Sutton v SA Water [2002] SAWCT 6

3 On 19 May 1998 the worker sustained an injury to his neck and shoulders when the rear window of a back hoe fell on him. He continued to work for some months but, following an increase in neck pain in about August 1998, he went off work for a short time and then returned to work on modified duties. A claim for weekly payments in respect of this injury was accepted at that time.

4 Whilst performing modified duties as a result of the May incident the worker sustained an injury to his lower back. This occurred on 10 December 1998. He was operating a loader with a telescopic crane attachment. Whilst adjusting this attachment a section of it, which was not adequately secured, came adrift such that he was required to take its weight. This resulted in acute lower back pain.

5 The worker made a claim which was accepted. He was totally incapacitated for work until 11 January 1999 when he returned to modified duties.

6 Throughout 1999 he performed modified duties between two and three hours per day, five days per week, with occasional periods of total incapacity. The modified duties which included stocktaking, driving, and meter inspection duties, were performed pursuant to a series of Rehabilitation and Return to Work Plans prepared pursuant to s 28A of the Act, with the assistance of a rehabilitation consultant appointed by the respondent.

7 By November 1999 Plan 8 was in operation. This Plan provided that the worker continue to work two hours per day, but it was proposed that there would be an increase of hours to three per day from 6 December 1999.

8 The three main disputes arose in the context of arrangements to return the worker to work. The following summary of the disputes and the factual context in which they arose is uncontentious. It will be necessary to return to these facts in more detail when dealing specifically with each disputed determination.

9 By Determination dated 9 February 2000 the respondent gave notice that it had reduced the worker's weekly payments of income maintenance from 24 November 1999. The payments were reduced from $553.00 to $454.91 per week. It was asserted that there was a reduction in the worker's incapacity for work. The worker disputed this Determination by Notice of Dispute 2773 of 2000 filed in the Tribunal on 25 May 2000 some two months after the expiration of the statutory one month period for lodging a dispute.

10 From December 1999 the worker continued performing modified duties for two hours per day, five days per week, pursuant to further Plans. The duties specified by Plan 10, which commenced on 10 February 2000 and had a completion date of 8 March 2000, were maintaining status reports, developing a schedule of high risk plant equipment, conducting risk assessment, and collating risk management outcomes and recommendations.

11 On 29 February 2000 Dr Eriksen provided the respondent with a certificate expressing the opinion that the worker was capable of performing modified duties such as "Light duties Indoor/outdoor, vary sitting, standing and walking activities. Using discretion bending/sitting" for seven and a half hours per day five days per week. (Trial Book 105)

12 At a meeting conducted at the respondent's premises on 1 March 2000 attended by the worker, his rehabilitation consultant, Ms Bakjac, his supervisor, Mr Telford, and the respondent's Occupational Health and Safety Manager, Ms LeCornu, the worker was advised of Dr Eriksen's opinion, and a further Return to Work Plan (Plan 11) was prepared commencing on 2 March 2000, specifying the same duties as Plan 10 but increasing the worker's hours to 7.5 hours, 5 days per week. The worker was provided with a copy of Plan 11, but declined to sign it.

13 He attended for work on 2 March 2000 prepared to work for two hours in accordance with the ongoing certificate of his General Practitioner, Dr Crawford, but was asked to leave the depot until he was prepared to work seven and a half hours per day.

14 Thereafter by Determination dated 3 March 2000 the respondent gave notice of its intention to discontinue the worker's weekly payments of income maintenance on the basis that he was fit to perform duties seven and a half hours per day, that duties of that kind were offered to him via a Rehabilitation and Return to Work Plan, and that his failure to participate in that Plan constituted a breach of mutuality justifying the discontinuance of weekly payments. The worker disputed the Determination by Notice of Dispute 1445 of 2000 dated 13 March 2000 denying that there had been breach a of mutuality and disputing the level of fitness for work asserted in the Determination.

15 The worker has not performed any further duties with the respondent since he was asked to leave the depot on 2 March 2000, but has continued to provide medical certificates of his General Practitioner that he is fit for work two hours per day.

