A of the Act for the compensating authority to assert that employment other than that employment stipulated in that determination is suitable employment that the worker has a reasonable prospect of obtaining and if so, is it permissible in this case?

Answer: It is permissible for the compensating authority to assert that employment other than employment stipulated in the determination is suitable employment but whether it is permissible in this case is a matter for the learned Deputy President to determine having regard to the rules of natural justice and the worker being given an ample opportunity to meet the employer's case.

6 If not, and if it is determined that the employment stipulated in a relevant determination is not suitable employment or that the worker does not have a reasonable prospect of obtaining such employment:

(a) Is the worker automatically entitled to the capitalised value of 80 per cent of his notional weekly earnings? or

(b) Is it permissible for the Tribunal to arrive at some other figure? or

(c) Is it permissible for the compensating authority to make some other determination should the relevant determination be set aside?

The answers to these questions in part depends upon the evidence presented at trial and the findings made by the learned Deputy President.

(a) If the learned Deputy President found that the employment stipulated in the determination was not suitable employment or that the worker did not have a reasonable prospect of obtaining such employment and either did not permit the employer to call evidence of other forms of alleged suitable employment or having done so found that such other employment was also not suitable employment or that the worker did not have a reasonable prospect of obtaining such employment the learned Deputy President would have no findings to support the subtraction provided for by s42A(2)(b) such that the capital loss would be assessed as 80 per cent of the present value of the worker's notional weekly earnings less an estimation of income tax.

(b) If the learned Deputy President found that the employment stipulated in the determination was not suitable employment or that the worker did not have a reasonable prospect of obtaining such employment and permitted the employer to call evidence of other forms of alleged suitable employment and having done so found that such other employment was suitable employment that the worker had a reasonable prospect of obtaining the learned Deputy President would have findings to support the subtraction provided for by s42A(2)(b) such that the capital loss would be assessed as 80 per cent of the present value of the worker's notional weekly earnings less an estimation of income tax minus the amount the worker could earn from such employment less an estimation of income tax.

(c) Once a s42A determination has been disputed it is for the Tribunal, not the compensating authority to determine what the appropriate assessment for the period stipulated should be. We therefore answer to this part of the question : No.

7 Is it permissible in the hearing of a dispute arising out of a determination made pursuant to s 42A of the Act for the parties to adduce and/or rely on evidence of facts that occurred after the date upon which the relevant determination was made?

8 Is it permissible in the hearing of a dispute arising out of a determination made pursuant to s 42 of the Act for the parties to adduce and/or rely on evidence that was obtained after the date upon which the relevant determination was made?

9 Where the worker is receiving weekly payments equal to notional weekly earnings in accordance with s 35 of the Act on the basis of total incapacity for work, is it permissible for the compensating authority to make a determination pursuant to s 42A on the basis that the worker is partially incapacitated for work.

(b) Without first conducting a review of weekly payments in accordance with s 38 of the Act?

10 If the compensating authority is limited to the allegations made in the assessment pursuant to s 42A is the worker similarly limited to allegations made in disputing the assessment as set out in the Notice of Dispute.

The employer is directed to provide particulars of the employment that it contends is suitable employment that the worker has a reasonable prospect of obtaining

41 In conformity with what I understood the decision of the Full Bench to be, on 16 June 2003 I issued a direction for the employer to file and serve a letter setting out the nature of the occupations that it asserted that the worker was relevantly fit to perform and specifying the nature of the duties involved, whether the positions are available on a part time or full time basis and, if part time, specifying the hours of work available and also specifying the relevant rates of pay that would be applicable to those positions.

42 I directed that this order be complied with within four weeks in anticipation that if the worker took issue with any of the matters contained in the letter that I would hear argument and deal with it prior to the hearing of the matter.

43 The terms of this order were never strictly complied with.

44 Instead, the employer simply relied upon obtaining a report that its solicitors had obtained from Mr Robert Godden, a senior research consultant employed by Speakman Tanner and Menzies.

"I was approached by Lawson Smith Lawyers to offer an opinion on the availability of suitable positions, and the likely salary of such positions, for Dr Enrique Gomez-Soto.

In the first instance, I was furnished with his resume and asked for an opinion as to the likelihood of someone with Dr Gomez-Soto's qualifications and experience being able to find employment over a span of time from Mid-1997 to the present time.

My initial conclusion, based on 4 hours research, was that there had been a variety of positions that a person of such background and abilities could apply for with a reasonable expectation of being a suitable candidate, given his very impressive resume.

After this, I was furnished with a copy of Dr Gomez-Soto's evidence.

It is from these details that I built the following outline of Dr Gomez-Soto.

* He is a highly qualified in Music, having attended internationally known educational institutions in Europe and holding two degrees.

* He is highly skilled in language, clearly fluent in English, Spanish, Italian, and German, with several others in addition.

* He has spent the bulk of his life in academia, both as a student and during his working life.

* Dr Gomez-Soto has lived in a number of different countries - his native Colombia, Italy, Austria, Germany and Australia. He has travelled to attend conferences in at least 12 countries. He has worked for media productions, and he has won an unusually high number of scholarships. It is not unreasonable to infer from this history that Dr Gomez-Soto is capable of a high level of application and energy to a task at hand and is not one to shirk a challenge.

