Burns and Comcare
[2002] AATA 1132
•4 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1132
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1775
GENERAL ADMINISTRATION DIVISION )
Re Steven Phillip Burns
Applicant
And Comcare
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member Dr MEC Thorpe, Member
Date4 November 2002
PlaceSydney
Decision The decision under review is affirmed.
........................................
Ms SM Bullock
Presiding Member
CATCHWORDS
Workers Compensation – Back Injury – Incapacity – Suitable Employment – Rehabilitation.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 19, 36, 62.
AUTHORITIES
Re Fuller and Comcare (AAT 11374, 7 November 1996)
Re Beer and Australian Telecommunications Commission (AATA 5974, 20 June 1990)
Re Harvey and Comcare (2000) 64 ALD 143
Plumb v Comcare (1992) 39 FCR 236
Bogaards v McMahon and Another (1988) 15 ALD 313
Re Devine and Commonwealth of Australia (1982) 5 ALN N28
Re Spano and Australian Telecommunications Commission (1987) 15 ALD 121
Comcare v Chang (1996) 24 AAR 120
REASONS FOR DECISION
4 November 2002 Ms SM Bullock, Senior Member Dr MEC Thorpe, Member
This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") made by the Applicant, Mr Steven Phillip Burns, of the reviewable decision dated 15 November 2000, that Mr Burns had no incapacity entitlement pursuant to sections 19, 20, 21 and 21A of the Safety, Rehabilitation and CompensationAct 1988 (T40). The reviewable decision affirmed a determination made on 12 September 2000 (T34).
A Hearing was held before the Tribunal in Sydney on 14 and 15 March 2002. Mr Burns provided oral evidence to the Tribunal. Evidence was also provided by Ms C Roberts, Neuropsychologist and Dr F H Roldan, Clinical Psychologist and Neuropsychologist. Mr Burns was represented by Mr G Elliott of Counsel and Comcare, the Respondent, was represented by Ms R Henderson of Counsel. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1 – T43) and the following exhibits:
EXHIBIT NO DESCRIPTION DATE
A1 Report by Ms C Roberts, Neuropsychologist 23 June 2001
A2 Report by Ms C Roberts, Neuropsychologist 8 August 2001
A3 Report by Dr R C Hudson, Orthopaedic Surgeon 7 January 2002
R1 Report by Ms J Harrington, Psychologist, Southern Cross Psychology 20 February 2002
R2 Video footage of Mr S Burns
R3 Final Investigation Report and Surveillance Activity Journal 19 February 2002
R4 Curriculum Vitae of Dr F H Roldan, Clinical Psychologist and Neuropsychologist August 1998
ISSUES
The issues in this matter are:
(a) Whether or not Mr Burns has the capacity for work;
(b) What, if any, is suitable employment for Mr Burns; and(c)Whether or not Mr Burns' failure to work is reasonable in all the circumstances.
(d)Whether or not Mr Burns should be in receipt of incapacity payments pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988.
A determination of these issues requires consideration of the previous Tribunal's decision dated 13 November 1998 and what constituted suitable work.
LEGISLATIONA decision in this matter requires consideration of the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
Section 4 of the Act deals with the interpretation under the Act and contains a number of definitions. "Suitable employment" is defined in section 4 of the Act as:
"suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee's age, experience, training, language and other skills;
(ii)the employee's suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b)in any other case—any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv)
..."
Also defined in section 4 are the terms "Rehabilitation Program" and "Rehabilitation Authority". These definitions provide:
"rehabilitation program includes medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.
…
rehabilitation authority, in relation to an employee, means:
(a)where the employee is employed by an exempt authority—Comcare; and
(b)where the employee is employed by a licensed authority—the principal officer of that authority; and
(ba)if the employee is employed by a licensed corporation—the principal officer of that corporation; and
(c)where the employee is employed by a Department or a Commonwealth authority, other than an exempt authority—the Secretary of the Department or the principal officer of the Commonwealth authority, as the case may be.
…"
Section 19 of the Act deals with incapacity payments and as relevant states:
"19 Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
…
(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment—the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
…"
Section 36 of the Act comes under Part III-Rehabilitation and deals with assessment of capability of undertaking a rehabilitation program. As relevant subsection 36 (1) states:
"36 Assessment of capability of undertaking rehabilitation program
(1)Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program.
…"
BACKGROUND
The following information is provided by way of background and is not disputed.
Briefly, Mr Burns was born on 27 February 1953 and is now 48 years old. He commenced work for the Australian Broadcasting Commission ("ABC") in 1977. When working as a set finisher at the ABC's Gore Hill Studios, Mr Burns fell from a ladder on 21 November 1988 and injured his back and pelvis. He was off work until 30 December 1988. On 20 January 1989, Mr Burns lodged a claim for injury to his pelvis, spine and back as a result of falling off the ladder. On 5 April 1989, Comcare accepted liability for "aggravation L/5 disc protrusion". On 5 April 1991, Mr Burns accepted a voluntary redundancy from the ABC.
On 16 February 1993, Dr R Hudson, Orthopaedic Surgeon, performed a L4/5 laminectomy, spinal fusion and decompression surgery. A further surgical procedure was performed by Dr Hudson on 4 October 1994 to remove a "roy–camille device" and inspect the fusion. Mr Burns requested incapacity payments on 19 September 1994. On 6 March 1995, Comcare determined that Mr Burns was able to earn the amount he was earning prior to accepting his redundancy package on 5 April 1991 and therefore, incapacity payments were nil. On 3 November 1995, a reviewable decision found that Mr Burns was totally incapacitated for work from 16 February 1993 until 2 April 1993 and 4 October 1994 to 14 November 1994. The decision also found that from 3 April 1993 until 3 October 1994 and from 15 November 1994 ongoing, Mr Burns was partially incapacitated. The decision determined that Mr Burns had a 19 per cent whole person impairment for impairment to his back and right lower limb.
On 13 November 1998, a previous Tribunal issued a decision that Mr Burns continued to be incapacitated as a result of a work injury to his back from 21 November 1988. The Tribunal decided that from 6 April 1991, Mr Burns' failure to continue to engage in employment with the ABC was reasonable, and, since that date, he had failed to seek suitable employment (T5, pp23, 24). The Tribunal directed Comcare to arrange for a full neuropsychological assessment of Mr Burns and having regard to that assessment, Comcare was to determine whether or not the failure to seek suitable employment since April 1991 was reasonable. Comcare was then directed to determined, what amount is any, Mr Burns would have been able to earn in suitable employment. Mr Burns was subsequently examined by Dr F H Roldan, Clinical Psychologist and Neuropsychologist and by Professor R J Oakeshott, Rehabilitation Specialist.