16 On 20 July 2000 the respondent wrote to the worker advising him that it remained willing to offer him duties in accordance with his medical restrictions seven and a half hours per day, five days per week. (TB 294) The worker responded by letter from his union representative dated 31 July 2000 that he was ready, willing and able to perform duties consistent with the certificate of his doctor, namely for two hours per day five days per week. (TB 295)

17 By Determination dated 9 August 2000 the respondent gave further notice of intention to discontinue the worker's weekly payments. The notice asserted that the worker continued to breach mutuality in that he was fit to work seven and a half hours per day, such work had been offered to him and he had failed to undertake it. The worker disputed this Determination by Notice of Dispute 4452 of 2000 dated 18 August 2000 asserting a continuing incapacity for such work and confirming a willingness to work 2 hours per day.

18 The fourth Notice of Dispute relates to the respondent's rejection of a claim for s 32 expenses. Between July and December 2000 the worker was prescribed Glucosamine Sulphate. Between those dates he purchased that drug under the brand name Bioplus Joint Pain Relief from the Victor Harbour Chemplus. By Determination dated 31 October 2000 the respondent rejected the claim for reimbursement for the cost incurred on the basis that it was an unnecessary and inappropriate expense. The worker has disputed that Determination by Notice of Dispute 766 of 2001 dated 30 January 2001, maintaining that the expense was reasonably incurred.

19 At the commencement of the hearing the parties handed up a comprehensive Statement of Issues arising on the various Notices of Dispute. The stated issues canvass various alternative propositions. I have considered only those which are essential to a determination of the various Notices of Dispute.

20 The statement of issues does not mention that extensions of time are required in respect of two of the Notices of Dispute

21 The fourth Notice of Dispute concerning the rejected s 32 expenses was filed several days outside the statutory period of one month but, there being no objection by the respondent, I have extended time for the filing of the Notice of Dispute up to and including 30 January 2001.

22 An extension of time is also required in relation to the first Notice of Dispute concerning the purported reduction of weekly payments from 24 November 1999. Mr Crawley, counsel for the respondent, confirmed at the outset of the hearing that the extension of time remained in issue.

23 The Tribunal is required to consider whether it is in the interest of justice to grant an extension of time. That task involves consideration of all the relevant facts and circumstances in the context of the subject legislation and the applicable principles of law contained in Santos Limited v Workers Rehabilitation and Compensation Corporation ((1998) 199 LSJS 83) and Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

24 The reduction of weekly payments advised by the Determination dated 9 February 2000 was based on the assertion of a reduction in the extent of the worker's incapacity for work supported by the certificate of Dr Crawford, the worker's General Practitioner. This is a permissible ground pursuant to s 36(2)(b) of the Act. The reduction was said to be effective from a date earlier than the Notice, hence it did not give 21 days' notice of intention to reduce weekly payments as required by s 36(3a)(b)(i). Mr Crawley conceded that the respondent was in breach of that provision (tr 364).

25 The worker's explanation for failing to file the Notice of Dispute within time was set out in par 39 of his statement (TB 164; Exhibit A1). When he received the Determination he thought it was "just about organising makeup pay". At that stage it was not having an impact on the amount he received each week. It was not until the subsequent events culminating in his failure to sign Plan 11, and the respondent's refusal to offer him work other than that certified by Dr Eriksen and the Determination to discontinue his weekly payments, that he sought advice from his union about the prevailing circumstances, including the subject reduction. Following the filing of the Notice of Dispute concerning the Determination to discontinue his weekly payments he instructed his union to file a Notice of Dispute concerning the earlier reduction of his weekly payments.

26 Mr Crawley submitted that the granting of an extension of time would result in prejudice to the respondent in that it would be required to pay the worker weekly payments in addition to the wages which he received for the performance of the actual duties for two hours per day between 24 November 1999 and 1 March 2000. This was said to constitute a windfall to the worker.

27 Mr Blewett, counsel for the worker, submitted that the prejudice was to the worker because at the time of the purported discontinuance his weekly payments were reduced to the extent of two hours per day by what has been conceded was a Determination in breach of s 36(3a). Although the worker has the benefit of a suspension of the subsequent Determination discontinuing his weekly payments pursuant to s 36(4) of the Act pending the outcome of the dispute, that can only be in respect of the payments as already reduced by the Determination of 9 February 2000. Thus the worker is suffering financially and should be entitled to challenge the unlawful reduction notwithstanding that the Notice of Dispute was filed out of time.

28 I accept that the worker did not immediately appreciate that the notice of reduction may be unlawful. I accept that it was not until the subsequent notice of discontinuance that he sought advice about it in the context of the other issues between the parties and that the consequent delay was relatively brief. I accept that he will be prejudiced if he is not permitted the opportunity to contest the notice.

