Barnett v Gulf Industries Pty Ltd

[1999] TASSC 4

[1999] TASSC 4

PARTIES:  BARNETT, Gregory Ernest
  v
  GULF INDUSTRIES PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 2/1997
DELIVERED:  18 January 1999
HEARING DATE/S:  2 October 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Appeals and stated cases - Question of law - What constitutes - Whether a failure to give adequate reasons for determination and to make material findings an error of law - Credibility of the worker - Whether a duty to traverse evidence and give reasons for rejecting.

Gulf Industries Pty Ltd & Another v Barnett (1996) 6 Tas R 142; Returned Services League of Australia (Devonport Sub Branch) v Garwood A59/1995; Burgess v Umina Park Homes for the Aged (1993) 2 Tas R 246; Attorney-General (Tas) v Smith A87/1994; Roberts Limited v Barker 137/1998, followed.
Workers Rehabilitation and Compensation Act 1988 (Tas), s86(1)(c).
Aust Dig Workers Compensation [161]

REPRESENTATION:

Counsel:
             Appellant:  R W Pearce
             Respondent:  C N Dockray
Solicitors:
             Appellant:  Douglas & Collins
             Respondent:  C N Dockray

Judgment category classification:           

Judgment ID Number:  [1999] TASSC 4
Number of pages:  10

Serial No 4/1999
File No LCA 2/1997

GREGORY ERNEST BARNETT v GULF INDUSTRIES PTY LTD

REASONS FOR JUDGMENT  COX CJ

18 January 1999

1. The appellant ("the worker") suffered injury in the course of his employment with the respondent ("the employer") by virtue of a right carpal tunnel syndrome sustained in or about 13 May 1993.  He was a fibreglass fabricator and had worked in this industry since 1977 when he was seventeen years of age.  He underwent surgery on his right wrist for the condition and was paid weekly payments of workers compensation on the basis of total incapacity for work between May 1993 and March 1994, when they were terminated pursuant to the Workers Rehabilitation and Compensation Act 1988, s86(1)(c) ("the Act"), a medical practitioner, Mr E D McIntyre, having certified on 25 February 1994 that the worker had substantially recovered from the effects of his injury.

1. Mr McIntyre's certificate was to the following effect:

"(1)I am an orthopaedic surgeon and a registered medical practitioner in Tasmania.

(2)I interviewed and examined Mr Gregory Ernest Barnett at the request of his employer's workers compensation insurers on the 9th February, 1994. I had previously interviewed and examined Mr Barnett approximately two months previously.

(3)I was informed by both his workers compensation insurer and by Mr Barnett that he had claimed workers compensation in May 1993 with respect to a right carpal tunnel syndrome injury predominantly to his fingers which had arisen from regular pressure and strain upon Mr Barnett's hands as a result of using fibreglass spray equipment in the course of his employment with Gulf Industries Pty Ltd.

(4)As a result of my personal examination of Mr Barnett, and the history provided to me, I noted that Mr Barnett was a strongly muscled individual, particularly in his upper limbs. He had a full range of both active and passive movement of both wrists. His right forearm measured twelve inches in circumference and his left eleven and a half inches. He remained tender over the surgical star [sic] on the anterior aspect of his right wrist. His grip strength by measurement on his right side was 14 kilograms on his left 16 kilograms. I was unable to detect any sensory loss. There was no intrinsic muscle dysfunction in his hands.

(5)I could find very little wrong with Mr Barnett's forearms, wrist and hands in any physical sense.

(6)Additionally, on the day of my examination of Mr Barnett on the 9th February, 1994 I viewed approximately 45 minutes of video surveillance of Mr Barnett working under and around a large boat. A considerable proportion of the time depicted on the video recording was spent by Mr Barnett working quite vigorously with both arms and hands underneath the boat. What he was doing appeared to require considerable and prolonged grip strength.