Comcare determined on 12 September 2000, that Mr Burns' failure to seek suitable employment was unreasonable and that he had an ability to earn in suitable employment an amount which precluded any entitlement to incapacity benefit under sections 19, 20 and 21A of the Act. The determination specified that Mr Burns was capable of working as clerical officer, painter or sign-writer. On 26 September 2000 Mr Burns' solicitors sought a reconsideration on the grounds that they did not believe the medical evidence supported Comcare's view that that Mr Burns was capable of undertaking the type of work specified as a clerical officer, painter or sign-writer. Furthermore, the Applicant did not agree that his failure to seek suitable employment was unreasonable and contended that insufficient weight had been given to his emotional state as a reason for failing to seek suitable employment.
EVIDENCE OF MR STEVEN PHILLIP BURNS
Mr Burns told the Tribunal that he attained the New South Wales School Certificate at the age of 16 years. He passed the subjects of woodwork, art, science, geography and maths, but not English. Mr Burns stated that he can read and write. Mr Burns plan was to become a painter and sign-writer. He in fact was a painter and painter/decorator at the Garden Island Dockyard in Sydney for nine and a half years. Mr Burns obtained his trade certificate as a sign-writer and painter and decorator. Mr Burns commenced employment at the ABC in the late 1980s as a set finisher. This work involved sign writing, developing sets with limitation brick work and working on other design and construction matters around various sets for ABC productions. Mr Burns was often on ladders and scaffolding. He did not have any clerical duties as part of his position and stated that he does "not know the first thing about clerical work".
Before his fall in 1988, Mr Burns would only drink alcohol socially. He had a driver's licence and stated he was never charged with any alcohol–related offences, including driving under the influence of alcohol. Mr Burns told the Tribunal that during the time of his employment he was a health fanatic and that he was never hospitalised because of drug or alcohol problems.
After his fall in 1988, Mr Burns was hospitalised. When he recovered from the initial effects of the injury, he returned to work for the ABC for an additional two years, accepting a voluntary redundancy on 5 April 1991. During the period after the fall and before he accepted the voluntary redundancy, Mr Burns worked on light duties, eight hours per day five days per week. Mr Burns described his workplace as being extremely compassionate and "like a family". Mr Burns told the Tribunal that during the latter years of his employment, after the accident, he suffered from very bad sciatica with the pain up and down both legs. He could not relax. At work he felt that he was just taking up space and, when he accepted the voluntary redundancy, he did so because it seemed appropriate at the time.
Between 1991 and 1993, after leaving the ABC, Mr Burns did not look for work. He described himself as being in a "very bad way". Mr Burns stated that he could not have undertaken any work let alone clerical work at that time, because he had never done this type of work. During that period, he would drink alcohol, six schooners of beer every now and then and at a party once per month. Mr Burns stated that he was not consuming alcohol everyday. Also at that time he was using marijuana occasionally. Mr Burns stated that he would not describe himself as a frequent user of marijuana because he in fact had been a health fanatic.
Mr Burns had a spinal fusion and decompression operation in 1993. He was not taking as much medication then as he currently does, he stated. After the 1993 surgery, Mr Burns had frequent problems with back pain. There was however an improvement in his sciatica. The back pain was experienced as a dull sharp pain and was ten on a scale of one to ten. Overall however, Mr Burns considered that the operation was unsuccessful and he experienced pain in 40 per cent of his back. He would use medication such as "Panadeine Forte" for pain management. Mr Burns had another operation in 1994. He stated that he certainly could not have undertaken any clerical work at that time, nor could he undertake sign writing work because of the pain. Mr Burns told the Tribunal that he was trying his hardest to recover 100 per cent. He was spending his time mostly lying down, which he stated he continues to do. After the second operation, Mr Burns stated that his condition did not greatly improve. He experiences "cracking" in his back which he described as also being unstable and frequently is in muscle spasm. He also has arthritis. The back pain after the second operation on a pain scale of one to ten was nine and a half directly after the operation and following the initial period of recovery, varied between seven and ten.
From 14 November 1994 until November 1998, Mr Burns did not look for work because he was still incapacitated and finding that he could not manage much more than self-care. Since the previous Tribunal's hearings in 1998, Mr Burns has not sought employment. He does not believe that anyone would employ him and he is in receipt of a Disability Support Pension from Centrelink. It is a terrible life for him on a pension, he stated. It is Mr Burns' view that since 1991, he could not have undertaken his previous duties as a painter/sign writer, set finisher nor could he undertake clerical work for which he has no aptitude or experience and which was physically not possible for him.
Mr Burns used to live in the Manly area in share accommodation. This arrangement assisted him in day to day activities and in meeting rental payments. Mr Burns told the Tribunal that he was not happy with the accommodation as there were problems with the water pipes and this affected his back because the pipes would vibrate, causing irritation to his back condition. Mr Burns described his back during that period as continuing to be very sensitive and painful. Mr Burns also lived in other places but experienced the same type of problem. Mr Burns was unable to live with his father as they do not see "eye to eye".
In 1996, Mr Burns moved to live in Byron Bay. He did this to be close to friends who had been a longstanding support to him and who were like his family. Mr Burns denied making a lifestyle choice of moving to Byron Bay and also placing himself in a situation where he could obtain marijuana and alcohol easily. It is very important, Mr Burns told the Tribunal, for him to have friends nearby. Friends have been very supportive of him in Byron Bay in a practical sense, for example, by assisting him with the provision of a proper bed. Mr Burns lives in a caravan park in a caravan, where he has been for the last four years. He purchased the caravan with money he received by way of compensation for non-economic loss. Mr Burns told the Tribunal that he gets together with friends about once per month. From time to time friends may ask him to come and have a drink with them. Mr Burns estimated that he would never consume more than six schooners in one session. If he drinks a large amount of alcohol, he experiences a bad headache.
