Roberts v GM Holden Ltd [2012] SAWCT 20

1. Whether, as from 24 August 2009, the worker has been incapacitated for work by reason of a compensable disability to his left shoulder arising from his employment with the employer and, if so, to what extent and for what period(s).
2. Whether the worker, having breached the obligation of mutuality, is for any period he has been incapacitated for work but has had a current work capacity, entitled to weekly compensation payments for that partial incapacity and, if so, the quantification of that entitlement.
3. Whether the Tribunal has jurisdiction:
   • 3.1 to determine a designated weekly earnings figure applicable to the worker if a designated weekly earnings figure was not determined in the disputed decision;
   • 3.2 to make a finding of suitable employment other than employment identified in the disputed decision;
   • 3.3 to determine designated weekly earnings for a period or periods after:
     • 3.3.1 24 August 2009;
     • 3.3.2 31 August 2009

3.4 to determine more than one designated weekly earnings figure applicable to the worker.

1. Whether the worker has suffered a compensable illness or disorder of the mind arising from his employment with the employer, and if so;
2. Has the worker been incapacitated for work by reason of a compensable illness or disorder of the mind and, if so;
3. To what extent and for what period or periods does the worker have any entitlement to be compensated either by way of weekly payments of income maintenance or for costs of the kind described in section 32(2) of the Act reasonably incurred by him in consequence of having suffered a compensable illness or disorder of the mind?

1. Does the worker have any entitlements pursuant to s 43 of the Act for permanent impairment arising from his compensable disability to the left shoulder sustained on 1 February 2001, a compensable disability to the right elbow sustained in September 2007 and/or a compensable disability to the right knee sustained on 11 March 2008?[4]"

Issues in context - the credibility of the worker

1. Underlying this Agreed Statement of Issues is a plethora of sub-issues which have made this hearing a saga of some considerable proportion and complexity. The most significant was the credibility of the worker as to the extent of the alleged misconduct and in relation to a number of other matters. I provide an overview of the context in which the various sub-issues arise.
2. The claims made by the worker in relation to his various physical disabilities were accepted by the employer as and when they were made. They comprised a left shoulder disability, a right elbow/forearm disability and a right knee disability, each arising out of separate events over different years from 2001 to 2008 inclusive. The worker was first assigned to modified duties on account of the right elbow disability in November 2007. The occurrence of that disability aggravated his long standing left shoulder disability, which before this time had not caused any incapacity for work. He underwent investigations and operative procedures in relation to each disability in 2008 and 2009, and up to May 2009 was certified partially incapacitated for work except during various closed periods when certified as totally incapacitated. No dispute with respect to the asserted level of incapacity resulting from the physical disabilities arose before the worker's dismissal from employment on 12 August 2009.[5]
3. On 8 May 2009, when the worker was working on modified duties on account of his ongoing physical disabilities he was advised that a serious allegation had been made against him, and was stood down on full pay pending an investigation. He understood that allegation to be that he had sexually harassed a female co-worker, Ms Gray.[6] On 12 May 2009 he consulted his general practitioner and was certified to be unfit for work on account of an adjustment disorder secondary to his physical disabilities which arose on 15 January 2008. On 14 May 2009 he made a claim for income maintenance for a condition of anxiety and depression said to be secondary to his accepted physical injuries. The claim form alleged that a mental disability in this regard first arose in January 2008.
4. ....[7] On 12 August 2009, following the completion of the investigation, and before determination of the compensation claim made with respect to anxiety and depression, the employer dismissed the worker from his employment on the grounds of serious and wilful misconduct. The employer was satisfied that the allegations had been proven and constituted a breach of mutuality.
5. In the meantime, the employer had received two prescribed medical certificates from the worker's treating orthopaedic surgeon following an operation on his left shoulder on 23 July 2009. The first certified the worker to be totally unfit for work from 23 July 2009 to 23 August 2009, and the second certified the worker to be fit to return to modified duties from 24 August 2009. By determination dated 31 August 2009, the employer accepted a claim for income maintenance for the period of total incapacity from 23 July 2009 to 23 August 2009, but rejected the claim for the period of partial incapacity from 24 August 2009 on the basis that the worker was "fit for modified duties, but such duties are not being provided to you as a consequence of your breach of the obligations of mutuality by your conduct and the termination of your employment for serious and wilful misconduct".[8]
6. The claim with respect to the condition of anxiety and depression, although initially accepted for medical expenses only,[9] was ultimately rejected in its entirety on the ground that any such condition, if in existence from January 2008, was not caused by the worker's employment, but rather by personal domestic and financial pressures. Alternatively, the employer asserted that if any such condition was caused by the worker's employment, it was not compensable under s 30A of the Act as it arose wholly or predominantly out of the advice to him on 8 May 2009 that he was being stood down pending investigation, and out of the subsequent disciplinary process, these being actions which the employer contended were reasonable administrative actions taken in a reasonable manner. In the further alternative, the employer contended that the condition was not compensable under s 30B(2)(b)(i) of the Act, as it arose from the serious and wilful misconduct of the worker, and had not resulted in serious or permanent disability. In any event, even if the condition was compensable, the employer asserted that it did not prevent the worker from carrying out the modified duties which would have been available to him but for his breach of mutuality and serious and wilful misconduct.[10]
7. The worker contended that from 24 August 2009 until March 2011, when he returned to part-time employment on security duties with another employer, he was totally incapacitated for work due to a combination of his physical and mental injuries, and thus was entitled to weekly payments of income maintenance over this period notwithstanding his subsequent admission to some of the misconduct alleged against him and to a breach of mutuality in that regard. He continued to deny what were accepted to be the most serious allegations of misconduct ["the serious misconduct"].... He also contended that from March 2011, he suffered a continuing partial incapacity for work on account of his left shoulder disability, and that on account of that disability he was not fit for the "suitable employment" the employer asserted would have been available to him from 24 August 2009 but for his dismissal. He claimed an ongoing entitlement to income maintenance on account of this partial incapacity equal to the difference between his notional weekly earnings and the current weekly earnings on security duties. The employer denied that the worker was entitled to any income maintenance during the period of partial incapacity on account of his breach of mutuality.
8. The worker's credibility with respect to his denial of the alleged.... [serious misconduct]....was subjected to prolonged and forceful attack. In addition to the worker, fifteen current and former employees of the employer gave evidence as to their recollections of the conduct of the worker and other employees during the time they were carrying out modified duties at a location in the employer's premises known as the Logistical Optimisation Centre ("the LOC").
9. The employer contended that the worker was not a credible witness. With respect to events in the LOC, the employer contended that the worker's evidence should not be accepted having regard to the weight of the evidence of other witnesses as to the extent of his alleged misconduct, his admitted false denials of misconduct when interviewed for the purpose of the investigation on a number of occasions leading up to his dismissal on 12 August 2009, and the allegedly false or incomplete history of his conduct as recounted to some of the medical practitioners upon whom he attended before trial. The employer contended that the worker's eventual admissions to some of the misconduct, first made in his witness statement in February 2011,[11] were a belated, tactical concession made in light of overwhelming evidence of his misconduct as revealed in the employer's witness statements served some months previously. The employer submitted that the worker continued to engage in a dishonest concealment of the extent of his misconduct in his evidence before the Tribunal.
10. The employer contended that the worker should also be rejected as a credible witness with respect to his evidence linking an anxiety condition first reported to his treating general practitioner in January 2008 with pain resulting from his physical injuries. His evidence in this regard was contended to be a reconstruction at odds with contemporaneous medical notes and other records. It was asserted that after being notified on 8 May 2009 of the pending disciplinary inquiry, the worker gave a false history to his general practitioner on 12 May 2009 that he developed anxiety and depression due to pain from his physical injuries, and thus attempted to evade the operation of disqualifying factors arising under s 30A of the Act. Further, the employer contended that the Tribunal should not accept the worker's evidence as to either the extent of his physical and mental disability from 24 August 2009 onwards, or the extent of his asserted physical impairment as demonstrated to medical practitioners who assessed the whole-person impairment ("WPI") resulting from the physical injuries.
11. The worker contended that many of the witnesses who gave evidence implicating him in behaviour which he denied were themselves not credible, and that for various reasons, they had an imperfect recollection of events or were motivated by malice to give false evidence against him. ....
12. The credibility of the worker is central to the resolution of the issues arising in this matter. Accordingly, after the general narrative of events leading up to the worker's dismissal, I first address the issue as to the extent of the alleged misconduct in the LOC, and set out my conclusions on that topic, and then deal with the remaining issues in light of my conclusions as to the worker's credibility.
13. For reasons which will be explained, I have concluded that the worker's continuing denial of the more serious aspects of the misconduct alleged against him by the employer is not credible. I have found that the employer has established that he engaged in the....[serious misconduct]....alleged against him, and made false denials in that regard to his employer and in his evidence before the Tribunal and that he engaged in a degree of verbal sexual harassment beyond that to which he admitted. I have found that the employer was entitled to conclude that there was a breach of mutuality and serious and wilful misconduct which warranted the dismissal of the worker from his employment.
14. However, this adverse conclusion as to the worker's credit on the misconduct issue does not cause me to reject all other aspects of his evidence. Whilst mindful of the need for a careful evaluation of the worker's evidence in relation to other matters, I have accepted his evidence in relation to the development of a condition of anxiety and depression, and, with some reservations, his evidence as to the extent of his disabilities and consequent incapacity for work before or after his dismissal.

1. The worker grew up in Broken Hill. He completed his schooling in year 12 at about the end of 1989. After leaving school, he undertook an apprenticeship TAFE course over twelve months in Broken Hill, then carried out work as a car maintenance mechanic over a period approaching ten years. He then worked for a period of time at Roxby Downs before commencing with the employer in June 1999 as a fulltime employee.
2. The worker said that he was attracted to a career with the employer because he considered it would offer stable and long term employment which was what he desired given his self-professed strong work ethic and the sense of self-identity which he derived through physical activity and hard work. At the time the worker commenced work for the employer he said he was not suffering any ongoing disabilities from previous physical injuries or from any pre-existing mental injury or condition.
3. From at least 2004, the worker was living with a woman in a defacto relationship. They had a son in October 2004. The worker said that he and his partner shared responsibility for day to day activities in and around the home, with his partner attending to cooking, cleaning and the like, and presumably child care, whilst he undertook responsibility for maintenance tasks in and around the home. He said that he took pride in his ability to work and maintain the home and family, and to engage in physical activity generally, and that his ability in this regard was important to him and his self image.

1. For the purposes of this general chronological summary, and noting that more will be said as to the worker's credibility below, it can be taken that I accept his evidence as to the onset of his physical symptoms as described by him and, unless otherwise stated, the extent of the resultant pain and disability up to the date of his dismissal in August 2009.
2. From the outset of his employment the worker was assigned to duties on the assembly line which involved repetitive activity of the arms and shoulders. The work included lifting of heavy tyres and use of a vibrating hand tool. The duties were performed continuously at a set pace with completion of a set amount of tasks being required within a specific time frame.
3. The worker suffered a left shoulder injury in or about February 2001 which he attributed to repetitive lifting duties. He reported the injury to the employer's Medical Centre ("the Medical Centre") at the time, but did not make a compensation claim with respect to it. He said he was a proud person who did not want to be on workers compensation benefits and that he decided to "soldier on" although he "continued to struggle" to carry out his duties throughout the period from February 2001 to 2007.[12] He said that over time he began to favour his left upper arm which put pressure and strain on his right arm.
4. During the course of 2007, the worker developed painful symptoms in the right elbow which he attributed to repetitive heavy lifting duties. By September 2007, the worker was experiencing increasing levels of pain, discomfort and restriction of movement in both the left shoulder and right elbow, which was accompanied by intermittent pain in the right elbow in the nature of "electric shocks".[13] Although the worker said that he continued to perform his duties as required and to struggle through the pain, he ultimately attended at the Medical Centre on 12 November 2007. He was seen by a Dr Kamil, who formed the opinion that the worker was suffering from right medial epicondylitis as a result of work related duties and certified him fit for modified duties for a week and referred him for physiotherapy.[14] From this time on, until his dismissal, it appears that the worker was certified fit for modified duties on account of the right elbow condition or various other physical injuries, with occasional periods of total incapacity following operative procedures.
5. The worker first consulted his general practitioner, Dr Latif, in relation to his right elbow problem some two days later on 14 November 2007. Dr Latif then noted "issues at work" and that the worker had been suffering from a sore right elbow over a period of two months and had been put on modified duties. He advised rest, analgesia and antiinflammatory medication.[15] There were two further attendances at the Medical Centre to the end of that year, the latter occasion being 6 December 2007 when Dr Monkhouse certified the worker to be fit for modified duties to 16 January 2008. The worker attended on Dr Latif for review of his right elbow condition on 10 December 2007. Dr Latif noted that the worker suffered from mild ulnar nerve neuritis in his right elbow and that he had a current medical certificate, it appearing that he and the worker were leaving it to the Medical Centre to manage ongoing treatment.[16]
6. The modified duties to which the worker was assigned involved work in the store rather than work on-line. The worker considered that he was assisted by the lesser pace of the modified duties, but he had difficulty in performing them notwithstanding the benefit of a break from work over the 2007-2008 Christmas closedown.
7. During January 2008 the worker attended on Dr Latif on two occasions with symptoms which Dr Latif diagnosed as revealing a condition of anxiety and depression. No connection with the work injuries was recorded at the time, and whether there was a connection between the two was a matter of fundamental dispute between the parties. The background to this condition and its treatment, and its relationship to the work injuries, is addressed separately below.
8. The worker resumed modified duties after the Christmas closedown. He continued to attend the Medical Centre and to be certified fit for modified duties on account of his right elbow condition.[17] He was referred for this condition to a surgeon, Dr Griffin, and was seen on 6 February 2008. Dr Griffin noted a history of pain in the right elbow for the previous six months in particular and extending up to about eighteen months before, with elbow soreness associated with numbness and tingling in the little and ring fingers of the right hand.[18] He recommended right ulnar nerve compression release surgery which was scheduled for 7 April 2008. In the meantime the worker continued on modified duties.
9. Before the worker underwent the right elbow surgery, he experienced increasing left shoulder symptoms and was referred for ultrasound of the left shoulder on 14 February 2008. He submitted a claim for expenses associated with the left shoulder injury that was accepted as compensable by the employer on 20 March 2008.
10. In addition, the worker suffered a new injury on 11 March 2008 when another worker accidentally drove a tugger vehicle into his right knee and pinned it against a guard rail. He underwent immediate treatment at the Medical Centre. His claim for medical expenses with respect to this injury was accepted by the employer on 2 April 2008.
11. On 7 April 2008 Dr Griffin performed a right elbow ulnar nerve release. He reviewed the worker in April and May 2008, and noted his recovery to be excellent, although he felt the worker was "pushing the boundaries too much".[19] Dr Griffin certified the worker as totally unfit for work from the time of the operation to 20 May 2008 and then as fit to return to modified duties.
12. During this time the worker was referred for treatment of his right knee injury to Dr Hermann, orthopaedic surgeon, who noted that the worker had undergone an arthroscopy and lateral release for previous patellafemoral symptoms of the right knee, and that a good recovery had been made. The worker underwent arthroscopy of the right knee on 12 June 2008. Scar tissue was removed and a repeat lateral release was performed. The worker was certified totally unfit for work to 4 July 2008 when he returned to modified duties.
13. It appears that prior to undergoing the right knee operation on 12 June 2008, the worker was transferred to modified duties in the LOC. Upon his return to work on about 4 July 2008 after the knee operation, he was asked by his rehabilitation consultant, Mr Clifford, to undertake duties on the production line. The worker felt these duties were beyond his capacity in that, as he described it, they involved the repeated task of getting into a vehicle, driving it for 40 metres, getting out, walking back to another vehicle, and repeating the procedure. In his view, a task involving repeated walking was inappropriate given the recent right knee surgery. Upon complaining about his assignment to this task, and after receiving support in that regard from Dr Monkhouse, the worker was returned to modified duties in the LOC. It was from about this time that the worker was alleged to have engaged in the serious and wilful misconduct which led to his dismissal.
14. The modified duties undertaken by the worker in the LOC will be described in more detail later in these reasons. Whether they were in accordance with his medical restrictions or not, the worker asserted that he carried out the work with some difficulty, particularly having regard to increasing left shoulder problems.
15. On 21 July 2008 the worker attended on Dr Latif who took a history of a constellation of symptoms then troubling the worker as a result of the injuries to the left shoulder, right elbow and right knee. After giving advice in relation to the taking of analgesics, Dr Latif noted that there was a "long discussion" with respect to the worker's "stress and depression".[20]
16. On 26 August 2008 the worker complained to Dr Latif of increasing left shoulder pain, which he attributed to the recent surgery to the right elbow and the subsequent restriction on right arm activity, which indirectly resulted in his putting more stress on his left shoulder. Dr Latif referred him to Dr Nimon, orthopaedic surgeon, who saw the worker on 25 September 2008. Dr Nimon noted classical bursal impingement signs and arranged for an acromio-clavicular ("AC") joint injection by ultrasound. He reviewed the worker on 25 November 2008. As a result of a lack of improvement in the worker's condition, Dr Nimon recommended he undergo arthroscopic decompression of the left shoulder and bursectomy. The worker continued on modified duties in the LOC until 9 December 2008 then underwent the shoulder operation on 10 December 2008....
17. After the operation on 10 December 2008, Dr Nimon certified the worker to be totally unfit for work until 10 January 2009, and fit for modified duties thereafter.
18. During January 2009, the worker attended again at Dr Latif's rooms,[21] and was noted to have reported feelings of agitation and anger. Again no connection with the work injury was noted. Thereafter the worker continued on modified duties in the LOC on account of his physical injuries in accordance with various prescribed medical certificates ("PMCs") provided by Dr Latif until he was stood down on 8 May 2009 pending an investigation of "a serious allegation" against him.
19. The last modified duties PMC obtained by the worker before he was stood down was that prepared by Dr Latif on 8 May 2009 prior to the worker's receipt of the stand down letter. The PMC stated that the worker was suffering from disabilities of the left shoulder, right elbow and right knee and was fit for modified duties from 8 May 2009 to 8 June 2009.[22] As noted above, on 12 May 2009 he was certified totally unfit for work on account of an adjustment disorder.
20. The worker remained off work on suspension whilst the misconduct investigations continued until 12 August 2009. During this period the worker's left shoulder condition deteriorated. He attended upon Dr Nimon on 2 July 2009 when it was recommended that he undergo a further operation. This was carried out on 23 July 2009. Dr Nimon conducted an arthroscopic reassessment of the left shoulder and an open AC excision. He certified the worker to be totally unfit for work on account of that procedure until 23 August 2009. Dr Nimon saw the worker again on 7 August 2009, and certified him to be partially incapacitated for work from 24 August 2009 to 24 September 2009.[23]
21. The worker was dismissed from his employment on 12 August 2009 whilst totally incapacitated for work on account of his left shoulder condition.

Symptoms of anxiety and depression from January 2008

1. As observed above, an important issue in this case is whether, if the worker was not totally incapacitated for work as from 24 August 2009 on account of his left shoulder disability alone, he was nevertheless totally incapacitated due to the additional effect of a compensable mental injury alleged to have become manifest in or about January 2008, and to have been exacerbated on and after 8 May 2009 when the worker was informed of the allegation against him and was stood down and subjected to a disciplinary inquiry leading to dismissal.
2. Putting to one side for the moment the question as to the compensability of any mental disability, it is helpful to have an understanding of the worker's alleged mental state over the period when the alleged misconduct took place. When the worker first consulted Dr Latif about his mental state on 10 January 2008, he was recorded by Dr Latif to have complained of feeling anxious, obsessive, angry and depressed. Dr Latif diagnosed a condition of anxiety and prescribed the anti-depressant medication Effexor and referred the worker for psychological counselling.[24]
3. Thereafter the worker attended on Dr Latif or one of the other doctors at his practice on approximately 20 further occasions up to 8 May 2009. Most of these attendances were recorded as relating to the physical injuries alone, although on two occasions the worker attended in relation to the anxiety condition alone, and on four occasions both the compensable physical disabilities and the anxiety condition were addressed, although apparently as separate issues during the same consultations. At the attendance on 9 January 2009, the prescribed dose of Effexor was doubled, and the worker was referred for further psychological counselling.
4. Thus, over the period from 10 January 2008 until he received the stand down notice on 8 May 2009, the worker was suffering from the effects of the compensable physical disabilities and, according to Dr Latif, from an ongoing condition of anxiety and depression. During this time the worker stated that he found it very difficult to control his anger as a result of the combination of his ongoing physical and mental symptoms, particularly given the pressures that were placed upon him in terms of coping with full-time modified duties, going to multiple medical appointments and undergoing surgical and other treatment, whilst at the same time dealing with relationship and family issues and financial pressures. The worker also asserted that feelings of anxiety and anger were aggravated by his perception that he was being harassed and discriminated against by Mr Clifford during his time in the LOC.
5. For reasons explained below I accept the worker's evidence as to the emotional difficulties described, and have taken his state of mind into account when considering his behaviour in the LOC and his response to the allegations of misconduct before and during the investigation.

The extent of the alleged serious and wilful misconduct

1. The worker commenced duties in the LOC in about mid-2008 following his right elbow surgery. The LOC was a facility to which partly disabled workers were assigned during rehabilitation pending, where possible, a return to pre-injury duties. There they remained for varying periods of time as they carried out duties tailored to accommodate the extent and nature of their disabilities.
2. The LOC was situated over an area of about 50 metres by 30 metres and was surrounded by a cyclone mesh fence. It comprised various work spaces surrounded by rows of stillages on which boxes or containers were positioned at various heights accessible to workers at ground level. The open plan nature of the area was such that each worker was generally able to see what others in the LOC were doing, or hear what they were saying, although what could be seen or heard depended upon where workers were positioned in the LOC and the tasks they were attending to.
3. The work carried out in the LOC involved sub-assembly of small parts, and the decanting of parts from the cartons in which they were delivered, either onto a bench for further handling, or into containers from which the parts could be readily accessed by workers on the assembly line. The duties ranged from jobs able to be carried out in a seated position, such as sub-assembly work, to more physically demanding duties where workers were required to stand at benches and engage in various types of repetitive activities which might involve some lifting and carrying of boxes or items of equipment. Often one worker carried out duties with another as a pair. The duties required of any particular worker were able to be modified to take into account medical restrictions placed on that particular worker, whether in terms of limitations on the hours of work, or restrictions on the nature of the physical activities undertaken, or both.
4. The number and identity of the workers in the LOC was not constant. They came and went at various times in accordance with their work restrictions and shift allocation. The worker estimated that there were between ten to fifteen workers on duty in the LOC during any given shift, although the number of hours per shift done by each worker would vary significantly depending upon the nature or extent of their injuries and their stage in the rehabilitation process.
5. Although there were some changes in the layout of the LOC work space during the time the worker was assigned to it, he said that the nature of the operation remained basically the same in terms of the visibility and proximity of the workers in the area, and with respect to the repetitive but flexible nature of the duties available. These physical features of the LOC are mentioned because the worker maintained that if he had engaged in the activities alleged which he denied, then they would have been seen by other LOC workers, some of whom he called to give evidence that they had not seen inappropriate conduct of the sort alleged. As becomes clear from the evidence of those witnesses, the layout of the LOC was not such that each worker would necessarily have seen what others did.
6. The work made available in the LOC was described by the worker as "repetitive and uneventful".[25] The particular duties to which the worker was assigned involved heavier work than that assigned to some others. He was required to spend almost all of his time in a standing position decanting items such as windscreen wiper motors, alternators, battery brackets and other smaller items. The worker carried out such duties on a full-time basis for eight hours a day during the afternoon shift from 3.20pm to 11.20pm.
7. When the worker was first assigned to the LOC, his supervisor was Mr Schoenfeldt, who had responsibility for supervision of a much larger area of the employer's operation called "Plant 7", and spent most of his time supervising work in other areas. Generally Mr Schoenfeldt carried out administrative duties from a nearby office. The responsible employee under Mr Schoenfeldt was the "leading hand" or "work group leader" who worked in the LOC in a supervisory capacity. When the worker first arrived at the LOC the work group leader was a Ms Underdown, who shortly afterwards was replaced by a Mr Bailey.
8. The worker said that the LOC was quite rowdy as all workers were in close proximity and would talk to each other regularly about day to day activities and issues. He said that some of the employees, including himself, often engaged in crude and vulgar verbal exchanges and behaviour, about which more is said below. The worker said that he was not aware of any adverse consequences as a result, apart from Mr Schoenfeldt coming into the LOC on a few occasions to admonish them about noise levels. Specifically, the worker said that he was not aware of any complaint about his behaviour in the LOC until he was notified in April/May 2009 of a "diversity complaint" made about him by Ms Gray.
9. I accept the worker's general description of the LOC set up which is broadly consistent with that of other witnesses.