(7)Accordingly, as a result of my own personal examination of Mr Barnett, and my viewing of the video, I am of the opinion that Mr Barnett has substantially recovered from the effects of any injury he sustained in the course of his employment with Gulf Industries Pty Ltd in respect of which payments of weekly compensation are being made. I do accept that after heavy manual work with his hands Mr Barnett does experience some symptoms of discomfort in his right wrist. However, taking all matters into account, I am quite satisfied that he has substantially recovered from the effects of his work related condition.

(8)The grounds upon which my opinion is expressed are:

(a)My findings on clinical examination which disclose that Mr Barnett had a full range of active and passive movement of both wrists, and roughly equal strength in both wrists. He had no sensory loss and there was no intrinsic muscle dysfunction in his hands.

(b)My viewing of the video surveillance which confirmed my findings on clinical examination, viz, that Mr Barnett is quite capable of carrying out heavy manual activities, requiring considerable and prolonged grip strength, and that the symptoms he suffers following such activities are not in any way significant."

1. In March 1994, the worker referred the matter to the Workers Rehabilitation and Compensation Tribunal pursuant to the Act, s86(4). On 1 December 1995 the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") determined that the weekly payments should continue, but an appeal to the Supreme Court by the employer reported sub nomGulf Industries Pty Ltd & Another v Barnett (1996) 6 Tas R 142 succeeded on the basis that the Tribunal had failed to make findings of fact as at the time Mr McIntyre gave his certificate concerning:

   (1)the labour market in which the worker was working or might reasonably be expected to work;

   (2)       the nature of the work required to be performed by persons in that labour market; and

   (3)whether the worker suffered from any physical disability for actually doing such work (at 151).

   Because of the failure of the Tribunal to address these issues, the Court, constituted by Zeeman J, directed that the Tribunal rehear the reference.  This the Tribunal did on 28 and 29 November 1996 giving a determination on 15 January 1997 that the worker had substantially recovered from the effects of his injury and dismissing the reference.

1. The worker now appeals to this Court.  His grounds, other than the first and last which were abandoned at the commencement of the hearing, are as follows:

"2The Tribunal erred in finding that the worker had substantially recovered from the effects of the injury in respect of which he was being paid weekly payments of compensation when such a finding was not reasonably open to the Tribunal on the evidence;

3The Tribunal erred in failing to make any finding or any proper finding about the nature of the injury in respect of which the appellant was being paid weekly payments of compensation;

4The Tribunal erred in failing to make any finding or any proper finding about the nature and cause of the injury being suffered by the appellant, and the effects of such injury upon him;"

1. The learned Commissioner who constituted the Tribunal on the rehearing of the reference made the following unchallenged findings of fact in respect of the nature of the duties required to be performed in the labour market by the worker at the time the certificate as given:

"What was required of a fibreglass fabricator at the time that Mr McIntyre gave his certificate on 25 February 1994 was as follows:-

1In a business either using a chopper gun or not the work of a fibreglasser contains many stages.

2The work of a fibreglasser whether using a chopper gun or not can be varied depending on whether the item is a large item which has to be fabricated or whether it is a repair, but the processes are virtually similar in both cases.

3For fabrication of items such as shower cubicles and septic tanks there are businesses that do not use chopper guns.  The business in which the employee is employed however uses a chopper gun and does not normally use laying up by way of sheets and gel and rolling.

4The process involved in all cases involves the preparation of a mould by way of waxing the mould and rubbing the wax in and polishing it.  This can take a varying degree of time but involves the use of the hands and wrists and arms.  The next stage of the process involves the application of a gel coat which takes a shorter period of time and most operations use a lightweight airless gun for this operation.  The next stage of the operation involves either the laying up using sheets and applying fibreglass to the sheets and rolling them or using a chopper gun which chops up the sheets and mixes it with the resin and then sprays it on.  The average weight of a chopper gun is between two to two and a half kilos.  The chopper gun is spring mounted on a boom and contains a locking trigger.

5The final process involves separation of the fabricated article and release from the mould and trimming using a knife or a power tool.  There is then some sanding before finishing.