After Mr Burns moved to Byron Bay, he would occasionally use marijuana which he would mix with tobacco. Mr Burns would not smoke marijuana during the day, but at night to help him sleep. Mr Burns described marijuana as a "paranoia drug" and stated that alcohol was bad enough, let alone alcohol and marijuana. He reiterated that he would use marijuana "now and then" and that this has been the situation since he was in Byron Bay. Mr Burns considered that he has used less alcohol in Byron Bay because of the pain-killing medication he takes and because he cannot afford it.
Mr Burns denied telling Dr R D Lewin, Consultant Psychiatrist, that he used marijuana everyday. Mr Burns stated that he is often vague about details because of the pain-killing medication he takes. Mr Burns also denied telling Dr Lewin that he smoked marijuana whilst employed at the ABC. He stated that he smoked cigarettes at work. Mr Burns agreed that he had told Dr Lewin that he drank alcohol when at the ABC but denied saying that he would consume six schooners of beer per day. Mr Burns also denied telling Dr Lewin that "the drunker I get, the less I feel" and he did not remember telling Dr Lewin that his usual intake of alcohol was six to eight schooners of beer per day or that he got drunk four or six times per week. Mr Burns stated that he had told Dr Lewin that he felt less pain when he drank alcohol. This was also because of the combination of alcohol and Panadeine Forte. Mr Burns further denied telling Dr Lewin that he was frequently "drunk and stoned". Mr Burns also denied telling Dr Lewin that he had a "forgotten weekend", or that he had been arrested for being loud and disorderly and for a traffic offence. At that time he had taken four Panadeine Forte tablets. He had had to travel to Sydney by train and was in a great deal of back pain as a consequence. Mr Burns explained that he may have looked dishevelled when attending various medical or psychological assessments including that with Dr Lewin. This did not relate to a lifestyle of drugs and alcohol, but to the fact that when he took or takes pain-killing medication, he so focused on the pain that he does not really consider his appearance. He also can become vague and disorientated on the pain-killing medication.
In 1996, Mr Burns estimated that he would drink once or twice per week. On the Disability Support Pension he could not afford a greater frequency of alcohol consumption. Mr Burns further stated that he suffers from tinnitus and does not suffer, as Dr Lewin asserted, from alcohol tremors or sweating. He does occasionally have dreams arising out of the use of prescribed "Valium", but did not hear voices as Dr Lewin also reported. While Mr Burns stated that he did not think that Dr Lewin would make up these statements, he believed that Dr Lewin, nevertheless, misunderstood what Mr Burns had told him. Mr Burns offered the opinion that Dr Lewin had looked at him in his dishevelled state and then had made his mind up, incorrectly, about what problems Mr Burns had. Furthermore, while Mr Burns acknowledged that he may well have slurred his speech when being examined by Dr Lewin, this related to his use of pain-killing medication.
Mr Burns told the Tribunal that he has not had a driver's licence since 1999. At that time, he had not been wearing a seatbelt and had three points taken off his licence. This brought to a total a loss of 12 points which then had the consequence of Mr Burns losing his licence. He denied that the loss of other points related to any alcohol or drug related charges.
Mr Burns told the Tribunal that the night prior to his hearing in Sydney in March 2002, he had taken three Panadeine Forte tablets. He had to arise earlier than his usual waking time in order to arrive in time at the Tribunal's Sydney premises. Mr Burns told the Tribunal that he was not all that orientated and was in pain prior to the hearing and sitting in the hearing. In terms of other medication, Mr Burns takes "Celebrex", a nonsteroidal anti-inflammatory agent, two tablets per day, Valium, an anti-anxiety agent, two tablets at night to sleep and at least two Panadeine Forte tablets daily. Mr Burns consumed alcohol the day before the hearing having "four beers " with his father. Prior to that, Mr Burns had consumed alcohol approximately one month ago. Mr Burns reiterated that he was not abusing alcohol. During the hearing, he took additional Panadeine Forte tablets and during the period of him providing evidence, he informed the Tribunal, that the pain level was about five on a scale of one to ten. If Mr Burns' pain is particularly bad, he will take more pain-killing medication, he stated.
Considering Mr Burns' current situation, he lives in a caravan which is easy to maintain. It is very difficult for him to cope with the task of clothes washing. He stated that he has to take pain-killers to undertake this task. Furthermore, he will do his washing in stages in the caravan park laundry once per week. With small items he will wash these individually in the basin in his caravan. Mr Burns stated that there are some nights when he is unable to sleep because of his back pain. Recently, because he travelled in a car driven by his friend, going over a number of bumps in the road, he was in great pain which effected how he felt the next day. Mr Burns stated that he tries not to use the caravan park's washing lines because it is difficult hanging clothes up. The other most difficult task for him, he told the Tribunal, is shopping and if he has to bend down at any time, for example, to pick up coins, he is in great pain and experiences great difficulty. Often after such a task, he will have to lie down and "crack his back in".
Mr Burns stated that he can wake up at approximately 4:00am and he will then take a Valium. He will then wake up finally at approximately 9:00am or 10:00am. Sleeping is also one of the difficulties for Mr Burns. When he gets up in the morning, he will have a hot shower as this makes him feel much better. Mr Burns' day is spent either staying at home or perhaps doing his shopping at the Woolworths Supermarket in Byron Bay. Sometimes, Mr Burns will travel into the town centre by bus or he may have to walk. Mr Burns told the Tribunal that he tries not to walk into Byron Bay because it is a distance of approximately one kilometre. Mostly, he will try and obtain a ride into town with a friend. While travel by car or bus is possible, Mr Burns noted for the Tribunal that it is unbearable catching a train. When he attended Sydney for the March 2002 Hearing, he travelled by air.
When Mr Burns does walk into Byron Bay, he stated that he will catch the bus back. He stated that he had to take pain-killers sometime before undertaking any activity, such as walking, but definitely takes pain-killing medication afterwards. After a one kilometre walk, it is difficult for him to bear the pain.
During the day, Mr Burns does not undertake a great deal of activity because of his back pain. In the afternoons, he may go to a friend's place or do some small item shopping. He does not attend a club. Mr Burns estimated that he would visit a friend two or three times per week. He stated that he virtually has no social life and has had no girlfriend for about 20 years. Mr Burns stated that he can walk, but not for long. He cannot use his arms much because this hurts his back. Accordingly, all his movements are restricted.
