Stirling v Local Government Association Workers Compensation Scheme

8

Mr Stirling is aged 48 years. He injured his lower back in 1989 whilst working for another employer. This was a reasonably serious injury that required surgery.

9

Mr Stirling commenced employment with the Adelaide City Council in November 1999 as a Safety and Rehabilitation Officer. He worked without incident until the motor vehicle accident of August 2005.

10

After Mr Stirling's return to work he gradually built up his hours of work and by December 2005 he was working between six to eight hours per day, three days per week.

11

The modified duties that Mr Stirling has been performing since his return to work have been self-directed. He has been able to determine for himself whether to sit or stand and can take breaks and change his posture as and when he has determined it appropriate. He described his duties thus:

"The role basically provides technical support and advice to all areas of council on all matters regarding occ health and safety, whether it be legislative or policy. Also to obviously conduct workplace assessments, inspection audits, assist with the job in the policy and procedures and any other technical-related work regarding occ health and safety in broad terms."[1]

12

In response to a question as to what was physically involved he said:

"A fair percentage of the work I do is in front of the computer and I'd be doing reports or responding to emails and that type of thing. Compiling training programs - you know, writing training programs, PowerPoint presentations and that sort of thing. Liaising with external training bodies and that sort of thing to coordinate training, whether it be for things like first aid and that type of thing - but, yes, doing a lot of administrative-type work. Doing accident investigation reports. Attending committee meetings and preparing statistical reports for the committees and that type of main function and, you know, reporting back to all levels of council."[2]

13

The LGA had orchestrated Mr Stirling's return to work through a series of rehabilitation and return to work plans. These plans have been formulated in reliance upon s 28A of the Act and were prepared by Mr Grozdanovic, a rehabilitation consultant.

14

Section 28C(1) provides that the plans must comply with standards and requirements imposed by regulation.

15

Regulation 5 of the Workers Rehabilitation and Compensation (Rehabilitation Standards and Requirements) Regulations 1996 prescribes certain standards and requirements applicable to rehabilitation and return to work plans.

16

Of significance, in the context of this case, they require the compensating authority, through reg 5(g), to:

"... specify, to the extent practicable, the point of commencement and completion of the plan (expressed either as a particular date, the commencement and the expiry of a particular period, or the occurrence of particular activities or circumstances);"

"... specify the method by which the Corporation [in this case the LGA] will review the plan and, where practicable, the times or occasions on which the reviews will take place;".

21

By 20 June 2006 the LGA had prepared seven rehabilitation and return to work plans. A plan made on that day envisaged that Mr Stirling would continue to work three days a week up until 30 June 2006 and would then increase his hours of work by working a fourth day per week.

22

Plan eight contemplated an attempt to work the fifth day. It stipulated that Mr Stirling would from 14 August 2006 work a fifth day on a trial basis from 8.30 am to 12 noon.

23

It would seem that this attempt failed. In a report dated 5 September 2006 Dr Lim, a surgeon to whom Mr Stirling had been referred for medico-legal purposes, recorded that after a month Mr Stirling reverted back to four days per week, because his condition worsened.[3]

24

From then on the plans, which by 10 May 2007 had numbered eighteen, made provision for Mr Stirling to work only four days per week.

25

Up until this point in time Mr Stirling appears to have enjoyed a positive relationship with Mr Grozdanovic and the plans that had been formulated appear to have reflected an agreed position. This is borne out by the fact that Mr Stirling had executed every rehabilitation and return to work plan that had thus far been prepared.

The LGA prepares a Rehabilitation and Return to Work Plan requiring Mr Stirling to work full time - plan nineteen

26

Plan eighteen contemplated a review on 13 June 2007. A few weeks before this the LGA received a report from Mr North, neurosurgeon.[4] Mr Stirling had previously seen Mr North in November 2006. At that time Mr North was confident that by April 2007 Mr Stirling would be working normal hours. Having re-examined Mr Stirling in May 2007, Mr North declared that he was fit to work five days a week.

27

The LGA passed on Mr North's report to Mr Grozdanovic and he formulated plan nineteen on the basis of it. He did so without any input from Mr Stirling or his medical advisors

28

Dr Bowler, Mr Stirling's general practitioner, saw Mr Stirling on 7 June 2007 and issued a Prescribed Medical Certificate (PMC) certifying Mr Stirling fit to work for four days a week.

29

The review scheduled for 13 June took place as arranged. I find that the tone of this meeting was quite different to those that had preceded it. At this meeting Mr Grozdanovic produced plan nineteen. It stipulated that the plan was to operate from 13 June to 6 July. It directed Mr Stirling to perform modified duties, full-time. It declared that massage treatment, which had previously been provided without restriction, was to be limited to six sessions. It noted the following restrictions: "change posture on regular basis, not to sit for more than 1 hr before changing posture. Not to set up training room ie chairs, tables at all."[5]

30

Mr Grozdanovic gave evidence that upon being presented with the plan Mr Stirling declared that he would not sign it, that he would have to get a lawyer, and that he strongly disagreed with the opinion expressed by Mr North. I accept this evidence.

31

Mr Stirling did not present for work for five days a week as required by the plan.

32

On 20 June 2007 the LGA issued a notice pursuant to s 36 of the Act. That provision enables a compensating authority to reduce or discontinue weekly payments in prescribed circumstances.