* Dr Gomez-Soto is incapacitated to the extent where he cannot work within the Spanish Department of Flinders University due to personal conflicts. For the purposes of our own research, an assumption was made that all departments at Flinders University were unsuitable, as there would be likely to be occasional contact between Dr Gomez-Soto and staff from the Spanish Department.

Based on these factors, further research was undertaken to ascertain:-

46 Mr Godden then identified three basic categories of work. The first, which he described as category A, were roles which, based upon the worker's curriculum vitae, appeared to him to be suitable in that they appeared to match his skills and abilities. The second, which he described as category B, were those that he identified as having some inbuilt hurdle such as requiring some training or some re-adjustment to the worker's previous work practices. The third category, which he identified as category C, were roles involving more extensive retraining or re-adjustment.

47 Mr Godden, then identified four basic ranges of work. These were: tertiary lecturer, instrumental music teacher, administrative positions regarding particular skills and language teacher at a private language school.

48 It is unfortunate that the employer did not comply with the terms of my order. It is also unfortunate that the concerns later expressed by the worker's counsel about Mr Godden's report were not conveyed to me until the recommencement of the substantive hearing in December 2003. In light of the belated challenge and of what the Full Bench said, namely that it was a matter for me to determine upon what terms evidence of other occupations could be introduced, I resolved to defer making a final ruling upon this until after the evidence had been concluded.

The evidence that the employer is permitted to rely upon in contending that the worker is capable of performing suitable work that he has a reasonable prospect of obtaining

49 At this point I need to make a ruling as to what evidence I will permit the employer to rely upon in contending that the worker is capable of performing suitable work that he has a reasonable prospect of obtaining.

50 The predominant factor here concerns the worker's capacity to properly present his case.

51 With that in mind, I now turn to consider the various species of employment that the employer identified, they being those referred to in Mr Godden's report.

52 The occupations identified in the various LOEC determinations and much of the focus of the evidence concerned employment teaching in a tertiary institution. As the evidence unfolded it became clear that the employer sought to rely upon the whole range of work as a tertiary lecturer from base grade tutor to professor.

53 In light of the worker's extensive experience as a tertiary lecturer including work as an acting Head of the Spanish Department with the employer, the worker was obviously familiar with the duties that are required to be performed over the range of tertiary lecturers. In light of the way in which the evidence unfolded, I am in no doubt that the worker was able to adequately deal with the employer's assertion that all jobs within this range comprise of suitable employment that the worker has a reasonable prospect of obtaining. I therefore rule that the employer is permitted to rely upon evidence concerning these jobs.

54 The evidence concerning employment identified as instrumental music teacher was pitched at two levels. The first was working as a teacher within a school in a classroom setting. The second was as a private tutor in a school environment.

55 In my opinion the duties involved in both are sufficiently notorious that no embarrassment could have been caused by the lack of particulars spelling out precisely what each involve and in my opinion the employer should be permitted to contend that these jobs comprise of suitable employment that the worker has a reasonable prospect of obtaining.

56 At a point quite early on in the proceedings I made it clear that I thought the reference to administrative positions requiring particular skills should, at the very least, be limited to the administrative positions utilising the special skills and experience that the worker possessed as a result of his academic qualifications and his prior work experience and that this did not permit exploring the gamut of administrative work that is performed. Even so, throughout the hearing I was concerned as to what this assertion meant. Even now, I do not fully understand what the employer is asserting through this generic description. The extent of the particulars provided comprised primarily of an advertisement that Mr Godden downloaded off the Internet for a position offered with a law firm in New Zealand as a trainee immigration advocate. The position description is in these terms:-

"WE are looking to employ an individual to work in our law firm as a trainee immigration advocate. The position involves assisting our lawyers with the preparation and presentation of immigration documents, corresponding and communicating with foreign clients of the firm and providing translation and interpretation services to the clients of the firm, onshore and offshore. The position will also involve developing and expanding the firm's German speaking client base. The position is for thirty hours per week. The successful applicant should be fluent in the German language and be able to speak at least one other foreign language, preferably Spanish or Portuguese. If you are a non-native English speaker then a requirement of the position that you have English as an IELTS level 6.5 (academic) no previous legal experience is required but knowledge of Microsoft Word and Outlook 97 or 00 is also essential ...".

57 Mr Godden explained that given the worker's experience with languages and the fact that the job advertisement did not require any prior legal experience, he had a feeling that if he was attempting to place the worker this might be an avenue of inquiry that might be worth pursuing. I suppose that one might discern from this that what Mr Godden identified is working within an office environment, creating and processing documents and communicating with others relying upon the extensive language skills that the worker possesses. I would regard this description of employment as too vague. In my opinion for this matter to be fairly before the Tribunal the employer was obliged to particularise actual descriptions of relevant jobs, the nature of the duties required to be performed in those and some evidence of the worker's prospect of obtaining them. It is simply not fair to expect the worker to have to speculate under a broad generic description "administrative positions regarding particular skill" about the sort of jobs that that might entail so as to mount a challenge to the assertion that this is suitable work. In my opinion the employer ought not be permitted to rely upon this category of employment.

58 There was no direct evidence led concerning the nature of employment as a language teacher at a private language school. The evidence comprised of Mr Godden's report, which was based on information that he had received from others involved in private language schools. Mr Godden reports that the work is casual and that it involves teaching languages, but beyond that we are left to speculate. In my opinion, the particulars provided in respect of this employment are so imprecise that it would be unfair for the employer to be permitted to contend that this comprises of suitable employment that the worker has a reasonable prospect of obtaining.