1. Mr Clifford, who was employed by the employer as an injury management associate, was directly responsible for the worker's rehabilitation. He signed each of the rehabilitation and return to work plans prepared with respect to the worker over the period from 12 February 2008 to 6 April 2009.
2. Mr Clifford attended the LOC unannounced for up to 20-30 minutes on average almost every day, usually during afternoon shift. Although he generally met with the worker each time, he did not witness the worker or others engaging in any inappropriate conduct in the LOC, although he recalled one occasion where he felt it necessary to speak to the worker about upsetting another LOC employee, a Mr F...., during a particular conversation. Mr Clifford did not witness Ms Gray behaving inappropriately in the workplace.
3. Mr Clifford said that his experience of the worker was that he did a very good job and complied with his return to work obligations. He said the worker was considered to be one of the better organised employees, and to have a good work ethic, and that he did not have any difficulties or problems with him. Whilst Mr Clifford was aware that the worker had been dismissed for serious and wilful misconduct in August 2009 he had no knowledge of the circumstances giving rise to that dismissal.
4. I return later to detail several incidents alleged to have occurred in relation to which the worker and Mr Clifford had significantly different recollections. The detail and relevance of these incidents will be explained in the context of the mental disability claim.

1. At the time the worker commenced his employment in 1999 or shortly thereafter, through to the time of the relevant events, the employer had in place a "Diversity Policy" ("the Policy"), which was promulgated in order to enhance management of diversity throughout the organisation. The Policy required that each employee at Holden "act in a manner which will create and maintain a workplace environment that supports diversity and is free from discrimination, hostility, harassment, bullying and victimisation".[26] Managers and supervisors were expected to actively implement and support the Policy and other programmes of equal opportunity and affirmative action.
2. The Policy contained definitions and examples of types of behaviour which would not be tolerated or allowed involving direct and indirect discrimination, harassment and sexual harassment, bullying and victimisation. Procedures for the making and resolution of complaints in that regard were described.
3. The worker agreed that he had undergone a "quite full on" training session on the Policy when he started in 1999,[27] and a refresher course in 2007. He agreed that he understood that verbal harassment was liable to lead to disciplinary action. He acknowledged there to be an obligation of confidentiality with respect to any investigation involving alleged breaches of the Policy.
4. An issue arose between the parties as to the extent to which the worker may have been in breach of the Policy previously in 2001 and 2004, and the extent to which he was counselled in that regard. This was relevant if the findings made as to the misconduct leading to his dismissal were limited to what he now admits, as then a question would have arisen as to whether such misconduct could be taken to be "sexual harassment" as defined in the Policy, given the worker's view that the culture of the LOC was such that his behaviour could not be taken by other LOC workers to be offensive or unwelcome. I need not further address that question because, as a result of my findings, there is no doubt that the worker's behaviour with respect to Ms Gray and some others was offensive and unwelcome, and was in breach of the Policy and warranted dismissal, regardless of whether the worker had breached the Policy previously or not.

1. Ms Gray was assigned from the production line to the LOC in early 2008 on account of a restricted work capacity consequent upon a compensable injury. She worked in the LOC with the worker from July 2008 until she ceased work on 2 March 2009 when she lodged a workers compensation claim[28] in which she alleged that she suffered from a condition of "anxiety and stress" due to "physical harassment and verbal and physical abuse".[29] On 7 May 2009 she made a formal complaint under the Policy against the worker.[30] In response to a request on the complaint form that she describe the "offending behaviour", she referred to a report she had made in relation to the compensation claim. The diversity complaint form authorised the employer to access the contents of a record of interview in relation to her compensation claim with an investigator, Mr Hayes.[31] ....
2. The worker was formally notified by a telephone call to him on 8 May 2009 that a "serious allegation" had been made against him. This was followed by a letter of that same date from the employer.[32] Mr Palmer, who was then Human Resources Business Partner for the Body and Paint Shop at the employer, was assigned to conduct a formal investigation. He was provided with a copy of the diversity complaint and in accordance with permission granted by Ms Gray, had regard to the contents of her workers compensation claim file, including the transcript of her interview by Mr Hayes. Mr Palmer then interviewed Ms Gray and obtained further details of her allegations as to the conduct of the worker.[33]

[the reasons for decision then proceed from paras [67] to [262] to set out the details of the allegations by the employer, the outcome of the employer's inquiry, the evidence of all of the witnesses to the alleged behaviour in the LOC, and the reasons of the Tribunal for finding that the misconduct alleged by the employer had been established.]

1. Findings to this effect [that is, that serious misconduct occurred] were made by the employer following the investigation into the worker's conduct. In the circumstances the employer was entitled to dismiss the worker on the grounds of a breach of mutuality and serious and wilful misconduct, and to treat his actions as a breach of the Policy.
2. This conclusion has implications for the mental disability claim in that, had it been my conclusion that the worker's mental disability was substantially caused by employment through the advice to the worker on 8 May 2009 of his stand down due to a serious allegation against him, and through the subsequent investigation and dismissal, I would have found that the worker had not established that the disability did not arise wholly or predominantly from reasonable action taken in a reasonable manner to dismiss the worker.
3. Accordingly, I have no need to address the various complaints raised by the worker with respect to the investigation by Mr Palmer, as this was only necessary if I was not satisfied that the worker had engaged in [the serious misconduct] as alleged. I have adverted above to the concession in this regard by counsel for the worker.
4. Nevertheless I observe that in my view the investigation conducted by Mr Palmer was painstaking, thorough and competently managed, and afforded the worker every opportunity to respond to the allegations made and to take advice with respect to them. The worker was not unfairly targeted. Upon the investigation revealing that two other workers, Mr Rewell and Ms Gray, were also the subject of allegations of misconduct, separate investigations were undertaken in that regard. I do not consider that any valid criticism can be made upon the ground that other workers who might have been investigated for misconduct were not. Mr Palmer was entitled to make a judgment as to how wide ranging the investigation ought to be and did so appropriately.

1. In his witness statements the worker said that towards the end of 2007, the pain consequent upon the work related left shoulder and right elbow problems caused him to suffer feelings of stress, anxiety and depression which, in turn, caused problems in his domestic relationship.[34] In particular, he said the right elbow pain, including occasional "electric shock like" pain and consequent involuntary spasms, so discomforted his partner that at times she would move from the shared bed to sleep elsewhere in the house. This, together with disagreements arising from financial pressures resulting from his inability to carry out his usual range of domestic and house maintenance activities, and the consequential need to pay for some of that work, added to tension and disputation within a relationship which may have been an uneasy one at the best of times. The worker said these various factors caused him to feel embarrassed and guilty, and in turn to experience feelings of inadequacy and loss of self-esteem.
2. Against this background the worker said in his supplementary witness statement that, feeling he was failing at work and at home and in need of assistance, he attended upon Dr Latif on 10 January 2008 "complaining of continuing pain and discomfort as well as anxiety and frustration".[35]
3. The worker describes a plausible sequence of events which, if accepted, would establish a direct link between the effects of the injury and a condition of anxiety and depression. It is a sequence of events which was presented to the psychiatrists Drs Blakemore and Nagesh when they first saw the worker, and having no basis to do otherwise, was accepted by them at face value. However, the worker's statement does not present an accurate history, and involves a reconstruction, for as he conceded in cross-examination, and as I find for reasons set out below, the worker did not mention his work injuries or any problem with ongoing pain when he saw Dr Latif on 10 January 2008 complaining of what was diagnosed as a condition of anxiety.
4. In his oral evidence, when questioned as to whether he maintained that he saw Dr Latif on 10 January 2008 because he considered the pain was causing him to feel depressed, the worker said that he was experiencing pain and frustration, and feelings of anxiety and depression, but "didn't really know what was going on" and "tried to pretend it wasn't happening",[36] and went to Dr Latif, but could not remember what he said. He conceded that it was possible that there was some explanation other than his work injuries for his feelings of anxiety and depression in January 2008, for example, every day life stresses, and admitted that he had been having trouble for quite some time with his partner "and it was coming to a head".[37] He agreed that he had no idea at the time that there could be a link between his work injuries and depression, and only came to realise that chronic pain could cause depression after his later attendances upon psychiatrists and psychologists.[38] When it was put to the worker that the first time he connected his symptoms of anxiety and depression with anything arising from his employment was when he attended on Dr Latif on 12 May 2009, having just been advised he was to be stood down in light of a serious allegation against him, he said that he did not recall if that was so, having seen Dr Latif so many times, and also said:

"I don't recall whether I reported anything beforehand ... I never correlated properly in my head ... what chronic pain will do to me. I never wanted to admit it. I just didn't understand what was happening".[39]

1. The employer's case was that there was no connection between the work injuries and any symptoms of anxiety and depression with which the worker presented to Dr Latif between 10 January 2008 and 12 May 2009, and that to the extent that the worker asserted such a connection to Dr Latif on 12 May 2009, he fabricated the history then given to Dr Latif to establish a case for a compensable mental disability which would avoid the disqualifying issues raised in response to a claim based upon the stand down and subsequent disciplinary process and dismissal. To the extent that the worker suffered any psychiatric disability (which was not admitted), the employer contended that it arose from stressors which included the deterioration and termination of his relationship with his partner, and attendant financial pressures and disputes over the extent of the worker's contact with his young son, the worker's partner having left the joint accommodation with their son upon the end of the relationship.
2. I will return to further evidence given by the worker in this regard but first recount the evidence given by the expert witnesses as to the history they obtained and their conclusions as to the cause of the alleged anxiety and depression.

1. Dr Latif provided three medical reports in relation to the worker during 2009. The first was a report to the solicitors for the worker dated 6 March 2009 which addressed the three compensable physical disabilities.[40] The worker was on modified duties in the LOC at that stage. The next report of 30 June 2009[41] was sent to the employer's claims adviser whilst the worker's claim for anxiety and depression was still under consideration. Dr Latif said he had seen the worker on 12 May 2009 when he was stressed and anxious in relation to harassment at work and at what the worker described as false allegations. Dr Latif noted that the worker had reported feeling anxious and frustrated about his physical condition and a lack of support from his rehabilitation consultant since January 2009.[42] This state of anxiety and frustration was said by Dr Latif to have worsened after the worker was advised of the allegation that he had sexually harassed a female worker, an allegation which Dr Latif noted that the worker denied.[43] A third report in similar terms dated 18 November 2009 was sent by Dr Latif to the employer's claims adviser.[44]
2. At the commencement of his oral evidence, and before being taken to his notes for the purpose of assisting his recall of his consultations, Dr Latif volunteered that from the time he began seeing the worker as a WorkCover patient,[45] they always talked about his WorkCover and that "he is always frustrated; firstly about his WorkCover, and his main issue was his WorkCover..." and that "My main impression was just like frustration and anxiety and just like a lingering on pain, and the situation - like, not getting any support from the WorkCover people. That was the main thing causing him anxiety and depression."[46]
3. Thus it was the assertion of Dr Latif from the outset of his evidence that there was a connection between the 2007 work injuries and the condition of anxiety first diagnosed by him on 10 January 2008, and that the matter was discussed with the worker on numerous occasions before 12 May 2009. However, such a connection was not expressly recorded in his medical notes or on any PMCs until 12 May 2009, which was contrary to what he described as his normal practice in terms of his note keeping. It is necessary to consider Dr Latif's notes and his evidence concerning them in some detail in order to assess the reliability of his opinion as to the cause of the anxiety and depression diagnosed by him before 12 May 2009.
4. As recorded above, Dr Latif became aware of the worker's right elbow injury following attendances upon him in November and December 2007. The work injuries were discussed generally, with treatment and certification for modified duties being the responsibility of the Medical Centre at that stage. When asked in examination in chief what he understood was intended by the reference to "issues at work" in the notes of 14 November 2007, Dr Latif said that the worker was "frustrated about his pain", and that the concerns were "basically issues of just the pain and working ... just pain management at that time".[47] In crossexamination however Dr Latif agreed that the complaints made by the worker about "issues at work" related only to the physical problems he was suffering, and that if there had been any discussion about "frustration and anxiety" on those visits he would have noted it.[48]
5. When Dr Latif saw the worker on 10 January 2008 the attendance was not recorded as relating to "WorkCover". He recorded a history that the worker was living happily with his wife and son but was "anxious most of the times (sic), sometimes obsessive and gets angry about little things, has been feeling depressed".[49] He noted that although the worker had normal concentration, he was feeling apathetic with lack of energy, sleeping worse than usual with insomnia, but with normal sexual drive and no suicidal ideation. Upon his examination of the worker Dr Latif concluded he was "anxious, not depressed", and after recording an inventory with scores for stress (22), anxiety (14) and depression (14), assessed him to be suffering from a condition of generalised anxiety. He created a mental health care plan and referred the worker to a psychologist Ms Kettler, and for general blood tests. He also prescribed Effexor of 75mg per day for his anxiety condition.[50]
6. The mental health plan was not produced, nor was there any clarification as to the history given to Ms Kettler or taken by her, or the treatment she offered or its outcome, except for the worker's report that his condition improved as a result. It appears that the worker's partner attended the psychological consultation with Ms Kettler.
7. Upon being taken to his notes of the attendance on the worker on 10 January 2008 in examination in chief, Dr Latif said that, upon being told by the worker that he was anxious most of the time, he asked the worker as to "the trigger factor". He said that "in the end he pointed to this WorkCover thing, and he was just getting frustrated, angry and he was feeling depressed".[51]
8. Dr Latif saw the worker again on 15 January 2008 and on that occasion noted that the worker had been taking Effexor tablets and was feeling much better although not sleeping very well. Dr Latif noted "family and social stressors and financial problems". His assessment was "depression improving", with the plan being counselling and clinical review, no specific action being required apart from a further prescription for Effexor. Again this consultation was not recorded as being related to any WorkCover claim, nor was any evidence provided as to the nature or outcome of any further consultations with the psychologist.
9. Dr Latif said, in examination in chief, that the history on 10 January 2008 of the worker living happily with his wife and son could be reconciled with the notation made on 15 January 2008 of family and social stressors, in that he could recall that the worker was getting depressed and anxious about the WorkCover situation and that "just like in general, he had the WorkCover pains and the social and financial problems ... just a mixture of everything of that kind".[52] In crossexamination he appeared to contradict that evidence by conceding that the consultations of 10 and 15 January 2008 with respect to the worker's anxiety and depression were not related by either the worker or him to pain, discomfort or frustration with respect to his work injuries. Had complaints as to such matters been made, Dr Latif said the consultation would have been recorded as relating to a WorkCover claim.[53]
10. At the consultation on 11 February 2008 the notes initially record the worker to report less depression and anxiety and improved mood generally and that he was still taking Effexor. The notes then proceeded, apparently as a separate subject, to record information in relation to the worker's left shoulder and right elbow problems and proposed treatment. Dr Latif's assessment recorded "Improved Depression - stable", and a further prescription was given for Effexor.
11. Following a consultation on 9 April 2008, which dealt only with the worker's post-operative right elbow condition, Dr Latif did not see the worker again until 21 July 2008. Dr Latif then took a detailed history in relation to each of the three compensable disabilities. Having recorded his advice that the worker should keep taking pain killers, Dr Latif then noted, again apparently as a separate topic, that there was a long discussion in relation to the worker's stress and depression "as well", that he was "feeling much better", but that he advised the worker to continue with Effexor. Dr Latif agreed that there was no specific note made linking feelings of stress and depression with pain from the worker's physical disabilities,[54] but his recollection was that, since September 2007, feelings of this nature had been related by the worker to his ongoing physical condition consequent upon his work injuries, and were not noted earlier because the worker did not want to claim WorkCover in that regard.
12. At the next consultation on 26 August 2008, Dr Latif reviewed the injuries, and having noted the worker's complaint of increasing left shoulder pain, he referred him to a specialist, Dr Nimon. Although the worker made no complaint of anxiety and depression, Dr Latif suggested that he was probably anxious about his pain, and probably was suffering from a psychological condition, which he did not note in the medical records for the reason mentioned above. Dr Latif said he would not record such matters on a WorkCover certificate unless requested to do so.[55]
13. In cross-examination Dr Latif agreed that not only was there no complaint by the worker on 26 August 2008 about anxiety or psychological issues, there was no complaint about difficulties in his relationship with his partner, or in carrying out maintenance work at home, or with activities of daily living, and that this remained the case during the further five consultations he had with the worker over the rest of 2008. Further, although clearly the worker was concerned about ongoing left shoulder pain and wanted treatment for it, Dr Latif conceded that he did not appear to be anxious or depressed, and that had he presented with such signs he would have noted it.[56] Dr Latif suggested that probably there was no complaint by the worker in this regard because of the benefits of the Effexor medication the worker had been taking.
14. When the worker next attended at Dr Latif's practice on 9 January 2009 he was seen by another practitioner, Dr Sabharwal. On that occasion the notes recorded a discussion in relation to both the worker's mental condition and WorkCover claims. Three notes were made, the first recording a doubling of the dose of Effexor to 150mg daily as the worker was still feeling agitated and had an anger problem, the second referring to preparation of a mental health plan and a referral of the worker to a psychologist, Ms Sue Watts, and the third being an update on the WorkCover situation with respect to the left shoulder surgery in December 2008. Dr Latif was unable to cast any light on the content of the mental health plan or the purpose of the referral to Ms Watts, and no other evidence was tendered in that respect.
15. That consultation was followed by an attendance on 27 January 2009 on another doctor at the practice, Dr Nagarajan, where the worker was provided with a PMC after a detailed discussion in relation to his "multiple injuries".[57] The worker attended on Dr Latif again on 10 February 2009 where the history, set out in one rather than two separate paragraphs, was that the worker was feeling much better after left shoulder surgery and also after seeing the psychologist, followed by a reference to aches and pains in the right knee which were getting worse. A PMC and a prescription for Lyrica capsules (a form of analgesic) were provided.
16. When the worker next attended on Dr Latif on 6 March 2009, the notes referred to long discussions concerning "his WorkCover and history" and WorkCover complications.[58] In his examination in chief, Dr Latif said these complications related to "anxiety and stress regarding his WorkCover", which was always an issue,[59] whereas in crossexamination he said that apart from a report that the worker was feeling better after seeing the psychologist, there was no report of feelings of frustration, anxiety or depression, otherwise he would have noted it. He said WorkCover issues were discussed but not in the context that they were causing the worker any emotional difficulty.[60]
17. The worker attended upon Dr Latif on two further occasions before 12 May 2009, namely on 14 March 2009 and 8 May 2009, when the notes recorded discussions relating only to his physical injuries, with no report of frustration, anxiety or depression.
18. From about mid-2008, the worker ceased attending at the employer's Medical Centre for ongoing treatment and certification as to his fitness for work and attended upon Dr Latif instead. The evidence shows that from at least 25 August 2008, on approximately a monthly basis, Dr Latif provided the worker with PMCs in relation to his compensable physical disabilities only, usually in much the same form.
19. The PMC provided on Friday 8 May 2009[61] was a typical example. The stated date of injury was 1 November 2007, with the stated cause of disability being "left shoulder pain, right elbow pain and right knee pain". The certified opinion was that the worker was suffering from left shoulder bursitis, right ulnar nerve neuritis and medial epicondylitis due to a right knee-crush injury, and that he was fit for modified duties eight hours a day from 8 May 2009 to 8 June 2009. Restrictions were that there was to be bench work for only one to two sessions per day, no line duties, and no repetitive lifting, reaching or squatting.
20. There was no reference to a condition of anxiety or depression on any of the PMCs up to 8 May 2009. The worker agreed that the expectation as at 8 May 2009 was that he would work on modified duties over the next month before attending on Dr Latif again. Dr Latif agreed that when he prepared the PMC on that day, he did not expect to see the worker again until about 8 June 2009, and that, when he attended again only four days later, he understood something new had happened.
21. After the worker attended on Dr Latif on 8 May 2009 and obtained the PMC just described, he received advice from the employer on the same day that he was being stood down on account of a serious allegation against him. The worker said he was worried about the content and meaning of the letter and thus arranged to speak to Dr Latif about it on 12 May 2009.
22. The history taken by Dr Latif upon 12 May 2009 may be paraphrased[62] as follows:

"mood swings while on WorkCover; strange and getting worse through WorkCover; had been harassed many times for his WorkCover by his rehab consultant; always in pain like electric shock; thinks hasn't been done much for his WorkCover; wife left him due to these issues; stressed and worried, unable to do home maintenance; taking Effexor 150mg; worse knee pains; multiple harassment; has been feeling depressed and upset and down; sometimes tearful has low self esteem; has been told that he sexually harassed a girl at work but that girl had multiple issues with other people; has got multiple witnesses against her; is feeling apathetic with lack of energy; sexual drive reduced (low interest); sleeping worse than usual, insomnia; has no suicidal ideation, is not suicidal and is not psychotic, has no hallucinations".

1. The worker was assessed to be suffering from "depression with anxious mood". A mental health care assessment plan was prepared and the worker was referred to a psychiatrist, Dr Nagesh, and a psychologist, Mr Roger Wright. The worker was provided with a prescription for panadeine forte tablets, and with a PMC[63] which now referred to a different "stated date of injury", being 15 January 2008, with the stated cause of the disability being "depressed and anxious with issues at work". The diagnosis was "adjustment disorder with anxious mood". The worker was certified unfit for work from 12 May 2009 to 26 May 2009.
2. This certificate formed the basis of the compensation claim submitted by the worker two days later on 14 May 2009 in which he alleged that he suffered an injury from about January 2008 described as adjustment disorder with depressed mood on account of "frustration due to lack of improvement, ongoing pain, discomfort and restriction of movement, and inability to return to pre-injury duties, and issues at work", and that such injury had caused him to cease work on 8 May 2008 (clearly the intended reference was 8 May 2009).[64]
3. Dr Latif agreed that the complaints made by the worker on this occasion as to longstanding issues with respect to his WorkCover claim were reported to him for the first time, although he pointed out that pain had always been a matter of which the worker complained. So too, conceded Dr Latif, it was the first report to him of the separation between the worker and his partner, and of restrictions on home maintenance and activities of daily living.
4. I observe that the last mentioned concession of Dr Latif does not appear to be quite correct, in that in his report to Palios Meegan Nicholson on 6 March 2009,[65] he stated that the current physical disabilities "have affected Mr Roberts as he is unable to play sports, run and is unable to do general house hold duties." This has relevance in that it is some indication that matters reported to Dr Latif, or discussed with the worker before 6 March 2009, appear not to have made their way into his notes, which is what Dr Latif asserted with respect to various discussions linking feelings of depression and anxiety with pain resulting from the injuries.
5. Dr Latif agreed that the attendance on 12 May 2009 was the first occasion upon which the worker had presented in such an upset and depressed state that he considered it appropriate to diagnose a psychiatric disorder in accordance with DSM-IV criteria. Nevertheless, Dr Latif maintained that the worker presented with an aggravation of pre-existing anxiety and depression, and that his reference to "issues at work" on the PMC he wrote on 12 May 2009, was intended to encompass longstanding anxiety and frustration due to the pain resulting from the worker's physical injuries, and the lack of progress in his WorkCover claim, together with the allegations of misconduct recently made against him. It was for this reason, explained Dr Latif, that rather than stating the date of injury on the PMC provided to the worker on that day to be 8 May 2009, when the worker was notified of the allegation against him, he stated the date of injury to be 15 January 2008, which went back to the second occasion upon which the worker consulted him with respect to a condition Dr Latif then diagnosed as anxiety and depression.[66]
6. Dr Latif continued to see the worker regularly after 12 May 2009 whilst he underwent psychiatric and psychological treatment. At each of the consultations the worker had with Dr Latif from this time until 29 March 2011, he was provided with further PMCs which for the most part stated the date of injury to be 15 January 2008, and that he was totally unfit for work on account of depression and anxiety with issues at work, and that he was suffering from an adjustment disorder with anxious mood. From about August 2009, the certificates also referred to the physical injuries and left shoulder and right elbow pain. There was little relevant variation in the certificates after the worker was certified fit to return to modified duties after 29 March 2011.
7. Dr Latif agreed that during the period up to March 2011, the worker's presentation to him involved agitation, anger, anxiety and depression due to the allegations against him, the investigation, and the dismissal and subsequent litigation, rather than in relation to pain and disability, and that he certified him to be unfit for any work in light of this condition, whether with his previous employer or another employer.
8. Dr Latif accepted that problems arising from family and social stressors, or relationship conflict, might on their own be enough to cause anxiety and depression without the complicating effects of physical injuries. He also agreed that the allegations of misconduct and the subsequent investigation and dismissal might on their own be sufficient to cause anxiety and depression. However he said that in the circumstances of this case, one of the stressors from the outset was the effect on the worker generally of the pain and disability resulting from his physical injuries, and the flow on effect on his relationship with his partner.