33

The determination relevantly provides as follows:

"We therefore give notice that we have determined to discontinue income maintenance payments to you at the expiration of 21 days from the receipt of this determination by you on the basis that you have failed to comply with an obligation under a Rehabilitation & Return to Work Plan under the Act and/or undertake employment offered to you and which you are capable of performing and that that therefore constitutes a breach of mutuality within the meaning of Section 36(1)(f) and Section 36(1a)(e) and (f)."[6]

39

Mr Stirling filed a notice of dispute challenging the s 36 determination. In it, he declared that he did not agree with the plan. He asserted that it failed to take into account the PMC that had been issued by Dr Bowler and that it failed to take into account his continued symptomology. It is notable that it did not assert that Mr Stirling had attempted to work on the fifth day, nor did Mr Stirling give any evidence to that effect.

40

Although there was no direct evidence on point the only reasonable inference to draw is that for the duration of plan nineteen Mr Stirling did not present for work on any of the fifth days contemplated by the plan. I find accordingly.

41

On 9 July 2007 the review indicated in plan nineteen took place and Mr Stirling was presented with plan twenty. The plan was in very similar terms to plan nineteen. It did not, however, make any provision for massage treatment. It stipulated that the duration of the plan was from 7 July 2007 to 7 September 2007 and provided for a review of the plan on 5 September 2007. As with plan nineteen, Mr Stirling refused to sign it.

42

I find as a fact that Mr Stirling only worked four days per week throughout July 2007 and that he did not present for work on any of the fifth days contemplated by the plan during that month. As a result the LGA issued a further s 36 determination on 1 August 2007. The determination was in virtually identical terms to the s 36 notice that it had issued on 20 June.

43

On 2 August 2007 Mr Stirling saw Dr Bowler. At that consultation Dr Bowler suggested to Mr Stirling that he should attempt to work five days a week by reducing the number of hours each day. He issued a PMC that contained the statement: "lets try 5 days 6 hours a day."[7]

44

Mr Stirling said in his evidence that he may have attempted to work five days per week at six hours per day in mid-2007.[8] He spoke of undertaking this trial in consultation with Dr Bowler and Mr Grozdanovic. Mr Grozdanovic made no mention of it in his statement and was not asked about it. There is no reference to it in the file that he kept concerning Mr Stirling's rehabilitation. However, Dr Bowler said he remembered it and his notes of the consultation that took place on 16 August records a complaint of an increase in neck, arm and back pain, of disrupted sleep and of the need to increase analgesic and anti-inflammatory medication.[9] He issued another PMC on 16 August that also contained the note about trying five days, six hours per day.[10] The PMC he issued on 23 August contained the comment: "we have tried to return to a five day week and this has resulted in a deterioration in his condition. He is not ready for this yet."[11]

45

The evidence might have been clearer but, on balance, I am persuaded to find that on some occasions between 2 and 23 August 2007 Mr Stirling presented for work on five days a week on reduced hours.

46

The scheduled review of plan twenty took place on 13 September 2007 and Mr Stirling was presented with plan twenty-one.

47

Unlike the earlier plans, it made no provision for a review date. It stipulated that the duration of the plan was from 8 September 2007 to ongoing. Other than that, it was in identical terms to rehabilitation and return to work plan twenty.

48

Mr Stirling declined to sign the plan. At the meeting he declared that he was in constant pain and could not work full time.

49

I find as a fact that Mr Stirling has not attended for work for five days per week at any time since.

50

On 20 September 2007 the LGA issued a further s 36 based upon Mr Stirling's failure to present himself for work for five days in the preceding week. It was relevantly in the same terms as the earlier s 36 determinations.

Mr Stirling presents accounts for massage treatment

51

Notwithstanding the limitations expressed upon the LGA's funding of massage treatment Mr Stirling formed the view that he continued to require that treatment and he undertook it at his own expense. He then forwarded accounts for treatment undertaken on 23 and 30 August and 6, 13 and 20 September 2007 to the LGA. These accounts totalled $225.

52

Mr Stirling asserts that these accounts are recoverable pursuant to s 32 of the Act. That section enables a worker to recover medical type expenses "reasonably incurred by the worker in consequences of having suffered a compensable disability."

53

He asserts that the massages gave him some relief from his symptoms and that he found them beneficial.

54

By determination dated 15 October 2007 the LGA rejected that claim. It did so having declared that it did "not believe such expenses are reasonable or necessary."[12]

55

Mr Stirling has sought a review of each of the three determinations concerning the discontinuance of weekly payments. He has also sought a review of the determination rejecting his claim for the recovery of expenses relating to massages. These are the primary disputes that are before me.

56

In addition to these are three collateral disputes each of which attempt to challenge the reasonableness of the terms of rehabilitation and return to work plans nineteen, twenty and twenty-one. Those that relate to plans nineteen and twenty were filed late and in any case the plans have expired and it therefore begs the question as to whether the Tribunal can meaningfully modify them. I understand that the primary purpose of pursuing challenges to the reasonableness of terms of these plans is to defuse an argument that Mt Stirling cannot, through his challenges to the s 36 determinations, challenge the reasonableness of the terms of the plans.

57

These disputes bring into focus the first of the issues that I identified at the outset of these reasons, which I will now address.

How is a review of a decision to discontinue weekly payments based upon a worker's alleged failure to comply with the terms of the rehabilitation and return to work plan to be determined?