29 The prejudice of which Mr Crawley complained has been brought about by the respondent's own conduct in issuing a Determination which fails to comply with the mandatory requirements of s 36. In those circumstances I do not find the prejudice to the respondent compelling. The balance of justice requires that an extension of time be granted and I do so up to and including the 26 May 2000 being the date that the relevant Notice of Dispute was accepted by the Tribunal.

The Status of the Determination to Reduce Weekly Payments dated 9 February 2000.

30 Mr Blewett submitted that the Determination was invalid and should be set aside. This issue can be determined by consideration of the information contained in the Determination itself. As indicated above, it is dated 9 February 2000. It sought to reduce weekly payments pursuant to s 36(2)(b) of the Act from 24 November 1999, being the date when the worker was certified by Dr Crawford fit to return to modified duties for two hours per day five days per week. A reduction pursuant to that subsection requires notice to be given at least 21 days before the decision is to take effect (s 36(3a)(b)(i)). Mr Crawley conceded that the Determination did not comply with s 36(3a) in that it did not provide 21 days notice of intention to reduce weekly payments.

31 Mr Crawley argued that notwithstanding this breach the Determination could be viewed as a notice to the worker of a Determination made on 24 November 1999. He submitted that the situation was analogous with the decision of the Tribunal in Houston v Walker Australia Pty Ltd (Print A15/1997). With respect that decision, which concerned notice of reduction on the grounds of the worker's return to work, does not assist the respondent. Notice of such a reduction need only be given "as soon as practicable after the decision is made (but not necessarily before it takes effect". (s 36(3a)) By contrast, the giving of 21 days notice of a determination based upon a reduction of incapacity is mandatory. In addition s 36(3) requires that a notice to reduce weekly payments including on the ground of a reduction in the extent of incapacity must be in writing. There is no evidence of an earlier written determination in November 1999. The only notice was that given on 9 February 2000 and it improperly purported to have retrospective effect. (See generally Coca-Cola Amatil v Kartsonis A16/1996). The Determination dated 9 February 2000 is set aside.

The Determination to Discontinue the Worker's Weekly Payments of Income Maintenance dated 3 March 2000.

32 This Determination relied upon a breach of the obligation of mutuality to found the right of discontinuance. Whether there was such a breach depends upon the facts, and whether those facts satisfy the circumstances deemed by the Act to constitute such a breach.

33 The assertions made in the Determination were as follows:-

(a) That Dr Eriksen expressed in his certificate dated 29 February 2000 that the worker was fit to return to work seven and a half hours per day, five days per week, on light duties indoor/outdoor; vary sitting, standing and walking activities, and using discretion with bending and sitting. Dr Eriksen endorsed as suitable certain duties outlined in the reports of the occupational therapist dated 18 and 24 November 1999.

(b) That on 1 March the worker was offered light duties within those limitations by way of a Rehabilitation and Return to Work Plan.

(c) The worker's attention was then drawn to s 36(1)(f) which specifies a breach of mutuality as a ground for the discontinuance of weekly payments.

(d) S 36(1a)(e) and s 36(1a)(f) of the Act which form part of the definition of a breach of mutuality were then set out as follows:-

"(1a) A worker breaches the obligation of mutuality if-

(e) the worker fails to comply with an obligation under a rehabilitation and return to work Plan under the Act; or

(i) to undertake work that the worker has been offered and is capable of performing ..."

(e) The grounds of the Determination were then stated; "On the basis of the material referred to above I have concluded that you have been offered and are capable of performing the work that has been made available to you and that you have refused or failed to do so. Furthermore, you have refused or failed to participate in a rehabilitation program which involved the performance of the duties offered". (TB 15 - 16)

34 The following findings concerning the conduct of the parties in February and March 2000 are important. It is undisputed that on 1 March 2000 the worker was already participating in Plan 10. That Plan commenced on 10 February 2000 and its completion date was 8 March 2000. The Plan was developed between the worker, his supervisor Mr Telford, and his rehabilitation co-ordinator Ms Bakjac, and was consistent with Dr Crawford's treatment regime (tr 288). It set, as an objective, that the worker return to different employment with his pre-injury employer. It set out the relevant duties and restrictions as to hours of work. It contained certain standard obligations of the employer and the employee. It contained specific obligations which included that the worker undertake the specified duties and hours, and that the rehabilitation co-ordinator monitor the worker's progress with a view to the formulation of a further Return to Work Plan on 8 March 2000. It also contained certain standard warnings to the employer and the worker concerning failure to comply with obligations.