Mr Burns noted that he had attended a rehabilitation program at Mount Wilga some time ago just after his second operation, but stopped this because it aggravated his back. Mr Burns stated that he also had to take pain-killers straight after the rehabilitation activities. At that time he would stay in bed for long periods and he was then told by the rehabilitation providers that they could not do much for him. Mr Burns believed that he attended Mount Wilga on two separate occasions with the second time perhaps occurring in 1995. He also stated that he has unresolved difficulties with his left arm and left knee and needs a knee operation. There have been ongoing problems with his knee since he was 11 years old.
Considering his recreational activities, Mr Burns stated that he might go to the local swimming pool to swim. He used to swim miles. Mr Burns stated that he takes pain-killers before swimming and only swims for a short time. Mr Burns has not been able to swim in the ocean since the accident. He estimated that he would swim 20 times per year and acknowledged that he has been told that swimming is good for his back. Hydrotherapy, on the other hand, aggravated his back, even if just floating in the hydrotherapy pool. This activity often prevented him from being able to sleep at night.
After seeing video coverage of himself undertaking various activities over a ten day period, Mr Burns stated that the video showed him walking more and undertaking more activities in that specific period than was usual for him. The video coverage was therefore not typical of his level of activity. Mr Burns stated that most usually, if he walks to Byron Bay, he will take the bus home or try and obtain a ride in a friend's car. Mr Burns told the Tribunal that he used to be a tri-athlete, doing hundreds of leg presses each day in addition to other daily training activities.
It was pointed out to Mr Burns that his physique, particularly his upper torso, as depicted in the video, indicated a person more fit and trim than would be expected for the level of activity he had reported earlier in evidence to the Tribunal. Mr Burns however, thought that his physique on the video looked "flabby" and certainly not trim. He told the Tribunal that he used to be "rippled with muscles". Mr Burns stated that because he was walking more at the time the video was taken, he was also taking more pain-killers. When he had finished the various activities shown on the video, Mr Burns stated that he was in great pain and exhausted. Mr Burns stated that he was unable to stay in the caravan because it is too hot and he needs to undertake some activity.
In relation to the Tribunal's observation of Mr Burns punching at his clothes in a very active manner and contrary to his earlier description of his restrictions, Mr Burns stated that he had not done that type of activity in a long time and that he was his own worst enemy. Mr Burns stated that taking pain-killers allows him to get away with such activity. In the context of the video, Mr Burns noted that he cannot run any more and that he used to undertake weight lighting activities. He becomes frustrated with his life and tries to prove to himself that he can still undertake some of his previous activities.
During the ten day period of the video, there was a barbecue with some friends and that is why he purchased a "six pack" of beer from the liquor store. He usually undertakes less activity than was shown and also would drink less than that.
Mr Burns told the Tribunal that he would not be able to work with the level of pain-killers that he has to take to allow him to get through a day. Mr Burns has not undertaken any vocational training because he would have to be off the pain-killers. Mr Burns noted that he has never been to a pain clinic and would not mind trying it, having discussed it with his General Practitioner, Dr Simpson.
EVIDENCE OF MS C ROBERTS, NEUROPSYCHOLOGIST
Ms Roberts provided two reports, dated 23 June 2001 (Exhibit A1) and 8 August 2001 (Exhibit A2). Ms Roberts stated that she is a member of the Australian College of Clinical Neuropsychologists which is part of the Australian Psychological Society. Ms Roberts has been practising as a Neuropsychologist since 1980. She has also been an academic, running the Clinical Masters Degree course in Neuropsychology at Macquarie University in the early 1990s.
For the purposes of the assessment of Mr Burns, Ms Roberts administered the Wechsler Adult Intelligence Scale-Revised ("WAIS-R") and the Wechsler Memory Scale-Revised ("WMS-R"). Mr Roberts noted that these tests are the most widely administered in terms of providing an overview of a person's intellectual and memory function. There is a great deal of normative data built up over the years with the use of these tests, hence their widespread use. Ms Roberts noted that each of the tests is made up of a battery of separate subtests that are designed to assess specific features of a person's functioning. Ms Roberts administered all of the subtests apart from the subtest to do with object assembly. Ms Roberts did not administer this test because of the lack of time and furthermore, it is also the least reliable. Leaving out that test did not, in Ms Roberts' opinion, prevent her from calculating Mr Burns' IQ Score.
Overall, Ms Roberts noted that Mr Burns produced results that were above average for a person in his position. Specifically, Mr Burns had a high average score for general knowledge; an average score for the digit span, vocabulary and the arithmetic tests; and a slightly below average score on the comprehension subtest. In the test that dealt with similarities and testing for abstract thinking, Mr Burns achieved a high average score. He scored below average in the test which incorporated attention and concentration, speed of thinking, motor co-ordination and which also involved looking at symbols and numbers and matching them up. In relation to the memory test, Mr Burns' verbal memory is in the average range, as was the general memory index and delayed recall. Mr Burns scored above average in the visual memory. His attention/concentration results were in the low average range.
On the day that Ms Roberts assessed Mr Burns, he came neatly dressed and was not at all dishevelled as she had noted in other reports. Mr Burns' presentation verbally, was for the most part, appropriate. Ms Roberts noted that Mr Burns did tend to wander off the topic at times but there was no inappropriateness in his interaction and behaviour. It was also apparent that there were a number of times when he was emphasising pain by grimacing, breathing heavily and moving about in his chair. Mr Burns was able to apply himself quite well at times, though Ms Roberts noted that at other times, his attention and concentration were not so good. This appeared to coincide with the time when he was complaining of the pain. Ms Roberts' sense was that Mr Burns' attention diminished his ability to perform when he was in pain. Considering the type of work he could undertake, Ms Roberts opined that it was not realistic for Mr Burns to undertake clerical work. This opinion was suggested by Mr Burns test results and Ms Roberts observation of him on the day he was tested. Specifically, the test results in attention/concentration tasks and being able to attend to multiple pieces of information and keep track were diminished.
In relation to people who are chronic abusers of alcohol or illicit drugs, Ms Roberts noted that particularly with chronic alcohol abuse, there are two patterns which typically emerge. One is in the case of a person who is drinking very heavily but is maintaining adequate nourishment. What one tends to see in that situation is that there is a gradual deterioration in a person's ability to cope with more demanding problem solving, training or organising tasks or organising high level tasks requiring high level ability. In the case of a person who is drinking very heavily and not maintaining adequate nourishment, one would usually observe severe memory impairment and amnesia.