6All of the above stages involve movements with the hand, wrist and arm and this can be on a repetitive basis in terms of the rolling activity and also in terms of the spraying activity.

7Various estimates were given for the time given to perform various sections of this work but it is clear that all persons engaged in the labour market in which the worker was working agreed that the work was not required to be continuously using the chopper gun or continuously rolling or continuously applying sheets or continuously sanding or continuously waxing or continuously spraying.  All of the said activities took a varying degree of time depending on the size of the article to be fabricated or repaired.  Obviously with a swimming pool or with a shower cubicle the time taken would be a little longer.  With a smaller item the time taken would be shorter in terms of each stage of the operation.  However I accept and I find that the use of the chopper gun would not be for more than approximately two and a half hours per week and certainly no more than one and a half to two hours on any particular operation.  In fact it is likely that it would be a considerably shorter period of time than that at least in the employer's business even given the intricacies of spraying a shower cabinet.

8The use of the chopper gun as I have said involves use of the hand wrist and arm and would require on occasions the arm to be held out extended at right angles to the body for periods of time probably not exceeding fifteen minutes to half an hour at any given time however.

9The work of a fibreglass fabricator also requires the lifting of units that are being manufactured from time to time and also moving materials into place such as sheets of resin mat and fibreglass drums.  None of this lifting and manoeuvring work would need to be done without the assistance of other co-workers.  All of the persons who gave evidence were not one man operations.

10The employer permitted the worker to have breaks for smoking and recognised meal breaks.  The employer indicated that he would permit breaks when required.  All of the persons who gave evidence from the fibreglass labour market indicated that on occasions it was inadvisable to stop an operation once it was started such as the manufacturing of a swimming pool and the spraying of the gel coat.  The operation required in relation to a large item therefore may on occasion require a continuous operation of up to an hour and a half to two hours.  When achieved with two or more persons then roles are able to be swapped."

1. Having made those findings, the learned Commissioner said that he should "make some findings in relation to whether the worker suffers any disability affecting his ability to perform the full range of those duties".  This approach was in accordance with the principles laid down by Zeeman J in Gulf Industries Pty Ltd & Another v Barnett (supra) at 150, where he said:

"… for there to be recovery, either wholly or substantially, from the effects of any injury there must be no incapacity for work, whether total or partial, resulting from that injury.

…

… In Returned Services League of Australia (Devonport Sub Branch) v Garwood Serial No A59/1995 I held at 7 - 8:

'For the purposes of s86(1)(c):

(a)a worker has substantially recovered from the effects of an injury when there no longer are any effects thereof other than effects which are no more than trivial or inconsequential; and

(b)a worker's incapacity is no longer substantially due to an injury where the incapacity no longer is causally related to the injury except to a trivial or inconsequential extent.'

I adhere to that. Whether a matter is or is not trivial or inconsequential requires a consideration of s69(1). If there is no incapacity for work within the meaning of s69(1) any subsisting effect of the injury is trivial or inconsequential. If there is partial incapacity for work so that s69(1) confers a right on the part of the worker to receive a weekly payment, then the effects of the injury are more than merely trivial or inconsequential.

Partial incapacity for work is constituted by reduced physical capacity by reason of physical disability for actually doing work in the labour market in which the worker was working or might reasonably be expected to work (Arnotts Snack Products Proprietary Limited v Yacob (1985) 155 CLR 171 at 178). If there is such partial incapacity, and if it is the result of the relevant injury suffered by the worker, then there has not been substantial recovery."

1. The learned Commissioner proceeded to make his findings in this way:

   "It is clear on the basis of his evidence that he believes himself to be unable to perform those full range of duties.  The main basis for this appears to be that he complains of pain in his right arm emanating from his wrist and effecting his grip strength.  He has also complained of symptoms in his left arm but has never had any operation upon it.  He has had a carpal tunnel release on his right arm which he says has increased the pain in that arm.

