Judicial determination - Extent to which the worker is entitled to weekly payments of income maintenance - Whether worker entitled to compensation pursuant to section 43 - For entitlement to income maintenance to rest on termination of employment worker must lodge fresh claim for compensation - Onus of proof not discharged - S.43 Workers Rehabilitation and Compensation Act, 1986.

Mitsubishi Motors Australia Ltd. v. Harbord (1997) 69 S.A.S.R. 75.

Philmac v. Asti in the Full Industrial Court (1980) 47 S.A.I.R. 245 and in the Full Supreme Court (1980) 26 S.A.S.R. 213.

Workers Rehabilitation and Compensation Corporation v. Thuy Thi Vu (1988) 49 S.A.S.R..

This is a Judicial Determination of a dispute between Minh Ty Le (`the worker') and Inghams Enterprises Pty. Ltd. (`the employer') which concerns the extent to which the worker is entitled to weekly payments of income maintenance from 24 September 1997 and the extent to which he is entitled to compensation pursuant to section 43 of the Workers Rehabilitation and Compensation Act 1986 (`the Act') for alleged permanent disabilities to his arms, shoulders, neck and back.

By determination dated 14 November 1997, the employer resolved to accept a claim that had been made by the worker wherein he sought weekly payments of income maintenance in respect of alleged disabilities comprising of `strained back, shoulders, neck, right elbow and left wrist'. It did so for a closed period between 24 September 1997, 2 November 1997 and for 12 November 1997.

By determination dated 3 December 1997, the employer determined that the worker was entitled to compensation pursuant to section 43 of the Act based on a permanent loss of function of his lower back and lumbar spine assessed at 5 percent. Inferentially, that determination rejected claims for alleged permanent disabilities to the worker's arms, shoulders and neck.

The worker asserts that both determinations are wrong. He queries whether it is even necessary to deal with the worker's further claim for income maintenance for reasons which I will discuss later. In any event, he asserts that he continues to be incapacitated for work such that in the absence of an offer of suitable work he has an entitlement.

The worker also asserts that the section 43 assessments were wrong in that the assessment in relation to his lower back and lumbar spine was too low and that there should have been assessments in respect of the his left and right arms, shoulders and neck.

At trial, in addition to a book of documents which contained evidentiary material that the parties agreed to place before me, I heard oral evidence from the worker and a number of his co-employees, as well as evidence from various medical practitioners.

The worker is a 36 year old man who was born in Vietnam. He commenced employment with the employer in July 1993 as a casual worker involved in lifting chickens and cutting them on a production line at the employer's plant at Bolivar. Thereafter he worked at the employer's plants at Sturt Street in the city and at Windsor Gardens, performing various duties involved in the processing of chickens.

The worker's case is that as a result of a his size and stature, he being a short man of slight build, and having regard to the repetitive and arduous nature of the duties that he undertook for the employer, he sustained disabilities to his arms, shoulders, neck and back which have resulted in an ongoing incapacity for work and which have resulted in permanent disabilities that are assessable pursuant to section 43 of the Act.

The employer contends that the worker is so lacking in credibility that his complaints of pain and discomfort to the various parts of his body cannot be relied upon in the absence of objective evidence and that that as that objective evidence is lacking, there is no proper evidentiary basis from which to conclude that he has an incapacity for work or that he has an entitlement to lump sum compensation pursuant to section 43 of the Act.

There were a number of very unsatisfactory features of the worker's evidence both in terms of what he said and how he presented. These include the following.

The worker apparently found it necessary to give his evidence before me through the aid of Vietnamese interpreter. His evidence was that he could only understand about 70 percent of what he heard in English.

He said that he had little understanding of the law. He endeavoured to convey to me the impression that he was an unsophisticated man who had no proper understanding of worker's compensation.

He endeavoured to convey to me the impression that he had been misunderstood by various medical practitioners, that some had lost interest in him because of his workers compensation claim and that he had good reason to find it necessary from time to time to change medical practitioners.

The worker's claimed ignorance of the English language is difficult to reconcile with his academic record which reveals that he completed Matriculation and then did first year university at the Levels in studying Mechanical Engineering.

The worker's claimed ignorance of worker's compensation is difficult to reconcile with his previous worker's compensation claim when he worked at the Adelaide Casino. As a result of that claim, he received income maintenance for a substantial period of time as well as a lump sum payment pursuant to section 43 of the Act for a permanent loss of function to his wrist.

There was evidence to suggest that on some occasions, the worker's decision to change medical practitioners coincided with certifications from those practitioners that he was fit to return to normal full time work.