1. Dr Blakemore saw the worker on referral from his solicitors on 22 May 2009. The referring letter of 21 May 2009,[67] after briefly describing the worker's three physical injuries, advised Dr Blakemore that as a result of:

"...ongoing pain, discomfort and restriction of movement and his inability to successfully return to pre injury duties our client now suffers from an adjustment disorder with anxious mood and depression."

1. The employer complained that in so describing the circumstances in which the alleged adjustment disorder arose, the worker's solicitors improperly sought to influence the opinion of Dr Blakemore. I reject this contention. The letter did no more than summarise the position as then understood by the author from the terms of Dr Latif's PMC of 12 May 2009 and the instructions as to the occurrence of the disability set out in the claim form of 14 May 2009. A valid criticism which can be made is that an appropriately drafted letter also would have alerted Dr Blakemore to the events of 8 May 2009 and their possible relevance to the condition complained of, but as Dr Blakemore said, his practice is to elicit the history from the worker without reliance on the content of the letter of referral, which is what he did in this case, as a result of which he became fully aware of the misconduct allegation and the proposed disciplinary inquiry.
2. Dr Blakemore allowed the worker to present the history in the order chosen by the worker, and in his view it came forth in a manner consistent with there having been significant emotional problems well before 8 May 2009. Dr Blakemore recorded a history of longstanding left shoulder pain and the later development of right elbow pain during 2007 whilst the worker persisted with light duties. Dr Blakemore noted the worker's complaint that he became very short tempered and that his sleep became so disturbed that his partner had to sleep in another room, and that conflict developed between them. The worker told him that he could not carry out domestic activities such as painting his house and had to pay to get such things done.[68]
3. Dr Blakemore understood that in turn, the worker consulted his general practitioner on account of feeling edgy, angry and upset, and embarrassed by his inability to do physically what he used to do at home and at work, leading to ongoing arguments with his partner. Dr Blakemore noted that the worker was prescribed Effexor. Dr Blakemore understood that after the worker underwent various operations during the first part of 2008, his problems as described above escalated during the latter half of 2008. He noted that the worker's doctor increased the dose of Effexor and recommended counselling for the worker and his partner, but that ultimately his partner left him in January 2009, taking their four year old son with her. He noted that the worker complained of being given a hard time by his rehabilitation officer at work, and about the allocation of unsuitable duties, and that the worker felt he was a burden at work and was not pulling his weight, and that he reacted to these problems with anger.[69]
4. The worker told Dr Blakemore that he had been accused of sexual harassment by Ms Gray and had been suspended and was under investigation. The worker denied doing anything wrong and attributed the allegations to the desire of the employer to get rid of him because of his injuries.
5. Dr Blakemore summarised the history given as one of depression over the last few years as a result of work injuries and consequent incapacity, partly helped by antidepressant medication, with the depression being seriously exacerbated in May 2009 by the allegations of sexual harassment and his suspension. He diagnosed a psychiatric illness "best but inadequately categorised as an adjustment disorder with depressed mood",[70] which had primarily been the result of his injuries and their sequelae. He considered the worker to be unfit for work as a result of his emotional illness as at 22 May 2009.
6. Dr Blakemore's view as to causation remained the same at the time of his second report of 21 September 2011,[71] and also when he gave evidence a few weeks later. This was despite having been provided with copies of the witness statements of the worker only just before giving evidence, and only then becoming aware of the worker's admission to having been dishonest to the employer and to Dr Ewer in denying much of the alleged misconduct. However Dr Blakemore accepted that the worker's admission of dishonesty might mean that he was unreliable with respect to the history given as to the development of his symptoms of anxiety and depression and the cause of them.
7. Dr Blakemore agreed that his diagnosis relied upon the accuracy of the worker's history set out above.[72] That history assumed from the outset that Dr Latif had diagnosed the worker to be suffering from depression as a consequence of the work injuries and had prescribed antidepressants in this context. Dr Blakemore accepted that it would be very important to know if the worker started having significant problems in his relationship, which in turn caused him mental stress before he began to have serious left shoulder and right elbow problems, and led him to consult his general practitioner and to be prescribed medication on that account alone. He considered that the linkage of events with stressors was a critical aspect of the history.[73]
8. Dr Blakemore agreed that the worker presented on 22 May 2009 with a great degree of agitation over his suspension and the allegations against him, but did not consider that this necessarily meant that the alleged sequence of events involving a reaction to the pain resulting from his injuries over the previous year was not correct, or that his emotional state had not been exacerbated by the more recent events, even though those recent events on their own might explain his presentation.
9. Dr Blakemore's diagnosis of an adjustment disorder was not dependent on some precipitating event having occurred within three months of 12 May 2009, as the condition can be chronic and may have been long lasting and resultant from earlier events.[74] In his view a history of injury with resultant pain leading in turn to anxiety and depression was very common, and in this context he did not feel the need to explore in great detail the allegations of misconduct by the worker in the LOC. He considered that the worker was seriously emotionally affected by his injuries and that some of his behaviour in the LOC may have been a product of his disturbed state.

1. Dr Nagesh saw the worker on referral from Dr Latif and attended upon him on 13 July 2009. At that time he understood that the worker alleged that he had suffered physical injuries at work and a subsequent psychiatric response. At the time of his second consultation on 25 August 2009[75] Dr Nagesh understood that the employer had accepted the claim for a work related mental disability.[76] The information obtained by Dr Nagesh at these two attendances was detailed in his medical report dated 6 October 2009[77] and in his oral evidence by reference to his notes.[78] Whilst his notes focused on the worker's complaints of stress at the allegations against him and his suspension, Dr Nagesh said the worker talked a lot about the effect of the injuries on him and subsequent frustrations and challenges in that regard, and complained of feeling useless in the context of his "strong work ethic" and about being "a compo person".[79] Dr Nagesh understood that after the work injuries and the worker's assignment to modified duties, there was a concomitant development of irritability through loss of sleep, intolerance to physical limitations, particularly in relation to household work, and increasing feelings of inadequacy and incompetence, which in turn caused problems in the worker's relationship with his partner.
2. Dr Nagesh considered that the worker took great pride in his strong work ethic and his ability to overcome pain in order to continue to carry out tasks at hand, but that once on modified duties he started to feel negatively judged, and to be undermined by some work colleagues, and particularly by the rehabilitation consultant with respect to the need for medical treatment of the left shoulder. Dr Nagesh noted that at the same time the worker gave a history of what he alleged was inappropriate behaviour on Ms Gray's part with no untoward response on his part, and of being perplexed at the allegation made in May 2009 that he had [engaged in serious misconduct].... some five months earlier ....
3. Dr Nagesh recorded a history of symptoms including disturbed sleep, irritability, low energy, disinterest, loss of libido and impaired concentration, all said to have occurred in the context of ongoing pain and limitations arising from the physical injuries. In turn this was said to have generated feelings of low self-esteem, frustration, intolerance and apprehensiveness at coping with both social situations and the workplace. Dr Nagesh considered the worker presented as a very intense person who demonstrated a high level of agitation and frustration at interview. He did not consider that the worker was simulating or voluntarily exaggerating his suffering and thought he was keen on getting better, but was inhibited by a sense of failure or inadequacy on his part.
4. Dr Nagesh concluded that the worker was suffering from a "major depressive disorder of severe severity without psychotic features"[80] as a result of a number of stressors including that he had been stood down for disciplinary reasons and ultimately dismissed, but also by "many other factors"[81] over a number of years, including the physical injuries and pain and limitation of movement, the resultant impact on marital and family life and the perceived mishandling of his situation by the rehabilitation consultant, and his being sexually harassed at work by Ms Gray and the subject of similar allegations by her. Dr Nagesh acknowledged that in accepting ongoing pain was a significant stressor with respect to the worker's psychiatric condition, he was relying on the reliability of the history given to him by the worker.[82]
5. Dr Nagesh considered the worker to be unfit for any work and in need of intensive psychiatric treatment which he provided through regular attendances upon the worker and supervision of a course of medication. The main focus of his discussions with the worker from this time was on the allegations of misconduct, and the suspension and dismissal, because given the acceptance of the claim at that stage, Dr Nagesh felt no need to explore in detail events at the workplace before 8 May 2009. He did not agree however that this indicated that these matters were the only stressors about which the worker complained,[83] and said that his notes referred to a number of stressors dating back eighteen months before the misconduct allegations, and that the worker had "suffered in silence"[84] in that regard with his condition being aggravated by the more recent events. The earlier stressors have been described above.[85] In his view, the worker could well have been "flying under the radar" with respect to a diagnosis of a depressive disorder from as early as 2008.[86]
6. Dr Nagesh expressly disagreed with the proposition that the worker did not connect his work related injuries with complaints of anxiety and depression at his early consultations. He said that although his notes did not clearly state that such a connection was made, this was what occurred, and that life changes resulting from his injuries were a substantial cause of his problems.[87]
7. As did Dr Blakemore, Dr Nagesh suggested that the worker's conduct in the LOC may have been a means of him trying to deal with the depression that had existed for quite some time, made worse by the conflict with his rehabilitation officer during that period.[88]
8. Dr Nagesh agreed that the worker did not disclose to him from 25 August 2009 onwards the details of the allegations against him in terms of the alleged verbal harassment, and that he made reference only to the allegation of .... [the serious misconduct].... which he consistently denied. Dr Nagesh did not become aware of the detail of the allegations of verbal harassment or of the worker's false denials until he read the worker's witness statements in the week before giving evidence. He said that he held some concerns as to why the worker lied during the course of the investigation and as to why the worker did not explain the full circumstances to him. It was a matter about which he wanted to obtain feedback from the worker.
9. Dr Nagesh agreed that at the time he last saw the worker on 23 August 2011, he had significantly improved and that the positive developments in obtaining access to his son was one of the key factors allowing him to feel better.

1. Mr Wright first saw the worker on referral from Dr Latif on 9 June 2009 and understood he had been referred for treatment of a condition diagnosed as depression with anxious mood. It was apparent from the report provided by Mr Wright shortly before trial, dated 6 October 2011,[89] and from the analysis of the notes he took on the first occasion he saw the worker and subsequently, that his focus was on treatment of the worker rather than close examination of the stressors connected with the onset of the diagnosed condition. Whilst he obtained a general overview at the first consultation as to the physical injuries and the subsequent pain experience and consequent difficulties, he accepted for the purposes of his ongoing treatment that there was a causal connection between the injury and pain experienced by the worker and his condition of depression.
2. Over the period between the occasion of the first consultation and trial, Mr Wright attended upon the worker on approximately 20 occasions and provided treatment involving behavioural therapy and other strategies targeted at the specific symptoms experienced by the worker. As a result of that treatment Mr Wright considered there was significant although fragile recovery with the worker being vulnerable to relapse due to further stressors.
3. During Mr Wright's consultations with the worker, the predominant topic of discussion had been the suspension, dismissal and compensation proceedings, and then at a later stage contact issues concerning his son. Nevertheless he observed that at the first consultation the worker complained to him of pain in the context of his injuries and that at the end of the consultation he gave him a CD about pain management.
4. He considered that the worker's mood lifted over the period that he was treating him, this being associated more with his return to work as a security officer rather than changed arrangements for contact with his son. At the time of his report on 6 October 2011 he felt that the worker may not be fit to return to work on a full-time basis unless he obtained a role which was not a modified duties role, but rather a full-time occupation which did not require accommodation of his ongoing physical limitations. After receiving a request from his solicitors that he reassess the worker's fitness for work, [90] and after a further consultation with the worker on 7 October 2011, he altered that view and suggested that a return to work was possible having regard to a more optimistic view on that possibly conveyed to him by the worker.[91]
5. I reject the contention of the employer that there was anything inappropriate in the worker's solicitors contacting Mr Wright after his report of 6 October 2011[92] to ask him to reconsider his view as to the worker's ability to return to work with the employer. There is nothing inappropriate about inviting an expert to reconsider an earlier opinion in light of further information to hand. The employer's complaint is rejected. I accept that Mr Wright's reconsidered view was based upon his honest opinion having regard to the further information provided by the worker. It is curious that the employer should have made such a complaint given the extensive, but not improper, communications between the employer's solicitors and Dr Ewer which led to a substantial qualification of an opinion initially supportive of the worker. I do not consider that in either case there was an endeavour to improperly influence the opinion of an expert, but merely an attempt to ensure that the opinion had full regard to further material to hand.
6. A significant factor in Mr Wright's acceptance of the causative relationship between the worker's injuries and subsequent pain and disability, and the presentation of symptoms of depression, was his view that the worker had a strong work ethic, was proud of his physique and masculine identity, and gained much esteem from these factors and his ability to engage in physical work and other activity. His resistance to the adoption of the "sick role" was thought by Mr Wright to be apparent in light of his persistence at work despite his shoulder injury in February 2001 until that condition was exacerbated following the occurrence of the right elbow injury in late 2007.
7. In terms of connecting the work injuries and pain with feelings of depression, Mr Wright accepted that one would normally expect that when the worker finally came to seek help for symptoms of anxiety and depression, he would have mentioned his work injuries to his doctor, although one could not assume that would necessarily occur. He agreed that symptoms of anxiety and depression could arise from matters other than pain associated with work injuries, such as the relationship difficulties of the nature the worker had been experiencing, or the allegations of misconduct against him and the threat to and subsequent loss of his job, particularly given that much of his self-esteem was connected with his employment.
8. Mr Wright was aware that the worker conceded during 2011 that he had lied in denying a number of allegations put to him in the investigations by the employer, and to Dr Ewer about such matters. He considered that the worker may have been motivated to do so by the pressures upon him arising from fear of losing his job. However, the fact of and extent of the lies told by the worker was not something that Mr Wright chose to pursue as part of therapy, and he did not investigate the matter further, not out of any particular concern as to the worker's truthfulness, but rather as a general policy issue in terms of his engagement with patients and treatment of them.

1. Dr Ewer saw the worker on referral from the solicitors for the employer on three occasions. The first occasion was on 24 June 2009, which was after the second interview between the worker and Mr Palmer, by which time the worker had been appraised of the majority of the allegations against him, including the December 2008 incident.
2. Dr Ewer obtained a similar history to that obtained by Drs Blakemore and Nagesh, in particular that injury pain led to relationship difficulties and feelings of anger, anxiety and depression, all of which was said to have been disclosed to his doctor in January 2008 and to have led to the prescription of Effexor. In addition Dr Ewer noted reference to other stressors during 2008 including the right knee injury, discriminatory conduct by Mr Clifford, problems arising from Ms Gray's behaviour, left shoulder surgery in December 2008, the worker's partner moving out in January 2009, and finally sexual harassment allegations made in April 2009.
3. In view of this history, Dr Ewer considered the worker was probably suffering from a chronic adjustment disorder with depressed and anxious mood with clinical onset in January 2008, the substantial cause being right elbow and left shoulder pain, assuming it was accepted that the worker had significant physical pathology, and accepting that there were other contributing factors. He considered that despite the psychiatric disorder, the worker was fit for work for up to 30 hours per week.[93]
4. Dr Ewer reviewed the worker again on 19 May 2010. By this time he had been made aware that the worker had been dismissed from his employment in August 2009 on the basis of misconduct involving sexual harassment. Dr Ewer noted the worker claimed the allegations were "all lies".[94] He had also perused a brief summary of the notes of Dr Latif and noted reference to stressors other than those related to the worker's physical injuries. Nevertheless, Dr Ewer's opinion remained the same as to diagnosis and causation. As to the latter, he accepted that the pain and disability resulting from the work injuries was probably a substantial cause of the ongoing psychiatric symptoms, although it appeared that the worker was playing down non-injury related stressors which were also significantly contributing to the symptoms.
5. Dr Ewer indicated that it would be helpful to peruse the notes of various of the experts treating the worker and queried whether the worker had manipulated the history by choosing to emphasise compensable over non-compensable contributors.
6. By the time Dr Ewer saw the worker again on 11 August 2011, he had been provided with a copy of the worker's initial witness statement, and noted his concession as to his dishonesty with the employer and his acknowledgment that his behaviour was "disgusting and pathetic". Dr Ewer asked the worker about his changed account and observed that the worker had difficulty explaining why he didn't tell the truth before. These matters caused concern to Dr Ewer at the reliability of the worker as a historian. He felt it indicated some significant personality psychopathology.
7. Accordingly, Dr Ewer felt unclear as to the cause of the worker's psychiatric condition, and expressed the view that other causative factors may have been more prominent. In this regard, he referred to the relationship conflict (noting the reference to "family stressors" in the notes of Dr Latif on 15 January 2008), continuing problems the worker had in dealing with his son's Asperger's syndrome, disputes with his former partner over the extent of his contact with his son, distress at the allegations against him at work, his dismissal from employment and financial hardship.
8. Dr Ewer observed that it was important to ascertain whether the symptoms of stress came on within three months of a significant stressor.[95] His earlier opinion on causation was premised upon his acceptance that the worker experienced injury, subsequent pain leading to sleep disturbance, then arguments with his partner as from September 2007, but not before. The impression he received at the time of his initial diagnosis was not that the relationship was "on the rocks" by January 2008 as Dr Nagesh noted, but that relationship problems developed from that time.
9. Thus he questioned the worker further about these matters prior to preparing his most recent report,[96] and noted that the worker admitted early concerns over his son's condition, and to sleep deprivation and conflict with his partner over management of the problem. Conflicts of this nature, said Dr Ewer, can be the sole cause of an adjustment disorder.[97] He said that if any conflict occurred over three years up to the separation in January 2009, one would need to know the extent to which that conflict of itself led to significant relationship problems, and the context within which injury and pain affected that pre-existing discord.
10. By the time he gave evidence, Dr Ewer had perused a complete copy of Dr Latif's notes. He pointed to a number of matters arising from the notes which caused him further concerns on the causation issue. These included first, the lack of any recorded complaint in Dr Latif's notes of a connection between pain and feelings of anxiety and depression, and the fact that in both January 2008 and 2009 the worker was referred to psychologists, who apparently had an interest in early childhood development rather than pain management; second, that the worker presented with psychiatric issues in both January 2008 and January 2009, during the holiday period, a well known time of heightened relationship conflict and consequent mental stress; third, that when the worker attended on Dr Latif on 12 May 2009, one would have expected the worker to have informed Dr Latif at the outset of the recent and significant stressor, being the suspension, rather than first recounting longstanding stressors or grievances; and finally that the worker's recovery from his stress condition by 2011 while his pain was ongoing, indicated the cause was more likely to be non-compensable stress factors such as the loss of his job, consequent financial pressures, and the separation from and limited contact with his son, there having been positive developments with respect to each of these stress factors by August 2011.
11. Notwithstanding these observations, Dr Ewer conceded that the fact that the worker's condition had improved as at May 2010, being the second occasion upon which he saw him, did not cause him to doubt at that time that his initial diagnosis still applied.[98] He agreed that the reported improvement in the worker's mental symptoms at that time, which occurred well before the worker obtained part-time security work, could have been related to treatment since June 2009 by way of antidepressant medication, and counselling and therapy.[99] He also agreed that appropriate treatment for the worker's psychiatric condition had continued between May 2010 and August 2011, and that improvement despite continuing pain did not suggest that there was no connection between injury pain and the mental condition of the worker, although the extent of the improvement was a surprise.[100]
12. Dr Ewer said that overall, as issues with the worker's reliability became apparent, in particular the fact that he had lied about a significant number of the allegations of serious and wilful misconduct in the workplace, he began to have concerns not only as to the causation issue but also as to diagnosis, in that he was now not sure whether the worker was suffering from an adjustment disorder. This was because that condition was at the mild end of the spectrum of psychiatric disorders, and thus the diagnosis was more dependent on accuracy of the history than in the case of more serious conditions, where some signs can be objectively observed on mental state examination. Dr Ewer said that he did not think that the symptoms described by the worker ever supported the diagnosis of Dr Nagesh of a major depressive disorder, and at most were more consistent with an adjustment disorder.[101]

1. At the consultation with Dr Latif on 11 June 2010 it was noted that the worker had a "job provider" interview and was looking for work, and that he was not as stressed and was feeling better. Then at his next attendance on 25 June 2010 it was noted by Dr Latif that the worker was looking for jobs and "light courier driving", and that he would try to come off his tablets. On 29 September 2010, a note was made that the worker would commence weaning off the Effexor medication and that the dose was reduced by half.
2. By the time of the worker's consultation with Dr Latif on 1 November 2010, there was a reference to the worker seeking alternative employment in a "carrier handling job". Various job possibilities within his physical restrictions were discussed.[102] At the consultation with Dr Latif on 10 November 2010 there was a reference to the worker being able to work "up to 20 hours a week",[103] and in the consultation of 29 November 2010, it was noted that the worker felt that his depression was a lot better, that he was continuing to wean off Effexor, and that he had participated in a course for the purpose of obtaining a licence as a security guard and was looking forward to getting his licence.
3. At the consultation on 29 March 2011 Dr Latif noted that the worker reported feeling better in terms of his depression, although he had ongoing physical and mental issues, and that he had commenced carrying out some work as a security guard. Dr Latif thus provided a PMC to 30 April 2011 stating that as a result of his mental and physical disabilities the worker was fit for modified duties for fifteen hours per week within his physical limitations with the qualification that he was not fit for work with the employer. Dr Latif said that he would have provided such a certificate at an earlier date extending back to the middle of 2010 if the worker had been able to find work at that time although not with the employer, as Dr Latif did not consider the worker to be mentally fit to return to that environment.[104]
4. Dr Latif considered there was a continuing improvement in the worker's mental condition from March 2011, and agreed with the cessation of Effexor medication upon that being suggested to him by the worker in August 2011.
5. After seeing the worker for a second time in September 2011, Dr Blakemore was of the view that the worker's adjustment disorder with depressed mood probably began to resolve towards the end of 2010 after the worker undertook a security course and that he had largely recovered by the time he found part-time employment in March 2011, such that his psychiatric condition no longer incapacitated him for work within his physical capacities. [105]
6. Dr Nagesh felt the worker's condition deteriorated in December 2009 due to strong feelings of frustration, demoralisation and depression "due to the ongoing nature of all of the stressors including the main one of continuous pain in various parts of the body, consequent limitations, and multiple medico-legal processes with no resolution in sight".[106] Dr Nagesh further observed that throughout the course of 2010, the worker's condition fluctuated, but that in around October/November 2010, there was a change in that the worker seemed to overcome the state of helplessness and lack of control, and to adopt a more positive attitude, demonstrated by his becoming qualified for employment as a security officer. Nevertheless, Dr Nagesh felt the worker remained vulnerable to future relapses and/or exacerbations, and anticipated that the worker would remain partially incapacitated with respect to his psychological injuries on an indefinite basis.
7. Dr Nagesh provided a further report dated 20 September 2011,[107] following an attendance upon the worker on 23 August 2011. He then noted that the worker reported continuing improvement in his feelings generally, particularly on account of his ongoing part-time work as a security officer and his having negotiated more frequent contact with his son. He noted that the worker had of his own accord stopped taking his psychotropic medication following discussion with Dr Latif, a decision which was against Dr Nagesh's "better judgement".[108]
8. Dr Nagesh considered that despite the apparent progress during the course of 2011, the worker remained partially incapacitated for work from the point of view of his psychiatric injuries, even in relation to work well within his physical capacity. Dr Nagesh felt he remained vulnerable to relapses and exacerbations in response to aggravation of pain, coping with colleagues and line managers and other background stressors.
9. The worker said that he discussed with Dr Nagesh the possibility of returning to work with the employer one day but that Dr Nagesh took the view that this would be detrimental to his mental health. However, the worker considered he had gained a more balanced perspective which would enable him to better manage his injury related pain whilst undertaking those duties.