35 Just prior to the commencement of Plan 10 Ms Suthern, the respondent's claims manager, received a certificate of Dr Eriksen based on his examination of the worker on 21 December 1999, that the worker was fit for modified duties seven and a half hours per day. A copy of this certificate was provided to Ms Bakjac on 10 February 2000 before the work site visit attended by Ms Bakjac, Mr Telford, Dr Crawford and the worker at which Plan 10 was prepared. Ms Bakjac did not reveal the content of Dr Eriksen's certificate dated 9 February 2000 to the worker or Dr Crawford at that meeting because she understood that the respondent did not want her to do so. (tr 289).

36 Following the commencement of Plan 10 Ms Suthern then arranged a meeting on 24 February 2000 with Ms Bakjac and Ms Ainslee Popplewell, the respondent's Manager of Occupational Health and Safety. The purpose of this meeting was to discuss Dr Eriksen's certificate of 9 February 2000.

37 At about this time Ms Suthern had formed the intention of making a s 36 Determination to discontinue the worker's weekly payments relying on the certificate of Dr Eriksen, and for this purpose arranged to obtain a more detailed certificate from him.

38 At the meeting of 24 February 2000 it was agreed that Ms Bakjac would contact the worker and organise a worksite visit for 1 March 2000 on which occasion it was resolved that, at that meeting, Dr Eriksen's certificate would be put to the worker, he would be formally offered work in his current role for eight hours per day, he would be asked to start immediately, if he refused he would be asked why and a note would be made of his answer, if he refused he would be sent home and a s 36 notice would be issued. It was also agreed that on 1 March 2000 Ms Bakjac would formulate a further Rehabilitation and Return to Work Plan based on the information in Dr Eriksen's report. (Ms Suthern tr 163 - 164)

39 Ms Bakjac gave evidence that she arranged the worksite visit with the worker for 1 March 2000 and that it progressed as planned. (tr 291 - 2) The worker was shown a certificate of Dr Eriksen dated 29 March 2000. He was offered duties in accordance with the certificate. Ms Bakjac prepared a s 28A Plan based on full time hours as indicated in that certificate. The worker was not prepared to sign the Plan. He wanted to discuss the matter with his union and consult with Dr Crawford. Ms Bakjac based Plan 11 "on instructions from claims of the employer" (tr 301) and in doing so understood that the compiling of the Plan was an essential step in the respondent's management of the claim (tr 293).

40 Although Dr Crawford had been consulted on Plans 1 - 10, all of which were consistent with his recommendations (tr p 283), Ms Bakjac did not consult Dr Crawford about Dr Eriksen's opinion or the terms of Plan 11 prior to the meeting of 1 March 2000, nor did she give the worker any forewarning of Dr Eriksen's opinion prior to that meeting either by provision of a copy of the certificates of 9 or 29 February 2000, or Dr Eriksen's report dated 22 December 1999. In any event, Ms Bakjac said that she had no expectation that the worker would comply with the Return to Work Plan 11.

41 Ms Suthern said that the respondent made a claims management decision to discontinue the worker's weekly payments on the basis of Dr Eriksen's certificate (tr 172). Dr Eriksen examined the worker for the respondent on 21 December 1999. Ms Suthern did not have any record on her file that she had provided the worker with his medical report dated 22 December 1999. I find that the worker was not provided with the report and that this was part of an intentional non-disclosure so that the worker could be presented with the information at a time determined by the respondent. As it transpired that occurred at the meeting of 1 March 2000.

42 I find that this meeting was part of a strategy to put pressure on the worker to work increased hours. For that reason it was an essential part of the strategy to prepare a further Rehabilitation and Return to Work Plan on 1 March. If the worker agreed to the Plan, he would have an obligation to perform the additional hours or risk discontinuance of his weekly payments. If he refused to work the additional hours Ms Suthern intended to issue a s 36 notice.

43 In its Determination dated 3 March 2000 the respondent relied on two aspects of the statutory concept of a breach of the obligation of mutuality; firstly, that the worker failed to comply with an obligation under a Rehabilitation and Return to Work Plan, and secondly, that he refused or failed to undertake work that he was offered and was capable of performing.