None of these matters are of themselves decisive, but collectively, they cause me concern.

To this, I must factor my observations of the worker in the giving of his evidence. I thought that he was deliberately evasive to questions that were put to him by counsel for the employer on issues that were obviously a source of embarrassment to him. During the course of giving his evidence he frequently grimaced and adopted a number of unusual positions in the witness box, apparently as a result of discomfort. This behaviour was not explicable by reference to the medical evidence presented.

Again, these are not matters that are of themselves decisive but when added to the other matters about which I have just spoken, they raise the level of my concerns. So too does the conflict in the evidence regarding the allegations that the worker performed martial art type activities whilst at the workplace. The respondent called evidence from Gregory Robertson, Michael Heartland, and Joyce Harris, all of whom deposed to witnessing on occasions the worker engaging in activities of that type whilst at work. I have not the slightest doubt that those witnesses were telling me the truth about their observations. And yet, when the worker was cross-examined about this, he said `I have never performed kicks or doing martial art type moves in the factory'. I find that the worker was not telling the truth when he said that.

The worker primarily relied upon the opinions of Dr. Mills, occupational physician and Mr. Anwar Girguis, orthopaedic surgeon, in support of his case.

Dr. Mills was of the opinion that the worker's employment duties were generally consistent with the development of an impingement syndrome in his shoulders over time. He thought that this was confirmed by an MRI Scan which had been undertaken. He said that he thought that the worker was suffering from mild right lateral epicondylitis in his right elbow although he conceded that a bone scan of the worker's elbow was equivocal. Dr. Mills said that he had not addressed issues relating to matters concerning the worker's cervical and lumbar spines. As regards to the extent of the worker's section 43 entitlements relating to his left and right shoulder and right arm, Dr. Mills said that he agreed with assessments made by Mr. A.W. Russell surgeon that these were in the order of 20 percent loss of function in the right shoulder; 25 percent loss of function of the left shoulder; and 10 percent loss of function of the right arm.

Mr. Gurguis said that he agreed that the worker suffered an impingement syndrome to his shoulders and that this was consistent with the work that he had been undertaking for the employer. He said that he saw evidence of a lower disc bulge at the C4-5 level of the worker's back although he thought that his problem with his neck was related to a soft tissue problem rather than to a problem with his disc. He assessed the worker as suffering a 10 percent impairment to his neck; a 10 percent impairment to his lumbar spine and lower back; a 7 percent impairment to his right elbow; and a 15 percent impairment of his right arm at or above the elbow reflecting shoulder problems; and a similar percentage of function of the left arm at or above the elbow, again reflecting shoulder problems.

The employer primarily relied upon the opinions of Mr. McCulloch, neurosurgeon, Mr. Awerbuch; consultant physician in musculo/skeletal disorders and Mr. Fry orthopaedic surgeon.

Mr. McCulloch thought that the MRI Scan of the worker's cervical spine was perfectly consistent with the normal aging process. He said that his examination of the worker's shoulders revealed a full range of movement. In a report dated 6 August 1998, he stated that he regarded many of the signs that were provided to him by the worker during the course of his examination of him, as simulated. He said that he found some mild elements of right lateral epicondylitis but that he was unable to say whether this was related to his employment. He explained this in his evidence before me:-

`The natural course is that it often occurs as a consequence a of repetitive-type injury. It can occur spontaneously without any apparent injury. If it is injury-related, usually the condition gradually resolves over a period of months if the repetitive injury is removed...' (tr. 185)

Mr. McCulloch was clearly troubled about the voracity of the worker. He said:-

`...One of the difficulties one faces with this sort of presentation is sorting out that which is organic and that which is not organic...' (tr. 196)

Mr. Awerbuch was similarly troubled by the worker's credibility. He said in a report dated 3 August 1998 that there were objective signs of wilful misrepresentation. He elaborated upon this in his oral evidence before me:-

`...Having established that Mr Le had - having elicited from Mr Le an indication that his perception to pin prick in his left leg, his entire left leg, was diminished. I then undertook what I've referred to as a pseudo touch test in which I asked him to close his eyes and I told him that I was going to touch him a number of times, first on the right leg, and he was to tell me how many touches he'd perceived. So with his eyes closed he is touched with a piece of cotton wool a number of times, and I asked him how many touches he felt. He answered correctly. When I undertook the same test on the left side in the leg in which he had an apparent imperception to pin prick, an imperception which is medically implausible, that is it cannot be explained by any organic neurological lesion, when touched five times over his left thigh he claimed to have felt only three touches...' (tr. 279)