In relation to the use of drugs, the picture is not often as clear, Ms Roberts opined, partly because the research in that area is often compounded with difficulties with people using multiple drugs in addition to consuming alcohol. There is typically however, a deterioration in the higher level functions of a person including the ability to utilise basic intellectual and memory abilities. In relation to Mr Burns, Ms Roberts opined that the results she obtained on neuropsychological testing did not support the hypothesis that he had been abusing alcohol over a long period or that there had been brain impairment. If Mr Burns had been a heavy abuser of alcohol over a period of time, Ms Roberts would have, in general, expected to have seen some evidence of brain impairment.
When asked as to whether or not Ms Roberts considered that Mr Burns was malingering or embellishing his impairments, she explained that she had administered two specific tests, one called the Multi-Digit Memory Test. On that test, which Ms Roberts administered twice, Mr Burns did not obtain a perfect score on the first occasion but did on the second. That performance is not suggestive of malingering. Ms Roberts also looked at the quality of the errors that Mr Burns made and they were not typical of a brain-impaired person or that would raise her suspicion about the test results.
Referring to the report of Dr F H Roldan, Clinical Psychologist and Neuropsychologist, Ms Roberts opined that the tests undertaken by Dr Roldan were more of a screening process. Ms Roberts noted that Dr Roldan only administered two memory tests and a small number of attention/concentration tests. If there was organic impairment from chronic alcohol abuse, Ms Roberts would not expect the test results of the verbal memory being worse than the non-verbal memory. Ms Roberts did not consider it was reasonable for Dr Roldan to conclude that alcohol abuse was a significant factor. With alcohol abuse, Ms Roberts would expect a poor performance in tests such as block design, picture arrangement and possibly picture completion. She would also expect problematic results in the memory tests as dealt with in page 11 of her report, notably the Rey Auditory Verbal Learning Test and the Rey Complex Figure Test.
Ms Roberts expressed concerns as to whether someone, such as Mr Burns, who has been out of the workforce for 11 years, in a life style where he has not been attempting to find work, would be able to complete a vocational rehabilitation program. Ms Roberts did not speak to Mr Burns about participation in a rehabilitation program at length, but her sense was that he believed he would be limited in attempting such a program because of his pain. Furthermore, Ms Roberts opined that factors preventing Mr Burns from working included the issue of his presentation and his personality being what others might consider was "a bit unusual". An employer would have to tolerate the fact that he would require breaks. He would have to get up and move around and would not be able to sustain his concentration over a long period of time. It was difficult for Ms Roberts to comment upon Dr Roldan's opinion that "The alleged total incapacity is unlikely to be the result of psychological difficulties attributable to the accident in question and the perception of total incapacity appears to be related to motivational and personality factors unrelated to the injury". Ms Roberts stated that she could not say unequivocally that his personality was definitely and significantly altered by the accident, but she considered it was reasonable that such an event would have an impact.
In relation to Dr Roldan's opinion that Mr Burns has well entrenched views about invalidity, reports extreme symptoms and that as a consequence, it was unlikely that any type of intervention would alter his functioning, Ms Roberts opined that there was no strong evidence in the test results that Mr Burns was attempting to under perform or to persuade her that he was not capable of functioning in terms of memory and thinking. In Ms Roberts' view, the performance she obtained from Mr Burns was the best he was capable of providing on the day. There may be times however when Mr Burns' performance is worse than what she obtained, Mr Roberts stated. Ms Roberts noted that she did not explore the issue of a chronic pain problem and did not take him through an assessment of chronic pain. That would have required another day of testing.
Ms Roberts concluded that it would not be fair to characterise Mr Burns' situation in the terms that he cannot work because he will not seek work. There are other factors which need to be considered, Ms Roberts opined. Mr Burns has a physical injury which has ongoing consequences, therefore the fact that he has been so long out of the workforce and that his performance is likely to be inconsistent if he were attempting work, is, in her view, not solely due to motivational factors.
EVIDENCE OF DR F H ROLDAN, CLINICAL PSYCHOLOGIST AND NEUROPSYCHOLOGIST
Dr Roldan provided a report prepared in September 1999 having examined Mr Burns on 13 August 1999 (T17). Dr Roldan told the Tribunal that he is a member of the College of Clinical Psychologists. He is not a member of the College of Clinical Neurological Psychologists, although he noted that that particular College is a sub- group under the parent association of the College of Clinical Psychologists. Dr Roldan is eligible to be a member of the College of Clinical Neuropsychologists but he has deliberately not sought membership. Dr Roldan considered that organisation more as a "friendship club" than a professional body. Dr Roldan has a Ph.D in Clinical Psychology and one of the very few clinical Ph.D's in Australia requiring two years of internship and two years course work. Half of the total nine year period spent in achieving his Ph.D was spent in the practice of neuropsychology. Dr Roldan has a combined Masters/Ph.D degree from the Australian National University. His Honours Degree was taken in neuropsychology.
Dr Roldan informed the Tribunal that due to Mr Burns' presentation and the lengthy nature of the interview process, a full battery of tests could not be administered. Accordingly, Dr Roldan had decided to administer selective tests of memory and concentration functions whose results will show if there is impairment due to the transient effect of substance abuse. Dr Roldan spent a great deal of time obtaining a background from Mr Burns, considering this very important to forming an opinion about Mr Burns. This process then limited the time available to administer various tests. Mr Burns was assessed over a period of four hours. Dr Roldan explained that he had administered the Minnesota Multiphasic Personality Inventory-2 ("the MMPI-2") instead of the WAIS-R. Dr Roldan did not administer the WAIS-R. Dr Roldan stated it is considered to be a general screening device and a measure of intelligence and many neuropsychologists and clinical psychologists both in Australia and internationally do not consider this test as a neuropsychological test. The MMIP-2 is the most widely researched and clinically employed instrument in the assessment of emotional/personality function, including brain impairment due to the possibility of alcohol abuse or an alternative hypothesis, which could be that there is a personality disorder completely unrelated to organic factors. This could not be measured as Ms Roberts did, simply by administering cognitive tests.