1. Before addressing my findings on the causation issue, and the extent and period of any incapacity for work on account of the worker's mental disability, I divert to deal with some conflicts between the evidence of the worker and Mr Clifford and to make some findings in that regard. References to complaints by the worker of harassment at the hands of Mr Clifford will have been noted in the above summary of histories taken by medical practitioners.
2. The conflicts between the worker and Mr Clifford are not of fundamental significance in terms of resolving the causation issue or any other issues for that matter, but nevertheless they have some relevance.
3. Whilst the worker said that he did not have any difficulties with Mr Clifford initially,[109] he said various problems began to develop over the latter part of 2008 and up to May 2009, to the extent that he felt harassed and intimidated by Mr Clifford. He made a formal complaint about Mr Clifford's conduct on 30 June 2009,[110] which was the first time Mr Clifford became aware that the worker had any grievance against him.
4. The complaint surprised Mr Clifford, as he felt he had a good relationship with the worker, who, as noted above, confided in him as to issues at work and personal problems involving his domestic relationship and financial difficulties. Whilst Mr Clifford could not recall that the worker had ever reported to him that he felt anxious or depressed as a result of pain from his physical injuries, he said that the worker had told him on a number of occasions, up to once a month, that he was frustrated with his injuries and at having to work reduced hours, and at the resultant financial disadvantage. Mr Clifford recalled that the worker's preference was to be back "online", and that he wished to be doing things and "to be kept busy".[111]
5. In the diversity complaint of June 2009, the worker set out a series of complaints and elaborated on these in his witness statements. Mr Clifford responded to the specific allegations in his witness statement and elaborated in his oral evidence. Although Mr Clifford endorsed the accuracy of his statement during his evidence in chief, it quickly became apparent that it contained a number of inaccuracies, and in some respects his oral evidence as to certain of the disputed events was remarkably different from the content of his statement as to central rather than peripheral matters. I was not impressed with Mr Clifford's evidence on these disputed matters. Whilst I do not doubt that he endeavoured to give his evidence to the best of his recollection, his memory was poor, he lacked attention to detail, and what he said as to some matters was simply implausible. That is not to say that I do not accept his evidence on some issues, for example, with respect to the flexibility of the allocation of duties in the LOC, a topic addressed later in these reasons.
6. I set out as briefly as possible a summary of the matters in contention. There are five discrete topics. The first related to the worker's allegation, which Mr Clifford denied, that in June/July 2008 Mr Clifford told the worker to keep away from Ms Gray because she was dangerous, this statement apparently being made to a group of LOC employees including the worker just before Ms Gray was assigned to the LOC. In his statement Mr Clifford explained that when Ms Gray was about to move into the LOC, he spoke to the male LOC employees to advise them of that fact, given that he thought these employees could be a bit loud and boisterous, and that they should be warned that they needed to "behave themselves" in the presence of a female employee.[112] Mr Clifford thought it appropriate to take such action given that he was aware that Ms Gray had some difficulty in the past with a fellow employee in a different area, and he did not want her to feel uncomfortable moving into an area dominated by men.
7. Curiously, despite that last mentioned consideration, Mr Clifford, in his oral evidence,[113] maintained that at the time he did not know who the new LOC employee was or even the gender of that employee, and that he only deduced that person was a female from the fact that he was asked to speak to the workers in the LOC about their behaviour, the implication being that this would not have been necessary unless the new arrival was a female. That seems quite implausible, and I find that Mr Clifford did know that it was Ms Gray who was coming into the LOC, and that he passed on some generalised type of warning to the employees with some reference to the word "dangerous". The fact that such a warning was given is consistent with the evidence of a number of other LOC employees described above, and confirms the veracity of Ms Gray's belief that she was seen as a troublemaker and her sense of vulnerability about the consequences of complaining about the worker's conduct.
8. A second complaint by the worker related to his assignment to production line duties involving the moving of cars upon his return to work in July 2008 after the right knee operation. This has been mentioned above. The worker complained that Mr Clifford acted unreasonably in proposing such duties in the circumstances. Mr Clifford said he thought it was the easiest job in general assembly and would be suitable for the worker on an ongoing basis and preferable to a temporary return to the LOC, particularly given his understanding that the worker was keen to get back to an online production job despite his recent surgery.
9. I find that Mr Clifford acted in good faith in proposing this job, but I also accept that the worker felt genuinely aggrieved as he thought it quite unsuitable, and that he felt, although without justification, that Mr Clifford was targeting him in some way. The important point about the worker's complaint of discrimination is that, not only did he feel able to complain, but upon making his complaint, Dr Monkhouse promptly came from the Medical Centre and assessed the work and agreed that the duties were unsuitable and that the worker should return to the LOC. The employer's handling of the incident supports its contention, and in particular that of Mr Clifford,[114] that those in charge of rehabilitation were responsive to complaints about the suitability of modified duties, and endeavoured to tailor them to the specific restrictions applicable to each worker, several of the LOC worker's also confirming this latter point.
10. The third complaint was that in September 2008, after the worker informed Mr Clifford of proposed medical investigations into his right shoulder problem, Mr Clifford said "What do you want, your whole body scanned, scan man?", and asserted that no treatment would be offered apart from exercise and physiotherapy, and forced the worker to handshake on a $50/$100 bet that no surgery would be required.
11. As to this, Mr Clifford said in his statement that it made no sense for him to suggest there was nothing wrong with the worker's shoulder, given that he had arranged for the investigation and treatment of the right elbow problem and, in his view, had gone out of his way to help the worker.[115] Whilst I accept that Mr Clifford was generally helpful and supportive, I find that he probably did make a facetious comment to the worker as alleged. By mid-2008 the worker had suffered a series of misfortunes in terms of physical injuries, and the development in August 2008 of a worsening left shoulder problem, which was not yet officially one of the injuries the subject of ongoing rehabilitation plans, was likely to have been somewhat frustrating for Mr Clifford in his ongoing management of the worker. I do not consider that Mr Clifford made his comments with malice, but they would have served to heighten the worker's sense of frustration and his underlying anxiety condition.
12. The fourth complaint by the worker was that in about January/February 2009, Mr Clifford approached him in the LOC and "harassed" him about having instructed his lawyers to act for him when, in Mr Clifford's view, the worker did not need legal representation at that stage. Further, the worker alleged that upon Mr Clifford becoming aware that other workers had instructed the same solicitors, he called the worker an "instigator" in front of other members of the work group. An additional aspect of this complaint was that on various occasions from February 2009, Mr Clifford made inappropriate comments about the worker's solicitors to the effect that he should watch his lawyer's fees and would possibly end up with nothing.
13. Mr Clifford recalled a conversation with the worker about his having retained Palios Meegan and Nicholson as his solicitors, and that he said something to the worker to the effect "good solicitors, watch your bills", a comment he said was intended simply to caution that legal advice in general was expensive, and that in his view, the engagement of lawyers by the worker was not necessary at that time.[116] On cross-examination Mr Clifford agreed that he had dealt with Palios Meegan and Nicholson previously, but maintained his comment was not directed specifically to that firm,[117] despite conceding that at an interview with Mr Palmer on 8 July 2009 in relation to the worker's diversity complaint against him, he said that he had made the comment because of previous dealings with the firm which caused him to think that their bills were quite excessive. Mr Clifford did not agree that he accused the worker of being "an instigator" by encouraging others to go to that firm for advice, although he did consider the worker to be the sort of person to "wind people up".[118]
14. I find that Mr Clifford did make comments to the worker about retaining lawyers which the worker took as a criticism, and probably referred to him as "an instigator". I accept that Mr Clifford may simply have forgotten about this comment, and that he may not have meant the worker to feel targeted in any way, or to specifically criticise the firm in question. Whatever the case, I find that Mr Clifford's comments caused the worker to perceive he was being attacked and discriminated against, and that this added to his anxiety levels and the feeling that he was being victimised.
15. The fifth complaint was that, after Mr Clifford had informed the worker in about late April 2009 of Ms Gray's complaint that he sexually harassed her, and after the worker had spoken to several of his fellow workers about this, Mr Clifford became angry and made hand puppet gestures to him, implying that he talked too much, which again caused him to feel he was being targeted and discriminated against.
16. Mr Clifford agreed that he had a conversation with the worker in the LOC about a proposal of the employer to interview the worker. He denied that he informed the worker that Ms Gray had accused him of sexual harassment. He said that he did know any details of the accusation, and his only communication with the worker was to convey advice from the compensation case manager Ms Brookes, that HR managers would be in contact with the worker and would like to "to discuss an incident" or "an allegation" with him. In his statement Mr Clifford appeared to indicate that he knew the incident had something to do with Ms Gray although he did not know the details at that time or any time later.[119] In his oral evidence he said he had no idea that the matter related to Ms Gray at all.[120]
17. Mr Clifford said that as soon as he conveyed this request the worker "went off his head", and said that he was "not going to be the only one going down for this. I'll bring everyone down with me", this despite the worker, on Mr Clifford's recollection, not then knowing that the interview necessarily concerned Ms Gray.[121]
18. I consider Mr Clifford's evidence to be very confusing on this point. I find that, when informing the worker on behalf of Ms Brookes of the proposed interview, Mr Clifford mentioned that it concerned allegations by Ms Gray. This explains the worker's explosive reaction and his subsequent actions in communicating with other LOC employees about the matter. I also find that at some later stage Mr Clifford did make some form of communication to the worker which implied the worker was talking too much, that is, he was in breach of confidentiality. I can only conclude that Mr Clifford's powers of recollection are so poor that he has forgotten the detail of these exchanges.
19. The worker alleged in his diversity complaint that the alleged actions of Mr Clifford caused him to feel "weak, intimidated, worthless and humiliated".[122] He said he did not complain about these matters before June 2009 because he felt vulnerable and feared repercussions, and these feelings also influenced the worker to keep persevering with the light duties in the LOC despite the difficulties he said he was having with them.[123] However, notwithstanding his feelings about what he described as Mr Clifford's inappropriate behaviour, the worker did not "feel that his maltreatment of me is the substantial cause of my psychological symptoms".[124]
20. Two points can be drawn from my findings on the conflicts between the worker and Mr Clifford. First, that on some disputed aspects, the worker's evidence is credible and can be accepted, despite his persistently dishonest evidence as to the extent of his misconduct in the LOC. It is to be noted that whilst he alleged these incidents caused him anxiety and frustration, the worker did not seek to elevate their effect above what the contemporaneous record would support. The fact of these various aggravating incidents along the way lends credibility to the worker's claim that various events which occurred before 8 May 2009 were contributing to his anxiety condition, and counts against the employer's contention that matters of this nature, having been raised for the first time with Dr Latif on 12 May 2009, were part of a false history concocted to bolster a claim for a compensable mental disability.
21. Second, one of the events of which the worker complains reveals that, notwithstanding his feelings of anxiety and vulnerability given his status since 2008 as an injured worker on modified duties, he was nevertheless assertive enough to complain when he felt the duties allocated to him were unsuitable, and further that the employer was immediately responsive in that regard and resolved the issue at the time. As will be seen, this point is relevant to the question as to whether, since his recovery from his mental disability, the worker has been fit for modified duties of the sort which were available to him in the LOC up to 8 May 2009, and said to have been available since that time.

1. The fact of the worker's dishonesty about the allegations of misconduct against him, and that his dishonesty over the allegations of .... [the serious misconduct].... continued right through these proceedings, does not mean of itself that his evidence relating to the cause of his anxiety and depression should not be accepted. The evidence as to the worker's behaviour in the LOC relates to a discrete period of possibly "out of character" conduct in a confined and isolated environment.
2. As it happens, the worker could not really give any direct evidence on the causation issue. I referred above to aspects of the worker's evidence in his statements which involved a reconstruction of what he said to Dr Latif when attending upon him on 10 January 2008 in relation to his anxiety and depression. This is to be contrasted with his oral evidence when he frankly conceded that he could not recall ever saying anything to Dr Latif connecting pain from his work injuries with anxiety and depression until 12 May 2009, and accepted that significant relationship issues may have already been causing stress before his 2007 injuries.
3. Having seen and heard the worker give evidence over several days, I consider it to be plainly evident that he was a man with much self-esteem vested in his physical prowess and strength, and in his ability to earn a living through hard physical work, and in being a provider to his family with the ability to carry out a wide range of maintenance tasks in and around the home. He was prepared to push through pain and inconvenience, and persisted with his repetitive production line duties for over six years with a sore left shoulder before increasing right elbow pain in 2007 compromised his ability to carry on. Similar impressions in relation to these underlying aspects of the worker's character were gained by each of Drs Blakemore, Nagesh and Wright and the psychologist Mr Wright. I accept their evidence that a personality of this type is vulnerable to succumbing to frustration, anxiety and depression if physical prowess is impaired or diminished on account of injury.
4. The worker's evidence as to his feelings following his injuries was given in a relatively understated way and presented a picture entirely consistent with what one might expect from a man of his personality and selfimage. I find that his lack of insight into why feelings of frustration and anger developed, his tendency to suppress such feelings, and his reticence to complain of them or to disclose them by seeking to pursue any claim linking those feelings with his injuries before 12 May 2009, is consistent with his personality as earlier described, and offers a compelling explanation for the lack of clear evidence from him of a link between the injury pain and the anxiety condition before 12 May 2009.
5. I find that at the time the worker began developing his pain symptoms, he had been having difficulties in his relationship with his partner for some time, perhaps years, but that it was not then terminal. As he said, it was a relationship with its ups and downs, with times of conflict and argument between the worker and his partner, including over financial matters and management of their son's Asperger's syndrome. Whilst the pre-injury relationship difficulties may have contributed to symptoms of stress over a period up to and including the latter part of 2007, I find that the main causative factors of the increasing levels of frustration, anger and anxiety experienced by the worker at the end of 2007 were the injury to the right elbow in about September 2007, and the development of increasing left shoulder pain and disability, and the resultant partial incapacity which caused the worker to be assigned to modified duties from November 2007.
6. Succumbing to increasing pain in these circumstances would not have come easily to a person of the worker's personality. I find that he was loath to accept the extent of his difficulties, and continued to push himself at work, and thereby aggravated his pain experience. This not only caused increased difficulties in discharging his work, but also created problems in carrying out activities of daily living and maintenance tasks around the home. These factors combined to cause additional feelings of inadequacy, frustration and anger, which in turn over the last few months of 2007 had a severely detrimental effect on the already vulnerable relationship with his partner.
7. At this point I note that each party invited me to draw an adverse inference with respect to the other due to their respective failure to call evidence from the worker's former partner on the question as to the state of the relationship before the injuries in 2007.
8. I decline to draw an adverse inference against either party on this account. Given that the relationship between the worker and his partner eventually failed in January 2009, and that there have been ongoing access issues and Family Court proceedings, I do not think it can be expected of the worker that he call a witness with whom he has been in serious conflict and who may now be hostile to him. His former partner was not a witness in his "camp" and was not a witness that he might have been expected to call. He gave an explanation as to his concerns in this regard.
9. The employer sought out the worker's former partner during the proceedings and obtained information from her which was put to the worker in cross-examination, and then chose not to call her to give evidence contradicting the worker's answers to those questions. Despite this, I do not consider that the employer went so far in its questioning that it could thereby be expected to have called that witness, and I do not draw an inference adverse to it on that account.
10. It is of significance that the worker reported anxiety and depression within approximately three months of the right elbow injury causing severe disability. I accept, as Dr Ewer observed, that this time relativity of itself does not demonstrate the connection, and that it is not a "cook book process",[125] as he put it, but against the background of the worker's personality as described, and the significant difficulties which developed from September 2007 culminating in his being placed on ongoing modified duties in November 2007, and the attendant domestic difficulties, the time frame within which anxiety and depression symptoms arose is a factor which is consistent with the existence of a causal connection with the compensable physical injuries.
11. I find that accumulating feelings of anxiety and anger, and their detrimental effect upon his relationship, were what caused him to attend upon Dr Latif on the two occasions in January 2008. I do not find it surprising that the worker does not now recall whether he mentioned his injury pain, or whether he linked it with his feelings of frustration, anger and anxiety. He was there to seek help with his relationship. The question of a link between the work injuries and his feelings was not the issue at the time. Those feelings were not preventing him from continuing on modified work duties, and he was seeing doctors at the Medical Centre in that regard. I accept that he would have felt reluctant and embarrassed about revealing any concerns about stress to Medical Centre doctors, and that there was no need to do so.[126]
12. I find that it is probable that the worker did not complain of pain from his injuries, or suggest any link between that pain and the feelings of anxiety and anger, at either of the two consultations in January 2008. It is consistent with the worker compartmentalising the work injuries and the effect of them on the family. Hence the preparation of a mental health plan and a referral to a psychologist about relationship issues rather than the effect of work pain. I am not troubled by the failure of the worker to lead evidence clarifying the basis of the psychological referrals at this time or in January 2009.
13. I now address aspects of Dr Latif's evidence, which is critical in establishing the causal link. The detailed summary of his notes set out above reveals a number of contradictions between his evidence in chief that complaints were made of pain and frustration linked with anxiety and depression, and his cross-examination where concessions were made to the effect that the absence of any note in that regard meant that such complaints were not made. Yet despite these concessions he maintained that the worker repeatedly complained of pain and frustration in connection with the "WorkCover situation" and that this was linked with his anxiety and depression.
14. Whilst examination of the chronological detail of contemporaneous medical records is essential and of invaluable assistance in determining whether and when particular complaints were made, and whether one condition might have been linked with another condition, the import of the presence or absence of certain entries in medical records must be considered in the context of the worker's personality and reticence to complain referred to above, and the situation at work. Until May 2009 there was no need for the worker to even consider any action based upon a connection between his injury pain and the feelings of anxiety and depression. He was receiving compensation for his physical injuries when totally incapacitated, and was otherwise able to work on modified duties despite his anxiety condition.
15. I consider it probable, despite the worker being unable to recall it specifically, that at a number of his discussions with Dr Latif, most likely commencing at the attendance of 21 July 2008, he did link the pain from his injuries with feelings of frustration and anxiety. The consultation of 21 July 2008 appears to have taken place shortly after the incident giving rise to the worker's complaint that the allocation to him of the car moving duties involved discriminatory conduct, following which he transferred management of his physical disabilities from the Medical Centre to Dr Latif. It is likely that complaints about frustration with "WorkCover" were prominent at this time.
16. I am fortified in making a finding that the worker did complain to Dr Latif of frustration and anxiety with reference to injury pain and disability because I accept the evidence of Dr Latif that complaints of this nature were made to him despite no explicit record to that effect being entered by Dr Latif in his notes. I held some initial reservations about the reliability of Dr Latif's evidence in this regard given his tendency to make rather sweeping and enthusiastically supportive statements as to the existence of a causal connection from the beginning, only to back down as soon as questioned about the lack of a contemporaneous note. However, on reflection, I consider Dr Latif to be a conscientious, although perhaps somewhat inexperienced general practitioner, who was giving a truthful account of what was said to him.
17. Thus, despite the reconstruction in Dr Latif's evidence in terms of the time frame in which complaints were made linking the injury pain and anxiety, and the inconsistency between his asserted note taking practices and what he did in this case, I accept that the worker did complain to him of frustration and anxiety in connection with injury pain and disability. Dr Latif is probably inaccurate in now recalling that complaints indicating such a link were made as early as November 2007 or even in January 2008. As stated, I find they were probably first expressly made on 21 July 2008 when Dr Latif took over management of the compensation injuries and recorded a more comprehensive history. I find that Dr Latif accepted, on the basis of the worker's complaints, that there was a link between the work injuries and the condition of anxiety and depression which he first diagnosed on 10 and 15 January 2008, but that he did not feel the need to formally record the link in his notes until after the aggravation of the mental disability on 8 May 2009.
18. I find that Dr Latif did not record the connection before 12 May 2009, despite his normal practice, because there was no claim being pursued with respect to the condition of anxiety and depression, and in the circumstances he did not consider it necessary to do other than treat the condition independently of the work injuries with counselling and the prescribing of Effexor. I do not consider that to have been a desirable course. It would have been preferable, as Dr Ewer observed, for Dr Latif to have made a note linking the complaints of pain with anxiety and depression, and to have provided treatment focused on pain relief and management, so as to reduce that stressor, despite no compensation claim being considered in that regard.
19. I find that the worker continued to suffer from pain, disability and frustration at varying levels throughout 2008 and up to 8 May 2009, and that these experiences contributed to a continuation of an underlying condition of anxiety and depression. The existence of ongoing frustration during this time and throughout the period to May 2009 was confirmed by Mr Clifford's recall of the worker's monthly complaints in this regard.
20. I find that the final breakdown in the worker's relationship with his former partner in January 2009 was also an indirect result of the injury pain and disability, which in turn probably aggravated the condition of anxiety and depression and caused the worker to attend at Dr Latif's rooms in January 2009 whereupon the dose of Effexor was doubled and further psychological referral was made. At that time, the position remained that no action needed to be taken with respect to the link between the injury pain and the depression. The worker still had no reason to pursue such a matter.
21. The fact that the PMCs provided by Dr Latif up to 8 May 2009 stated the worker to be fit for modified duties on the basis of his physical injuries, without reference to his mental condition, has no bearing either way on the issue of the causal connection. The worker was not then asserting any incapacity as a result of his mental disability, and I accept that Dr Latif would not make any such reference on any certificates he issued unless the worker expressly told him that he wished to claim compensation with respect to such a disability.
22. I find that the condition of anxiety and depression did adversely affect the worker during the period from January 2008 to 8 May 2009. I accept the worker's evidence that up to 8 May 2009 he wanted to keep working and in so doing, he tried to ignore the feelings related to his anxiety and depression. I accept that he was accurate in saying, with the benefit of hindsight, that from late 2007, after he developed symptoms in the right elbow, he probably pushed himself by working too many hours, particularly when on restricted duties, and that this aggravated his pain levels.[127] The comment of Dr Griffin after the right elbow operation supports this,[128] as do those of Dr Wright that the worker was in that category of individuals so committed to overdoing things that they required a psychological range of treatments to assist in the process of understanding the process of working within limits to avoid continuing frustration.[129] I accept that these factors probably contributed to a deterioration in his mental state, and as speculated by both Drs Blakemore and Nagesh, this in turn may have contributed to the extremity of his behaviour whilst in the LOC. Further, I accept that the worker's anxiety problems over the period of time he was undergoing rehabilitation were exacerbated by some of the comments and actions of Mr Clifford which have been addressed above.
23. Thus I find that on 8 May 2009, when the worker was advised that he was being stood down on the basis of a serious allegation, he was suffering from an underlying condition of anxiety and depression, which to use the words of Dr Nagesh, had been "flying under the radar". I find this was more than just an incidental and passing condition of "stress" which could be expected to be the experience of any worker dealing with the ongoing effect of several work injuries. It was a condition which was affecting the worker's mood and his ability to function despite continuing to attend work on modified duties.
24. I find that prior to receiving the employer's letter on 8 May 2009, the worker had not expected to see Dr Latif for another month, and that upon receiving the letter, probably late in the day on Friday 8 May 2009, he became concerned and upset and arranged to see Dr Latif to discuss it. I find he attended upon Dr Latif at about 1 pm on Tuesday 12 May 2009. Although he could not recall it, the worker accepted that he may have been to see his solicitors in the meantime.
25. Given that the worker's solicitors did not put any evidence before me to indicate that the worker did not attend upon them between the time he received the employer's letter and his attendance on Dr Latif 12 May 2009, the employer submitted that I should find that there was an attendance during this period. Further that, given the expected order of reporting of stressful events, as outlined by Dr Ewer, I should find that, having the benefit of a consultation with his lawyers, the worker presented a contrived history to Dr Latif, which intentionally listed a series of never before mentioned compensable stressors before reference was made to the most obvious and recent stressor, being the possibly non-compensable event involving notice of disciplinary action.
26. I am unable to find when the worker first saw his solicitors about the letter of 8 May 2009. He had seen them by 14 May 2009 when the compensation claim was prepared and signed, but that was after he saw Dr Latif given that the supporting medical certificate of 12 May 2009 was then to hand. Even assuming the worker attended on his solicitors about the letter before he saw Dr Latif on 12 May 2009, I reject the contention of the employer as to the adverse inference I should draw. I do not consider that the worker manufactured a false history with the intent to mislead Dr Latif. I find that he had been experiencing the feelings of which he complained to Dr Latif as a result of the events listed by him which preceded 8 May 2009, and that these arose from an underlying condition of anxiety and depression. I find that the stress caused by the worker's receipt of the letter of 8 May 2009 consequent upon his physical injuries severely aggravated this underlying condition, and that as a result, a history of hitherto suppressed stressful events came to the surface and were volunteered by the worker in some semblance of chronological order.
27. The fact that some of the long standing issues mentioned by the worker had been on his mind well before 12 May 2009 is supported by other objective facts or findings I have made. For example, that by no later than 21 July 2008, the worker had made complaints to Dr Latif, although not recorded, linking pain and disability with feelings of frustration and anger; that he had felt stressed on occasions by what he considered to be discriminatory conduct on Mr Clifford's part; that he had suffered pain and disability from his injuries, and consequent anger and frustration which contributed to the eventual breakdown of his relationship with his partner; that he had been unable to do home maintenance, a matter confirmed by Ms Simionato's assessment on 29 July 2008, when complaints of restrictions resulted in the employer meeting the cost of lawn mowing assistance, and also by Dr Latif's medical report of 6 March 2009, which referred to the inability of the worker to do general household tasks; and that the "worse knee pains" to which he referred as one of the stressors on 12 May 2009 had been mentioned earlier to Dr Latif on both 10 February 2009 and 6 March 2009.[130]
28. In this context, I find it plausible that the worker would report first the series of previous stressful events, and would then report the final stressor which brought him to Dr Latif, namely the harassment allegation, in context and, in a sense, as the "final straw". Dr Ewer's view that it might generally be expected that the harassment allegation would be mentioned first in such circumstances does not gainsay my conclusion.
29. Against this background, I find that the worker gave a genuine and truthful history to Dr Latif of matters that had been causing him stress, upon the basis of which Dr Latif was entitled to conclude that since January 2008, the worker had been suffering from an adjustment disorder which was a sequel to his compensable work injuries, which had been aggravated by the events of 8 May 2009. That is, there was a basis upon which he was entitled to conclude that the sequelae to the physical injuries had resulted in a diagnosable illness or disorder of the mind since January 2008, and that the symptoms experienced by the worker up to 12 May 2009 were more than mere emotional symptoms of mild anxiety which did not warrant a diagnosis of a psychiatric disability. In making reference in the PMC provided to the worker on 12 May 2009 and in subsequent certificates to the worker being depressed and anxious with "issues at work", I accept the evidence of Dr Latif, and the worker's understanding, that this phrase was intended to encompass the full range of issues reported to Dr Latif on 12 May 2009, with the worker's distress over the investigative process being only one of those issues, although a significant one.
30. I had initially understood the employer to contend that I should find there had been collusion between the worker and his solicitors to present a false history to Dr Latif on 12 May 2009. Having heard further from counsel for the employer, I accept that the intent of the submission was only that, after seeing his solicitors, the worker took it upon himself to present a false history, not that there had been any collusion. The evidence would not have warranted a submission of collusion.[131]
31. It may well be, as the employer contended, that after 12 May 2009, the majority of the complaints made by the worker related to events on and from 8 May 2009. However I reject the contention that this indicates that employment related stressors before 8 May 2009 made no substantial contribution to the adjustment disorder diagnosed on 12 May 2009. It is not surprising that the allegation made on 8 May 2009 and subsequent disciplinary events were foremost in the worker's mind over subsequent months. He lost his job over them. The worker did not dispute that the immediate problem after 12 May 2009 was the investigation and the loss of his employment. However, his admitted tendency to focus on external problems such as the investigation and the allegations against him, and to be "dogmatic" and to "rant about issues",[132] should not obscure the fact that these matters were not his only concern. That is apparent from the evidence of Drs Blakemore and Nagesh and Mr Wright, who said that as well as complaining about the allegations and the disciplinary process, the worker also complained about the effect of his pain upon his condition and stressors occurring before 8 May 2009.[133]
32. In considering the causation issue, I have had regard to the various points made by Dr Ewer in relation to Dr Latif's notes, and generally, as to why the worker's history should be considered unreliable, and why the alleged connection between the work injuries and subsequent pain, and the condition of anxiety and depression diagnosed in January 2008, should now be considered doubtful.
33. The issues raised by Dr Ewer with respect to the extent of the contribution of non-compensable stressors before late 2007 are disposed of by my acceptance of the evidence of both the worker generally as to the stressors affecting him before 8 May 2009, and the evidence of Dr Latif. Further, the chronology of events after the condition was diagnosed does not support Dr Ewer's suggestion that it was only the alleviation of non-compensable stressors which facilitated the worker's recovery. That is to confuse cause and effect.
34. I find that the worker's recovery stemmed from an improvement in his mental state as a result of treatment he had undergone, which allowed him to develop a better understanding as to the management of his pain, and to acquire productive coping mechanisms along with a better level of insight into past behaviours and to cease to dwell obsessively on past events, accepting that this insight did not extend so far as to allow the worker to acknowledge all of his inappropriate behaviour. This improved mental state in turn led to the worker taking steps to improve his position by undergoing personal development courses and an accreditation course for security work. His achievements in this regard no doubt assisted his continuing recovery, but they were not the cause of the recovery, nor was the ultimate negotiation of better access hours to his child. That advance came at a stage well after the worker reported the beginnings of an improvement in his mental condition.
35. Having regard to the above considerations, I find that the assumptions underlying Dr Ewer's opinions expressed in his first two reports, namely that there was a diagnosable condition being an adjustment disorder with anxious mood, which was a consequence of pain and disability flowing from his work injuries, were correct. In particular, that the anxiety and depression diagnosed by Dr Latif were a consequence of the pain and disability experienced by the worker following his injuries in late 2007, and that his relationship with his partner deteriorated primarily as a result of that, and further contributed to the worker's anxiety and depression.
36. For the same reasons I find that the opinions of Drs Blakemore and Nagesh connecting the work injuries with the anxiety and depression diagnosed in January 2008 should be accepted. Despite the fact that they were both incorrect in assuming that the worker had complained specifically to Dr Latif in January 2008 that his pain was causing anxiety and depression, and that the causative link was specifically made by Dr Latif at that time, the findings I have made mean the essence of the assumptions underlying their opinions on causation stand.
37. I find that the work related stressors arising from injury pain and disability were the substantial cause of the condition diagnosed in January 2008. This leads me to reject the employer's contention that the worker's anxiety and depression wholly or predominantly arose from the receipt of the letter of suspension on 8 May 2009, and that the claim submitted on 12 May 2009 was for a new condition being an illness and disorder of the mind, and that there was no psychiatric sequel to the physical injuries.
38. Given the extremity of the symptoms complained of after 8 May 2009, and that I accept that the worker was severely affected for a considerable period of time, I prefer the opinions of Dr Blakemore and Dr Nagesh to that of Dr Ewer in relation to their effect on the worker's capacity for work. I find that he was totally incapacitated for work from 8 May 2009 due to the combined effect of the compensable physical injuries and the aggravation on and after 8 May 2009 of a pre-existing condition of anxiety and depression which had resulted from the compensable physical injuries.
39. I now turn to the period of incapacity resulting from the mental disability. I noted above that the worker started considering job options and reducing his anti-depressant medication from mid-2010. The worker obtained various certificates in security operations in December 2010.[134] He then began looking for work and canvassed potential employers by circulating a proforma letter and his resume.[135] I find it probable that by 31 December 2010 his mental condition had improved to the extent that it no longer incapacitated him for work for which he was physically fit. I consider this to be the case even though I accept that the worker continued to suffer mild ongoing symptoms of anxiety and depression until about September 2011.
40. In making this finding, I have considered the opinions of Dr Latif, Dr Nagesh and Mr Wright that even as at August 2011 the worker may not have been fit for work on a full-time basis due to his mental condition, or not fit for any work on that account with the employer. However, given the background of the worker's gradual improvement since June 2010, I prefer the opinion of Dr Blakemore that the worker would have been fit for work by early 2011 on an unrestricted basis on account of his mental condition.
41. I prefer that evidence because I consider it probable that the worker's condition, although it fluctuated, was not as severe as was diagnosed by Dr Nagesh for most of the time. That is, the diagnosis of Adjustment Disorder with Depressed Mood was more appropriate than that of Dr Nagesh of Major Depressive Disorder, notwithstanding that at times of extreme stress the latter diagnosis may have been warranted. I also take into account the fact that, whilst I accept that the worker's complaints concerning his ongoing mental stress up to late 2010 are genuine, there is likely to have been some exaggeration of the disabling extent of the condition, particularly during times when the worker felt aggrieved at the employer's treatment of him. As in the case of the worker's complaints with respect to his physical disabilities, which I will address shortly, some caution needs to be exercised in evaluating the worker's evidence as to the ongoing extent of his impairment.
42. In summary, I find that:
    • The worker developed a mental disability, namely an illness or disorder of the mind being an adjustment disorder with mixed depression and anxiety in about January 2008 as a consequence of the pain and disability resulting from the right elbow injury suffered in the course of his employment in September 2007 and the consequential aggravation of his long-standing compensable left shoulder disability.
    • Whilst non-compensable factors such as pre-existing relationship difficulties may have contributed to the development of the mental disability, I find that the substantial causes were the compensable disabilities and their subsequent effect on the worker, which in turn led to the deterioration of the worker's domestic relationship and his ultimate separation from his former partner in January 2009.
    • Throughout 2008 and up to 8 May 2009 the worker continued to suffer pain, disability and frustration as a result of the right elbow and left shoulder disabilities, and as a result of the right knee injury in March 2008, which in turn contributed to an ongoing mental disability despite that the worker continued to be able to carry out modified duties.
    • On 8 May 2009 the worker's mental disability was severely aggravated as a result of his being notified by the employer that he was to be stood down pending investigation of serious allegations against him and as a result of the subsequent disciplinary process and his dismissal. I find that this aggravation did not result in a new or separate mental disability.
    • As a result of the aggravation on and after 8 May 2009 of the mental disability which arose in January 2008, the worker was totally incapacitated for work from 8 May 2009 due to the combined effect of his compensable physical disabilities and the mental disability. He remained totally incapacitated until 31 December 2010, by which time he had largely recovered from the mental disability, and had become fit for full-time work within his physical capabilities, whether with the employer or elsewhere. I find that the mental disability totally resolved by the end of September 2011.