44 As to the first aspect; on 1 March 2000 the worker and the employer were bound by the s 28A Plan which was not due for completion until 8 March 2000 (Plan 10). S 28A(6) specifies the binding nature of such a Plan. The respondent's conduct demonstrates that it was dissatisfied with the terms of that Plan and sought to impose modifications upon the worker, or alternatively, sought to unilaterally terminate Plan 10 prior to its completion date and to substitute Plan 11 expressing an obligation for the worker to work a greater number of hours. Such unilateral action is not permissible.

45 This is because s 28B provides a right of review to the Tribunal in circumstances where a worker or an employer consider the terms of a Plan to be unreasonable. The respondent cannot circumvent that review process by such unilateral action even by enlisting the co-operation of an external rehabilitation co-ordinator.

46 Mr Crawley's submission that s 28A is focussed on one singular overall Plan to return the worker to work such that the steps along the way which might be contained in a particular Plan signed by the worker may be the subject of informal review without seeking to invoke the jurisdiction of the Tribunal has no support in the words of s 28B, and is inconsistent with the process of review generally applying to decisions affecting workers and employers pursuant to this Act. Furthermore, when s 28A, s 28B and s 28C were added to the Act, the intention was to create a formal procedure to assist in the return of workers to work. The concept of obligation and the binding nature of the Plan was incorporated in that procedure to encourage a greater level of compliance by workers and employers in the return to work process. This was reinforced by the right to discontinue a worker's payments for a failure or refusal to co-operate with the terms of a Plan, and the promulgation of regulations to regularise the standards and requirements of such plans. (WorkCover Corporation/Royal and Sun Alliance Workers Compensation (SA) Ltd (P and J Hurley (T/as Hotel Royal) v Miller) [2002] SAWCT 5). This leads to the conclusion that the right of review of a current Plan is to the Tribunal, and that a party cannot unilaterally modify a Plan before its completion date.

47 As at 1 March 2000 the obligation upon the worker was to undertake the duties and work the hours stated in Plan 10. The employer had a corresponding obligation to make that work available to him. The employer could not unilaterally alter the worker's obligations pursuant to that Plan, and the worker's failure to agree to perform any additional hours during the operation of Plan 10 cannot constitute a breach of mutuality pursuant to s 36(1a) of the Act justifying the discontinuance of weekly payments.

48 It follows that Plan 11 which purported to commence on 1 March 2000 whilst Plan 10 was still current is invalid. It could not impose different or additional obligations upon the worker whilst he was already the subject of obligations pursuant to Plan 10. It follows that the worker's failure to agree to its terms does not constitute a breach of mutuality which would justify a discontinuance of weekly payments pursuant to s 36 of the Act. In this respect I agree with the decision of the Tribunal in Hines v WorkCover Corporation/ HIH Workers Compensation (SA) Ltd (Transfer Maintenance Pty Ltd) [2000] SAWCT 171.

49 The second basis of the assertion of a breach of mutuality was that contained in s 36(1a)(f) that the worker refused or failed to undertake work that he was offered and was capable of performing. The offer of work relied upon was made at the meeting on 1 March 2000. An issue arises whether the offer and refusal can be relied upon to found a breach of mutuality in circumstances where at the time that the offer was made both the offeror and the offeree were the subject of a binding s 28A Plan containing different obligations concerning the performance of work.

50 The Act places considerable significance upon the rehabilitation of workers and their successful return to work. Pursuant to s 28A it is obligatory for an exempt employer such as the respondent to establish a Rehabilitation and Return to Work Plan for a worker, in the circumstances applying to this worker (s 28A(2)). The binding nature of such a Plan, and the consequences which flow to the worker for a refusal or failure to comply with it, strongly suggest that its position is paramount in the return to work process. Therefore is seems anomalous that, in the course of such a structured process enhanced by the involvement of rehabilitation experts and based on a consultative approach involving the employer, the worker and where possible the relevant medical experts, the Corporation or an exempt employer could override the process by making an additional and separate offer of work, and then rely on the worker's refusal as a breach of mutuality sufficient to discontinue weekly payments. In my view the application of s 36(1a)(f) as a basis for the discontinuance of weekly payments will be limited by the existence of a current Rehabilitation and Return to Work Plan. If such a Plan places obligations upon a worker to perform certain work, as was the case here, and the offer of work relied upon as a breach of mutuality differed from the obligations contained in the Plan, then it is not a valid offer of work for the purposes of s 36(1a)(f).