In his testing, Dr Roldan was not only concerned with the possibility of organic brain damage due to alcohol abuse but also why Mr Burns presented in the manner he does in the absence of evidence to support this presentation. In forming his view, Dr Roldan spent time not only in neuropsychological testing but also in clinical testing and clinical observation of personality issues and emotional function. Dr Roldan denied that his administration of parts of the WMS-R suggested pre-conceived ideas about Mr Burns or the suggestion that if he was carrying out a truly neuropsychological assessment he would have administered a full battery of tests to ascertain what results emerged from that testing and then to explore the issues. Dr Roldan suggested that such a proposition is incorrect and based on an incomplete understanding of what a clinical psychologist and neuropsychologist was supposed to be doing in assessing a case. It had to be also noted, Dr Roldan stated, that Mr Burns was unlikely to tolerate more than four hours of assessment. Accordingly, Dr Roldan had to decide as to which hypothesis he was going to explore.
One of the issues which Mr Burns had discussed with Dr Roldan was that of memory impairment. However, when Mr Burns saw Ms Roberts, he denied any memory impairment or cognitive function. Dr Roldan opined that there were different motivations on the two different occasions. It appeared to Dr Roldan that by the time Mr Burns saw Ms Roberts, he was aware that having some kind of cognitive difficulty was not a good thing in relation to his compensation claim. Dr Roldan saw Mr Burns two years earlier than Ms Roberts. That was one of many issues and Dr Roldan had to decide how best to test these issues in the time available and given the particular presentation of Mr Burns. In Mr Burns' case, there were many different complexities and issues which not only pointed to the possibility of organic brain impairment but also pointed to a possibility of an inherent personality disorder, so Dr Roldan wanted to test for both possibilities. Dr Roldan did not agree that to look for alcohol as a feature of Mr Burns presentation, it would have been preferable to apply the WAIS-R. This psychometric testing is good in determining brain impairment in the case of dramatic brain injury. Even if Dr Roldan had undertaken full psychometric testing, it was not going to tell him about the nature of Mr Burns' personality or his presentation.
On the WMS-R, Mr Burns scored 72 when tested by Dr Roldan and 80 when tested by Ms Roberts. Both these results indicated that Mr Burns fell within the bottom end of the average range. Dr Roldan did not necessarily agree that responses to tests undertaken by Ms Roberts indicated that Mr Burns would have difficulty undertaking clerical tasks. Dr Roldan stated that Mr Burns is a person who, even on Ms Roberts' testing, is of average intellectual ability. Taking into account Ms Roberts testing results which indicated Mr Burns has average memory abilities and that his habitual memory is above average with his attention concentration within the low average range, Dr Roldan opined that most of the population functions within this range. Dr Roldan explained that with the distribution of intelligence, as depicted in the inverted bell shape graph, most of the population is in the middle which is the average range. Mr Burns' results indicate that he is functioning in the range where the majority of the population functions as far as intelligence and memory is concerned. While Dr Roldan is taking into account a number of considerations, he concluded from his assessment, that Mr Burns was not fit to perform clerical work and was totally incapacitated for work. It was not however, Mr Burns' presentation that led Dr Roldan to consider him unfit for work.
From a neuropsychological point of view, Dr Roldan agreed that it was fair to conclude that it was not possible to decide one way or the other whether Mr Burns has abused alcohol or not. Having said this, Dr Roldan noted that he had made reference to previous reports of other professionals involved in the assessment of Mr Burns where Mr Burns had reported himself to have an extensive history of alcohol and drug use. Dr Roldan did not obtain that history from Mr Burns, so there was an inconsistency. It was a possibility that Mr Burns suffered from alcohol abuse or drug use but Dr Roldan could not say this was so as a matter of probability, particularly given his uncertain history. Furthermore, Dr Roldan was not able to say with certainty one way or the other whether personality factors were a feature in Mr Burns' life before or after the work accident.
Dealing with the issue of whether or not Dr Roldan considered that Mr Burns was a deliberate malingerer, Dr Roldan stated that as a clinical psychologist he was not qualified on the physical aspect of the aetiology of Mr Burns' physical complaint. Dr Roldan could however, note that there are inconsistencies in the history surrounding Mr Burns and other medical opinion had expressed similar views. Mr Burns' psychological presentation is multifactorial and hence more complex than simply malingering. That conclusion does not exclude the possibility that the physical symptoms may be a matter of conscious over reporting, Dr Roldan stated.
Dr Roldan was referred to Ms Roberts' test of over exaggeration or malingering arising out of the application of the Multi-Digit Memory Test ("the MDMT"). Ms Roberts had administered that test on two occasions and her conclusion was that the results were not suggestive of malingering. Dr Roldan commented that a person who malingers does not necessarily malinger in every aspect of their presentation. The difficulty with Ms Roberts' application of the MDMT is that she administered it twice, when it is designed to be administered once. This is not good practice as the person being tested learns and improves on subsequent testing. It is a very simple memory test. The first score that Mr Burns achieved was nine out of fifteen which is borderline malingering. Subsequent researchers have decided to be more conservative and have proposed a score of seven or eight out of 15 as being indicative of malingering. Dr Roldan stated that he would be suspicious of a score of nine out of 15 because it is such an extremely simple memory test. Very severely brain damaged individuals can pass this test without difficulty, Dr Roldan commented.
Dr Roldan noted that he could not dispute Mr Burns' perception of his pain. Dr Roldan agreed that it is fundamental that one takes account of, as a first principal, a patient's report of pain symptoms. Dr Roldan noted that there is a scale which has been developed with the view to attempting to distinguish between "true" pain sufferers and somatic malingerers. Mr Burns score on this scale, called the "Lees-Haley Somatic Malingering Scale", fell within the range which is associated with conscious over reporting of physical symptoms. This did not necessarily prove, Dr Roldan stated, that Mr Burns is over reporting. All it pointed to is that Mr Burns' score is consistent with conscious over reporting. The test did not say that Mr Burns does not have pain in his back. Dr Roldan did opine however that it is extremely unlikely that the range of behaviour on Mr Burns' presentation is a consequence of pain induced discomfort or emotional disruption. While it is common for people to have pain and experience some levels of reactive depression to that and sometimes with some levels of adjustment disorder, Dr Roldan opined that Mr Burns' presentation went far beyond that. Dr Roldan agreed that in reacting to pain, individuals do experience some psychological symptoms. Without discounting wider factors, Dr Roldan also agreed that it is possible that there is some aspect involved in Mr Burns' psychological presentation that owes something to pain that has merged from the serious injury that occurred in 1988 and the subsequent two back operations.