1. The employer disputed that the worker suffered any mental disability at all over the period before 8 May 2009, and contended that the events of that day and subsequently should be regarded as the only employment related event giving rise to an illness or disorder of the mind. I have found against that proposition. Had I found in favour of the employer, I would have concluded that the worker was disentitled to compensation under the provisions of s 30A of the Act, because whilst the employment events on and after 8 May 2009 would clearly have been a substantial cause of the disability, the worker would have failed to establish that the disability did not arise wholly or predominantly from disqualifying actions of the employer, given the findings already made that the disciplinary proceedings and the dismissal were reasonable disciplinary actions taken in a reasonable manner.
2. The employer's alternative contention was that, accepting the finding I have now made, I should nevertheless consider whether s 30A operated so as to disqualify the worker from any entitlement. It contended that the consequential mental disability which originated in January 2008 should be taken to have been of minimal effect until it was significantly aggravated on 8 May 2009, such that I should conclude that the worker has not established that the subsequent mental disability did not predominantly arise from the disqualifying events of that day and the subsequent disciplinary actions.
3. Whether this submission can be upheld depends upon the legal question as to whether s 30A can apply to the consequential mental disability, and if it does, whether on the facts, it operates so as to disqualify the worker.
4. In order to succeed on the legal question, the employer must overcome the limitation on the scope of the operation of s 30A which arises from the Full Tribunal decision of Arrowcrest Group Pty Ltd v Nguyen.[136] That decision is to the effect that the disqualifying provisions of s 30A of the Act apply only to an illness or disorder of the mind arising directly from employment, rather than to an illness or disorder of the mind which is a sequel to other compensable disabilities, as I have found to be the case here. In coming to this view, the majority in Nguyen had regard to the comments of Doyle CJ in Workers Rehabilitation and Compensation Corporation v Lu[137] that s 30A is to be construed bearing in mind that it is a provision of limitation which should not be given an expansive operation, particularly given the difficulties of separating out disabilities entirely attributable to a direct mental injury and disabilities attributable to a mental disability consequent upon a physical injury. In that context the majority said that s 30A:

"...should be limited to cases that fall squarely within its ambit, they being cases that exclusively involve illnesses or disorders of the mind. It does not apply to a physical injury simply because that injury has a psychological component."[138]

1. The employer contended that in making this comment, the majority should not be understood to have said that s 30A does not apply to an illness or disorder of the mind simply because there is some contribution from a physical injury. It submitted that a substantial component of the mental disability arose directly from the employment events on and from 8 May 2009, and that s 30A should be applied accordingly. I cannot interpret the majority's comment to allow for that conclusion given my finding that the mental disability, although severely aggravated by the events of 8 May 2009 and afterwards, was a consequence of the compensable physical injuries.
2. The condition which incapacitated the worker from 8 May 2009 was not exclusively an illness or disorder of the mind arising directly from employment events on and after that date. Those events had their disabling effects in light of all that had preceded them, being longstanding physical injuries and a prolonged period of consequential anxiety and depression before 8 May 2009 which the worker had been attempting to manage with some difficulty. In effect there was one disability, comprising the physical disabilities arising in September 2007, which encompassed a resultant mental disability by January 2008, the latter disability thereafter fluctuating in intensity, and being severely aggravated on and after 8 May 2009. These findings also render inapplicable the extracts to which I was referred by the employer in Keen v Workers Rehabilitation and Compensation Corporation,[139] where comments were made to the effect that s 30A will operate where the disability of which the worker complains is an illness or disorder of the mind.[140] Here the disability has been found to consist of the compensable physical disabilities and the consequential mental disability. The claim form of 14 May 2009 is in consistent terms as the claimed "adjustment disorder" was asserted to be secondary to the compensable physical disabilities.
3. In any event, the effect of my factual findings is that if, contrary to the view I have formed on the basis of Nguyen, s 30A was considered to have application in the circumstances, it would not operate to disqualify the worker, for on the evidence the worker has established that the mental disability did not arise wholly or predominantly from the actions taken on and after 8 May 2009. Notwithstanding the immediate incapacitating effect of those events, the extremity of the worker's reaction to them has been shown to be sufficiently bound up with all that preceded them so as to take the matter out of the reach of s 30A.
4. The above factual findings also lead to the rejection of the employer's contention that the worker is disqualified from any entitlement by s 30B(2)(b)(i) of the Act, which provides that a disability which is not serious and permanent[141] is not compensable if it is established on the balance of probabilities that it was wholly or predominantly attributable to serious and wilful misconduct on the part of the worker. The employer has the onus in that regard. On the findings set out above, there is no doubt that the worker engaged in serious and wilful misconduct, but it has not been established on the balance of probabilities that the compensable disability, being a combination of the physical and mental disabilities, was wholly or predominantly attributable to any such conduct, whether by reference to his conduct in the LOC or thereafter in misleading his employer as to the extent of his misconduct.
5. Thus I find that the compensable physical disabilities, and the resultant mental disability, caused the worker to become totally incapacitated for work after the mental disability was aggravated on 8 May 2009. That total incapacity continued until 31 December 2010. Bearing in mind that the worker was stood down on full pay until his dismissal on 12 August 2009, and received income maintenance with respect to his left shoulder disability until 23 August 2009, the worker is entitled to payments of income maintenance for the period of total incapacity from 24 August 2009 to 31 December 2010 inclusive.

Whether the worker has any entitlement to income maintenance during any period of partial incapacity resulting from a compensable disability

1. It is to be recalled that the determination of 31 August 2009 rejected a claim for income maintenance from 24 August 2009 with respect to the left shoulder disability on the basis that the worker was fit for modified duties which were not being provided to him on account of his breach of mutuality and the termination of his employment for serious and wilful misconduct. During the trial, given its position that there was no compensable mental disability, the employer maintained that this determination was correct. This contention assumed that the worker's entitlement to income maintenance during any period of partial incapacity on or after 24 August 2009 was conditioned on mutuality.
2. Although I have found, contrary to the employer's case, that the worker was totally incapacitated for work from 24 August 2009 to 31 December 2010 on account of the combined effect of his compensable physical injuries and the resultant mental disability, the question as to whether there is any entitlement to income maintenance during partial incapacity remains to be answered with respect to the period from 1 January 2011 to date.
3. The worker contended that in the event that he suffered a compensable mental disability from which he eventually recovered such that he now has only a partial incapacity for work due to his left shoulder disability, he has remained totally unfit for the employment which was allegedly available to him in the LOC from 24 August 2009, and is entitled under s 35A of the Act to income maintenance during any period of partial incapacity despite the breach of mutuality. He submitted that all he was required to establish was the fact of a compensable disability and a resultant partial incapacity, and that as the employer had made no determination as to what he could earn in suitable employment under s 35A(4)(b) of the Act, he was entitled to the difference between his notional weekly earnings and any current weekly earnings.
4. Before addressing the legal arguments which arise with respect to the concept of mutuality and the operation of s 35A, and the import of the employer not having made a determination identifying "suitable employment" and specifying the amount the worker could earn from such employment, I set out the evidence and my findings as to the extent of the worker's residual capacity for work in light of his left shoulder injury, and as to the nature of the employment said to have been available in the LOC from August 2009 and whether it is "suitable employment" as defined having regard to the worker's condition since his recovery from his mental disability.

1. The worker's case was that, from 24 August 2009 or any relevant later date, which would include the period from 1 January 2011 after his recovery from the mental disability, he was not fit on account of his left shoulder disability for any duties said by the employer to be available to him, and in particular the duties he had carried out in the LOC until 8 May 2009. He submitted that despite the fact that he had carried out those duties up to 8 May 2009, and had been certified to be fit to continue to do so, the reality was that he had been struggling with that work, and indeed was not physically fit for it then, and has not been fit for it since on account of the left shoulder disability and the effect of the right elbow and right knee disabilities.
2. Over the period the worker was in the LOC from July 2008, he said he suffered from an increasing amount of aching and tiredness of the left shoulder with referred neck pain. He considered the symptoms to be repeatedly aggravated by the repetitive nature of the work. He said the left shoulder surgery in December 2008 did not result in any sustained improvement, and that he suffered worsening shoulder problems up to 8 May 2009. He said that this made it increasingly difficult for him to carry out the duties assigned to him in the LOC for which he was certified fit, a difficulty said to be compounded by the fact that certain additional tasks required physical movements of him that went beyond the limitations imposed by the applicable PMCs.
3. Further, the worker said that whilst he was working in the LOC, efforts to compensate for the left shoulder problems by greater use of his right arm in turn increased residual aching in the right elbow region and numbness in the little finger of the right hand. He also complained of instability of the right knee when walking downstairs or moving sideways, and of right knee discomfort after prolonged standing as a result of which he would have to place more weight on his left foot. The worker said he would try and rest when he could between unpacking activities, but it was not always possible given ongoing production requirements. He said that each of the injuries considered on its own was not bad, but that collectively they added up, and that by the end of the working day or by the end of the working week, he was feeling much worse, and that by the end of each week he felt that he had "just had enough".[142]
4. After the second left shoulder operation in July 2009, this being over two months after he had been stood down, the worker said that his left shoulder felt worse than it had before the operation for a period well after the one month to 23 August 2009 during which Dr Nimon had certified him to be totally unfit for work. He felt depressed and anxious during this time, and said that it was a "good six months"[143] before his left shoulder returned to the state it was in immediately before the second operation. Even then, he felt he was not physically capable of returning to the LOC duties because they had aggravated his shoulder condition both before and after the surgery in December 2008, although he conceded that well before March 2011 he would have had some capacity for work despite his physical injuries.[144]
5. Before turning to the precise nature of the ongoing duties available in the LOC, I address the medical evidence as to the worker's capacity for work in light of the shoulder injury. The main evidence in this regard was that of Drs Nimon and Wright.
6. When Dr Nimon first saw the worker on 25 September 2008. He noted that investigations indicated that there was bursal impingement of the left shoulder. He carried out an operation involving arthroscopic decompression on 10 December 2008, which resulted in an improved range of motion. However, because the shoulder deteriorated thereafter, Dr Nimon carried out another operation on 23 July 2009 which involved an open AC joint excision. Dr Nimon certified the worker to be totally unfit for work from that date to 23 August 2009. He attended on the worker again on 7 August 2009 and certified him to be fit to return to modified duties from 24 August 2009 to 24 September 2009, being "light duties, predominantly right handed, left handed not lifting greater than 5kg".[145] These restrictions related to the worker's left shoulder only and not any other disabilities.
7. Dr Nimon saw the worker again on 10 September 2009 when the worker reported that he did not feel the surgery had made a significant difference to him, and that he still had occasional pain and restriction upon some movements of the shoulder. Nevertheless, Dr Nimon discharged the worker from further treatment on the basis that he considered him fit to continue with light to moderate duties. When Dr Nimon wrote a medical report on 1 January 2010 he said he expected that by then the worker would be back to full duties.[146]
8. Dr Nimon reviewed the worker in May 2011. On that occasion he considered that he had good passive and active motion of the left shoulder, and that he was doing fairly well despite pain at the end of range of motion, which was indicative of some impairment. Dr Nimon accepted that in these circumstances it could be understood that the worker might complain at times that his shoulder felt weak and unreliable. Dr Nimon did not consider that there were any restrictions that ought to be imposed upon work activities in relation to the left shoulder except that the worker should not engage in any activity which produced pain with which he could not cope.
9. The worker was referred by Dr Latif to Dr Wright in his capacity as a specialist in pain medicine in which area he had been practicing since 1991, having also undergone some training as a psychiatric registrar, although without formal qualifications in that regard. As well as expressing an opinion on the extent of the residual disabilities the worker suffered due to his physical injuries, Dr Wright also expressed some views as to the emotional and psychological condition of the worker, which have relevance in terms of the expected time for recovery from his physical injuries.
10. Dr Wright first saw the worker on 31 August 2009 and later assessed him as part of a chronic pain conference. With respect to the left shoulder, Dr Wright considered that the worker had made a good recovery from the second operation, despite continued weakness of external rotation due to reduced strength in the shoulder. He noted that the worker complained of continuing pain as a consequence of his right knee injury. In that regard, whilst Dr Wright noted some loss of muscle bulk which would have been accompanied by a mild loss of strength of the right knee, overall he thought it was functioning well, although there would have been some minor limitation in standing for long periods, and with kneeling and possibly squatting. In relation to the right elbow, Dr Wright noticed some mild restriction of extension and considered that the worker would have some restrictions with respect to tasks requiring strong or repetitive gripping, or requiring some dexterity due to loss of sensation in the little and ring fingers.[147]
11. In Dr Wright's opinion the worker would have been unfit for work on account of the left shoulder as at 31 August 2009, but was possibly approaching a time when he could undertake light duties with appropriate restrictions on shoulder movement.[148] In that regard he considered the worker should avoid elevation above shoulder height. He thought that over the subsequent six to twelve weeks the worker would improve significantly, and observed that whilst maximum improvement might not occur for twelve to eighteen months, it could be expected that the worker would be able to use the shoulder quite reasonably some three to six months from the time of the second operation on 23 July 2009.[149]
12. Dr Wright observed that there were two ways in which the work injuries impacted upon the worker's life. First the injuries themselves caused a loss of his health and a loss of his ability to be the person he expected himself to be, a loss of a nature which could give rise to depression. The other way in which pain was relevant was that the worker put a high priority on being active and productive and did not easily tolerate doing things in half measures. Dr Wright said that a recurring theme in his notes was the difficulty in helping the worker adopt a steady paced approach to his recovery. In his view, the worker's difficulty in this regard, and his psychologically driven need to do the physical tasks he expected of himself, being an expectation outside the realistic range of activity of which he was capable given his injuries, tended to perpetuate his problems.[150]
13. In my view these observations accurately depict difficulties which impeded the worker's physical recovery whilst on modified duties in the LOC before 8 May 2009, and from the time of the second shoulder operation, and echo general observations made as to the worker's character by a number of other medical witnesses. They are consistent with my own impression of the worker. Over the months following the second operation in August 2009, the worker was in an extremely agitated state at times, as indicated most particularly by the evidence of Dr Nagesh. In my view he was clearly suffering psychological difficulties of a nature such as to impede physical recovery.
14. Considering the evidence in this light I prefer the view of Dr Wright to those of Dr Nimon as to the time it would have taken for the worker to achieve the optimum level of recovery of left shoulder function. I find that the worker would not have experienced significant improvement in the function of the left shoulder until about six months from the time of the second operation, that is, until about the end of January 2010. There was likely to have been further improvement of function over the next year. By January 2010 I am of the view that, having regard only to each of the three compensable physical disabilities, the worker would have regained fitness for work of the nature for which he was certified fit in the LOC up to 8 May 2009 by Dr Latif, namely eight hours of work a day involving bench work for one or two sessions but with no line duties, and no repetitive lifting, reaching or squatting.[151] This finding is made in the context that as at January 2010 the worker remained totally incapacitated due to a combination of his physical injuries and the resultant mental disability, and that he remained totally incapacitated on that account until 31 December 2010, by which time his mental disability had resolved to the extent that he would have been fit for work in the LOC having regard to his physical disabilities with the restrictions described above.
15. In coming to this conclusion I have had regard to the various complaints made by the worker as to the extent of his ongoing disabilities when attending on Drs Byok, Jones and Guirguis over the period 2009-2011 for the purpose of WPI assessments. I consider that nothing arises from those complaints or from any of the medical opinions which weighs against the conclusion I have reached.
16. The above finding does not resolve the question as to whether, from 1 January 2011, the worker has been fit for the work which would actually have been available to him in the LOC, given the complaint that the activities required of him were beyond the limitations set out in the modified duties PMCs, which resulted in escalating difficulties in carrying out the duties allocated to him up to 8 May 2009.