   He produced a report from Dr Serida (sic) and Dr Serida gave evidence.  He had seen the worker once and took a history from the worker consistent with what I have just said. Dr Serida found on examination tenderness to pressure over the flexor aspects of both forearm and decreased sensation in the distribution of the medial nerve in both hands.  He referred, as I have, to the positiveness of the tinels and phalens tests and said there was a reduced grasp but full movement.  Dr Serida believed the worker not to be fit to return to his pre-injury employment as to do so would aggravate the severity of his symptoms.  He believed the worker to be partially incapacitated in the sense that he was fit to return to a lighter form of work and therefore not able to perform the work that he was performing in the labour market in which he was working or that he might be reasonably expected to work.

   Against this must be contrasted the evidence of Mr Mclntyre who said that he had seen the worker on more than one occasion and that he had examined him on 9 February 1994 and also seen the video tape taken on 13 December 1993 of the worker working on the boat.  Mr McIntyre found grip strength on the right side of fourteen kilograms and on the left side of sixteen kilograms.  He described the average grip strength of an adult male as forty to fifty kilograms.  However when asked about his finding of grip strength he said that it appeared inconsistent with what he had seen on the video tape when he saw the worker lift what appeared to be about a four year old child weighing approximately two to three stone from a dead lift position upwards into the boat.  He said he thought it would have required far greater grip strength to lift the child than was demonstrated when he examined him.  Mr Mclntyre also found no intrinsic muscle dysfunction and said he could find very little wrong with the worker's forearms, wrists and hands in any physical sense.  Mr Mclntyre accepted that the worker still suffered some symptoms as a result of the carpal tunnel release.  He did not however believe them to be sufficient as to prevent the worker from carrying out his normal duties provided that he was given the opportunity to take appropriate rests and that the work did not exceed what was put to him as being required, namely the use of the chopper gun for more than two and a half hours per week."

2. The reference to the video tape taken on 13 December 1993 is to a surveillance tape filmed between approximately 4.13pm and 5.52pm during which time the worker carried out work on a fibreglass boat which was sitting in its trailer at a service station run by the boat's owner.  Earlier that day the worker had been seen by Mr McIntyre and had complained of symptoms and limitations upon his activities which Mr McIntyre, in the light of the tape, found inconsistent with the worker's apparent activities on and around the boat.  There are breaks in the tape, there are obstructions in the form of fixed objects and passing traffic which restrict the camera's view of the worker from time to time and his activities while lying on his back under the boat and working on the hull are not fully observable due to constricted space and shadow.  Nevertheless, it is clear that throughout a large part of the time the surveillance was carried out, he engaged in a considerable number of repetitious movements of wrists and forearms while cutting a hole in the hull to enable the fitting of a depth gauge without any sign of discomfort.  He was also observed to lift his 3 - 4 year old son, holding him by the boy's hands, from a position on the ground up on to the boat, an activity which Mr McIntyre considered to be inconsistent with the grip strength demonstrated by the worker on clinical examination.  The explanation offered by the worker for his activities was that Mr McIntyre had encouraged him that day to try to "work through the pain threshold" (a proposition Mr McIntyre did not deny), that although he had intended only to give advice to the boat owner, he had accordingly decided to tackle the job himself, that he did so at a considerably slower rate than it would otherwise have taken him, that he did in fact suffer discomfort while doing the work, "but not as much as the following day", and that when he was lifting the child the latter had himself been gripping the worker's hands.

1. The worker also gave evidence that he considered he would be unable to carry out the normal duties of his job and that the operation he had undergone had considerably worsened his condition.  At the time of the hearing he was still complaining of difficulty in doing household chores such as vacuuming and washing dishes.  Through loss of grip strength, he claimed that there were times when he dropped dishes when he was washing up and that pain would set in "so I'd have to leave a dish full of sinks (sic) for instance until the water was basically cold before I could finish them, if my wife wasn't at home".  Even dusting increased the pain, he claimed.  To Dr Sereda he claimed that he could not ride a bicycle on flat ground or play a game of snooker because of pain in the forearms.  His wife claimed it took him two to three hours to do the dishes, that he cannot hold on to dishes easily, that he could not use a push mower because the vibrations were hurting him too much and that in the morning "he can't move his arms … he can't have breakfast in bed because he can't hold a spoon … it's useless bringing him a cup of coffee or anything.  He can't hold on to the mug.  It takes him a long time to get going basically."