OTHER EVIDENCE
Dr R C Hudson, Orthopaedic Surgeon
Dr Hudson provided three reports dated: 26 June 1995 (T16, p94); 17 April 1996 (T16, p92) and 7 January 2002 (Exhibit A3).
Dr Hudson noted that Mr Burns underwent major operative treatment of the lumbar spine in February 1993 to decompress and fuse the lower two mobile segments. Following the operation, Mr Burns lost the sciatic pain but was unable to engage in his usual physical and vocational rehabilitation. Mr Burns had a further operation in October 1994, to remove plates and screws because one screw had fractured. The fusion was found to be stable at that time, Dr Hudson noted the subsequent outcome from the operation was "disappointing" and Mr Burns had not resumed work.
Dr Hudson agreed with Associate Professor R J Oakeshott's opinion that Mr Burns has a chronic partial incapacity. Dr Hudson hoped that with appropriate vocational assessment, rehabilitation and possible inclusion of vocational training, that he should be able to resume gainful employment. Other factors which could impact upon this outcome included social isolation and Mr Burns' possible inability to concentrate for various reasons.
When Dr Hudson last examined Mr Burns in February 1996, he had thought from a physical point of view, that he would be able to undertake some form of vocational rehabilitation. Dr Hudson opined that Mr Burns would have difficulty sitting for prolonged periods and would be unsuited to heavy physical work.
Associate Professor, R J Oakeshott, AM, Rehabilitation Specialist
Associate Professor Oakeshott provided a report, dated 19 May 2000 (T30). Associate Professor Oakeshott diagnosed Mr Burns as suffering from a suboptimal outcome from his lumbar spinal fusion and his discectomies, which were performed in February 1993 for a work injury that occurred in November 1998. Associate Professor Oakeshott considered that Mr Burns' back pain can be totally attributed to this injury and the subsequent surgery. Any work Mr Burns performed should avoid heavy lifting or constant or repetitive bending, pushing or pulling of heavy objects. Mr Burns should not work in confined spaces or on ladders, and should not walk up and down flights of stairs. These restrictions are permanent as is Mr Burns' back condition. Associate Professor Oakeshott did not anticipate any significant improvement or deterioration in Mr Burns' back condition in the future.
Associate Professor Oakeshott opined that any attempt to have Mr Burns return to work is complicated by the fact that he has been out of the workforce for a considerable time, on a Disability Support Pension and has adopted a significant disability role in life.
Ms J Harrington, Psychologist
Ms Harrington provided a report dated 20 February 2002, having assessed Mr Burns on 29 January 2002 (Exhibit R1). Ms Harrington reported that Mr Burns presented in a dishevelled state. His speech was slurred at times, she believed after he took pain-killing medication. There was perseverance and Mr Burns appeared distracted. Furthermore, Ms Harrington opined that Mr Burns was not a reliable historian, contradicting himself during the assessment period. Mr Burns displayed overt pain behaviour, including grimacing and heavy breathing. Mr Burns was offered time to stand and stretch or to walk around but declined this until he had been sitting for some 55 minutes.
When questioned about his current activity levels, Mr Burns reported to Ms Harrington that he had extreme fear-avoidance behaviour which limits his activities to avoid pain. His typical day involves him laying in bed until 10am or 12 noon, rising, watching television or listening to the radio then lying down again. Mr Burns indicated that he may walk to catch the bus in order to do some shopping which he does often and in smaller amounts. Mr Burns reported that he visits friends and spends time talking to neighbours, many of whom are also pensioners. Mr Burns reported to Ms Harrington that he frequently takes medication in the form of Panadeine Forte, Celebrex and Vallium to sleep. He has no current treatment other than that. Mr Burns reported daily muscle spasms and a great deal of "crunching noise" in his spine which he "tries to crack out".
With regard to drug use, about which Ms Harrington noted conflicting reports, Mr Burns denied to her having had a drug or alcohol problem in the past, stating that he was too fit and heavily involved in various sports. With regard to current use, Ms Harrington noted that Mr Burns contradicted himself, on one occasion stating that he has two beers ("most days"), but later saying that he might average "one per month". He may drink up to six alcoholic drinks at a party. Mr Burns also reported using marijuana approximately six times per year and then later implied to Ms Harrington that he was regularly using marijuana "a bit at night to help him sleep". When discussing conflicting reports he had given previously, particularly to consultant psychiatrist, Dr R Lewin, Ms Harrington noted that Mr Burns appeared flustered, had greater difficulty constructing sentences and did not make direct eye contact.
Ms Harrington administered a number of psychological tests to assess vocational issues, psychological symptoms, including the Depression, Anxiety and Stress Scales ("DASS") and subjective tests for the degree of lower back pain.
Ms Harrington noted that there are various lifestyle and personal factors which impact upon Mr Burns' employability, including his personal demeanour and possible drug use. Given the combination of such factors, it is unlikely, Ms Harrington concluded, that Mr Burns would be capable of retraining or sustaining employment at this time. Were these personal factors not present, Ms Harrington opined that it would be reasonable to expect that suitably motivated, Mr Burns could, with the assistance of a Rehabilitation Provider, have obtained and maintained employment since 1991 (with the exception of his incapacity following surgery in 1993 and 1994), resulting in an earning capacity. Ms Harrington considered that without the interference of the factors of lifestyle, motivation and personal matters, Mr Burns would be physically and cognitively capable of a range of positions but most notably as a ticket writer or retail sign writer. The duties of this position are similar to those he performed in the ABC for the two years following his injury. Typically, these positions occur in larger retail stores, especially supermarkets. Mr Burns would certainly require ergonomic intervention in the workplace with regard to his desk set- up and posture.
Dr P Anderson, Consultant Psychiatrist
Dr Anderson provided a report dated 8 July 1996 (T6, p120). In Dr Anderson's opinion, Mr Burns suffers from significant psychological symptoms including: poor sleep; reliance on pain-killers and alcohol; depression secondary to pain and disability; frustration with his limitation; poor concentration and subjectively poor memory; consequent difficulties in his thought patterns; excessive worry about personal injury, and behavioural disturbances secondary to that worry; a pattern of avoidance and withdrawal together with significant interference with the daily pattern of activities. The psychiatric diagnosis which best covers these difficulties is depression reactive to pain and disability.