Dr. Awerbuch also conducted the same test in relation to the worker's left foot and obtained the same result. He said of this:-

`The only explanation for these responses is that Mr. Le was attempting to create a perception in me that he had some sensory disorder of his legs.' (tr. 280)

Mr. Fry also found evidence to suggest that the worker was deceiving him. He said:-

`... when Mr Le was interested in something else, you could see that he cold [sic] move his head around quite quickly in all directions, and he did so rapidly and without the moans and agonised expressions that were there when he was being tested. It was a complete contrast of course but not a surprising one.' (tr. 316)

`... extravagant tenderness, straight leg raising signs, non organic sensory alternations, and then his ones that are more known, the simulated spinal compression and simulated axial rotation. Simulated spinal compression is done by putting your hands on the patient's head and you rest them there and you say "I'm going to put pressure on the spine now, on your lower back, and you tell me what happens." So you just squeeze a little tiny bit and the person says "Ooh, ooh, I've got back pain" because you've suggested that that is likely to effect that area, whereas in fact what you've done is nothing at all; you cannot cause pain down there, even if you were to put a lot of pressure on there - and you don't, anyway. And the other one of course is the simulated axial rotation. What you do is, you place your hands on the persons hips as they're standing and you say "I'm going to twist your lower back around. Tell me if anything happens." And in fact what you do is you rotate the pelvis and then the top half moves with it, exactly as I pivot on this chair; you don't move the back one iota. The person then, because they think it's expected of them says "Ooh, yes, that hurts". You say "Where?" and they point to the usual spot. That's what happened here. Another positive. He got five out of five.' (tr. 321)

Mr. Fry conceded that the worker might potentially have some problems with his shoulders and his elbow but he explained this later in his evidence:-

`No, I think that he's a little fellow in a heavy work situation, certainly, and the possibility existed that he could have been effected in those two areas. I don't think he was in the others. But at the same time I was not very convinced that he had been. The evidence to suggest that he had been effected in these two areas was flimsy and the appearances of anything more than trivia were there too. There was in fact minimal signs of anything abnormal at all in the shoulder, just tenderness, and that's purely subjective. In the elbow the nearest to any confirmation is a stretch test being positive, but the next time I saw him that was contradicted because the reverse stretch test which I did gave the same effect, so he cancelled it out.' (tr. 332)

`HIS HONOUR: ...am I to understand you to say that there's so much objective evidence indicating that many of his complaints are fabricated that you just don't find him medically credible.'

MR FRY: I don't overall, no - and every time there's been some chance of conflict in signs occurring it seems to have occurred, decreasing even more, even in the tennis elbow area where I gave him the benefit of the doubt before, on the second occasion even that was made more dubious by the conflict.' (Tr.334)

I accept the evidence of Mr. McCulloch, Dr. Awerbuch and Mr. Fry. When I factor their observations suggesting that the worker deceived them in the course of their examinations of him to the factors that I referred to earlier in these reasons regarding my concerns about the his evidence, I find myself left with such a complete lack of confidence in his credibility that I am unable to approach my appraisal of the evidence from the premise that his subjective complaints of pain and discomfort can be accepted on face value. Indeed, absent objective evidence supporting those complaints, I am not prepared to rely upon them. And for the reasons explained by Mr. McCulloch, Dr. Awerbuch and Mr. Fry, I do not think that there is sufficient objective evidence to substantiate those complaints.

As to the contrary views expressed by Dr. Mills and Mr. Guirgus I find myself unable to accept them. My very firm impression of their evidence is that they accepted the complaints made to them by the worker. Given my assessment of the worker's veracity I consider that their opinions are for that reason, fundamentally flawed.

Accordingly, I am not satisfied that the worker has suffered permanent disabilities to his neck, his left and right shoulders, or his left and right arms at or above the elbow. I therefore find that he has no entitlements pursuant to section 43 of the Act in respect thereof. On the evidence as presented to me I have reached the same conclusion in respect of the alleged permanent disability to the worker's lower back and lumbar spine. That finding begs the question as to whether I ought vary the employer's determination that the worker was entitled to compensation pursuant to section 43 based upon a 5% permanent loss of function of his lower back and lumbar spine. My understanding of Mr. Walsh's submissions is that I can and should do so. My reading of Mr. Rau's submissions suggests that he did not address me on that issue and in fairness to him, if in light of my findings he wishes to do so, I will hear him on it.