1. Doctor Sereda gave evidence that the worker has subjective and objective signs of a bilateral carpal tunnel syndrome and that although he had undergone a carpal tunnel decompression involving his right wrist, the symptoms had persisted.  I have referred above to the learned Commissioner's summary of his evidence.  Doctor Sereda was misinformed by the worker as to the weight of a chopper gun he was required to use.  The doctor was left with the impression that it weighed fourteen kilograms and that the worker was required to use it during most of his forty hour working week.  In fact the gun weighs about two and a half kilograms and on average he would be required to use it for a maximum of two and a half hours per week and a maximum of two hours on any particular operation.  Commenting on why the worker should have told Dr Sereda the spray gun weighed fourteen kilograms, the learned Commissioner said that one conclusion which could be drawn was that it was a deliberate attempt to mislead.  However, he declined to draw that conclusion and found that the worker had made a mistake and that Dr Sereda had proceeded on a mistake.  The existence of this error was advanced as the reason for the learned Commissioner discarding Dr Sereda's evidence.  He said:

"When asked whether this would affect his opinion he did not readily concede that it would, but then gave what I considered to be a hesitant answer in relation to the questions asked of him at that stage by Mr Dockray about capacity to perform normal duties.  Mr McIntyre was much more positive in that regard and quite confident that the worker would be capable of performing those duties.  …  Whilst he has not wholly recovered from the effects of the injury in my view he has substantially recovered given the opinion of Mr McIntyre which I accept and given the opinion of Dr Serida (sic) is based upon one important premise at the outset which was proved to be false."

1. The learned Commissioner did not advert in his reasons to the following evidence in re-examination:

"Assuming that, as everybody seems to agree, that the work as a fibreglasser involves working at a normal standard and rate that would be expected of an employee in a work place in doing either polishing or waxing of moulds, operation of spray guns, use of manual sanding, use of small hand tools, operation with knives trimming, carrying materials and equipment around in the work place, are they the type of duties that you were referring to in the answer to Mr Dockray's question about it would depend upon what else was involved in the job? … Yes.

Assuming that all of that would be required of a fibreglasser at a reasonable rate, what's your opinion about Mr Barnett's ability to do that sort of work?  I would expect that his symptoms would be aggravated by that type of activity.

Would it, in your opinion, reduce his capacity to work at a normal rate? … Yes.

Would it reduce his capacity to work at a full week? … From a rate point of view?

Well from a time point of view or - ? … Yes.

And it would necessitate periods of rest? … Yes.

And you've said that you are unable to qualify what that rest would be, quantify that rest that was required? … Well one can only do that by placing the patient in a work situation and assessing it from a rehabilitation point of view.

Would it be more than just a lunch break and a ten minute morning and afternoon tea break? … Yes, it would be.

And more than the occasional break to have a chat or a smoko, or to have a cigarette? … Yes."

1. The learned Commissioner's other findings are as follows:

   "I find that the worker has still pain in his right arm.  I accept that he does and do not think that he has imagined it or invented it.  This pain appears to be post operative pain which could, as Dr Serida points out, be caused by scar tissue from the operation, although Mr McIntyre thought this unlikely given the simplicity of the operation.  The whole issue of pain pathways where nerves and ligaments are involved is by no means a clear cut one and in that regard I suppose it was refreshing to see that no one advanced the theory that the worker was suffering from a chronic pain syndrome.  The worker states that as at the time of examination and the time of certification by Mr McIntyre, namely 25 February 1994, he was not substantially recovered from the effects of his injury.  His injury was what he described to be a carpal tunnel syndrome (fingers).  However it is clear that the injury for which he claimed compensation may not be the injury which now affects him.  Given that Dr Serida's opinion was that the worker may well be suffering from the effects of tenosynovitis and that perhaps he was suffering from soft tissue scarring post operatively the effects of a carpal tunnel syndrome are not as clearly obvious as might be first thought.  If the worker is suffering from these other effects then tenosynovitis was not an injury for which he claimed compensation.  Neither did he claim compensation for the effects of a carpal tunnel release operation.  Of course it may be perfectly arguable that the operation was the result of the syndrome and therefore it resulted from it and so did any effects.  See Jones v Devonfield Enterprises A8/1996.