51 An offer of work and reliance upon s 36(1a)(f) cannot be used as a means of overriding a current Plan. When such a Plan is binding on the parties the employer cannot use a new offer of work as a device by which to create a breach of mutuality sufficient to discontinue weekly payments.

52 In this instance all that the respondent needed to do was to wait another eight days until Plan 10 was completed, and it could then have prepared a new Plan containing different obligations which might then have been the subject of review pursuant to s 28B, and which could have been relied upon pursuant to s 36. Instead, the impatience of those responsible for claims management led the respondent to take action which was not justified pursuant to the Act. The Determination dated 3 March 2000 was fundamentally flawed and therefore the issue whether the worker was capable of performing the duties offered on 1 March does not arise. The Determination is set aside.

The Determination to Discontinue the Worker's Weekly Payments of Income Maintenance dated 9 August 2000.

53 The Determination dated 9 August 2000 followed a letter to the worker dated 20 July 2000 by which he was offered seven and a half hours of modified duties in accordance with the certificate of Dr Eriksen dated 29 February 2000. The worker declined those duties on the basis that he remained fit for only two hours work per day. The assertion in the Determination was that by refusing the work offered the worker had breached the obligation of mutuality because he had refused or failed to undertake work offered to him which he was capable of performing.

54 There was no s 28A Plan in place at the time of the offer and thus there was no impediment to the respondent's offer.

55 Mr Blewett submitted that it was not a genuine offer of work. There is no convincing basis for his argument. There is nothing sinister about the timing of the letter of 20 July 2000 or that it was prepared by the respondent's solicitors rather than Ms Suthern. An offer of work at that time may well have been influenced by other proceedings in the Tribunal. It may have been considered a prudent step at that time, but that does not affect the genuineness of the offer. Ms Suthern's evidence was that the management at the Port Elliot depot was aware that duties of a kind previously performed by the worker pursuant to earlier s 28A plans were to be made available to him (tr 177 - 179). It is of no significance that no-one else performed that work between March 2000 and July 2000. By its description (Suthern tr 176 - 177) it was valuable work, and was therefore capable of being the subject of an offer of work for the purposes of s 36(1a)(f). (See Pignataro v GH Michell and Sons (Australia) Pty Ltd JD43/1998)

56 The issue to be determined is whether the worker was capable of performing the duties on offer for seven and a half hours per day, five days per week as at the date of the offer, 20 July 2000, and the subsequent Determination. In this respect the worker's evidence was that throughout 1999 and 2000 he had been limited in his suitability for work as a result of continuous pain which he suffered particularly in his lower back, hips and sciatic pain down the right leg resulting from the injury of 10 December 1999. In addition, he sometimes suffered neck and shoulder pain resulting from the injury of 19 May 1998 and he had developed a depressive illness as a sequelae of the second injury. He said that his pain and depression has continued unabated. Since 1999 he has relied upon morphine based medication prescribed by his general practitioner to relieve the symptoms of pain. He said that the continuing pain and consequent restriction of movement in his lower back, the occasional pain in his neck and shoulders together with his depression and a consequent inability to concentrate, have affected and continue to affect his ability to work and participate in his usual household and recreational activities. He attributed his depression to pain, lack of mobility, interaction with the respondent's workers' compensation section whom he believes have doubted his veracity about his level of incapacity, discovering that he was the subject of surveillance, and concerns about his financial situation and future prospects. (TB 165). The worker attributed his significant and limiting pain experience and depression to the two work injuries and maintained that at no time since December 1999 has he been capable of working in the modified duties on offer for more than two hours per day. To support his evidence he relied upon the reports and oral evidence of his general practitioner, Dr Crawford, his former treating pain management specialist, Professor Steven, and his treating Psychiatrist, Dr Bowman, together with medical reports of other orthopaedic specialists Dr Hone (TB 76 - 78) and Dr Potter (TB 79 - 82).

57 The respondent's case was that the worker's assertions to his rehabilitation consultant throughout 1999 and 2000 that he could work no more than two hours per day, his complaints and presentation to his treating doctors and those examining him for the respondent over that time, and his presentation to the Tribunal, was a conscious exaggeration not justified by any physical or psychological condition, and that since 1999 and in particular from July 2000, he was capable of performing the work on offer.