1. There was no dispute that the duties to which the worker was assigned whilst in the LOC up to 8 May 2009 mostly involved the decanting of windscreen wipers or alternators. These items were removed by the worker from the containers in which they were delivered to the LOC and were placed by the worker in containers which were taken to the production line. The parts in the containers delivered to the LOC were secured in foam packaging. Each container would have to be opened from the top, with the parts being removed one by one by hand. The worker said that depending on the height of the pallet on which the container would be placed by a forklift, and the height to which he had to reach to access each part from the top of the container, the extraction of each part from the foam packaging could involve awkward movements with both hands above head height. He would use one hand to hold the foam packaging steady, and the other to extract the part, each part weighing from 4½ to 7½ kg. The parts were then placed in another box where they were more readily accessible to the production line workers. The worker said that the duties usually involved at least one session of 2½ hours every day, and sometimes two sessions.
2. Whilst the need for such awkward movements reduced as the contents of the containers were gradually removed, the worker asserted that he was regularly required to work with his arms at or above shoulder height in breach of the medical restrictions applying to his duties in the LOC. Whilst the worker said that the containers could have been placed by a forklift at a lower height to avoid this problem, it was difficult to get the attention of the forklift driver to attend promptly to place the containers at a lower height, and they were too heavy to move by hand. Given that it was necessary to get on with the job and keep up with production requirements, he said the practical reality was that he had to do the work in the manner described.
3. Another task which the worker said he carried out almost every day as needed was the decanting of battery brackets which came in containers weighing up to 17kg. The worker said that the manner in which the containers of parts were stacked by the forklift driver meant that the containers had to be physically moved from time to time to a lower height to allow access to the top of the container. He said moving the full containers was a task well beyond the limitations placed on him and on most other workers. Generally he was assisted in this task by Mr Rewell or Mr Bailey, although he said sometimes he did it on his own if others were not there. Lifting boxes of that weight involved activity beyond that which he was certified fit to do.
4. The worker agreed that some of the tasks in the LOC were less physically demanding than others, and that tasks were allocated to particular workers having regard to their certified restrictions, although he qualified this by saying that this was how things were "supposed to work"[152] but that in his case, he found some of the work a little bit difficult, but "just went along with it".[153] The worker agreed that if he had complaints about the duties allocated to him, he could have gone to the Medical Centre, or to Dr Latif, but said he did not do this because he was on compensation, and felt as though he had nowhere to turn, and it was easier to do the work asked of him rather than complain, because of the difficulty of getting anyone else to do the work.[154]
5. Evidence as to the nature and continuing availability of duties in the LOC was led by the employer from Ms Millwood, Mr Parker and Mr Clifford.
6. Ms Millwood commenced employment in July 2009 as a claims associate. She made the determination of 31 August 2009 on behalf of the employer. She had no direct knowledge of the work done in the LOC by the worker up to 8 May 2009, not having even been employed at that time, but had since become acquainted with the nature of the duties available in the LOC. Her general understanding was that once an injured worker was certified fit for restricted duties, that worker would be assigned to the LOC where suitable duties would be found consistent with certified restrictions. Ms Millwood had no involvement in the identification of suitable duties for individual employees, this being a matter for the employee in consultation with the rehabilitation officer, the LOC supervisor and area leader, and with treating medical practitioners.
7. Ms Millwood said the LOC continued to operate up to the time she gave evidence in December 2011. Attached to her statement was a document ("the LOC job analysis") which she understood to describe the detail of the work available in the LOC and the physical activities involved.[155] Ms Millwood had extracted that LOC job analysis from the employer's database at the time that she made her statement of 15 June 2010. It described the activities required with respect to three particular tasks: sub-assembly, involving the assembly of a part by putting together different components; pallet to pallet decant, being the job mainly done by the worker as described above; and bench decant, involving the transfer of stock from containers to a work bench. Each activity was described as a "Light level position", with specified key physical demands, some of which were undoubtedly beyond the PMC restrictions imposed on the worker whilst he was in the LOC - for example, some tasks were said to require a "full range of movement, particularly hands, elbows and shoulders", or "occasional to frequent carrying up to 17kg over 5 metres (if worker chooses)".[156]
8. Ms Millwood was not personally aware whether the various tasks described in the LOC job analysis accurately recorded the nature of the duties available in the LOC area at any one time, but believed that duties of the nature described had always been available from July 2009, although perhaps with some additions.
9. Ms Millwood agreed that when she prepared the determination of 31 August 2009, she was aware that Dr Nimon's certification that the worker was fit to return to modified duties from 24 August 2009 referred only to the restrictions arising from the left shoulder disability. However, she asserted that she had a general awareness that the worker had other physical restrictions, and maintained that but for his misconduct, the employer would have provided the worker with suitable duties having regard to all of his physical disabilities. She conceded that she did not turn her mind to the precise duties that would have been available to the worker, and further that if the worker was totally incapacitated on account of his mental disability as at the time of her determination on 31 August 2009, then she could not say that any suitable employment would have been available to him.
10. Mr Parker took over supervision of the LOC in late 2009 and held that position until May 2011. He confirmed that the LOC continued to operate to the time that he gave evidence on 6 December 2011 on the basis that there were a range of different duties available for partially incapacitated workers, which were tailored to the restrictions certified for each particular worker, in a context where there was no specific production rate required, with workers being able to sit and stand as they wished. He conceded however that whilst duties were self-paced, there was an ongoing requirement for some basic level of output in order to keep pace with production requirements.
11. Mr Parker agreed that he had no first hand knowledge of the worker's injuries or limitations, or his duties in the LOC, and no personal knowledge as to whether duties now available in the LOC would fit his present restrictions. However he said that during the period that he had been the LOC supervisor, he had been able to accommodate restrictions including lifting of weights of no more than 5kg, predominantly one armed duties, and restrictions on lifting above shoulder height, including a combination of such restrictions in one worker.
12. Mr Parker had not seen the LOC job analysis before giving his evidence. He observed that some of the tasks described had not been done during the period that he was supervisor in the LOC, and that other tasks had been modified to allow for greater ease of access to containers requiring less elevation of the arms.[157] He was taken to various activities depicted in the analysis which appeared to require movements exceeding the restrictions imposed on the worker as at 8 May 2009, and said that in accordance with the practice when he was LOC supervisor, any such activities would be modified or eliminated from the worker's duties so as to ensure compliance with restrictions. In particular, he noted the reference in the LOC job analysis to the manual handling of cartons weighing up to a maximum of 17kg, and said that during his period as supervisor, he had no knowledge of any employees being required to handle such weights.
13. Mr Parker said that whilst each worker's rehabilitation officer organised the allocation of duties to injured workers in consultation with medical advisers, and whilst work leaders directly supervised duties performed by workers in the LOC, he would ensure that duties were in fact allocated in accordance with restrictions if any issues were raised with him. He said that if a worker complained of the nature of the duties, or the rehabilitation officer suggested there should be a change, he would arrange that. He said however, that during his period as supervisor, there were no times when it came to his attention that a worker was carrying out activities beyond the certified capacity for work and he received no complaints in that regard.
14. Mr Parker accepted that if there were long term disabilities in the nature of restricted use of both arms in relation to repetitive activity, then this might cause some problems for long term accommodation in the LOC, and require consideration of other roles such as an administrative role.
15. As previously stated, Mr Clifford was the worker's rehabilitation officer during his time in the LOC. Mr Clifford did not think that the duties allocated to the worker were beyond his capabilities, in that although they were repetitive duties, they were self paced, and if LOC production fell behind the supply needs of the assembly line, the area leader would call extra people in to ensure adequate supply. Mr Clifford was not aware of any duties in the LOC requiring lifting of more than 6.5kg (the alternator) or involving reaching above shoulder height.
16. Mr Clifford had not seen the LOC job analysis before. Like Mr Parker, he stated that certain of the duties depicted either were no longer required, or had been modified to further reduce manual handling demands. He agreed that some of the described duties, such as those which appeared to require a full range of movement of the hands, elbows and shoulders, would not have been suitable for the worker. However, he said that in his experience duties required of a worker would be modified to accord with accepted medical restrictions.

1. The worker submitted that taken as a whole, it should be accepted that he was having increasing difficulty in carrying out duties within certified restrictions over his period of time in the LOC, particularly after the first shoulder operation, and that in any event, the duties required of him were often beyond his certified restrictions. The worker contended that the fact that he was performing duties in the LOC up to 8 May 2009 did not mean that they constituted suitable employment, as the duties were in fact beyond his capacity given his increasing disabilities.
2. I accept that the ostensible performance by the worker of the duties allocated to him in the LOC up to 8 May 2009 does not mean that he then had a current capacity to engage in such duties. I accept that up to 8 May 2009 he did suffer a level of ongoing pain and restriction of movement in each of the left shoulder, right elbow and right knee which warranted the level of restrictions imposed by Dr Latif upon the work to be allocated to him. However I do not accept at face value the worker's present complaints as to the extent of his difficulties over the months approaching 8 May 2009, or his suggestion that the LOC duties would now be beyond his physical capacity.
3. If the problems experienced by the worker over the period up to 8 May 2009 were as extensive as he now asserts, I consider it likely that he would have complained about them at the time to Mr Clifford or to Dr Latif to a much greater extent than he did. The worker saw Mr Clifford on a daily basis whilst he worked in the LOC, and despite the occasions when he felt Mr Clifford was unsympathetic or acting in a discriminatory manner, he did not appear to be reticent about discussing his feelings with him, as evidenced by his frequent complaints of frustration. Nor was he reticent about making a complaint as to the unsuitability of duties, as evidenced by his complaint about excessive walking in the proposed job involving moving cars in the assembly area, which was made despite the ongoing insecurity he said he felt from his status as an injured employee.
4. Likewise, if the worker was ready to complain of increased knee pain, as Dr Latif's notes of 10 February 2009 and 6 March 2009 record, then one wonders why the worker did not also complain of the alleged increased shoulder and right elbow pain, and more importantly seek some alteration to the duties to be allocated to him. He acknowledged that he did the heavier types of duties in the LOC, so there is no reason that he could not have sought allocation of lighter duties.
5. That is not to say that the worker did not carry out activities in excess of his restrictions from time to time. I do not doubt that he did, considering his good work ethic, and his tendency, as noted by Dr Wright, to push himself rather than adopting a steady pace with respect to recovery. As a result I accept that, on some occasions, when tasks presented themselves which required actions and movements beyond the medical restrictions imposed on him, he carried them out nevertheless, not being willing to wait upon the provision of assistance through extra hands or the fork lift. However, I do not accept that, as a matter of course, duties beyond his level of restrictions were required of him, or came to be expected of him by default, or that when he occasionally carried out work beyond certified restrictions, they produced difficulties to the extent described.
6. The lack of any contemporaneous complaint about the physical problems he now says he was experiencing in the months leading up to 8 May 2009 suggests there is an element of reconstruction in the evidence now given, and that factor combined with the need for caution in accepting the veracity of the worker, leads me to conclude that his evidence in this regard is unreliable.
7. Thus I do not accept the worker's submission that the duties allocated to him in the LOC up to 8 May 2009 did not constitute suitable employment having regard to his left shoulder disability and the right elbow and right knee disabilities. I find that he was capable of carrying out those duties up to 8 May 2009, even if, from time to time, he undertook actions and movements beyond the medical restrictions imposed upon him. I find that he ceased carrying out those duties due to the effect of the aggravation of the underlying mental disability on 8 May 2009, and that had this not occurred, he would have been able to continue at work despite his physical difficulties except for the further period of total incapacity following the left shoulder operation. I find that the worker would now be even more capable of carrying out the duties in the LOC than he was up to 8 May 2009, given that by January 2011 his mental disability and its magnifying effect on his physical disabilities and his pain experience had largely resolved.
8. I find that, before 8 May 2009, had the worker complained of having to carry out duties beyond the certified restrictions, arrangements would have been made through Mr Clifford to ensure compliance with those restrictions. In this regard I accept the evidence of the employer's witnesses as to the flexible nature of the duties allocated in the LOC. I find that the duties and hours of work allocated to LOC workers had regard to individual medical restrictions, and that if the LOC supervisor or rehabilitation officer was made aware of any concerns as to allocation of work outside those restrictions, steps would have been taken to address such concerns by adapting the duties to ensure they complied with current restrictions. Whilst it is the case that a certain level of output was required from the LOC in order to keep up with the demands of the production line, I do not accept that this imperative placed any undue pressure on workers in the LOC, directly or indirectly, or that any issues in that regard would not have been addressed if a complaint had been made.
9. The evidence as to past practices in the LOC, and the evidence of the employer's witnesses as to the fact that the LOC, in general terms, has continued to operate as it did when the worker was assigned to the area, satisfies me that the worker's ongoing restrictions would have been accommodated had he worked in the LOC from 1 January 2011. I further find that if any tasks were allocated to the worker which were beyond his physical restrictions, modifications would have been made had he brought the matter to the attention of his rehabilitation officer. I do not consider that the alterations noted by Mr Parker and Mr Clifford to the tasks available in the LOC since the worker ceased working there have done anything other than provide further assistance to disabled workers in discharging their duties. Whilst there was some uncertainty and confusion as to the origin of the LOC job analysis, and its accuracy, that does not detract from the fact that the evidence indicates that the LOC has continued to operate in the same flexible manner from August 2009 to the present time.
10. I have had regard to the worker's evidence as to the physical activities required of him in his role as a security officer performing duties which he described as "crowd control" at various entertainment venues on one or two shifts a week of generally four to six hours each. Whilst I accept his account of the various difficulties which arise in that work, including from prolonged standing and the occasional need to use to degree of force to deal with the ejection of recalcitrant patrons, I find that there is nothing in this evidence to suggest he could not carry out full-time duties in suitable employment in the LOC.
11. Accordingly I find that from 1 January 2011, the worker has been partially incapacitated for work, and that suitable employment has been available to him in the LOC. By "suitable employment" I mean employment in accordance with the definition in s 3 of the Act, and in particular employment for which the worker was suited having regard to his previous experiences in the LOC, and the medical information in relation to his various compensable physical disabilities.

The effect of s 35A of the Act on the entitlement to income maintenance during partial incapacity in the context of a breach of mutuality

1. The employer contended that my finding on partial incapacity must lead to the conclusion that the worker has no entitlement to income maintenance from 1 January 2011. This contention was founded on the assumption that the entitlement to compensation by way of income maintenance under s 35A of the Act during any period of partial incapacity remains predicated on the concept of mutuality. That is, if the worker has demonstrated by his conduct that he was not ready, willing and able to carry out the suitable employment that would have been made available to him by the employer since August 2009 but for his breach of mutuality, he is not entitled to income maintenance during any subsequent period of partial incapacity.
2. The worker contended that mutuality is not a prerequisite to an entitlement to income maintenance for any period of partial incapacity given the extensive changes in the entitlement provisions effected by the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 ("the Scheme Review Act)". In order to better understand the worker's submission, I set out relevant provisions of s 35A of the Act:

(1) Subject to this Act, a worker is, in respect of a particular compensable disability, entitled to weekly payments while incapacitated for work during the first entitlement period as follows:

(a) for any period when the worker has no current work capacity - the worker is entitled to weekly payments equal to the worker's notional weekly earnings;

(b) for any period when the worker has a current work capacity - the worker is entitled to weekly payments equal to the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.

(2) ... [same as in subs (1) except the entitlement reduces to 90% of notional weekly earnings]

(3) ... [same as in subs (1) except the entitlement reduces to 80% of notional weekly earnings]

(4) For the purposes of this section, but subject to subsection (5), the designated weekly earnings of a worker will be taken to be -

(a) the current weekly earnings of the worker in employment or self-employment; or

(b) the weekly earnings that the Corporation determines that the worker could earn from time to time (including, but not limited to, the amount of any current weekly earnings) in employment, whether in the worker's employment previous to the relevant disability or in suitable employment, that the Corporation determines the worker is capable of performing despite the disability,

whichever is the greater, but not to include a prescribed benefit under subsection (6).

(5) Subsection (4)(b) will not apply to a worker who has a current work capacity during any period or periods during which the worker is incapacitated for work and in which either of the following circumstances apply:

(a) the employer has failed to provide the worker with suitable employment and the worker is making every reasonable effort to return to work in suitable employment;

(b) the worker is participating in a rehabilitation and return to work plan which reasonably prevents the worker from returning to employment."

1. Thus, having regard to s 35A(1)(b),[158] the worker contended that his entitlement was to the difference between the appropriate notional weekly earnings figure and the amount taken to be the designated weekly earnings in accordance with s 35A(4) of the Act. In the circumstances, the worker submitted that the designated weekly earnings must be taken to be his "current weekly earnings" under s 35A(4)(a), being the earnings he has received from the time he commenced his part-time security work in March 2011.
2. The worker contended that the designated weekly earnings could not be taken to be the potentially higher amount he might have earned in fulltime employment in the LOC, because the employer had not taken the opportunity to make a determination in that regard under s 35A(4)(b) of the Act. Thus there was an ongoing entitlement to income maintenance being the difference between the notional weekly earnings figure and current weekly earnings which was not extinguished by the breach of mutuality. The entitlement could only have been extinguished, contended the worker, upon the making of a determination by the employer that there was a nil entitlement to income maintenance because the designated weekly earnings fixed under s 35A(4)(b) of the Act was equal to or in excess of the notional weekly earnings entitlement.
3. The worker contended that the determination of 31 August 2009 clearly did not address the matters required for the purposes of establishing a designated weekly earnings figure under s 35(4)(b) of the Act, and merely rejected the claim for compensation from 24 August 2009 upon the basis that suitable employment which would have been available to the worker from that date was not available due to his breach of mutuality and misconduct leading to dismissal. Implicit in this determination, the worker contended, was the misconceived assumption that the obligation of mutuality continues to underlie the entitlement to income maintenance during partial incapacity under the amended entitlement provisions.
4. It is in this context that the jurisdictional issue raised in para 3 of the Agreed Statement of Issues arises. The worker contends that in the absence of the employer making a determination under s 35A(4)(b) as to suitable employment and as to the amount the worker could earn from time to time in that employment, the Tribunal has no jurisdiction to make a finding as to suitable employment or to set a designated weekly earnings figure. The worker contended that the result must be that he receives income maintenance on the basis that no s 35A(4)(b) determination has been made.
5. I first address the question as to whether the notion of mutuality continues to be implied in the entitlement provisions of s 35A of the Act in the case of a partially incapacitated worker. The worker invited me to reconsider the view I expressed on this issue in an earlier decision arising during the current proceedings involving a preliminary point over the validity of the determination made on 31 August 2009: Roberts v GM Holden Ltd.[159] The worker had contended that the determination in part purported to be a notice under s 36 of the Act discontinuing the accepted entitlement to compensation for the period from 23 July 2009 to 23 August 2009, but that it was invalid, as it failed to comply with the formalities required of a s 36 notice. I rejected that submission, and found that the determination was not made under s 36 of the Act, and should be treated as a rejection under s 53 of the Act of a claim for income maintenance from 24 August 2009. I also expressed the view that the notion of mutuality implied in previous versions of the entitlement legislation could also be implied in the provisions of s 35A.
6. An appeal from my decision to the Full Tribunal was dismissed[160] on the basis that I had correctly found that the disputed determination was not properly characterised as a s 36 determination, but that the question as to whether or not mutuality was a condition of an entitlement under s 35A of the Act did not need to be decided. The Full Tribunal declined to express any concluded view on the point. In these circumstances I am prepared to reconsider the worker's submissions.
7. The worker accepted that under previous legislative provisions concerning the entitlement to income maintenance, which deemed that in certain circumstances partial incapacity was to be treated as total incapacity, for example, where the compensating authority established that suitable employment for the worker was reasonably available, the worker lost the benefit of the deeming provision in the event of a breach of mutuality, in that such an occurrence indicated that the worker was not ready, willing and able to engage in the suitable employment. Here it was contended that there was no similar deeming provision in s 35A of the Act, and that upon the worker making a claim for income maintenance on the basis of partial incapacity from 24 August 2009, his entitlement was to be determined by reference only to the difference between the notional weekly earnings entitlement and the amount taken to be the designated weekly earnings under s 35A(4).
8. It must be accepted that there was no determination of deemed weekly earnings under s 35A(4)(b) of the Act. The determination of 31 August 2009 cannot be so characterised, as its terms show that the claim was denied because of the dismissal and the alleged breach of mutuality, not by reference to what could have been earned by the worker in suitable employment. This is reinforced by Ms Millwood's concession that she did not turn her mind to the question as to the precise identification of suitable employment or earnings which might flow from such employment.
9. A consideration of the basis upon which it was concluded that the notion of mutuality was to be implied in earlier entitlement provisions assists in deciding whether such a notion continues under the present legislative regime. A number of the cases concerned s 11(2) of the Worker's Compensation Act (NSW) 1922-1964, which required that an employer provide suitable employment to a worker during partial incapacity, and that upon an employer failing to do so, the worker's incapacity for work was to be deemed as total. One such decision was that of the High Court in RJ Brodie (Holdings) Pty Ltd v Pennell,[161] which held that where the employer did not offer suitable employment on account of a breach of mutuality, the deeming provision did not remain operative, as:

"there can ... be no 'failure' on the part of an employer to provide suitable employment if the employee refuses, and continues to refuse, to enter his employment or, if the facts show that the employee's conduct was inconsistent with the necessary degree of cooperation on his part."

1. The High Court expressed the same principle in different terms in Dowell Australia Ltd v Archdeacon,[162] when after commenting on Pennell, Mason J said:

"Once it is accepted that provision of suitable employment involves the concept of mutuality in the sense explained, it seems to follow that an applicant for award under s 11(2) must establish that he for his part was in the relevant period of time ready, willing and able to enter into the employment which he claims the employer failed to provide. It is for the applicant to show a failure on the part of the employer to fulfil his statutory obligation; this he does not begin to do until he demonstrates that there as a necessary degree of cooperation on his side."[163]

1. This approach was adopted by the Full Supreme Court of South Australia with respect to s 67 of the Workers Compensation Act 1971 (SA) in Hartwell v Electricity Trust of South Australia,[164] and with respect to the penultimate and last versions of the former s 35(2) of the Act in Kelvinator v Jezior[165] and Seal v Transfield Services (Australia) Pty Ltd[166] respectively. In Jezior, Cox J, with whom the other members of the Court agreed, in reference to the provisions before him, and s 67 and s 11(2), said that:

"... Nevertheless the same element of mutuality in the contract of employment underlies all three provisions. Conduct on a worker's part, independent of any injury, there is[167] inconsistent with the degree of cooperation that is essential to an effective working relationship may take his case outside the ambit of s 35. Perhaps it is more difficult to fasten on particular words in s 35(2) in which the notion of mutuality is implied, but that does not matter. Besides, the expression 'reasonably available' is probably adequate for that purpose. It is hardly to be supposed that an employer, in order to avoid having a partial incapacity treated as a total incapacity, is obliged to restore an injured worker to the payroll when it is plain that worker will behave in a fashion that is fundamentally destructive of the required mutuality - by persistently disobeying instructions, say, or by assaulting his fellow workers or by repeatedly flouting the safety rules. ..."