58

The difficulty in answering this question arises from what was said by the Full Bench of Tribunal in Alexander v WorkCover Corporation/Commercial Union Workers Compensation Pty Ltd (ADIA Centacom Health Staff Pty Ltd).[13]

59

The Full Bench said:

"It seems to us that given the specific provisions of section 28B appearing as they do in Part 3 of the Act which deals exclusively with rehabilitation and accident prevention programmes and is clearly a code dealing with that subject matter, if a worker is dissatisfied with a rehabilitation and return to work plan or any part thereof then the appropriate and only course of action is to seek a review by the Tribunal pursuant to section 28B. In our view (and the learned single Member adverted to this in his reasons) it would be anomalous result if a worker in the face of a specific statutory entitlement to seek a review of a plan which would require work to continue pursuant to the Plan pending resolution of the dispute (and indeed allow for an appropriate modification of the plan in appropriate circumstances) were able to ignore the requirements of the plan and effectively by a 'back door' method challenge the reasonableness of its terms in proceedings pursuant to section 36 in circumstances where there was no obligation on the worker to continue to abide by the terms of the plan pending the resolution of the matter and no apparent power vested in the reviewing authority to modify the plan if appropriate."

60 What follows from this? Does it mean that the reasonableness of the terms of a rehabilitation and return to work plan is an irrelevant consideration in reviewing a decision to discontinue weekly payments that is based upon an alleged failure to comply with the terms of the plan? It is notable that the Full Bench in Alexander went on to consider whether the worker's failure to comply with the terms of the plan was reasonable.

61 Does it mean that the issue is only relevant if there is also on foot a challenge to the reasonableness of the terms of the plan? The practical difficulty this causes, is that in many, if not most cases, by the time the issue regarding the reasonableness of the terms of a rehabilitation and return to work plan comes for adjudication in the Tribunal the duration of the plan has expired such that the Tribunal is not able to provide effective relief.

62 A survey of decisions of the Tribunal reveals that in reviewing a determination to discontinue weekly payments that is based upon an alleged failure to comply with the terms of a rehabilitation and return to work plan the Tribunal has not been prepared to find that mere proof of a failure to comply with the terms of the plan will, as a matter of course, entitle a compensating authority to discontinue weekly payments.

63 Generally in reviewing such determinations it has permitted a consideration of the reasonableness of the terms of the plan by considering a collateral challenge to the reasonableness of the terms of a rehabilitation and return to work plan and holding that the fate of a s 36 notice based upon an alleged failure to comply with the terms of the plan is contingent upon the outcome of that collateral challenge.[14]

64 In Smith v WorkCover/Allianz Australia Workers Compensation (SA) Ltd (Harris Scarfe Ltd) for example, the Tribunal refused to grant summary relief in respect of a challenge to the reasonableness of the terms of a plan that had expired. The challenge was collateral to a s 36 dispute based upon an alleged failure to comply with the terms of the plan. In refusing that application the Tribunal said:

"If the respondent's argument is right, even a patently unreasonable requirement of a worker in a rehabilitation and return to work plan would suffice to found a discontinuance of the worker's weekly payments pursuant to s 36 (1)(f) and s 36 (1a)(e) unless the worker had not only sought a review of the relevant provision pursuant to s 28B but had also obtained a decision of the Tribunal setting aside or modifying that provision before the expiry date of the plan. From a practical viewpoint, in many if not most instances there is insufficient time for this to be done before the plan expires.

I do not think Parliament intended by the enactment of s 36 (1a)(e) to sanction the discontinuance of weekly payments when a worker fails to comply with an obligation under a plan that is unreasonable, as for example, requiring him to perform work beyond his capacity."[15]

65 Similar concerns troubled the Industrial Court in applying s 28 of the Workers Compensation Act 1971, which concerned an obligation upon a worker to submit to a medical examination and the consequences for the worker for failing to do so.

66 In Fulton v The Whyalla Shipbuilding & Engineering Works[16] Senior Judge Ligertwood said:

"At first sight the section might appear to be in absolute terms in the sense that the employer can arrange medical examinations wherever and whenever he likes, which the workman must attend. Clearly this section is aimed at giving the employer an opportunity to check from time to time on the condition of the workman. It is my view that the employer must act reasonably in the matter of his demands for examination, and to reach a situation where the workman's rights to compensation are at risk of suspension, it must appear that the workman has acted unreasonably in refusing to submit to the examination.

That the view I have taken is correct, seems to be confirmed by decisions on section 18 of the Workmen's Compensation Act 1928 of England which section is in terms comparable and in many respects very similar to section 28. ..."

67

Judge Russell QC adopted the same approach in Plutino v Simpson Pope Ltd.[17]

68

I think that this approach must guide the Tribunal in determining a dispute concerning a s 36 determination based upon a failure to comply with the terms of rehabilitation and return to work plans.

69

However, upon further reflection, I think the suggested means by which this can be achieved as indicated in Hines and Smith and other cases is not the correct one.

70

I think the error of that approach is that it fails to recognise that there might be circumstances where a term of a rehabilitation and return to work plan is unreasonable and requires modification and yet, viewed objectively, the worker's refusal to participate in the rehabilitation and return to work plan cannot be considered reasonable.

71

It also fails to recognise that there may be circumstances where a worker's failure to participate in the terms of the rehabilitation and return to work plan, viewed objectively, might be reasonable, notwithstanding a subsequent finding that the terms of the plan where reasonable and did not require modification.

72

The following examples illustrate these points.