58 This was said to be established by video film of the worker taken between 22 January 1999 and 12 January 2000 (Exhibit R1) which depicted the worker moving around his property, including moving a sprinkler and near a clothes line, several occasions when he was walking in the street, alighting or getting into his car, attending to his horses, collecting horse manure in a bag, and loading a horse into a float. The video was shown to the worker in cross-examination. Drs Crawford, Steven, Bowman and Eriksen saw the film before giving evidence. Dr Blakemore did not.

59 The respondent's position was that a comparison of the worker's activities depicted on the video with his evidence, and his contemporaneous complaints and presentation to the doctors, invites the rejection of his evidence, and supports inferences that from as early as January 1999 he has been able to do a lot more physical activity than he has told his doctors or the respondent, and that he has consistently had the capacity to undertake more than 2 hours work per day, and that in July and August 2000 he was capable of performing the work on offer.

60 When giving evidence the worker presented as a disabled person who has given up on the expectation of a return to his previous level of employment, recreational and household activities. He moved slowly and carefully with a slightly stooped posture. His facial expressions and a restlessness about him portrayed pain and discomfort, and at times he displayed a vacant expression and a lack of attention probably consistent with the sedative effects of his medication. He appeared flat, sad and subdued consistent with a depressed mood. Generally speaking I regarded this as a genuine presentation although I will return to the topic of the worker's credibility later.

61 The first matter to be resolved is the causal mechanism of the worker's symptoms as this may influence the likelihood of such symptoms being present some 18 months following the lower back injury.

62 The evidence in this regard was a follows; the worker presented to Dr Crawford shortly after the injury with marked muscle spasm in the L3/4 area and was diagnosed as having acute lumbar back ligamentous strain. He saw Dr Hone, an orthopaedic surgeon, on 23 December 1998 some 10 or so days after the lower back injury. Dr Hone viewed plain x-rays taken on that date, noted a slight narrowing of the L3/4 disc space and diagnosed a disruption of the lumbar-sacral disc and an aggravation of pre-existing degenerative changes of the lumbar spine which was causing incapacity for work but which he thought would respond to conservative treatment.

63 The worker was referred to Dr Potter on 9 March 1999. Dr Potter had additional diagnostic material in the form of an MRI scan which showed widespread degenerative changes throughout the lumbar spine. Dr Potter diagnosed "low back pain arising from a lumbar disc injury occurring in association with pre-existing changes of lumbar spondylosis". (TB 80). He recommended conservative treatment, he noted that by that stage the worker had developed a major pain problem. He also expressed the view that there were significant psychological factors operating at that time such as stress, anxiety and depression. He expressed the view that it would take about 18 months for the worker's back condition to stabilise.

64 Dr Steven treated the worker from 7 April 1999 until about December 1999, when the clinic where he was practising closed. He said that the worker presented with lumbosacral pain extending to his iliac crest and going into one buttock, but no sciatica. His medical reports also mention interscapular pain, described by the worker as shoulder pain, but he thought this latter pain appeared to be of less significance to the worker. He described reasonably extensive degenerative changes within the worker's lumbosacral spine and stated that the degeneration was consistent with the pain of which the worker complained (tr 240). He relied on x-rays and an MRI scan in identifying the degenerative changes. Whilst he identified a high level of pain and acknowledged the presence of non-organic features his predominant view was that the pain was organically based. He found objective support for this view in the differential opioid block which was performed by Dr D G Selby on 19 October 1999. (Exhibit A8) The worker had reported a reduction in pain during the test consistent with the test protocol.

65 Dr Eriksen expressed a different view about the genesis of the worker's problems. He described the worker's primary problem as a soft tissue injury of his spine from which he would have expected the worker to have recovered, or substantially recovered, within three months (TB 102) . He said that the worker had only a minor level of spine dysfunction likely to produce low level pain and dysfunction (tr 334 - 335) and he disagreed that the diagnostic material supported the presence of any symptomatic structural problem. Whilst Dr Eriksen expressed the view that the worker's soft tissue injury may have aggravated a minor underlying degenerative condition of the spine (tr 336) he held the view that there was no organic explanation for his presentation in December 1999, and that there were non-organic factors operating at that time. He conceded that the differential pain test conducted by Dr Selby indicated an organic basis for the worker's pain, but as there was only a low level of pain recorded, he regarded the non-organic elements present from the other clinical findings to be more compelling.