1. What is apparent from Jezior is that the element of mutuality which was considered to continue to underlie the statutory provisions did not rest upon the precise wording of those provisions. As Cox J observed, it "did not matter" that it was more difficult to fasten on particular words in s 35(2) compared with earlier legislation in which the notion of mutuality was implicit. The point was that these were deeming provisions of an evidentiary nature, which could hardly be supposed to apply when a worker behaved in a manner fundamentally destructive of the mutuality required for an ongoing employment relationship. That is, there was an underlying policy consideration.
2. That wider considerations of a policy nature are relevant is apparent from observations made separately by each of the members of the Court in Seal. Those observations support the contention of the employer that the worker's position that there was no underlying element of mutuality in s 35A is incongruous having regard to the provisions of s 36 of the Act, which provide for discontinuance of income maintenance payments on the basis of alleged breach of mutuality. That is, it was anomalous to suggest that a worker who was in receipt of income maintenance payments could have those payments discontinued under s 36 on the basis of a breach of mutuality, whereas a worker who engaged in the same conduct but who subsequently submitted a claim, was entitled to compensation under s 35A without regard to that breach of mutuality.
3. The comments in Seal to which I refer arose first from Gray J,[168] who observed that the obligation of mutuality implied in the former s 35(2) was taken to have been given further statutory recognition by the introduction of s 36(1)(f) of the Act allowing for discontinuance where a worker breached the obligation of mutuality, and by the expansion of that concept in s 36(1a) of the Act. White J[169] noted that the introduction of these provisions recognised the common law concept of mutuality with respect to a worker needing to be ready, willing and able to perform suitable employment, and that they gave additional use to the element of mutuality in that the concept was expanded so as to apply not only to provisions concerning the rate at which compensation was to be paid, but also to the determination of a worker's continued entitlement to weekly payments.
4. Kourakis J adverted to similar considerations. He noted that regard must be had to the purpose of the Act in considering the implication of mutuality. He observed:

"The mutuality implied by s 35(2) precludes from its beneficial operations any worker who engages in conduct, or who lapses into a position, which substantially detracts from his or her capacity to obtain employment. Where it is reasonably possible to return a worker to work, it would be repugnant to the Act's objectives and to commonly accepted ethical standards to reward the worker who engages in conduct which obstructs his or her return to work with the benefit of the deeming provision."[170]

1. In this regard, any conduct which was inconsistent with the degree of cooperation expected of a worker to exploit his or her remaining capacity for work was considered to be sufficient. Thus, said Kourakis J, the obligation of mutuality arises in part from the implication in s 35 but also from the context of the Act as a whole. His Honour went on:

"The purpose of the Act would be manifestly frustrated if s 35(2)(b) operated to provide partially incapacitated workers their full pre-injury notional weekly earnings when they were no longer willing or in a position to return to their former employment or a position with an equivalent level of remuneration."[171]

1. The question is whether the same notions continue to underlie the entitlement scheme under s 35A of the Act, noting that the discontinuance provisions on grounds of mutuality remain unamended in any material way. There are significant differences in the current entitlement provisions, the most important of which in the present context is the removal of s 35(2)(b) which provided, in respect of the first two years of incapacity, that partial incapacity for work was treated as total incapacity for work unless the compensating authority established that suitable employment was reasonably available to the worker.
2. The current provisions state the entitlement to weekly payments during partial incapacity to be the difference between the worker's notional weekly earnings and the designated weekly earnings. The latter, under s 35(4), "will be taken to be" a sum which is the greater of either the current weekly earnings of the worker in employment or selfemployment, or, a weekly earnings figure which the compensating authority determines the worker could earn in employment, whether that be the employment previous to the relevant disability, or suitable employment that the compensating authority determines the worker is capable of performing despite the disability.
3. The phrase "will be taken to be" indicates this to be a deeming provision, although with a different operation compared to previous legislation, in that by reference to either current weekly earnings or a figure determined by the compensating authority under s 35A(4)(b), there is a specific designated weekly earnings figure to be deducted from the notional weekly earnings so as to quantify the ongoing level of entitlement.
4. It is important to note that under s 35A(5), s 35A(4)(b) will not apply so as to allow for a determination of designated weekly earnings where the employer fails to provide a partially incapacitated worker with suitable employment, and where the worker is making every reasonable effort to return to work in suitable employment, or is participating in a rehabilitation and return to work plan. That is, the worker cannot be disadvantaged in the quantification of designated weekly earnings by a determination under s 35A(4)(b) where the employer has failed to provide suitable employment and where the worker is ready and willing to return to work of which he is capable.
5. Thus, to gain the benefit of a potential reduction in its ongoing income maintenance liability to a partially incapacitated worker by making a determination under s 35A(4)(b), an employer must in fact provide the worker with suitable employment, otherwise s 35A(5) will not allow any determination under s 35A(4)(b) to have any effect. Accordingly it must follow, from the objectives of the Act and the context of the entitlement provisions, that the worker cannot claim the benefit of a failure by the employer to make a determination under s 35A(4)(b), where suitable employment has been provided, or would have been provided but for a breach of mutuality, unless the worker demonstrates the necessary degree of cooperation on his side by being ready and willing to take up that suitable employment. The underlying element of mutuality remains, although in a less transparent form on the face of the current provisions compared with earlier versions. Were the position that for which the worker contends, the failure of the employer to make the determination would entitle the worker to a level of compensation to which he was not entitled given his breach of mutuality, and would frustrate the purposes of the Act.
6. Accordingly, once it is accepted that there is suitable employment that the employer would have provided but for the breach of mutuality, which in turn would have provided a basis for a determination under s 35A(4)(b), the worker must be ready, willing and able to enter into that suitable employment before he can rely upon the failure by the employer to make a determination under s 35A(4)(b) as to a deemed weekly earnings figure with respect to that suitable employment.
7. Put in another way by reference to previous legislation, just as the employer's failure to establish under the former s 35(2) that suitable employment was reasonably available to the worker did not activate the deeming provision if the worker was in breach of mutuality, the employer's failure to determine a figure under s 35A(4)(b) that could be deducted from the notional weekly earnings entitlement does not mean that by default the worker is entitled to notional weekly earnings without reference to the deemed weekly earnings that could have been determined had he not been in breach of mutuality.
8. Here the worker is in breach of mutuality on account of serious and wilful misconduct leading to dismissal. He thus demonstrated that he intended to no longer be bound by the contract of employment. The employer did not provide what it asserts to be suitable employment to the worker because of his breach of mutuality. In these circumstances I find the worker is not entitled to rely upon the failure of the employer to make a determination under s 35A(4)(b) for the purpose of calculating his designated weekly earnings entitlement. His conduct has placed him in a position where his entitlement should be calculated upon the basis of the determination which could have been made under s 35A(4)(b) as to his ongoing income maintenance entitlement (if any) by reference to the amount he could have earned in suitable employment.
9. The fact of the breach of mutuality does not necessarily mean that the worker has no entitlement at all to income maintenance from 1 January 2011. In this regard, I accept the worker's submission that his position is analogous to that of a worker under previous legislation where any entitlement to income maintenance is not necessarily extinguished upon a breach of mutuality but must be calculated without the benefit of the deeming provision. That this was the position under the former s 35(2) appears clear from the concluding remarks of Cox J in Jezior as follows:

"I would allow the appeal and set aside the Tribunal's orders. Any compensation to the worker should have been assessed on the footing of a partial incapacity between 23 October 1987 and 13 November 1987, and without recourse to s 35(2). I would make an order accordingly."[172]

1. This approach is also supported by some general observations of Kourakis J in Seal[173] where, with respect to the former s 35(2), His Honour said that whilst s 36 confers a power to discontinue weekly payments in prescribed circumstances, such a discontinuance did not necessarily have the result that a worker would be disentitled from any further payment of income maintenance at all if, upon making a further claim, an entitlement based upon partial incapacity without the benefit of a deeming provision could be established. That approach can also be applied to the claim the worker made for entitlements from 24 August 2009.
2. Thus, whilst there may be an entitlement to income maintenance on the basis of the ongoing partial incapacity, it cannot be based upon the difference between the notional weekly earnings entitlement and current weekly earnings. If there is an entitlement, it will be based upon the difference, if any, between the notional weekly earnings and the weekly earnings which under s 35A(4)(b) the employer could have determined that the worker could earn in the suitable employment provided had he been ready and willing to take it up.
3. It is in this context that the jurisdictional question posed by the worker arises. Even if there is a breach of mutuality which prevents the worker from relying upon the employer's failure to make a determination under s 35A(4)(b), can the Tribunal now make a determination firstly, as to suitable employment the worker is capable of performing, and secondly, as to the amount or amounts the worker could earn in that employment from time to time?
4. In my view the Tribunal has jurisdiction to make such a determination in the exercise of its power under s 94C of the Act to decide the dispute. Such a determination cannot properly be characterised as the Tribunal stepping into the shoes of the employer as compensating authority and making on its behalf the determination it could have made under s 35A(4)(b). The making of a s 35A(4)(b) determination by an employer is premised upon the worker complying with the obligation of mutuality. The worker's breach of mutuality obviated the necessity for the employer to make such a determination, although it could still have made one. The worker's assertion to the contrary has been rejected. That leaves unresolved the question as to whether the worker has any residual income maintenance entitlement despite the breach of mutuality. In order to resolve that dispute, the Tribunal must decide whether there was suitable employment which the worker was capable of doing, and the amount he could have earned in that employment, and whether there is a difference between that amount and the worker's notional weekly earnings. Whilst such a decision may address the same matters as the s 35A(4)(b) determination the employer could be expected to have made had there been no breach of mutuality, it does not involve the Tribunal stepping into the shoes of the employer to make a s 35A(4)(b) determination on its behalf.
5. In the circumstances, I do not consider it necessary to take up the worker's invitation that I revisit another preliminary point previously decided by me, this time as to the status of the employer as a self-insured employer: Roberts v GM Holden Ltd.[174] The worker had contended that the determination of 31 August 2009 was invalid on the ground that the employer, contrary to its assertion at the time, did not have the status of a self-insured employer under the Act so as to empower it to make the determination. I held that the Tribunal had no jurisdiction to determine such a matter. The worker submitted that even so, if I now proposed to make a determination as to the designated weekly earnings figure, I was effectively making a determination under s 35A(4)(b) on behalf of the employer, and should not do so unless satisfied that the employer in fact had the status of a self-insured employer. Even if, contrary to my view, the determination I propose is able to be characterised as a determination on behalf of the employer under s 35A(4)(b), I would not revisit the decision that it is beyond jurisdiction for the Tribunal to determine whether the employer has the status of a selfinsured employer or not.
6. The question as to the amount of any residual entitlement to income maintenance cannot be resolved at this stage. The issue as to the quantum of the notional weekly earnings figure was complicated in this case by issues concerning the date of commencement of any compensable disabilities and by the fact that, just after the worker was stood down from his employment, the employer, through economic necessity, contracted its operations such that employees worked on a one week on one week off basis for a considerable period of time. The parties agreed that the issue as to the level of the notional weekly earnings entitlement should be dealt with at a later stage with there being liberty to call further evidence if so advised. At the same time the issue as to the amount which the worker could have earned in suitable employment from 1 January 2011 can be decided in order to identify whether there is a residual income maintenance entitlement.
7. In addition to hearing from the parties on such matters, I will also hear further from them as to the relevance, for the purposes of identifying the notional weekly earnings entitlement, of the further determination of the employer dated 16 March 2010, which apparently accepted a claim for income maintenance with respect to the left shoulder and psychological sequelae and fixed a notional weekly earnings figure. The worker sought to tender that determination during closing submissions over the objection of the employer. I declined to receive it at that time but will return to the issue if it is necessary.[175]

1. By 1 January 2011, the worker had sufficiently recovered from his compensable mental disability that he was fit for suitable employment that he was capable of performing despite his compensable physical disabilities. From that date such suitable employment would have been available to the worker in the LOC but for his breach of mutuality.
2. The worker cannot rely upon the failure of the employer to make a determination under s 35A(4)(b) of the Act in order to claim that his entitlement to weekly earnings should be determined by reference to the difference between his notional weekly earnings entitlement and his current weekly earnings under s 35A(4)(a) of the Act. Any such entitlement was premised upon his meeting the obligation of mutuality which remains implicit with respect to the income maintenance entitlements of partially incapacitated workers under s 35A of the Act.
3. Nevertheless, the worker may have a residual income maintenance entitlement equal to the difference, if any, between his notional weekly earnings and the designated weekly earnings he could have earned in the suitable employment which would have been available to him from 1 January 2011 had he not been in breach of mutuality. That issue remains to be determined.

1. Section 43A of the Act sets out a scheme for assessing the degree of whole person impairment ("WPI") that applies to a compensable disability that results in permanent impairment. The assessment must be made in accordance with the WorkCover Guidelines ("the Guidelines") published under that section[176] by a medical practitioner holding an appropriate current accreditation.
2. For the most part the Guidelines adopt the Guides to the Evaluation of Permanent Impairment 5th Edition, published by the American Medical Association ("AMA5"). Where differences exist, the Guidelines are to be used as the modifying document and are to prevail if there is any inconsistency with AMA5.
3. The intention of the Guidelines is to assist accredited practitioners to assess levels of permanent impairment. They are not meant to provide a "recipe approach" to that assessment. Assessors are required to exercise their clinical judgment to determine whether the compensable disability has resulted in an impairment and whether it is permanent, and if so, the extent of it. The degree of permanent impairment must be determined using the tables, graphs and methodology in the Guidelines and AMA5.
4. Clause 1.5 of Chapter 1 of AMA5 states the intention of AMA5 to be the use of objective and scientifically based data to effect a standardised impairment assessment process by use of the assessor's judgment and application of the specified criteria. AMA5 does not deny the existence or importance of the subjective complaints of the individual to be assessed or their functional impact, but emphasises the need for consistency of tests that are designed to ensure reproducibility and greater accuracy. It further provides that the assessor must use his or her entire range of clinical skills and judgment, including consideration of whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. An assessor is permitted to modify an impairment rating if observations or results appear not to accord with the medical evidence.[177]

1. Each of the three separate injuries to the left shoulder, right elbow and right knee fell to be assessed in accordance with the WPI assessment scheme introduced by the Scheme Review Act. Three accredited medical practitioners were called to give evidence - two by the worker, being Dr Guirguis and Dr Jones (the worker having been referred to the latter by the employer), and one by the employer, Dr Byok. There was no dispute that the disabilities were stable and appropriate for assessment.
2. The final outcome of the assessments is set out in the table hereunder. The first mentioned figure is the total WPI assessment. The first of the figures in brackets refers to the WPI assessment excluding the assessment relating to post-operative scarring, and the second figure in brackets is the assessment for scarring, where applicable.

1. On the basis of the assessments of Dr Byok, the employer determined that the worker was entitled to compensation in the total sum of $29,168 with respect to WPI assessments of the left shoulder and right knee. Given that s 43(4) of the Act provides that no entitlement arises if the degree of impairment is less than 5%, no determination was made with respect to the right elbow assessment of 2% WPI. The worker disputed the determination and each of Dr Byok's assessments.
2. The assessment process can be quite complex and technical. As well as having regard to the history of the injury, observations upon examination, investigations and any operative procedures, the assessor must apply the endorsed assessment methodology and exercise clinical judgment in the process. Depending on the nature of the impairment, there may be a number of options available as to how best to assess the impairment. Assessments are intended to produce an objective outcome capable of replication by the same or other examiners, whilst recognising that the process cannot eliminate some variability due to a range of factors including human physiology, assessment error and variability in patient cooperation, among other things.
3. The most that the Tribunal can do where differing assessments have been made is to consider the approach taken by each assessor to each rateable impairment and come to a view as to which single approach or combination of approaches should be adopted. It may take the view that a method of assessment chosen by one assessor was more appropriate to the situation than a different method of assessment chosen by another assessor having regard to the Guidelines and AMA5. It may prefer the view of one assessor over another as to what rateable impairments are appropriate for assessment, or it may conclude that the actual process of assessment adopted by one assessor compared to another, for example the measurement of range of movement, was more or less accurate, or more or less compliant with the mandated procedures in the Guidelines or AMA5. It may consider that one assessor has greater experience in the assessment methods and their application and is likely to have applied tests or measurements more reliably and thus to have achieved a more accurate outcome.
4. With the possible exception of scarring, it is my view that it is not appropriate for the Tribunal to come to its own independent view as to an appropriate WPI figure which is not based upon one or other of the assessments of a rateable impairment made by an expert assessor. If the Tribunal is not satisfied that any assessment has been appropriately conducted, or is unable to determine which of two or more competing assessments should be preferred, it would not be entitled to make its own separate assessment in this regard. It would have the option of declining to make any finding on the evidence before it, and of considering a referral of the WPI assessment to a Medical Panel.
5. I propose to set out briefly the approach taken by each of the three doctors separately in relation to each of the three relevant body parts and to indicate which assessment or assessments I consider should be adopted in the circumstances. In each case I consider that findings as to an appropriate assessment can be made on the evidence.
6. I first summarise the consultations and reports relevant to the assessments. Dr Byok saw the worker on two occasions. She saw him on 16 February 2011 for the purpose of conducting the WPI assessments and provided a report of 17 February 2011 in that regard.[178] She saw the worker again on 16 August 2011, and provided a further report of 18 August 2011,[179] in which she expressed an opinion as to the restrictions on the worker's daily activities and work activities resulting from the injuries. Whilst Dr Byok carried out some further measurements of the nature carried out when she conducted the WPI assessment, she did not complete another formal WPI assessment on this latter occasion.
7. Dr Guirguis provided separate reports for his WPI assessment of each disability in 2009 and 2010. These were with respect to the right knee,[180] the right elbow,[181] and the left shoulder respectively.[182] He carried out a further WPI assessment on 12 September 2011 and provided another report of that date which addressed all three disabilities.[183] The later assessment was conducted with some changes in the methodology adopted on the first round of WPI assessments and produced some different outcomes.
8. Dr Jones conducted an assessment on 6 August 2010, and provided three reports, the latter two correcting various errors he had made in his first report when translating the results of his assessments to the appropriate WPI figure.[184]
9. None of the assessors suggested that the worker presented in other than a genuine way or in a manner which suggested he was exaggerating his condition so as to cause the outcome of the testing to be unreliable for that reason. I do not consider there is any reason to conclude other than that the worker endeavoured to cooperate with the assessment process. I reject the employer's contention that he deliberately exaggerated the extent of his disabilities or feigned symptoms such as loss of sensitivity to touch in the right hand. The contention as to exaggeration is contradicted by the fact that at some of the consultations, the worker demonstrated a greater range of movement than on earlier occasions.[185] The variability in the range of movement of the affected limbs over the period of the assessments is probably due to natural fluctuations in his condition over that time, it being accepted that pain and restriction of movement may be influenced among other things, by the level of activity over the hours preceding an examination.
10. As noted, each of the assessors was duly accredited, and I accept that they were each competent in that regard. Dr Byok is the more experienced of the three, for after initially gaining accreditation in March 2009, she was invited to become a peer assessor over the following twelve months during which she shared with one other peer reviewer the task of assessing up to 3000 reports for compliance with the approved procedures and methodology. The employer urged me to adopt the assessments of Dr Byok in preference to those of either Dr Guirguis or Dr Jones on account of her greater experience and having regard to what it contended were errors in the methodology or calculations of Drs Guirguis and Jones which indicated a lack of familiarity and experience with respect to the required assessment procedures. The worker submitted that to the extent such errors occurred, they were not of fundamental importance, and that I should endorse the approach of Dr Guirguis or alternatively that of Dr Jones.
11. I do not consider that Dr Byok's greater experience provides any basis on that account alone to prefer her approach over that of others where there are differences. The approach taken in each case must be considered on its merits. Whilst both Dr Guirguis and Dr Jones did make some errors in methodology originally chosen or in translation of results of measurements to an overall WPI assessment, these errors do not of themselves undermine the weight of their conclusions except where I have specifically identified that to be so.

1. Clause 2 of the Guidelines sets out certain principles for assessment of impairment of the upper extremity which apply to both the left shoulder and the right elbow. The approach mainly involves clinical evaluation, and measurement of the active range of motion as demonstrated by various movements of the affected limb compared with the unaffected limb, with test results to be repeated and documented in a standard form in order to achieve an accurate and consistent outcome.
2. Dr Byok had regard to two factors. The first was the fact of the shoulder operation itself. All assessors agreed this to be a factor and that AMA5 required that an impairment value of 10% Upper Extremity Impairment (UEI) be recorded with respect to it.
3. The second factor was restriction in the range of movement of the left shoulder. The assessment methodology required that measurements be taken of the range of six separate shoulder movements, being flexion, extension, adduction, abduction, internal rotation and external rotation. Measurements were taken with respect to both shoulders, the measurement of the uninjured shoulder being to establish a reference point for unrestricted range of movement of the body part in question.
4. The range of movement was measured in accordance with a standard procedure using an instrument described as a goniometer, which might be likened to a protractor or ruler with two arms joined at the middle which could be flexed from the midpoint. The worker would be requested to engage in active movement of the relevant limb, that is, unassisted movement, and in the case of the injured limb, this required movement to the furthest point before pain or mechanical defect allowed no further movement. At this stage the range of movement would be measured. The process was generally carried out three times to better achieve a consistent outcome, it being accepted that each measurement might vary to some small degree, the intention being to establish reliable results.[186] Upon recording the measurement considered to be the most accurate with respect to each nominated movement, the assessor is required to consult the applicable chart or table in AMA5 to ascertain whether the extent of any restriction on the range of each movement translates to a percentage UEI.
5. I will not set out the details of each of the final measurements taken by the assessors. It is sufficient to note that the measurements taken by Dr Byok indicated that some of the movements were within normal range, and similar to or the same as the unaffected right shoulder, but that others were sufficiently restricted to translate to a percentage UEI, which for the restricted movements totalled 8% UEI.
6. A combination of this figure with the 10% UEI from the operation, by reference to the Combined Values Chart,[187] translated to a WPI of 10%, which when combined with an assessment of 1% WPI for the postoperative scarring, amounted to a total 11% WPI for the left shoulder.
7. Dr Guirguis identified the same rateable impairments with respect to the left shoulder. He carried out a series of measurements on three separate occasions, once in 2009, then again in 2010 on the occasion of his first WPI assessment, when the range of movement had deteriorated, and again in September 2011, when it had improved. The measurements generally revealed a lesser range of movement than that measured by Dr Byok. At each of the two formal assessments Dr Guirguis translated the UEIs arising from the operation and the restricted range of movements to a total WPI of 12% plus 1% for scarring, a total of 13% WPI.
8. The measurements taken by Dr Jones in relation to the left shoulder revealed variations in some of the six measurements compared to those of Dr Byok but overall the outcome was the same being 10% WPI[188] plus 1% WPI for scarring, a total WPI of 11%.
9. There is little in dispute over the left shoulder assessment. I note that on the three occasions Dr Guirguis took range of motion measurements, there were significant variations up and down on a number of the six movements. I have no reason to doubt the accuracy of the measurements taken. I consider the variations must have been the result of fluctuations in the worker's condition on each occasion. In the circumstances I am confident that the more consistent outcomes obtained by Drs Byok and Jones produce a more accurate measure of the extent of the impairment. I find that, excluding scarring to which I return later, the WPI assessment for the left shoulder should be 10%.

1. Dr Byok considered two rateable impairments with respect to the right elbow disability. The first was right medial epicondylitis, to be measured by reference to any impairment of the range of movement of the affected limb; second, right ulnar nerve neuritis, to be assessed having regard to any measurable loss of sensation or motor power in the distribution of the ulnar nerve, which mainly enervates the ring and little fingers of the hand.
2. Dr Byok measured the range of movement of both elbows by reference to four movements being flexion, extension, pronation and supination. The range of movement was the same for both elbows except for a restriction on extension which as measured by her translated to a 2% UEI.
3. Dr Byok ascribed no value with respect to the ulnar nerve neuritis. She tested for two point discrimination over the region of the ulnar nerve distribution. A special instrument with two blunt points was applied to the skin at different measurable distances with the worker being asked to advise when he first discerned being touched at two separate points simultaneously rather than one. The test produced what Dr Byok considered was a normal result of discrimination at 7mm, in that the outcome was the same with respect to the other fingers of the right hand not supplied by the ulnar nerve, and with respect to the left hand, it being her normal practice to measure the unaffected hand as well.
4. In stating that a 7mm result was "normal", she did not consider there to be a precise measure which was normal across the board. That figure might vary depending on the age of the worker and other factors. However, she considered that 7mm was in the normal range for the worker, given that the same result was achieved when the test was applied to other areas as described. Thus she concluded that the test revealed no deficit.
5. Dr Byok also considered there was normal sensory perception to light touch in the distribution of the ulnar nerve in each hand. She placed the worker at Grade 5 of the relevant AMA5 table,[189] being a level indicating no loss of sensibility and no abnormal sensation or pain. She also assessed the forearm for loss of motor function but found there to be a complete active range of motion.[190]
6. The 2% UEI resulting from the restricted range of movement of the right elbow converted to 1% WPI. In addition she assessed scarring at 1% WPI.
7. Dr Guirguis came to a substantially different view. At his first assessment in June 2009, although he noted that the worker lacked the last 5% of full extension of the elbow, he did not consider that this restricted range of movement produced a rateable UEI. However he concluded there was an impairment arising from peripheral nerve injury of the right arm on the basis that his testing revealed that sensation to light touch and pin prick was moderately reduced over the distribution of the ulnar nerve in the right hand including the palmar aspects of the little finger and the ulnar half of the ring finger. He also conducted a two point discrimination test at 10mm over the same distribution, a result which he considered abnormal. He also considered there was a reduction in strength of the right arm.
8. He assessed these deficits to indicate combined sensory and motor impairment. The sensory deficit was placed at Grade 4,[191] which on his clinical judgment warranted an assessment of 25% impairment of the upper extremity due to sensory deficit of the ulnar nerve below midforearm. This resulted in a 2% UEI. In addition he assessed a Grade 4 motor deficit[192] affecting the hypothenar muscles and related areas which in his clinical judgment equalled a deficit of 25% of the maximum impairment. Under the Combined Values Charts this equated to 11% UEI which in turn translated to 7% WPI. He also assessed the operation scarring to equate to 1% WPI.
9. Dr Guirguis maintained this opinion after his September 2011 assessment despite a variation in the two point discrimination test which now revealed discrimination at 8mm rather than 10mm. This did not affect his assessment of 7% WPI plus 1% for scarring.
10. Dr Jones identified a greater restriction in range of movement of the elbow than either of the other assessors, and concluded that there was an UEI of 3% on that basis. He also concluded there was a sensory impairment in relation to the ulnar nerve assessed by reference to loss of sensitivity to touch on the outside of the little finger of the right hand. He did not conduct a pinprick or two point discrimination test as he considered them to be too unreliable in the circumstances. He assessed the sensory impairment to be equivalent to 2% UEI, which with the restricted range of movement converted to 3% WPI. He considered that the scarring attracted a rating of 2% WPI, producing a total of 5% WPI for the right elbow.
11. Neither Dr Guirguis nor Dr Byok found any reduced flexion of the elbow, contrary to Dr Jones. I conclude their measurements are likely to be more indicative of the true position, but would accept that some restriction such as the limited reduction in extension found by Dr Byok should be accepted given the fact of the operation and the worker's residual complaints.
12. As to the ulnar neuritis, I am not satisfied that the two point discrimination test applied by Dr Guirguis provides a sound basis for concluding there to be both a sensory and motor deficit. I prefer the approach of Dr Byok involving use of a benchmark of normality (within reason) by reference to the individual being tested and the outcome of the test in unaffected areas. Dr Guirguis appeared to base his conclusion as to the benchmark of normality by reference to some generally accepted normal range of 5-6mm, and did not explain why his two tests revealed variations from 10mm to 8mm or what if any significance that variation had. I note also Dr Jones' comment that in the circumstances such a test was likely to be insufficiently reliable to provide a basis for a conclusion.
13. On the other hand, again taking into account the worker's complaints of some ongoing nerve related problems, I am prepared to accept that there is some sensory deficit. In this regard I accept the evidence of Dr Jones as to his findings of loss of sensitivity to touch, noting that Dr Guirguis identified the same deficit, and the clinical judgment of Dr Jones that, on the basis of such findings, the deficit be placed at Grade 4 level,[193] and that it be assessed at 25% of the maximum value allowable for impairment of the upper extremity due to sensory deficit of the ulnar nerve below mid-forearm.[194]
14. I am fortified in my acceptance of the opinion of Dr Jones having regard to two further matters. One is that in August 2009 Dr Wright concluded as a result of his examination and observations that there was a persistent ulnar neuritis.[195] The other is that upon her second attendance on the worker in August 2011, Dr Byok noted changes to pinprick and touch when examining the areas of the right hand affected by the ulnar nerve, although she found the findings to be inconsistent. She said she could not be certain there was a true deficit,[196] although she did concede that the inconsistencies in themselves did not mean that there was no sensory deficit.[197] Further, she accepted that sensory perception was not a particularly scientific area, and that two examiners might reasonably disagree as to the significance of the light touch perception, or lack of it.[198] Given my acceptance of the genuineness of the worker's presentation at the various examinations, I am satisfied that the findings of Dr Jones should be accepted as indicating a rateable impairment.
15. My conclusion therefore is that upon the finding of restriction on extension as noted by Dr Byok there is a 2% UEI. Further, that on the finding of Dr Jones as to loss of sensory impairment there is a 2% UEI. According to the Combined Values Chart these values combined would appear to translate to a 4% WPI, although I would hear the parties on that translated WPI figure if they took a different view as to the application of the chart.