73

A rehabilitation and return to work plan might require a worker to attend at a place of employment in circumstances where public transportation is unavailable and yet the rehabilitation and return to work plan makes no provision for the supply of cab vouchers or alternatively for the payment of travelling expenses associated with the worker driving himself to and from work. The worker files an application seeking the review of the provisions of the plan pursuant to s 28B(b). The worker also refuses to attend at work notwithstanding the fact the he has personal transportation readily available in circumstances where viewed objectively, it would not be unreasonable for the worker to drive himself to work.

74

A notice of discontinuance is issued on the basis of the worker's failure to comply with the terms on the plan and an application seeking a review of the plan is also filed.

75

In such circumstances it is quite conceivable that the Tribunal might form the view that the terms of the plan need to be modified to say something about the provision of transportation to and from work and yet the Tribunal could at the same time come to the view that in all of the circumstances the worker's failure to attend for work at all was unreasonable.

76

Consider another example. Having received a rehabilitation and return to work plan, the worker seeks advice from her treating general practitioner and treating surgeon and is given very firm advice to the effect that the duties provided for by the plan are unreasonable and by participating in the plan she runs a very real risk of suffering further injury.

77

Acting on that advice the worker fails to comply with the terms of the plan and seeks a review of the terms of the plan. Independently, the compensating authority issues a s 36 notice discontinuing the worker's weekly payments on the basis of her failure to comply with the terms of the plan.

78

It might subsequently transpire that the advice given by the worker's treating general practitioner and treating surgeon was erroneous because they misunderstood the nature of the duties provided for by the plan. It is likely that the Tribunal would conclude that the terms of the plan were reasonable and did not require modification. However, in the circumstances of such a case, it seems to me that it would still be open for the Tribunal to find that in failing to submit to the rehabilitation and return to work plan, the worker did not act unreasonably such that the compensating authority could not discontinue weekly payments.

79

I think the focus of this enquiry must be directed towards an objective analysis of the reasons underpinning the worker's decision not to comply with the rehabilitation and return to work plan or one or other of its terms. That exercise may well involve some analysis of the reasonableness of the terms of the plan. However, it seems to me, that the resolution of that issue is not necessarily the critical issue. It follows that there does not necessarily have to be a collateral challenge to the reasonableness of the plan. I do not see this as inconsistent with what was said in Alexander. Under this approach, and in conformity with Alexander it is not the plan that is on trial, it is the reason why Mr Stirling failed to comply with the plan.

80

Before dealing with that issue it is necessary to deal with the second issue that I identified at the outset.

Is plan twenty-one invalid? Is the determination to discontinue weekly payments of income maintenance based upon a failure to comply with its terms invalid?

81

It will be apparent that plan twenty-one does not comply with the requirements set forth in the regulations. It does not stipulate a completion date. It does not stipulate a date of review. In light of this can a s 36 determination based upon an alleged non-compliance with the plan be upheld?

82

This issue was addressed in Hines v WorkCover Corporation/HIH Workers Compensation (SA) Ltd. There the Tribunal said:

"It is true, that s 28C(1) provides: 'rehabilitation programs, and rehabilitation and return to work plans, must comply with standards and requirements imposed by regulations.' But it does not follow, that the standards and requirements imposed by regulations must in every case be complied with or that a failure to comply with such standards and requirements renders a rehabilitation program or rehabilitation and return to work plan invalid. In the end, what is required is a consideration of the relative importance of the standards and requirements and the consequence of treating their non-observance as invalidatory. As Stephen J observed in Victoria v The Commonwealth and Connor [1975] HCA 39; (1975) 134 CLR 81 at 179:-

'Sometimes the stipulation which has not being complied with is, in its context, so relatively unimportant to the attainment of that general object that, although there has been total non-compliance, a directory construction may be appropriate. In such cases it may not matter that the non-compliance is complete, not partial. Indeed the stipulation in question may be of a kind which is incapable of partial compliance; to give to such a stipulation a directory interpretation recognizes that it may be wholly disregarded without prejudice to validity because of its relative unimportance in the attainment of the general statutory object and also, perhaps, because of the far reaching and undesirable consequences of treating its non-observance as invalidatory.'

Where, on the contrary, a stipulation may be seen to be of importance in attaining the general object of the statute its total non-observance cannot be sought to be excused, and its intended effect circumvented, by the adoption of a directory construction."[18]

84

I am persuaded that I should apply these principles in determining this issue.

85

In accordance with what Stephen J said in Victoria the failure to provide for a review date and for a date of completion has to be looked at in context. The LGA had formed the view that the point had been reached whereby rehabilitation had run its course. Because Mr Stirling had not yet consistently undertaken the duties provided for by plans nineteen and twenty I think plan twenty-one required a review date and end point. However I do not regard these omissions as so significant as to warrant the conclusion that the plan was invalid. To reach that conclusion would mean that for that reason alone both Mr Stirling and the Adelaide City Council would be relieved of the obligations imposed by the plan. I can see no justification for that outcome. Moreover, the Act itself provides an effective mechanism with which to deal with the omission by enabling the parties to apply to the Tribunal to seek modification of the terms of the plan, as indeed has happened here.

86

I therefore conclude that notwithstanding the fact that plan twenty-one does not comply with the requirements set forth in the regulations the plan is valid.

85

It is therefore necessary for me to deal with all of the disputes before me on their merits.