66 I reject Dr Eriksen's opinion that the worker's injury was limited to soft tissue damage likely to recover within 3 months of the date of the injury. I think his opinion, formed some considerable time after the subject injury, is less reliable as to diagnosis than that expressed by Drs Hone, Potter and Steven that the injury resulted in damage to the lumbar spine which already showed signs of degeneration at that time. I find that throughout 1999 and 2000 there was an ongoing organic basis for the worker's complaints of pain and limitation of movement. This is supported by the results of the differential spinal block and the reduction of pain for about two months following the epidural block in November 1999. The less successful second epidural block is probably explained by the difficulties which Dr Crawford had in finding the appropriate site (tr 224).

67 Nevertheless there are also non-organic features in the worker's presentation. Although there may be a variation in the pain tolerance of individuals, some with high and some with low tolerance, I find that since about March 1999 the pain behaviour exhibited by the worker has been greater than is explained by the likely pathology. This was the tenor of Dr Potter's report and it underlies Dr Steven's evidence that there were unusual features in the worker's presentation. (tr 256) In this regard he made specific reference to the worker's forward stooped posture which has been noted by other medical witnesses, which remains a feature of his presentation and for which Dr Steven could find no organic explanation (tr 261). It also explains Dr Steven's repetition of Waddell's test, which is used on examination to determine a dominant behavioural, as opposed to an organic, presentation. In the worker's case Dr Steven noted a negative result, but nonetheless acknowledged the presence of non-organic features.

68 I find that the pain behaviour is largely explained by the worker's psychological state. From March 1999 the worker has suffered from a major depressive disorder with marked anxiety. By October 1999 the depression was sufficiently severe that he became suicidal and was hospitalised for treatment. (tr 311) The depression is a sequelae of the lower back injury. The worker's depression causes him to focus on his pain, physical limitations and relationship with the respondent, whom he perceives to be suspicious of him and doubtful of his veracity. I accept the evidence of Drs Bowman and Blakemore that the depression is not of itself incapacitating, but that it is difficult to differentiate between the worker's pain and his depression (Blakemore tr 313). Dr Bowman said that the worker's physical problems and depression were "quite intimately involved" (tr 187) and that it operates with the worker's pain response to complicate his recovery. (tr 188)

69 The video evidence assumes significance in this context as it was proffered as evidence that the worker's professed pain level and inability to work seven and a half hours per day is inconsistent with his recreational activities, and demonstrates conscious exaggeration such that the opinions of Drs Crawford, Steven and Bowman as to capacity for work have been undermined, and that Dr Eriksen's opinion as to the worker's ability to work seven and a half hours per day should be preferred.

70 I do not propose to itemise the video evidence and to make specific comparisons with the worker's presentation to the relevant doctors. Taking an overview of the video evidence, particularly in the context of the evidence of Drs Crawford, Steven, Bowman and Eriksen, and the worker, I gained the firm impression that the activities depicted on the video were an indication of a range of movement greater than the worker indicated in his evidence. On this basis I find that the worker exaggerated his complaints to the doctors and to me. Nevertheless, after taking that into account, on the whole of the evidence, I find that it does not demonstrate a capacity to perform the modified duties seven and a half hours per day five days per week in July and August 2000.

71 I find that in July 2000 the worker continued to be limited in his ability to perform work as a result of the lower back injury, consequent pain, restriction of movement, and depression. I reject Dr Eriksen's opinion that the worker was physically fit to undertake modified duties seven and a half hours per day from 22 December 1999. I find that, by March 2000, the worker's hours of work could have been gradually increased such that, after several months, he might have been able to work seven and a half hours per day. At the moment he remains fit to perform modified duties for two hours per day. However as he has not worked at all for nearly two years he will require a graduated program and rehabilitation support to effect a return to suitable duties. The Determination is set aside.

The Rejection of Section 32 Expenses

72 The medication in question is glucosamine sulphate. Dr Crawford recommended it and provided the worker with a prescription. The test to be applied in determining the reasonableness of the worker incurring the expense is that set out in Metro Meat v Banjanovic (1989) 52 SASR 102 at 106 - 107. In particular, it was said by King CJ, "generally speaking a worker who acts upon apparently reputable medical advice will be regarded as acting reasonably even though the advice turns out to be incompetent". In that context differences of medical opinion about the efficacy of the drug are not determinative of the reasonableness of incurring the expense. The worker was following the advice of his doctor in the use of the medication which as a result was reasonably incurred. The Determination is set aside.

73 In summary all four disputed Determinations are set aside.

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.