   …

   I find myself unable to rely completely upon the worker's evidence.  Having seen the video surveillance film it is clear to me that he performed the task of fitting the depth gauge underneath the boat with a certain slowness admittedly but then there was no great hurry in having the job performed.  Working underneath the boat, moving his arms and wrists vigorously up and down, and lifting his child into the boat at one stage without any real apparent discomfort are signs of inconsistent behaviour.  However I approach the video surveillance film with caution given that it was over a period of time with breaks in between.  The importance I place upon the video surveillance film is merely to demonstrate that the worker is capable of performing manual tasks of a repetitive nature and has a grip strength greater than he indicated to Mr McIntyre on examination.  I find that the worker continues to suffer symptoms which are probably related to the carpal tunnel operation itself.  However he may also be suffering the effects of tenosynovitis as well.  However some portion of the symptoms must also be related to the problem experienced with his carpal tunnel in his right side in the first place.  How one separates the degree of pain attributable to each is difficult to say save and except to notice that the worker said his condition became worse following the operation.  Even if the operation has worsened his condition, which is not clear, then it certainly does not seem to me to be bad enough to prevent him from returning to work at his normal duties. Whilst he has not wholly recovered from the effects of the injury in my view he has substantially recovered given the opinion of Mr McIntyre which I accept and given the opinion of Dr Serida (sic) is based upon one important premise at the outset which was proved to be false.  I find that he was capable of returning to normal work and had no partial incapacity as at the time the certificate was issued and subsequently.  Any effects of the injury were trivial and inconsequential and not enough to prevent him returning to his full duties.

   In my view the worker has substantially recovered from the effects of his injury and he is fit to return to work as a fibreglass fabricator performing the work that I have found is to be performed."

2. The worker's complaint in ground 2 that the finding he had substantially recovered from the effects of the injury was not reasonably open to the Tribunal on the evidence, cannot be sustained, in my opinion.  Mr McIntyre's clinical examination revealed that the worker had a full range of both active and passive movement of both wrists with no muscle wastage which one would expect to find were his symptoms persisting.  Mr McIntyre found no sensory loss and said without objection that Dr Stan Siejka had performed nerve conduction tests on the worker which had proved to be normal.  He was aware of the nature and range of the duties required in the relevant labour market and was entitled to form the opinion that the worker was capable of performing those duties without pain which could not be relieved, if it set in after some hours of work, with a short break.  The video surveillance film, although not definitive as to the worker's capabilities, was material indicative of a capacity to return to full-time work and was capable of casting doubt over the existence of many of the worker's alleged symptoms.  In my opinion, it was accordingly open to the learned Commissioner to accept Mr McIntyre's opinion and to reject the evidence of Dr Sereda, the worker and his wife. That determination was reasonably open on the evidence.

1. The remaining two grounds of appeal, however, raise other issues of law and involve a complaint that by failing to make findings on crucial material facts the learned Commissioner failed to expose the reasoning process by which he reached his conclusion.  The learned Commissioner said that the worker still has pain in his right wrist but did not make findings as to the degree or frequency of that pain.  In Goscombe v Cadbury Schweppes Pty Ltd (1993) 3 Tas R 19 at 44, Zeeman J said:

"It was incumbent upon [the learned Commissioner] to make careful findings of fact as to the nature, degree and origin of the pain being suffered by the appellant."