86

Some of the evidence led in relation to them concerned film that depicted Mr Stirling. The LGA wishes to rely on that film, however Mr Saies objects. He asks me to find that the film has been edited. He submits that as a result, even though Mr Stirling admits that he is the person depicted on the film, I should rule that the film is inadmissible.

86

Before dealing with the evidence at large I need to rule on that issue.

Is the surveillance film that the LGA wishes to rely upon in support of its case admissible?

87

The facts giving rise to this issue are as follows.

88

On 19 April 2007 the LGA instructed Adroit Investigations to carry out observations of Mr Stirling to determine the level of his activity.

89

The principle of Adroit is a Mr Coldman. He in turn passed on the instructions to one of his operators, Mr Mammone.

90

Mr Mammone kept handwritten notes of the activities that he conducted in placing Mr Stirling under surveillance over several days.

91

Mr Mammone's notes include the following summary of purported surveillance conducted on Friday 27 April.

92

They record that Mr Mammone drove past Mr Stirling's premises at 7.07 am. That at 8.57 am he drove past Mr Stirling premises and did so again at 10.10 am. That at 11.17 am a car left Mr Stirling's house and a female was driving the car and there was a young girl seated in the front seat. At 11.26 am he drove past Mr Stirling's house. That at 12.30 pm the car returned to Mr Stirling's house. That at 1.45 pm he drove past Mr Stirling's house and did so again at 2.10 pm. Finally it records that observations ceased at that time.

93

They also include the following summary of purported surveillance conducted on Saturday 28 April.

94

They record that Mr Mammone attended at Mr Stirling's premises at 6.20 am that day. That he drove past Mr Stirling's premises at 7.30 am. That at 8.45 am Mr Stirling departed from his home address in a car. That at 8.53 am Mr Stirling arrived at the West Lakes Shopping Centre and dropped off a female and then left. That at 9.00 am Mr Stirling arrived back home. That at 11.51 am Mr Mammone drove past Mr Stirling's home. That at 1.00 pm Mr Stirling left his home by car and later arrived at the West Lakes Shopping Centre. Mr Mammone returned to Mr Stirling's home address and he drove past. Finally they record that as at 2.05 pm Mr Stirling was inactive and that Mr Mammone ceased observations.

95

Further detailed notes are contained for 29 April and 4 May.

96

When the film was shown to Mr Stirling during the course of the hearing, his counsel was provided with a copy of a letter dated 9 May 2007 that had been prepared by Mr Coldman and sent to the LGA's solicitors. It contained what purported to be a summary of the film. It refers to film being taken on 21, 22, and 29 April and 4 May 2007.

97

The purported original of the film was marked for identification and shown in Court. It revealed observations of Mr Stirling on the dates nominated in the summary provided. It also comprised of a few seconds of video on 27 April 2007 of two females and contains no footage of Mr Stirling. It further comprised of a few seconds of video on 28 April depicting the rear of Mr Stirling's car and shows no observations of him.

98

The fact that this film was not mentioned in the summary aroused Mr Saies's suspicions and he demanded an explanation.

99

This resulted in Mr Mammone and Mr Coldman being called to explain this.

100

Mr Mammone said that the reason why no reference to this film was made in his notes, was because neither piece of film depicted Mr Stirling. His evidence on this topic was as follows:

"And as you've just seen, there's a very short piece of film showing two females, I think?---Yes.

Walking, which doesn't appear in the typewritten report?---Okay.

Or, indeed, in the running sheet. Can you explain why that is?---I followed the Commodore with the two females in it, and the claimant was not in the vehicle, so I didn't think it was necessary to put it in there as my job is to follow the claimant.

Okay, so I take it, therefore, that you took a very short piece of film on 27 April?---Yes.

Which you then terminated. Is that correct?---Yes, I didn't put it in the report.

Has that film been edited in any way?---No.

Okay. We also saw in that short episode there, a very small piece of film relating to 28 April, I think. Can you tell me from your running sheet whether that appears?---No.

But that was film that you took that day?---Yes.

Can you explain the circumstances by which that film was taken?--- I followed the claimant to a shopping centre. As you saw, it was raining. It was hard to see. I couldn't get any film of the claimant inside the vehicle and as I only got a side view of the car, I didn't think it was explanatory to put it in there, because it doesn't show anything.

I take it from that that you turned the camera on and then turned the camera off?---Yes.

Is that correct?---Yes.

And what was shown in that very short piece of film was the extent of the film that you took that day?---Yes."[19]

101

Mr Coldman provided essentially the same explanation.

102

Mr Saies asks me to reject this evidence. He asks me to find that the film has been edited. He said:

"And if there is film that should have been shown and that they haven't seen, there's been some selectivity either in terms of what they were shown or indeed the disc that was put in there, because there's been some editing by someone at the LGA, how do we know what effect if any that would have on their opinion? You can't assume that their views would be no different."[20]

103

I gather from this that Mr Saies is suggesting that there is a reasonable inference to be drawn, that the deleted film was deleted because it depicted activities of Mr Stirling that would have been unhelpful to the LGA in the prosecution of its case before me.