Before I deal with the issue of incapacity, it is necessary for me to deal with the technical argument that Mr. Rau raised that I alluded to at the outset of these reasons. Mr. Rau contended that because the employer had previously accepted a claim for income maintenance and because the worker was at the time of his termination, performing alternate duties, he was upon his termination, automatically entitled to receive weekly payments of income maintenance and that the only way that that liability could have been brought to an end by the employer, was through the invocation of section 36 of the Act.

It is true that in this case there was an earlier determination in which the employer resolved to accept liability to pay income maintenance in respect of a compensable disability. But it does not follow from that, that the employer was not able, in respect of a subsequent claim for compensation, to take a different view. So much is clear from the decision of the Supreme Court in Mitsubishi Motors Australia Ltd. v. Harbord (1997) 69 S.A.S.R. 75.

Mr. Rau's submission is more fundamental than that. He would have it that no further claim was necessary. For the reasons which follow, I think it was. But I must say that I have grave reservations about whether or not I am entitled to entertain the argument anyway. It might be thought that the worker is in effect seeking an order in the nature of mandamus directing the employer to make payments that were allegedly due as of right upon the worker's termination of employment. That seems a far cry from a determination of a dispute about the employer's decision to accept the worker's claim for a closed period.

In any case, as I have just said, for what it is worth, I think that the worker was obliged to lodge a fresh claim for income maintenance. In my opinion, the employer had previously become entitled to discontinue the worker's weekly payments of income maintenance because the worker had returned to work. The right to effect the discontinuance was not contingent upon the giving of a notice. The right crystallised upon the return to work. I suspect that no notice of discontinuance has ever in fact been issued, but in my view that is not decisive. For the reasons which I explained in Laudonia v. WorkCover J.D.78/1998, albeit in a sightly different context, a defect in a notice subsequently issued in respect of a reduction that the Act permits to take effect prior to the issue of a notice, does not abrogate from the right to effect the reduction. For the same reasons, it is my view that a defect or the failure to give notice `as soon as practicable after the decision is made' in respect of a discontinuance based upon a return to work, as required by section 36(3a), does not affect the right that had previously accrued, that enabled the employer to discontinue weekly payments.

It seems to me, that the critical issue, is whether there has been a `return to work' for the purposes of the Act.

That concept is a difficult one as evidence by the dissenting judgments in Philmac v. Asti in the Full Industrial Court (1980) 47 S.A.I.R. 245 and in the Full Supreme Court (1980) 26 S.A.S.R. 213.

Each case must necessarily depend upon its own facts and in that context, I think it is important to bear in mind, the facts that were before the Court in Philmac v. Asti. In that case the worker had suffered a injury to her left hand and after surgery, she was subsequently certified fit by her treating surgeon to return to work on light duties. Within two hours of commencing work she complained to her employer of problems and a half hour later she ceased work altogether. A majority of the Full Industrial Court and a majority of the Full Supreme Court concluded that this was not a return to work that enabled the discontinuance of weekly payments.

In my view, all that could be read into the decision, is a rejection by the majority of the Full Industrial Court and of the Full Supreme Court, of the notion that any return to paid employment will of itself give rise to an entitlement to effect the discontinuance of weekly payments. But given the lack of unanimity between the judgments of the majority in the Supreme Court, namely those of King C.J. and Zelling J., I do not think that anything more can be read in than that.

The question to be asked in each case is whether the return to work is of such a quality, that in all the circumstances, it can be considered reasonable to enable the compensating authority to effect a discontinuance of weekly payments. And, it seems to me, that that question has to be asked from the premise that the only affect of the discontinuance is that it means that if suitable duties are withdrawn or the worker suffers a relapse which prevents him or her from continuing to undertake those duties, a fresh claim for compensation will need to be lodged whereas if the right to discontinue has not accrued, the right to weekly payments will be automatic.

In my view, even though the worker had not returned to unrestricted duties, his return to work was sufficiently settled that it comprised of a return to work that accrued for the employer the right to effect a discontinuance.

Accordingly, I reject the argument put to me by Mr. Rau. In my view, in order for the worker to be entitled to weekly payments of income maintenance following the termination of his employment, he needed to lodge a fresh claim for compensation and moreover, it was competent for the employer in respect thereof, in determining that claim, to do as it did here, and that is to find that the worker was entitled to compensation for the closed period stipulated in its determination. See for example: Workers Rehabilitation and Compensation Corporation v. Thuy Thi Vu (1988) 49 S.A.S.R..

For these reasons, I am not persuaded on the balance of probabilities, on the basis of the evidence presented to me, that the worker was incapacitated for work beyond the dates specified in the employer's determination. I therefore confirm its determination that the worker is only entitled to weekly payments of income maintenance for the period stipulated in the employer's determination of 14 November 1997.

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.