59 At trial I had placed before me a trial book which comprised of evidence given before an Arbitration Officer. The arbitration hearing included not only the dispute about s 32 expenses but also about one of the LOEC determinations. The parties agreed that I could only rely upon the evidence given before the Arbitration Officer to the extent that it impacted upon the claim for s 32 expenses. The trial book also included the various determinations together with statements from the worker, Professor Ian Laurie, who was until his retirement in 1995, the Foundation Professor of French with the employer, Professor Garth Gaudrey, the current Head of the School of Mathematics at the University of New South Wales, Associate Professor Tran My-Van, who is the Co-ordinator of the School of International Studies of the University of South Australia, Mr Paul Hellander, who was formerly employed as a lecturer in Modern Greek at the South Australian College of Advanced Education, Ms Barbara Ferguson, the Manager of Human Resources at the employer, medical reports from the worker's treating general practitioner, Dr O'Brien, Dr Patrick Flynn, psychiatrist, Dr Keith Le Page, psychiatrist and Dr Alan Cotton, psychiatrist, Mr Brian Huppatz, Senior Educational Adviser of Catholic Education South Australia, Mr Dave Mellon, Director of Human Resources and Industrial Relations Services at the Department of Education and Children's Services, Ms Bernadette West, a project officer employed by the Teacher's Registration Board of South Australia, copies of various newspaper advertisements and sundry other documents.

60 Other exhibits that were tendered in evidence included the worker's curriculum vitae, the policies, procedures and salary rates for full time tertiary academic staff, a further statement from Ms Ferguson, a report prepared by Mr Paul Malone, a Senior Management Consultant, job applications made by the worker and various advertisements advertising positions vacant.

61 At trial I heard oral evidence from the worker, Dr O'Brien, Dr Flynn, Dr Le Page, Mr Huppatz, Associate Professor Tran, Professor Gaudry, Ms West, Dr Cotton, Mr Malone, Mr Godden and Ms Ferguson.

62 The worker contends that since 1992 he has continuously been anxious and depressed. He said that he feels as if his reputation, integrity, honour and dignity as a professional and as an academic have been compromised and that he cannot erase this. He says that because these issues remain unresolved they cause him significant anxiety. He spoke in terms of having lost his courage and his faith. He says that he has difficulties with concentration and sleeping. He said that he has been preoccupied with his loss of professional standing and felt that his life had been destroyed. He spoke of clenching his hands and fingers, of having neck and shoulder pain due to muscle tension, of clenching his jaw and grinding his teeth.

63 The worker's evidence reveals that he has worked as a tutor and a lecturer in a variety of subjects associated with music and language in a variety of tertiary institutions. He has undertaken administrative work as acting head of the Department of Spanish and the uncontradicted evidence of the worker was that he was highly successful in undertaking that role**.** He has participated in judging panels on international musicological conferences. He has undertaken research work in the areas of literature, Latin American poetry and the relationship between music and Spanish-American literature. He acted as a consultant on the language education program run by SBS Television. He worked with the South Australian Department of Education to promote Spanish. He acted as a consultant for the Federal Department of Foreign Affairs assisting that department in dealings with ambassadors and foreign dignitaries. There was some evidence that the worker had acted as a consultant and performed some public relations work for Duntech Audio Pty Ltd. It was suggested that this was ongoing but there is no reliable evidence to support that contention.

64 The worker was vigorously cross-examined by Mr Downs over several days particularly in relation to his capacity for work. He was asked to comment upon job applications as senior lecturer that he had made in the period following the compensable disability. The worker said that then he was exploring alternative employment. He was asked about the offer that he put to be re-employed by the employer during the negotiations that I referred to earlier. He said that this was contingent on rehabilitation and the resolution of the industrial issues, neither of which had occurred. He was asked about job applications that he had made following the LOEC determinations. He said that he made these to prove that he was unemployable. He was asked about his capacity to work in a tertiary institution. On this issue I think that it is helpful to set out some of the transcript. Having said earlier that he did not think teach, lecture or conduct tutorials or seminars the worker was then asked to comment upon his capacity to work as a tutor. I take the following from the transcript at tr 297-8 and following:-

"Q I want you to assume, for the purposes of this question, that there was a job as a tutor available between the years 1997 and 2000, and that the university which had the job available wasn't concerned about past events that you may have had with the Flinders University. Would you have then been able to undertake that job?

A Outside Flinders would have been interstate or other place.

Q The lawyers can debate about the significance of your answer, but we are asking you to assume, for the purposes of the question, that there is a tertiary institution out there that has available for this period between 1997 and the year 2000, a position as a tutor as described by you in Spanish. If that position was available to you, do you think that you would have been physically and mentally capable - - -

Q No, you had been invited to apply for the job and the institution did not care about the circumstances of you leaving work at Flinders.

Q Do you think that you physically and mentally would have been capable of undertaking that work.

A No, I don't have - I don't think (indistinct) happen physically I'm capable under those circumstances, and mental (indistinct)

A I think I mentioned a number of issues - number 1 is confidence. Number 2 would be acceptability, assuming I can carry on with the job also; acceptability by the students. My reputation is impaired. I will be the laughing stock of the students and the other colleagues, isn't it? Coming down in a humiliating way from a former head of department and a senior lecturer, specialising in Latin-American literature and poetry, and carrying academic test and research, to menial simple jobs. I think emotionally it would be humiliating and devastating. I don't know if I could have coped with my depression and anxiety, apart of course, impediments and long concentration, control my voice, my behaviour, have the right attitude to teach. You have to inspire confidence and don't be aggressive or threatening students, learning the language easily - discouraged by the mental state of their teacher."