104

Mr Saies later became aware that certain evidence given by Mr Coldman regarding the length of the film was wrong. Mr Coldman was taken to the original discs and these had notations in felt pen along the date "21 April 6 min"; "22 April 10 min"; "29 April 10 min" and "27 April" the notation "Friday". Mr Saies noted that so far as he could recall the film that was shown in Court only went for 22 minutes, whereas the notations on the discs would suggest in excess of 26 minutes. None of this was put to Mr Mammone, who wrote on the discs, or to Mr Coldman. It is notable that the summary prepared by Mr Coldman refers to 21 April 4.00 minutes, 22 April 8.50 minutes, 29 April 2.00 minutes, and 4 May 7.50 minutes, which adds up to 22 minutes. One might be excused in thinking that Mr Mammone's notations were no more than rough estimates.

105

If I was to accept Mr Saies's submission I would have to conclude that Mr Mammone fabricated the notes that he made of his observations on 27 and 28 April; and that he conspired with Mr Coldman and perhaps with the LGA to delete the video surveillance taken on these days and moreover that the conspirators failed in that task by not deleting all of the offending film and left an obvious trail of their conspiracy by declaring that the film was longer than that which was produced.

106

No motive was suggested to Mr Mammone, to Mr Coldman or to the LGA, or to me as to why they would have embarked upon such a course of action, and none is readily apparent.

107

The explanation given by Mr Mammone and Mr Coldman is inherently plausible and I accept their evidence. I find that the film was not doctored. I find that the compact discs that were marked for identification faithfully represent the film that Mr Mammone captured whilst he had Mr Stirling under surveillance.

108

Although there was a minor irregularity between the copy of the film that was provided to Mr Saies and that which was marked for identification, I did not understand Mr Saies to press an argument that that fact alone would justify a conclusion that the film should be declared inadmissible.

109

Having concluded as I do, that the film placed before me is accurate and complete, I rule that it is admissible.

Have the facts underpinning the LGA's determinations to discontinue Mr Stirling's weekly payments of income maintenance been established?

114

Mr Stirling's primary objection to the plans is his contention that he has been simply physically unable to work full-time of the fifth day. He described his symptoms as comprising of headaches, arm, neck and lower back pain and sciatic pain.

115

He said that the only way he can cope with his symptoms is to work Mondays and Tuesdays, have Wednesdays off to recuperate, to the work Thursdays and Fridays and rest and recuperate on the weekends in preparation for work the following week. He described his usual routine. He spoke of his breaks from work on Wednesdays. He spoke of lying on his couch at home, of taking additional medication, lying in bed, applying heat packs and having several hot showers a day to assist with muscle recovery. He spoke of the same process of recovery on weekends and said that Saturdays were probably the worst.

116

He said that to test his endurance he had attempted to work Mondays through Thursdays but found that this caused an increase in his symptoms.

117

Mr Stirling was shown the film taken on Saturday 21 April 2007. It showed him attending at a army collectables fair. He told me that he was President of the club.

118

The film on this day showed Mr Stirling walking freely without any obvious signs of pain and discomfort. It was put to him that this was inconsistent with his claim for incapacity and he disagreed.[21]

119

Film was shown of his activities on Sunday 22 April. Again it was taken at the army collectables fair. It showed him loading some mannequins into a car.

120

In commenting on this film Mr Stirling declared that he was fairly stiff in his movements most of the time.[22] This does not accord with my observations of the film. I thought it showed no signs of restrictions of his movements.

121

When it was suggested to Mr Stirling that he was not showing any discomfort he said:

"I disagree, I mean, what you see on the film doesn't necessarily equate to what I was feeling at the time. I actually had - from memory had quite a severe headache at the time. You might have noticed I was touching my head occasionally so."[23]

122

Mr Stirling was shown some film of his activities on Sunday 29 April 2007. It showed him walking with his wife and their family dog. At one point, he was holding the lead of the dog.

123

Mr Stirling was then shown some film depicting his activities on Friday 4 May 2007. He was shown to be driving his car and walking around the shopping centre. He was shown using his mobile phone with his right arm to his left ear and was carrying shopping bags. He was scheduled to work on that day and did not. He was asked how he felt on that day. He said:

"As I recall, quite stiff and sore. I didn't do a lot when I was waiting for the car. As I said, I sat, I think, in the food court area for quite a while. I had a severe headache and neck pain and back pain. That's just from - recalling - waiting, because I had to wait so long for the car."[24]

124

Mr Stirling was asked whether he saw any distinction between the activities disclosed on the film generally and working the fifth day of the working week. Mr Stirling replied:

"...The bits of stuff we've seen today on the film, for example the show where we do the display, it shows that you assume I was there all day, but I wasn't. I was only there for a short period of time. During that time I was sitting down for a fair percentage of it as well because I couldn't walk for lengthy periods of time, so I sat down with my friends, whatever, during the course of it, and then went home again; and came back the following day, really only to say g'day to the friends and really just to get my gear packed up and get some assistance to that. During that time I was taking medication. I'd go home, take medication, lay down, heat packs, all that sort of thing which you don't see. You don't see that I've got a headache, that I'm putting up with a fair bit of discomfort even just moving around doing what I was doing. The bit with walking the dog, I'm doing that as a proactive measure to try and maintain some level of core muscle stability and get some - lose some weight to, again, improve my physical condition, which was recommended. Even when I was walking I was still in severe pain with sciatic pain. I try not to limp as much as I can because it's detrimental to other parts of your body, because it's for a period of time. It paints a picture that I'm looking better than I am. In reality, it's not quite the case."[25]

125

At this point, I need to say something about Mr Stirling's evidence and the film. Some of his answers suggested to me that he has a preoccupation with the consequences of his injury and has a tendency to exaggerate his pain experiences. His reference to heat packs and of lying down and taking frequent hot showers on Wednesdays and Saturdays is not borne out in the history that he provided to any of the medical practitioners involved in this case. That is not to suggest that he has never used a hot pack or taken a hot shower to relieve symptoms or to have rested on his days off, but I suspect it is not as frequent as he suggested to me.