1. In Gulf Industries Pty Ltd v Barnett (supra) at 153, his Honour said:

   "It was critical to the proper determination of the respondent's reference that careful findings be made as to the nature of the duties required to be performed in the labour market and as to the nature and extent of the physical disabilities, if any, of the respondent affecting his ability to perform the full range of those duties. This was particularly so in the present case where the learned Commissioner was unable to rely on the evidence of the respondent concerning his disabilities."

2. While careful findings were made in respect of the duties required to be performed by the worker in the labour market, no detailed findings were made in respect of the nature and extent of his physical disabilities.  There was merely a broad statement that he was capable of returning to normal work and that any effects of the injury were trivial and inconsequential.  The worker's evidence as to his disabilities was not traversed in any way, nor was that of his wife.  It was implicit in the ultimate finding that their evidence was not accepted, but in the circumstances it was, in my opinion, incumbent upon the learned Commissioner to make some findings about the details of their evidence. 

1. So far as the worker himself was concerned, the learned Commissioner accepted that he suffered pain in his right arm which he had not imagined or invented.  He made no adverse finding in respect of the erroneous statement to Dr Sereda concerning the weight of the gun and the degree to which he was required to use it and accepted that the surveillance film had its limitations as evidence of the worker's capacity to undertake work of the type within the range of his normal duties.  No reason was advanced for rejecting the worker's claim that the day after the activities on the boat he had suffered greater discomfort than on the day itself and his other claims of inability to conduct a variety of tasks at home or in his labour market.  It would appear that the learned Commissioner did reject these claims as the findings he made are inconsistent with the worker's complaints being genuine.

1. The worker's wife was not mentioned at all in the reasons.  It may be thought that she indulged in a degree of hyperbole in claiming that her husband could not even hold a coffee cup when contrasted with his apparently vigorous activities on the late afternoon of 13 December 1994 when the surveillance tape was made, but the main thrust of that evidence was that he was worse in the mornings, that this symptom occurred then, and that it took him a long time to get going.  The reference required consideration of whether or not the worker could return to a normal working week and engage in the full range of activities required of a fibreglass fabricator from the commencement of the working day to the end of it.  In the circumstances, an assessment of the wife's evidence and a finding as to the worker's condition at the start of a working day was required. 

1. Another aspect of the evidence which was not adverted to was that of Dr Sereda in re-examination.  I have already set out his view as to the likelihood of the worker's symptoms being aggravated by a resumption of the work required in the labour market.  For the purposes of forming that view, Dr Sereda proceeded, not on the incorrect data provided to him about the gun, but on a fair summary of what was actually required.  The learned Commissioner seems to have rejected the whole of his evidence because his initial opinion was based on a false premise in respect of the weight and frequency of use of the gun, but it was still incumbent upon the learned Commissioner to consider the opinion proffered on correct data.  It does not appear that he did so. 

1. That there is a duty on persons acting judicially to give adequate reasons in appropriate cases has been recognised in a number of cases arising out of the Act (Burgess v Umina Park Homes for the Aged (1993) 2 Tas R 246, Attorney-General (Tas) v Smith A87/1994, Gulf Industries Pty Ltd v Barnett (supra), McCain Foods (Australia) Pty Ltd v Williams 25/1997, Roberts Limited v Barker 137/1998.  In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Kirby P said at 258:

"This is a consideration of particular importance in the instant case because of the fact that appeals are limited to questions of law.  That does not exempt the judge from logical and reasoned decisions on questions of fact duly justified where they have been contested.  On the contrary, because the judge is in this respect the final arbiter, and is not a juror, the duty to expose his or her reasons, however briefly, is enhanced, not diminished."

1. The extent to which the reasoning process is required to be exposed will vary from case to case.  The failure in this case to make detailed findings in respect of the effects of the injury and to give reasons, even brief ones, for rejecting much of the evidence of the worker, his wife and Dr Sereda, amounts, in my view, to an error of law which requires that the appeal be upheld.

1. I make the following orders:

   1         That the appeal be allowed.

   2         That the determination and order of the Tribunal dated 15 January 1997, be set aside.

   3That the reference of the respondent made by application dated 21 March 1994, be reheard by the Tribunal.