65 Dr O'Brien's evidence focussed upon her management of the worker's medical condition and her assessment of the nature of that condition and the worker's capacity for work. Dr O'Brien said that the worker gave her a history of problems associated with his jaw and thumb in December 1992 and that he continued to make similar complaints thereafter. She said that he subsequently developed a locking of several fingers which on the advice of other health professionals was treated with a splint. She subsequently referred the worker to the Hand Clinic at the Flinders Medical Centre. In her opinion these symptoms were related to muscle tension which in turn was caused by stress. She noted that the worker also suffered from sero-negative synovitis, an inflammatory condition that affects joint and tendon membranes and which was unrelated to his employment. She stated that the role of muscle tension was additional to this condition. She stated that the worker's jaw symptoms and his need for a mouth guard were caused by nocturnal clenching which in turn was an expression of excessive muscle tension that was related to the compensable disability. Mr Downs, counsel for the employer suggested to Dr O'Brien that it was unlikely that the worker had made any complaints of hand and jaw problems in December 1992 or indeed at any time prior to 16 January 1995 because prior to that date there was no mention of these in any of the medical certificates that she had issued or in any of the medical reports that she had written. Dr O'Brien denied this.

66 Dr O'Brien gave evidence concerning the worker's other medical conditions. In her report dated 25 February 1993 she reported that the worker suffered an L4-5 disc prolapse and this had produced symptoms of right sciatica and low back pain. She also reported that he suffers from hypertension, hypercholeserolaemia, and osteoarthritis in the metacarpophalangeal joints of both of his thumbs, sero-negative synovitis. Dr O'Brien did not think that the physical restrictions of the worker would compromise his capacity to work as a lecturer.

67 Dr O'Brien was guarded about the worker's capacity to return to work. She saw his protracted dispute with the employer and the stress and anxiety that this had caused coupled with the length of time that he had been away from work as adverse factors.

68 Dr Flynn, the worker's treating psychiatrist, diagnosed the worker as suffering from a major depressive disorder superimposed upon a dysthymic disorder.

69 In his oral evidence (tr 389) Dr Flynn explained how these operated together. He said:-

"A major depressive disorder is a serious depression of at least a moderate degree of severity, which cross-sectionally is diagnosed according to certain criteria in DSM 4 classification. It involves a loss of pleasure in life. It involves a number of neurobiological depressive symptoms, such as changes to sleep, appetite, weight, energy, and concentration. It involves various throught processes which are depressive in nature. It is a common accompaniment to the problem of dysthymia, whereby people have a degree of grumbling depression which exists over a long period of time. At a certain period in the process of that dysthymic disorder, either by virtue of other life stresses or for reasons other than necessarily stressful life circumstances, the depression intensifies and then reaches a stage whereby it can be cross-sectionally diagnosed as a major depressive disorder".

70 In his medical report dated 24 September 2003 (TB 485) stated:-

"At a diagnostic level, Dr. Gomez-Sotto is no longer showing evidence of a Major Depressive Disorder or of a persisting Dysthymia illness. There has been a stabilisation of Dr. Gomez-Soto's mood state treatment. It should be borne in mind that the prophylactic effect of his antidepressant medication treatment and psychotherapy interventions are at present maintaining his mood state at an acceptable level. Without such therapy I expect that there would be deterioration in Dr. Gomez-Soto's psychological well being with a likely re-emergence of more troublesome depressive features. This situation is akin to the probable re-emergence of hypertension in sufferers of hypertension who default on their antihypertensive medication."

71 Dr Flynn also commented that the worker was stress sensitive. He said at TB 486:-

"Should there be a disruption in the equanimity of Dr Gomez-Soto's usual lifestyle and functioning or if he is burdened with excessive or unreasonable personal stress in the future, even with the protective benefit of antidepressant medication treatment there is a significant likelihood that Dr. Gomez-Soto may decompensate with a re-emergence of more intense and depressive features."

72 Dr Flynn spoke of the worker's presentation as demonstrating "engagingness, jocularity and frankness". He noted that the worker "portrayed a typically positive attitudinal style linked to his chief coping mechanism of humour. There have been no deficits or lapses in Dr Gomez-Soto's cognitive ability and he has not shown any evidence of psychosis" (TB 484).

73 Dr Flynn further noted "that despite an outward façade of bravado and humour, Dr Gomez-Soto has admitted that he lacks confidence to return to any teaching duties" (TB 486). He thought that the worker was unfit to work as a lecturer. He spoke of the worker's clinical condition as being brittle and stated that "the vagaries of his clinical progress thus far may well result in him not having the confidence, decisiveness and persistence needed to maintain regular employment." (exhibit W13) Dr Flynn said in his evidence (tr 392):-

"His capacity to work at that stage [ie September 2003] had not improved substantially. He had still shown evidence of being sensitive to stress. He was overwhelmed by the process of litigation that he has been through. I didn't think he had the resourcefulness or the capacity to return to work in a meaningful way".