126

I also find it surprising that in the short-lived attempt to work for five days a week Mr Stirling had to significantly increase his medication. Up until this point he was able to work for 30 hours a week spread over four days. Even allowing for the fact that he had a days break in between I struggle to understand why working 30 hours over five days would make such a difference. After all he was not performing heavy work. His work duties were not only self-directed, they comprised of what could be described as light sedentary work.

127

As for the film, whilst it was not dramatic, it showed Mr Stirling behaving normally, in the sense that there were no signs of grimacing or other indications of pain experiences. I am troubled by Mr Stirling's apparent need to give an elaborate explanation as to how it was that the film portrayed him as it did.

128

Whilst it was not directly relevant in terms in demonstrating Mr Stirling's capacity to work for a fifth day per week, Mr Stirling's responses to questions to him about the film fortified my view about his tendency to exaggerate his pain experiences.

129

Mr Stirling has consulted with a number of medical practitioners in relation to his injuries and in relation to his fitness for work and I have had many medical reports placed before me.

130

I also heard oral evidence from Dr Bowler, Dr Cullum, Mr Potter, Mr North, Dr Ewer, Mr Tomlian and Dr Cherry.

131

Dr Bowler said that he has always been hopeful that Mr Stirling could return to work full time but has supported what I think was plainly Mr Stirling's decision not to work full time. He did so on the basis that on those occasions when he attempted to do so Mr Stirling reported to him an escalation in his pain experiences and a consequential escalation in the medication that he needed to take to deal with that.

132

Although there was some debate as to who was leading whom, my impression was that Dr Bowler was prepared to accept on face value the complaints that Mr Stirling had made to him about his pain experiences.

133

Mr Potter is Mr Stirling's treating orthopaedic surgeon. In a report dated 20 July 2007 he said:

"It is my opinion the physical impairment arising from the aggravation of the pre-existing changes of lumbar spondylosis will not make it unsafe for him to return to his work. The limiting factor will be the severity of his pain and it is my understanding that to date this has not responded to appropriate conservative methods of management. ... None of the problems identified make it unsafe for him to return to the work duties outlined in Work Plan No 19 provided they prove to be within his pain tolerance. It is my observation that in chronic pain problems psychological factors are usually present and although it is safe for him to return to work from a physical perspective coping and adjustment difficulties or problems with anxiety or depression may make this difficult to achieve."[26]

134

Some of these issues were pursued with Mr Potter in the course of his giving evidence. He said:

"I must admit I couldn't understand why you could cope with the demands of four days but not five days a week, so from a physical perspective, the problems that I'd identified - in my eyes, if you can manage four days, you can manage five, so I wondered whether there were other factors operative. I have not been given any information from any other source that has done any attempt to analyse the psychological or the workplace issues that this man works in."[27]

135

Dr Bowler referred Mr Stirling to Dr Cullum, an occupational physician. Dr Cullum thought that Mr Stirling was suffering from chronic pain and was de-conditioned. He thought that he might benefit from the involvement of a pain management program and perhaps an industrial physiotherapist. It was his opinion that industrial grievances had their role to play in Mr Stirling's inability to work the fifth day. He was optimistic that Mr Stirling could return to full time duties but thought that he needed a more supportive environment to achieve that.

136

Mr North maintained the view that he had previously expressed, namely that he thought at all relevant times Mr Stirling was fit to perform the duties provided for by plans nineteen, twenty and twenty-one.

137

Dr Cherry, the Director of the Pain Management Unit at the Flinders Medical Centre had expressed in a report dated 29 February 2008:

"As for working 4 days full time and not being able to do the 5th - that doesn't make much sense."[28]

138

In giving evidence Dr Cherry declared that he thought Mr Stirling was fit to work five days per week.[29] Although in his report he suggested that Mr Stirling might benefit from a pain management program, he said having seen the film and having given the matter further consideration it was probably a waste of time.

139

Dr Ewer, psychiatrist, stated that based on his examination he did not see Mr Stirling as suffering from a pain disorder or any other psychiatric disorder.

140

Mr Tomlian, a psychologist, suggested that he was displaying some elements consistent with a potential for a somatoform contribution to his pain.

141

This is not a situation where Mr Stirling, having been presented with a rehabilitation and return to work plan that he suspected was beyond his capabilities, had sought advice from his treating doctors and acting on that advice had made a reasoned decision not to adhere to the terms of the plan.

142

In light of Mr Potter's evidence and Dr Bowler's evidence, I strongly suspect that had Mr Stirling sought that advice following the meeting of 13 June he would have been told that there was no serious risk to his health by attempting to undertake the duties provided for by the plan.

143

Be that as it may, I find that Mr Stirling decided not to attempt to do the work provided for by plan nineteen because he had unilaterally formed the view that it terms were not appropriate.