1. Clause 3 of the Guidelines relating to the "lower extremity" includes the right knee, with assessment involving physical evaluation by a variety of methods, with thirteen alternative approaches to assessment of impairment being set out in Table 3.3 "Lower extremity work sheet". Some of these evaluation methods can be combined and some not in accordance with the AMA5 Chapter 17.
2. Dr Byok noted no leg length discrepancy, gait derangement or unilateral muscle atrophy. She did not consider there to be any clinical evidence of a subluxing patella so as to allow for a diagnosis based estimate of impairment. Examination of the range of movement of both knees indicated some restriction of movement with respect to flexion (115º), and valgus (misalignment) of the right knee compared to the left, but not such as to be result in an assessable impairment. However, she noted a slight weakness of the right quadriceps muscle compared to the left quadriceps muscle which she concluded resulted in a Grade 4 weakness producing a 12% LEI (Lower Extremity Impairment)[199] which in turn resulted in a 5% WPI.
3. Dr Byok considered that the appearance of the right knee scarring was not such as to produce a rateable impairment.
4. At his assessment on 27 May 2009 Dr Guirguis recorded a range of flexion movement of the right knee between 0 and 120º which produced no rateable impairment, the relevant Table indicating that an impairment value arose if flexion was less than 110º. He considered a rateable impairment arose from two other factors: arthritis of the patello-femoral joint by reference to appearances on the one available x-ray, and a subluxation of the patella which warranted an impairment rating on a diagnosis based estimate of impairment. Dr Guirguis assessed a 6% WPI for right knee arthritis, a 3% WPI for the right knee patella-subluxation, and 1% for scarring producing 10% WPI.
5. At the assessment in September 2011, Dr Guirguis took a different approach. He now accepted that it was not appropriate to make any assessment of arthritis of the patello-femoral right knee joint as comparative x-rays of each knee were not available and nor was the existing x-ray taken with the correct view. He again considered there to be evidence of a moderate subluxation of the right patella with retropatella tenderness. However, contrary to his previous position, he did not apply a diagnosis based estimate to that impairment because he now found that there was a restriction in the range of movement of the right knee which gave rise to a rateable assessment. Contrary to the outcome of his previous examination, he now found a limitation of flexion of the right knee to 105º, thus producing 8% WPI.[200] With the scarring this resulted in 9% WPI overall. The only explanation Dr Guirguis could give for the not insignificant reduction in the range of movement of the knee was the inherent variability of these matters arising from fluctuations in the condition of an injured person. He did not accept it was due to any inconsistency in presentation or unreliability of the worker.
6. Dr Jones observed no signs of atrophy or arthritis of the right knee, nor any subluxation of the patella giving rise to a diagnosis based estimate. He considered that the only rateable impairment arose from a limitation on right knee flexion to 110º flexion which he considered should give rise to 8% WPI. Dr Jones also said that he noted objective signs of flexion contracture of 10º, signs not noted by either of the other assessors although Dr Jones suggested they should have been apparent. In any event, he does not appear to have suggested that this feature on its own produced a rateable impairment over and above the 8% WPI assessed on the basis of the measured limitation on flexion. He considered that no rating was appropriate for scarring.
7. There were a number of differences between the assessments. Dr Guirguis said that the subluxation of the patella should have been noticeable to any other assessor if they were looking for it. Both Dr Jones and Dr Byok looked for it but did not find it. In any event it does not matter as Dr Guirguis abandoned that finding as being a relevant rateable assessment once he found there to be restricted range of flexion on his second assessment. He used that impairment instead (the two being mutually exclusive for rating purposes). The fact that neither Dr Byok nor Dr Jones observed the subluxed patella causes me some unease with Dr Guirguis' assessment, as does the quite significant change in the range of flexion from 120º to 105º. That well exceeds the 10% allowable variation range contemplated by AMA5.[201] I am not inclined to rely on Dr Guirguis' findings.
8. The employer contended that there was also a problem with Dr Jones' approach. According to the relevant table, a limitation on flexion of less than 110º gives rise to an impairment value. A limitation to 110º or more does not. He felt the measurement of 110º, being on the cusp, allowed for an assessment of a WPI figure as a matter of fairness. The employer contended that the fact that the Guidelines allow for the exercise of clinical judgment did not permit the subjective criterion of "fairness" to change what the objective measurement and the application of the charts and tables produced. The employer contended that whilst there was room for the use of clinical judgment in a number of areas, it did not allow for the attribution of a LEI value where the measurement and the relevant table provide that the worker just missed out. The overarching arbitrary nature of the scheme, and Parliament's view that fairness is irrelevant in this context, was said to be no better demonstrated than by s 43(4) of the Act, which provides that an entitlement does not arise if the worker's degree of impairment is less than 5%.
9. The worker contended that the approach endorsed in AMA5 allowed for some marginal flexibility. I note that AMA5 contemplates that an assessor, in applying their entire range of clinical skill and judgment to assess whether or not measurements or test results are plausible and consistent with the impairment being evaluated, may modify an impairment rating where an observation or test result does not appear consistent with medical evidence. However, I consider that qualification on the process is directed for the most part to situations where there is gross inconsistency of results, or an impairment measurement completely at odds with medical evidence. Nevertheless, the assessment process does not necessarily appear to be as arbitrary as the employer contends, in terms of drawing the line as to when a measurement gives rise to a rateable impairment, at least with respect to the functional assessment of range of motion of the lower extremity.
10. In the general section of AMA5 headed "Interpolating, Measuring and Rounding Off",[202] it is contemplated that in placing an individual's impairment rating within a range, the assessor is to have regard to a wide variety of criteria, including restrictions on performance of the activities of daily living, and the degree to which the medical impairment interferes with these activities. Dr Jones concluded upon the basis of the history and his examination that the worker had a mild restriction on activities of daily living when endeavouring to kneel or squat with his right knee.[203]
11. In my view, the assessment criteria with respect to the lower extremity do not prevent the application of a limited discretion. Section 17.2f of AMA5 relating to the Method of Assessment by measurement of range of motion, recognises that pain and motivation may affect the measurements, and importantly, that the ranges listed in Table 17-9 to 17-14, which include Table 17-10 with respect to knee impairment, are "examples of mild, moderate and severe impairments and are to be used as guides". I emphasise the word "guides". In my view the approach taken by Dr Jones in accepting that 110º flexion in the circumstances fell within the mild impairment range thus producing a WPI of 8% was permissible.
12. I consider that assessment as being likely to produce a more appropriate and more objective measure of the degree of impairment than the approach adopted by Dr Byok, which involved her assessment of the subjective effort of the worker in actively extending the knee while she applied a counterforce and then compared the effect produced by the same activity with the uninjured knee. She said this was a process "fraught with some difficulties"[204] because of the potential effects of pain inhibition. I note also that with respect to assessment by reference to restricted range of motion, she accepted that there could be variations from day to day. Her measurement of 115º flexion, compared with Dr Jones' measurement of 110º, varied by less than the maximum acceptable variation of 10% and thus the differences between them could be explicable by day to day variation.
13. For these reasons I prefer the approach taken by Dr Jones and his assessment of 8% WPI with respect to the right knee injury (excluding scarring).

1. The assessment of post-operative scarring is made in accordance with the Table for Evaluation of Minor Skin Impairment ("TEMSKI") scale, the assessors being qualified to determine impairments for minor scarring following operation.
2. Table 13.1 of the Guidelines provides for scarring to be assessed and placed in categories providing from 0% WPI, or 1%, 2%, 3-4% or 5-6%. The category depends upon the assessor's judgment by reference to a number of criteria including the claimant's consciousness of the scarring and any limitation on activities, and matters such as the shape, location, texture, colour and contour of the scarring.
3. As the Table summarising the various assessments which I set out above indicates, the assessors agreed on 1% WPI for the left shoulder scar; Drs Byok and Guirguis agreed on 1% WPI for the right elbow, with Dr Jones assessing 2% WPI; and Drs Byok and Jones allocated 0% for the right knee scar, whilst Dr Guirguis allocated 1%.
4. I note the submission of the worker that, given the criteria for assessment, the Tribunal is in a position to look at the scarring for itself, and having regard to the criteria, to come to its own view as to the appropriate degree of impairment. I do not need to rule on that submission in this case in terms of whether I am permitted to come to a view other than that formed by at least one of the assessors. I accept at the least, that I have more scope in this situation to determine which assessment I prefer taking into account my own observations. Having seen the photographs in evidence,[205] having viewed the scarring during the course of the worker's evidence, and having considered the evidence of the assessors as to their adoption of the TEMSKI criteria, and noting there is room for differences in clinical judgment, I accept the collective view as to 1%WPI for the left shoulder, and the majority view of 0% WPI for the right knee. However, I conclude that, as Dr Jones ultimately did, the criteria relating to the right elbow scar indicate that the appropriate rating is 2% WPI rather than the 1% assessed by both Drs Byok and Guirguis.
5. Thus, my conclusion on the WPI outcome is:
   • Left shoulder: 11% (10% plus 1% for scarring).
   • Right elbow: 6% (4% plus 2% for scarring).
   • Right knee: 8% (8% plus 0% for scarring).
6. I leave it to the parties to calculate the appropriate dollar amount payable on this basis and will hear further from the parties if there is any dispute.

1. I express my conclusions and findings in general terms, then by reference to the Statement of Issues.
2. My conclusions and findings are:
   • The employer has proven that the worker did engage in .... [the serious misconduct]....on at least two occasions as alleged. Accordingly he was guilty of serious and wilful misconduct and was in breach of the obligation of mutuality and the employer was entitled to dismiss him from his employment on this basis.
   • Notwithstanding that the worker gave false and misleading evidence as to the extent of his misconduct, I do not conclude that I cannot accept any of his other evidence. In particular, on the basis of my acceptance for the most part of his evidence and that of Dr Latif concerning his alleged mental disability, I find that, as a result of the compensable physical disabilities, the worker developed a mental disability in January 2008 which was severely aggravated by employment related events on and after 8 May 2009 and which produced a total incapacity for work from that time to 31 December 2010, by which date I find the worker had recovered from his mental disability so as to be fit for suitable employment having regard to his physical disabilities.
   • The mental disability is compensable as a sequel to the compensable physical disabilities. Section 30A of the Act has no application for that reason, but even if it did, it would not operate so as to disentitle the worker as I am satisfied that the worker has established that the mental disability was substantially caused by his compensable physical disabilities and that it did not arise wholly or predominantly from events occurring on or after 8 May 2009. The provisions of s 30B(2)(b)(i) have no application in the circumstances.
   • Accordingly the worker has established an entitlement to weekly payments of income maintenance over the period of total incapacity from 24 August 2009 to 31 December 2010.
   • From 1 January 2011, the worker has been fit for work which the employer would have made available to him in the LOC but for his breach of mutuality, such work being suitable employment the worker would have been capable of performing despite his ongoing physical disabilities.
   • The concept of mutuality continues to underlie to entitlement provisions of s 35A of the Act with respect to partially incapacitated workers. On account of the worker's ongoing breach of mutuality, he is not entitled to rely upon the failure of the employer to make a determination under s 35A(4)(b) of the Act to contend that he has an ongoing entitlement to income maintenance based upon the difference between his notional weekly earnings entitlement and his current weekly earnings; rather, any ongoing entitlement must be the difference (if any) between his notional weekly earnings and the designated weekly earnings that could have been determined under s 35A(4)(b).
   • There is no jurisdictional impediment to the Tribunal making appropriate determinations as to suitable employment or designated weekly earnings in order to crystallise the worker's entitlement and decide the dispute.
   • Whether there is any ongoing income maintenance entitlement during partial incapacity from 1 January 2011 will depend upon further evidence as to the appropriate figures for notional weekly earnings and designated weekly earnings respectively.
   • The WPI assessments, including the assessment for scarring, should be as follows: left shoulder 11%; right elbow 6% and right knee 8%.
3. I summarise these findings and conclusions by reference to Agreed Statement of Issues as follows:

1. Whether, as from 24 August 2009, the Worker has been incapacitated for work by reason of a compensable disability to his left shoulder arising from his employment with the Employer and, if so, to what extent and for what period(s):

Finding: the worker was totally incapacitated for work by reason of his left shoulder disability to the end of January 2010; thereafter he has been partially incapacitated on that account, but as noted below, he remained totally incapacitated on account of a compensable mental disability consequential to compensable physical disabilities until 31 December 2010.

1. Whether the Worker, having breached the obligation of mutuality, is for any period he has been incapacitated for work but has had a current work capacity, entitled to weekly compensation payments for that partial incapacity and, if so, the quantification of that entitlement.

Finding: the worker is not barred on account of his breach of mutuality from claiming an entitlement to ongoing income maintenance from 1 January 2011. However, he is not entitled to rely upon a failure by the employer to make a determination under s 35A(4)(b) to contend that his entitlement must be calculated by reference to the difference between his notional weekly earnings and designated weekly earnings based upon his current weekly earnings; any entitlement must be assessed on the basis of the difference between the worker's notional weekly earnings and the amount he could have earned in suitable employment which would have been available to him in the LOC from 1 January 2011 but for his breach of mutuality; that may or may not give rise to a residual entitlement and must be subject to further determination.

3.1 to determine a designated weekly earnings figure applicable to the Worker if a designated weekly earnings figure was not determined in the disputed decision;

3.2 to make a finding of suitable employment other than employment identified in the disputed decision;

3.3 to determine designated weekly earnings for a period or periods after:

3.4 to determine more than one designated weekly earnings figure applicable to the Worker.

Finding: given the worker's breach of mutuality, and his consequent inability to rely upon any failure by the employer to make a determination under s 35A(4)(b), the Tribunal has jurisdiction to make such determinations as are necessary to crystallise the ongoing entitlement (if any) of the worker to income maintenance in order to decide the dispute between the parties.

1. Whether the Worker has suffered a compensable illness or disorder of the mind arising from his employment with the Employer, and if so
2. Has the Worker been incapacitated for work by reason of a compensable illness or disorder of the mind and, if so
3. To what extent and for what period or periods does the Worker have any entitlement to be compensated either by way of weekly payments of income maintenance or for costs of the kind described in section 32(2) of the Act reasonably incurred by him in consequence of having suffered a compensable illness or disorder of the mind?

Finding: the worker suffered a compensable illness or disorder of the mind which arose in January 2008 as a result of the compensable physical disabilities suffered by him from 2007, which disabilities resulted in total incapacity for employment from 8 May 2009 to 31 December 2010. He is entitled to income maintenance for the period from 24 August 2009 to 31 December 2010, and for reasonably incurred costs under s 32 of the Act until the end of September 2011.

1. Does the Worker have any entitlements pursuant to s 43 of the Act for permanent impairment arising from his compensable disability to the left shoulder sustained on 1 February 2001, a compensable disability to the right elbow sustained in September 2007 and/or a compensable disability to the right knee sustained on 11 March 2008?

1. I will hear further from the parties as to how the matter is to proceed to allow determination to be made quantifying the worker's entitlements in light of the findings I have made.

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.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] The reasons for decision were handed down to the parties in unedited form. This version has been substantially edited to remove references to the detail of the conduct comprising the alleged sexual harassment and the findings of the employer's inquiry and of the Tribunal. This is because the Tribunal has granted an application by the worker that the reasons for decision published on the Tribunal website be restricted due to the potential for unrestricted publication of the misconduct allegations and findings to cause undue hardship to the worker given his personal circumstances and in particular those of his son. The deleted portions relate to factual matters only and have no precedential value. Deletions are appropriately noted in the text. Where notes explaining deletions are necessary they appear in the text in italics.

[2] At all material times the employer purported to be either an exempt employer or a selfinsured employer.

[3] Trial Book Part A ("Exhibit A1") p 1 (A1/1).

[4] There was an additional issue as to costs which the parties agreed should be deferred until after findings were made on the substantive issues.

[5] Although the worker's entitlement are to be determined under the "new" entitlement provisions introduced by the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008, for ease of reference, I generally use the former terms "total incapacity" and "partial incapacity" instead of the respective equivalent terms now applicable being "no current work capacity" and "current work capacity".

[6] The name "Ms Gray" is a pseudonym. As the female worker in question was the victim of the alleged.... [serious misconduct] .... and is a witness rather than a party to these proceedings, I consider it is not appropriate that she be identified by her correct name. The name Ms Gray does not refer to any real person with that name.

[7] Deletions of segments only of a paragraph are noted by a series of dots.

[8] Determination 31 August 2009 (A1/7).

[9] By determination dated 19 August 2009 (A1/13).

[10] By variation of the disputed decision and a separate determination, both dated 30 November 2009 (A1/18-27).

[11] Dated 21 February 2011 - Trial Book B, Exhibit A2 (A2/328).

[12] Paras 18 and 19 of worker's supplementary statement Exhibit W1.

[15] Consultation notes of Dr Latif - Exhibit W20.

[17] PMC Dr Monkhouse 15 January 2008 - 6 March 2008 (A1/271-272).

[18] Report Dr Griffin 3 October 2008 (A1/53).

[21] He saw a practitioner other than Dr Latif on this occasion.

[23] By two separate PMCs dated 26 July 2009 and 7 August 2009 respectively - A1/292, 294.

[24] Notes of Dr Latif 10 January 2008 - the initial dosage of Effexor was 75mg daily (W20).

[26] Diversity Policy attachment "BP2" to statement of Mr Palmer (A2/394).

[28] Notices of Work-Related Injury dated 3 March 2009 (W15) and 5 March 2009 (W16).

[29] As asserted under the heading "What Happened?" in the Notice of 5 March 2009.

[30] Formal Complaint Form "BP1" to Palmer Statement (A2/392).

[31] Interview of Ms Gray by Mr Hayes (W14).

[32] Sent to the worker on the same day by taxigram - Annexure BP4 to statement of Mr Palmer (A2/407).

[33] Record of Interview Palmer/Gray 15 May 2009 - W18.

[34] The worker's initial evidence in this regard is set out in his Statement of 21 February 2011 A2/328 paras 7-10 and his supplementary statement Exhibit W1 paras 56-64.

[42] It is not clear but it is likely this should have read "January 2008".

[45] The first attendance in this regard being on 14 November 2007.

[50] Notes of consultation 10 January 2008 (Exhibit W20).

[57] Notes of attendance 27 January 2009 Exhibit W20.

[58] As clarified by Dr Latif tr 638.19.

[62] Ignoring the numerous typographical errors in the recording of the computerised medical notes.

[64] Notice of work-related injury A1/11-12.

[76] In accordance with its determination of 19 August 2009 whereby the claim for an adjustment disorder as a sequelae to the left shoulder strain was accepted although for medical expenses only.

[78] There appears to have been no CPD Sessional Suite note in evidence as to the first attendance on 13 July 2009, but in oral evidence Dr Nagesh appeared to read from some contemporaneous note of his attendance.

[80] Report 6 October 2009 p 7 Exhibit W8.

[90] Letter to Mr Wright 25 May 2009 - R9.

[92] Apparently by telephone - tr 799-800.

[99] P 5 of report 20 May 2010 at A1/194.

[103] Notes of consultation 10 November 2010 (W20).

[106] Report 28 March 2011 Page 3 A1/109.

[110] Exhibit "BP13" to statement of Mr Palmer A2/473-475.

[112] Para 7.1 Mr Clifford's statement (A2/492).

[115] Para 7.3 Mr Clifford's statement (A2/492).

[116] Para 7.4 Mr Clifford's statement (A2/492).

[124] Supplementary statement W1 para 67.

[128] That is, when he saw the worker on 15 April 2008 only eight days after the right elbow operation, when his range of motion was restored to normal, that the worker was "pushing the boundaries too much" - Report 3 October 2008 A1/54.

[130] 10 February 2009: "aches and pains in his right knee and getting worse"; 6 March 2009: "now clicking and painful left knee" - W20.

[131] Tr 1007, 1008, 1011 - amendment made after submissions on 19 June 2012 post delivery of reasons for decision. I consider I have power to make an amendment of this nature when final orders have yet to be made and where the amendment is incidental only and does not relate to a matter of substance which goes to the basis for the ultimate findings - r 4 of the Workers Compensation Tribunal Rules 2009, r 242 of the Supreme Court Rules 2006, Todorovic v Moussa [2001] NSWCA 419..

[133] In particular, the evidence of Dr Blakemore at tr 245, Dr Nagesh at tr 306.20-27, and Mr Wright at tr 780.

[135] I mention here, that the employer contended that certain statements made by the worker on his employment application were false in that they glossed over or misrepresented his part "professionalism". I do not consider that any misrepresentation or distortion in this limited context has any bearing on the worker's credibility generally.

[136] [2000] SAWCT 121.

[137] (1995) 183 LSJS 193.

[138] At [22] per Gilchrist DPJ and McCouaig DP.

[140] (My emphasis) Per Lander J at 46 and Bleby J at 56.

[141] On the facts as found, the mental disability consequent upon the worker's physical disability was not serious and permanent (my emphasis).

[146] Report Dr Nimon 1 January 2010 - A1/61.

[147] Chronic Pain Assessment Conference 11 December 2009 and report to worker's solicitors 14 December 2009 - A1/117-123.

[151] As noted by Dr Latif in his medical certificate of 8 May 2009 - A1/286.

[156] With respect to the bench decant at A2/488.

[157] For example, the pallet to pallet decant described at A2/481.

[158] Or, alternatively, subsecs (2)(b) or (3)(b), depending on the applicable entitlement period.

[159] [2010] SAWCT 28.

[160] Roberts v GM Holden Ltd [2010] SAWCT 47.

[161] [1968] HCA 73; (1968) 117 CLR 665 at 669.

[162] [1975] HCA 29; (1975) 132 CLR 417.

[164] (1982) 29 SASR 365.

[165] (1988) 49 SASR 592 at 598.

[166] [2010] SASCFC 44 at [177]- [181].

[167] This is probably a misprint - the word "where" is likely to have been intended rather than "there is".

[174] [2011] SAWCT 15.

[176] Published in the South Australian Government Gazette 26 March 2009.

[184] Reports 23 August 2010, amended report 23 August 2010 and report 3 September 2010 - A1/251267.

[185] For example, during his second consultation with Dr Byok, and his last assessment with Dr Guirguis.

[188] Initially erroneously stated to be 11% through incorrect application of the methodology for combining values but later corrected by Dr Jones.

[189] Table 16-15 p 492 and table 16-10a p 482.

[194] Given the fact that I accept there to be no motor deficit, the debate as to whether the table for nerve deficit above the forearm or below the forearm should be used becomes irrelevant.

[199] AMA5 Table 17-8 p 532 grade 4 knee extension

[203] Report 19 August 2010 - Para 1 at A1/248.