74 Dr Le Page expressed the opinion that the worker has and continues to suffer from a chronic reactive anxiety state. He stated that although the worker was being successfully treated by prothiedan, the worker continued to experience symptoms associated with disorder. He stated that the worker was unfit to work as a lecturer in any tertiary institution. His reasons for saying so were as follows:

"Q Then you express the view that he is unfit to teach at any other university, firstly because of the chronic illness - presumably that's the illness that is constituted by your diagnosis.

Q But also for other reasons that he has stated in the above information. Do you see that.

Q Can you briefly encapsulate or summarise the other reasons that he has stated in the information. I know that they're in the body of the report, but I would invite you if you can to bring them all together.

A Yes. I haven't itemised them all in that report but I did more explicitly in a subsequent report. They were essentially because of the results of the chronic stress which were due primarily to the three main issues which originated back in 92, which involved the students and those activities that created the initial problem, although there was background tension ongoing with that. The second major problem was what he perceived were quite severe attacks on his integrity as a person and as a lecturer. The third was the failure of the university to resolve the primary issues. So that was the sort of nidus for his ongoing stressors and those conditions can't be treated. They could only be resolved by appropriate negotiations, but they are not responsive to psychiatric treatment. The other major problem was, in addition to the chronic symptoms that have arisen out of those three major factors, what it has done to his personality as a whole, in that he has felt that he has been stripped of the, if you like, symbols of his work as a person, as a teacher. That has severely sabotaged his self-esteem and markedly diminished his personal identity as an individual, because what he was at the university prior to 1992 was part of his total self-identity. After the events of 1992, there was a cleavage in that all of that was to a large extent taken away, and he was left with himself as a being without these other attributes, which were the results of his lifetime work and activities...

Plus the fact that with the passage of time he had not had any ongoing teaching experience, he wasn't up to date with teaching methods. He had lost trust in superiors and he felt he couldn't get references, and he really felt that he wasn't really marketable in the labour market where he was skilled intellectually." (tr435-7)

75 Dr Cotton was of the contrary opinion. He recorded his findings on examination as follows (TB 479):-

"On mental examination, he presented in a very pleasant, forthright, friendly, articulate and almost jocular fashion, smiling on occasions, forming an excellent rapport, and generally giving a good account of himself.

He was not at all anxious, upset, distressed or depressed, and he showed no psychomotor retardation or lack of emotional responsiveness.

He showed no thought disorder, disorientation, confusion or perceptual abnormality".

76 Dr Cotton's opinion was that the worker was suffering from an adjustment disorder with anxiety and a propensity to ruminate about his conflict with the employer (tr 551).

77 Dr Cotton noted that the worker himself thought "his symptoms of an adjustment disorder with anxiety and depression were largely well controlled by his medication and the effectiveness of his therapeutic relationships ... " (TB 479).

78 This lead Dr Cotton to conclude "it is my view that at this time he cannot be seen to be significantly disabled as a result of a persistent psychiatric illness as such ... " (TB 480).

79 It was clear from Dr Cotton's evidence that he was of the opinion that the worker's psychiatric condition was being successfully managed by the medication and therapy that he was receiving so that he was not suffering from disabling psychiatric symptoms and was fit for work. He said: "although he may have some physical or health problems or practical problems of a physical nature, he was not prevented from undertaking suitable employment due to a psychiatric illness, he also adamantly being of that view himself." (tr 561)

80 The evidence of Professor Laurie, Professor Gaudrey, and Associate Professor Tran My-Van concerned the nature of employment as a tertiary lecturer and the prospects of the worker obtaining such employment. Their evidence was that all such positions involve a teaching component and a contribution to the scholarly output of the relevant department. They said that the more senior positions involve leadership to junior members. They said that the position of senior lecturer is a prominent one and the incumbent is expected to fulfil an important role in the marketing of the relevant department in connection with attracting and retaining students. The effect of their evidence was that even the base grade tutor is expected to contribute to all of the activities of the relevant department including research and publication, although obviously the demands are not as great as those lecturers ranked higher. They said that in light of the worker's extended absence from teaching and his lack of recent publication and research, a University seeking the services of a senior lecturer would, even if the worker was the sole applicant for the job, prefer to leave the position unfilled than appoint him.

81 Ms West and Mr Huppatz explained that to be appointed to a teaching position in a public or private school the minimum prescribed qualifications requires tertiary qualification in pre-primary, primary or secondary education. In other words, to have any chance of securing such a job the worker would require a post-graduate degree, diploma or other qualification that is at least one year's full time duration and includes a practical student teaching component.

82 Mr Malone interviewed the worker and thought that that his presentation was an odd one and would be off-putting to a prospective employer. He noted the worker's age, his lack of recent work and research, his hand condition and consequential inability to demonstrate a particular instrumental skill and his lack of the relevant qualification to work in a school. In his opinion the worker was unemployable in all of the categories identified in Mr Godden's report.

83 Ms Barbara Ferguson said that the employer was always willing to re-employ the worker to his former position. She said that it had never denied him a reference. Whilst she accepted that the worker's extended absence from working in a tertiary institution would hinder his prospects of obtaining employment as a lecturer, she did not see it as a complete bar.

84 Mr Di Fazio, counsel for the worker, invited me to find that at all relevant times the worker has been totally incapacitated for work and that I ought to approach the LOEC determinations on the basis that the total incapacity will be permanent. He argued that the worker will never be able to "move on" from the event that caused the compensable disability and subsequent issues that he had with the employer and as a result of this and his continuing rumination over these events he is prevented from making complete recovery from the depression and anxiety that he undoubtedly suffers from. He argued that whilst the therapy and medication that the worker is receiving have ameliorated the affects of his disability, they have not cured them and have not improved the worker's capacity for work.