144

It was suggested that Mr Stirling might be suffering from a psychiatric condition that might be impacting upon his ability to work the fifth day or his decision not to undertake those duties. In my view the evidence does not bear this out. I am not persuaded that Mr Stirling is suffering from a psychiatric condition. I find that Mr Stirling was angry and annoyed with the LGA. He was unimpressed by its decision to rely upon a medical opinion that he did not agree with. He was unimpressed by its decision to take a more robust approach to his rehabilitation. However, in my opinion, that anger and annoyance did not provide reasonable grounds upon which to refuse to perform all of the duties provided for by plan nineteen.

145

Viewed objectively, the LGA's decision to place limits on the amount of massage treatment was reasonable and was not of itself justification for not even attempting to undertake work on the fifth day. Viewed objectively Mr Stirling had no reason to believe that the undertaking of duties on the fifth day would compromise his health.

146

As to the suitability of the work that was provided, to the extent that their evidence differed I prefer the evidence of Dr Cherry to Dr Cullum.

147

I find it difficult to understand how Mr Stirling was capable of working four days per week on light, self directed duties and yet was sufficiently de-conditioned to require re-conditioning and the intervention of an industrial physiotherapist, in order to be able to undertake work on the fifth day. Like Dr Cherry, I find the fact Mr Stirling the worker could successfully work four days a week, but not the fifth, makes little sense.

148

I find as a fact, that the duties provided for by plans nineteen, twenty and twenty-one were suitable.

149

Nothing turns on it but for the same reasons, I would also conclude that the terms of the plans nineteen and twenty did not require any modifications. I can accept that there might be occasions during the course of working a full week when Mr Stirling might have needed to rest. However the terms of the plans were sufficiently flexible to enable that to occur.

150

In all the circumstances I conclude that Mr Stirling's refusal to attempt to work on the fifth day during the terms of plan nineteen was unreasonable. The allegation of a breach of mutuality based upon this failure has been made out. The allegation that Mr Stirling's failure to undertake suitable work that was on offer has also been made out.

151

Mr Saies would have it that the LGA's presentation of plan twenty remedied any breach of mutuality occasioned by Mr Stirling's failure to comply with plan nineteen.

152

I disagree. Mutuality is by its very definition a two way street. That the LGA was prepared to pursue another plan merely demonstrated its willingness to forgive the breach. However for mutuality to be restored Mr Stirling needed to fulfil his obligations. He had not done so at the time of the issue of the second s 36 determination.

153

That point may have been reached when Mr Stirling attempted to undertake work over five days in a week following the consultation with Dr Bowler on 2 August 2007. However, whilst I am prepared to accept that Mr Stirling attempted to work for five days per week for a couple of the weeks provided for by plan twenty, I am not persuaded that it was a genuine attempt by him to undertake those duties. For the reasons explained above I find that he exaggerated his pain experiences to Dr Bowler generally and in particular when he saw him on 16 and 23 August 2007. I find that he acted in a calculated way to persuade Dr Bowler that working five days a week was unachievable.

154

Accordingly I do not think that Mr Stirling's participation in work, in those weeks, restored the breach of mutuality that resulted from his failure to attempt work upon being presented with plans nineteen and twenty.

155

For the same reasons, I also conclude that Mr Stirling did not act reasonably in declining to attempt to undertake the work provided for by plan twenty-one.

156

A further issue arises in respect of plan twenty-one because Mr Stirling seeks a review of its terms and it is still current.

157

I find its terms require modification. It should have nominated a review date. It should have nominated an end date. Given the delay since the plan was formulated I can accept that it may need some revision. I would modify the plan by nominating a review date of six weeks after today's date and nominating an end date one week after that date.

158

For the reasons explained earlier the fact that it requires modification does not mean that the s 36 determination based upon it must fail. Mr Stirling's failure to comply with its terms had nothing to do with the matters that I have seen the need to modify.

159

I now turn to the question of the medical treatment.

160

I think it is fair to say that the general consensus of medical opinion was that the massage treatment was not treating the underlying problem and that it provided at best, temporary relief. But the test is not whether the treatment accords with best medical practice. As was explained by the Full Court of the Supreme Court in Metro Meat Ltd v Banjanovic[30] the issue is whether the worker acted reasonably in incurring the expenses and in determining that issue:

"...the worker must be accepted as he is. What is to be determined is the reasonableness of the actions of the particular worker having regard to his temperament, personal background, means of knowledge and professional advice. A worker is not obliged to elect the cheapest available treatment or the most conventional. He must be allowed reasonable freedom of choice."

161

I do not think that can be said that Mr Stirling acted unreasonably in incurring the cost of the massage treatment. It brought him relief. He had not been given any advice from those treating him that the treatment was unhelpful. Accordingly, in my view, the LGA determination to reject Mr Stirling's claim for the recovery of treatment expenses should be set aside.

162

In summary, I dismiss the Mr Stirling's challenge to the various s 36 determinations. I dismiss Mr Stirling's challenge to the reasonableness of the rehabilitation and return to work plans nineteen and twenty and declare that they do not require modification. I modify plan twenty-one by nominating a review date of six weeks after today's date and nominating an end date one week after that date. I uphold Mr Stirling's challenge to the rejection of his claim for treatment expenses.

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.

[13] [1998] SAWCT 95

[14] Hines v WorkCover Corporation/ HIH Workers Compensation (SA) Ltd [2000] SAWCT 171.

[15] [2002] SAWCT 93 at paras 22 - 3.

[16] (1973) 40 SAIR (Part II) 825 at 829 - 830.

[18] [2000] SAWCT 171 at para 38

[30] (1989) 52 SASR 102 at 109.