85 In the alternative he asked me to find that the worker is not fit to perform the work identified as suitable, that in any case he has no reasonable prospect of obtaining such employment and that he is in effect unemployable because of his circumstances and the fact that the work identified is not commonly available.

86 As to the rejected claim for medical expenses he said that the only evidence that had been presented in this case was from Dr O'Brien, that her evidence was plausible, and that in the absence of any contrary evidence I should accept her evidence and uphold the worker's claim.

87 Mr Downs, counsel for the employer, asked me to make contrary findings. As I understood him, he does so on two bases. First, that in light of the extraordinary talents and level of education of the worker, his extensive working experience, his capacity to speak fluently in a number of languages, and his knowledge of music, and the fact that the acute symptoms of his anxiety and depression are under control, it is ludicrous to suggest that the worker is totally and permanently incapacitated for work. It was contended that in view of the fact that the worker had at various time sought employment and that in the course of negotiations in attempting to resolve this dispute had at times agreed to return to work with the employer as a lecturer in Spanish, and indeed was seeking a promotion, this was compelling proof that the worker possessed the capacity to undertake that work.

88 The second approach of the employer was based upon the doctrine of mitigation as discussed by the High Court of Australia in Fazlic v Milingimbi Community Inc. [1982] HCA 3; (1982) 150 CLR 345. In that case the worker suffered a back injury in compensable circumstances for the purposes of the Workers Compensation Ordinance (NT). His treating surgeon had recommended an immediate operation and suggested that although the operation might attract some risk, the probabilities indicated a successful outcome. The worker declined to undergo the surgery. The employer contended before the Workers Compensation Tribunal that the worker's refusal to have the operation had been unreasonable and that he should be denied compensation. The Tribunal in the first instance found that the worker's refusal was not unreasonable. That finding was successfully overturned by an Appeal to the Supreme Court of the Northern Territory. On Appeal the High Court reinstated the decision of the Tribunal, having concluded that in light of all the relevant circumstances, the worker's refusal was not unreasonable.

89 In the course of their discussion on this issue the High Court explored the rationale for the supposed rule that the unreasonable refusal of treatment provided grounds to deprive a worker of entitlements to workers compensation. The High Court seemed to accept that such a rule exists. It noted that in some cases it has been asserted that the rule is based upon the notion of causality, on the ground that the refusal breaks the chain of causation between injury and subsequent incapacity. The court rejected that. Their Honours said that the rule was based on the doctrine of mitigation. They said (supra) at 353-4:-

"The doctrine of mitigation of damage appears to us to provide a more rational basis for the rule. It permits of the same considerations being applied in the area of workers' compensation as are habitually applied in tort where personal injuries cases are in question. It is noteworthy that in standard texts the operation of the doctrine of mitigation of damages is illustrated by cases drawn from the area of workers' compensation - Halsbury's Law of England, 4th ed., vol. 12, par. 1195; McGregor on Damages, 14th ed. (1980), par. 230. If the rule relating to unreasonable refusal is regarded as giving effect of the obligation to take reasonable steps to mitigate damage problems which otherwise arise may disappear, giving the rule a more certain operation".

90 Mr Downs sought to draw from this that the worker's present circumstances are the product of his failure to take reasonable steps to mitigate the consequences of the compensable disability and that the employer could rely upon this.

91 Mr Downs contended that notwithstanding the fact of the compensable disability and the worker's absence from work from 1992, there was no sound reason why the worker could not have continued with his research and could not have continued with the publication of papers and that had he embarked upon these activities, it is likely that he would have improved his psychological condition and that his participation in these activities would have made him more employable in the future.

92 It was contended that the worker should have actively made himself more employable and should have more actively sought employment and that had he done so, it is likely that he would have been successful. It was suggested that if as a result of the worker's lack of contemporary research and publication and his extended absence from the workforce he has in effect become unemployable, that is a result of the worker's failure to take steps to reintegrate himself back into the workforce.

93 Finally it was contended that at various times during the course of this dispute the employer had put up proposals to the worker to try and resolve it, including the offer of employment and, that the worker's refusal to reach agreement on these issues was again evidence of his failure to discharge his obligation to take reasonable steps to mitigate the consequences of the compensable disability.

94 As to the rejected s 32 claim, Mr Downs submitted that in light of the fact that the worker has osteoarthritis and sero-negative synovitis there is no reason to assume that the worker's hand problems are related to his work and given the absence of contemporaneous records by Dr O'Brien I ought to uphold the employer's rejection of the worker's claim.

95 I commence by making some general observations about the worker. Dr Cotton in his report of 24 November 1994 described him as a very intelligent, competent, articulate, voluble, rather intense man. I think that that is a very apt description although I find that he has other attributes that should be noted. I find that he is obsessive. He seemed like the archetypal storybook academic, mildly eccentric and focussed on the esoteric and the obscure. He also seemed to have a very high regard for his own abilities and achievements. For example, when he spoke of his work as the acting head of the Department of Languages with the employer that "his success was without precedent in the history of languages at Flinders University" (TB 316). In the course of his evidence the worker elaborated upon that and said that this was not only for this state, but also for the whole of Australia.

96 I have been acutely aware of the possibility that the worker might be exaggerating the effects of the compensable disability and understating his capacity for work because it is clear that he harbours great resentment to the employer and that he has ruminated over his dealings with it and has become quite obsessed and pre-occupied by them.

97 I have been particularly mindful of the need to differentiate between an actual incapacity to perform work as opposed to an unwillingness to do so. As I noted in Butler v G.H. Michell and Sons (Australia) Pty. Ltd. [1999] SAWCT 55 (10 June 1999):-

"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.'"

98 I have reminded myself of the observation that I made in Alexander v WorkCover/Commercial Union Workers Compensation Pty Ltd (Adia Centacom Health Staff Pty Ltd) [1998] SAWCT 95 (17 December 1998) for work to be suitable work does not mean that it must be work that the disabled worker finds stimulating or in accordance with his or her career aspirations. Common experience tells us that in the process of rehabilitation, disabled workers often have to re-start their careers and undertake employment that is objectively inferior to that which was previously being undertaken.

99 I have also reminded myself that this is a hypothetical exercise. Thus the fact that in this case no position was on offer at the time of the LOEC determinations is not immediately important. I think that the observations that I made in Scutcheon v WorkCover Corporation/ Allianz Australia Workers Compensation (SA) Ltd (O D & E Pty Ltd) [2001] SAWCT 115 at par 81 are particularly pertinent to a LOEC determination. The focus of identifying suitable employment is to quantify the worker's residual earning capacity in accordance with the statutory formula for the purpose of assessing the quantum of the LOEC.

100 I now turn to make findings concerning the worker's other medical conditions and their potential impact upon the worker's capacity to perform work that the employer contends is suitable. I find that the physical restrictions on his hand would be an issue in connection with teaching instrumental music. I find that he would be unable to play the musical instrument that he was teaching. Apart from this I find that the worker's other medical conditions do not adversely impact upon his capacity for work.

Work as an instrumental music teacher - Suitable?

101 As to the alleged suitable employment it is convenient for me to first deal with employment identified as an instrumental music teacher. I find this employment to be unsuitable.

102 The evidence establishes that despite the breadth of and extent of the worker's tertiary qualifications he is not generally qualified to teach secondary or primary school students in the South Australian school system.

103 Quite aside from any considerations regarding the worker's physical and mental capacity to perform this work, work as a teacher within a school in a classroom setting is unsuitable because given the worker's age even as at the date of the first LOEC determination, he then being over 50 years, it would in my opinion be unreasonable to expect him to obtain that qualification.

104 As for work as a private tutor in a school environment, I think that I am permitted to know that this involves some hands on demonstration as to how to play the particular instrument. In light of my finding that the physical restrictions on his hand would render the worker unable to play the particular musical instrument it follows that this aspect of the work is also unsuitable.

105 I now turn to consider work as a tertiary lecturer. The worker maintains that he is physically and mentally incapable of performing this work. Indeed he contends that the legacies of his anxiety and depression and of the unresolved conflict that he has with the employer have so compromised him that he would be unable to perform any form of gainful employment.

106 This is a view that is strongly supported by Dr Le Page and Dr Flynn. I note in passing that Dr Le Page seemed to accept that despite his condition the worker could work as an interpreter (tr 462).

107 Dr Cotton's opinion was that provided the worker continued on his medication and provided there was graduated return to work, there was no reason why the worker could not be gainfully employed in the sort of work that he had done prior to the occurrence of the compensable disability and it was clearly Dr Cotton's opinion that the reason why the worker had not returned to work was because of a voluntary decision not to do so.

108 I have carefully reflected upon the worker's evidence and his demeanour in giving that evidence. I find myself satisfied on the balance of probabilities that he is telling the truth. I find that his level of disability and the symptoms he experiences, have, at all relevant times, been as he contends them to have been.

109 As for the medical evidence, I thought that Dr Cotton placed too much weight on the statements that the worker made to him about his level of functioning and his capacity for work. Whilst these matters were important they had to be weighed with the matters that Dr Flynn alluded to, namely the possibility of false bravado and the worker's psychological fragility.

110 Overall, I was left with the impression that both Dr Cotton and Dr Le Page were influenced in their respective assessments of the worker's situation by their subjective views of this matter. My assessment of Dr Cotton's evidence is that whilst he accepted that the worker was upset and stressed by his dealings with the employer, he thought that what should have happened was that these issues should have been quickly resolved and the worker should have returned to work. I think that this belief has influenced his opinion about the worker's capacity for work. Dr Le Page, on the other hand seemed to empathise with the worker. In his report dated 1 December 2003 (exhibit W14) he spoke of the jobs identified as suitable as being "unreasonably academically". He mentioned that the worker did not have referees, did not have recent or continuous experience in teaching or research, did not have a current professional reputation, was well known amongst the members of all Spanish departments, was regarded as disreputable academically, that he could not lie about his health and was aged 59 years. I agree with Dr Cotton that none of these reasons reflect a psychiatric opinion. I got the impression Dr Le Page thought that the worker was poorly treated by the employer and that this has influenced his opinion about the worker's capacity for work.

111 In contrast to this I did not gain any impression that Dr Flynn's views about the matter influenced his opinion about the worker's mental health and his capacity for work. The impression that I was left with was that of all of the medical experts Dr Flynn seemed to have the greatest understanding of the worker's psyche.

112 Although all of the psychiatrists and other medical experts were plainly doing their best to assist me and I have taken all that they have said and written into account, where their evidence conflicts I prefer the evidence of Dr Flynn.

113 The position of senior lecturer is an onerous one. In my opinion, for the reasons explained by Dr Flynn, the worker's mental state would have at all relevant times prevented him from undertaking this work and would prevent him from undertaking this work into the future. I do not think that at any relevant time he possessed the mental strength to provide the leadership that this position demands. I also find Dr Flynn's opinion concerning the worker's false bravado to cover his loss of confidence persuasive.

114 I have found the worker's refusal to contemplate work as a lecturer at lower levels than that of senior lecturer such as a tutor, and his assertion that he could not perform this work a more difficult issue to resolve. Clearly important factors involved in this are the worker's belief that work such as this was insulting and demeaning to a person of his standing and experience and secondly his belief that it would be unjust for him to have to consider such employment because in his mind, he was the innocent victim of the employer's misconduct.

115 What I have found particularly troubling is that if this is suitable work and if the worker had he been genuinely interested in rehabilitating himself this might have been a good place to start. He could have relied upon all of his learning and experience in participating in the learning process which had been a source of professional nourishment throughout his working life, untrammelled by responsibility associated with higher positions within tertiary institutions.

116 Moreover, the mere fact that the employment may pose some risk of further disability does not make it unsuitable. All forms of work carry some risk of disability and inevitably a return to work after a period of absence from work due to incapacity will carry some additional risk. It is a question of degree.

117 Whist I accept that based only on the worker's level of education and skills and his experience in employment, this employment would have to be regarded as suitable, the Act also requires me to give fair and reasonable weight to the nature and extent of the worker's disability and to his ability to adapt to new employment.

118 I accept Dr Flynn's evidence that the worker is stress sensitive. I find him to be psychologically fragile for the reasons given by Dr Flynn. The circumstances here are very different to a situation in which a worker is embarrassed or upset at the prospect of work that is objectively inferior to the work that he or she previously undertook. The worker's life circumstances are very unique. His work was his life. His sense of self worth, his status and his reputation were of the utmost importance to him. I find that the worker would have been psychologically crushed by having to work as a tutor or indeed in any tertiary lecturing position inferior to his previous status. I find that the risk of the worker aggravating his anxiety and depression if he undertook this work was at all relevant times so great, that on medical grounds this work cannot be regarded as suitable.

Some comments about the doctrine of mitigation and its application to a LOEC determination

119 Having reached these conclusions it is not strictly necessary for me to deal with the submissions based upon the worker's alleged failure to mitigate. There are however some comments I wish to make about this.

120 First, whilst anything said by the High Court merits the greatest respect, the observations made by the court in Fazlic about the doctrine of mitigation and its application to workers compensation legislation were obiter and the case does not, in my opinion, stand for the proposition that irrespective of the wording of the relevant legislation the doctrine applies to all workers compensation schemes.

121 Secondly, it is notable that the factual issue underpinning the discussion about the doctrine in Fazlic concerned an alleged unreasonable failure to proceed with medical treatment and in some cases it has been suggested that in personal injury cases this might reflect the limit of the scope of the doctrine. See, for example: Adams v Ascot Iron Foundry Pty Ltd (1968) 89 WN (Pt 2) (NSW) 37 at 47 per Sugerman J.

122 Thirdly, given that the Act contains such extensive provisions dealing with matters that might be thought to fall within the umbrella of failure to mitigate, such as to breach mutuality, to fail to submit to proper treatment fail to or frustrate a rehabilitation program or rehabilitation and return to work plan, to fail to undertake suitable work or fail to take reasonable steps to find or obtain suitable employment: s 36(1a), I think one would be entitled to assume that Parliament had covered the field.

123 If the employer genuinely felt that the worker had failed to mitigate the effects of the compensable disability the Act gave it ample opportunity to it do something about it. It could have created as rehabilitation program or rehabilitation and return to work plan which required the worker to return to work. It could have invoked s 36 and threatened the worker's continued receipt of weekly payments if it thought that the worker was not taking reasonable steps to find or obtain suitable employment: s 36(1)(f)(ii). Having elected to invoke s 42A it seems to me that the employer abdicated any responsibility to rehabilitate the worker, because it then lost the capacity to impose sanctions for the worker's non compliance with a program or plan and it also lost the capacity to rely upon any alleged failure by the worker to take steps to find alternative employment that he was obliged to pursue whilst in receipt of weekly payments because it was no longer paying weekly payments and therefore had nothing to discontinue.

124 Having found that the employer has not established the existence of any suitable employment I do not need to consider whether the worker had a reasonable prospect of obtaining such employment and I do not think anything would be achieved by venturing into this.

125 In my opinion the employer's various LOEC determinations must be set aside and the worker's capital payments for the various periods should be assessed on the basis that there be no deduction based upon an amount that the worker could earn in suitable employment. I would like to hear from counsel before making final orders.

126 As to the rejected s 32 claim, I find Dr O'Brien's evidence persuasive and for the reasons she gives I find that problems associated with the worker's hands and jaw and hence the treatment in relation thereto are related to the compensable disability. I was not addressed on any issues of quantum. Again I would like to hear from counsel before making final orders in relation thereto.

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.

Rehabilitation and Compensation Act 1986

At a glance

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Judgment (189 paragraphs)

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