Mr Burns is not a good candidate for retraining, Dr Anderson concluded. Mr Burns himself has a lack of perceived capacity for retraining and he does not have a past history of aptitude or experience for duties other than the manual duties in which he worked.
Dr Anderson accepted that Mr Burns is partially incapacitated for work by reason of his orthopaedic disability and added to this is further partial incapacity by reason of psychiatric disability. Dr Anderson agreed with Mr Burns' own assessment that he is totally unfit for work.
Dr R D Lewin, Consultant Psychiatrist
Dr Lewin provided a report dated, 20 September 1996 (T16, p127). Dr Lewin noted that Mr Burns attended the examination in an intoxicated state. Dr Lewin noted Mr Burns' fluctuation in level of consciousness, his ataxic gait (staggering) and his dysarthria (slurred speech). He did not smell strongly of alcohol. Dr Lewin opined that it is possible that Mr Burns' disturbance of mental state could have been caused by a combined use of marijuana and alcohol, but considered this unlikely. Dr Lewin strongly suspected that Mr Burns has been using narcotic or other illicit drugs. That was merely a clinical suspicion not confirmed by objective assessment, such as drug-urine analysis.
Mr Burns told Dr Lewin that he uses marijuana almost every day and that he began to smoke marijuana at the age of 20 years, long before the fall. He had continued to smoke one or two joints per day. He described feelings of paranoia in response to his use of marijuana. In relation to alcohol, Dr Lewin reported that Mr Burns told him "the drunker I get, the less I feel. Six schooners and I don't feel anything. Once I get to the pub, I can't stop drinking". Mr Burns told Dr Lewin that he frequently falls down drunk and "stoned" and that he drank at least every second day and stated that he liked to drink. He has been warned about his drinking, he told Dr Lewin and estimated that the usual quantity of alcohol intake was six to eight schooners and that he would become inebriated about four times a week. He also noted that he had been arrested once or twice for being loud and disorderly. The last arrest was more than ten years ago. Mr Burns also stated that he had been arrested for traffic offences. Dr Lewin concluded that Mr Burns was describing early addictive features of alcoholism. He also has a history of chronic abuse of marijuana. In order to develop classic withdrawal symptoms, Dr Lewin opined that Mr Burns must have been drinking heavily for around a decade. This is confirmed by the history of a "forgotton weekend" which Mr Burns told Dr Lewin about and in Dr Lewin's opinion implied a heavy intake of alcohol. Furthermore, Dr Lewin concluded that Mr Burns continues to smoke marijuana on almost a daily basis.
Dr Lewin opined that the problems associated with the use of alcohol and marijuana pre-date the injury by many years. Mr Burns could not have possibly developed alcohol dependence in the last few years and the physiological symptoms of tolerance and withdrawal require a much longer use. Mr Burns has had no effective treatment, Dr Lewin reported, either for a drug and alcohol related problem or for depression. The depressive symptoms complained of by Mr Burns are reasonable to attribute to his drug and alcohol problem, Dr Lewin concluded.
Dr Lewin noted that his conclusions regarding diagnosis and ongoing impairment differed from those of Dr Anderson. Dr Lewin's examination revealed a significant set of problems related to alcohol and drug use. These related clinical problems were, in Dr Lewin's opinion, sufficient to account for Mr Burns' psychiatric disability. Dr Lewin did not regard these as permanent impairments or as attributable to the conditions of his work. Dr Lewin differed in his conclusions regarding permanent impairment on the basis that there has been no attempt at treatment and that treatment had, in Dr Lewin's view, at the time of reporting, a reasonable chance of success.
SUBMISSIONS
Taking a brief overview of the physical evidence, it was noted by Mr Elliott that Mr Burns' treating Orthopaedic Surgeon, Dr Hudson, reported on 17 April 1996 that Mr Burns was continuing to have physical incapacity. Furthermore, Associate Professor Oakeshott had noted that Mr Burns is partially and permanently incapacitated for work and this is largely supportive of the proposition that Mr Burns advances as also supported by Dr Hudson's report of 7 January 2002. Dr Hudson considered that Mr Burns is fit for some types of physical work but was of the view that working for longer periods sitting would be unsuitable for him. Mr Elliott contended that in light of the restrictions recommended by Dr Hudson, and Mr Burns' condition, it is reasonable to expect that periods of extended sitting would be unreasonable for Mr Burns. From Mr Burns' evidence of his actual incapacities, he is unable to stay in any particular posture or activity for extended periods and needs to move around. Mr Burns relies heavily on pain-killers, Mr Elliott submitted. Mr Elliott's overall contention is that Mr Burns cannot work as a ticket writer, painter or signwriter. He is also unsuited to clerical work because of his physical restrictions, age, education, lack of vocational training and personality traits.
Considering the video evidence, Mr Elliott noted that this covered a ten day period. The video showed Mr Burns regularly rising very late in the morning. It showed him attending to routine chores around the caravan. Not once during the ten-day period did it show Mr Burns running, even when he was caught in the rain. Mr Burns is seen to be walking into Byron Bay on some days, but it did not show him walking at a fast pace and other pedestrians were regularly overtaking him. Mr Elliott referred the Tribunal to the fact that the video covered one hour out of five hours of taping. If other material was not shown to the Tribunal, then the inference to be drawn was that there was no material in the remaining four hours footage which would take the case higher than the evidence in the one hour presented.
Referring to the Log of Investigation, Mr Elliot noted that on 29 January and 30 January 2002, when Mr Burns is reported to be travelling to Sydney for the purpose of undertaking psychological assessment arranged by the Respondent, that is abnormal activity for him. On 31 January 2002, the video showed Mr Burns not observed until 10:30am, when a visitor comes to the caravan to sell him bread. At 3:25pm that day, Mr Burns hailed a lift into Byron Bay and at 4:45pm, he caught a lift home and is back in his van permanently by 5:00pm. He was not seen again that day. On 1 February 2002, there was no activity until 11:20am and Mr Burns spent no substantial time outside the van during the day, but was permanently back in the van by 7.23pm. On 2 February 2002, there was no activity until 10.27am At 2:57pm, Mr Burns walked into Byron Bay, swims one lap of the pool, but does not dive in, lowering himself into the pool. Mr Elliott submitted that one lap of a pool is a short distance for someone to swim. Mr Burns then caught the bus back returning to the van at 5:25pm and was permanently in the van by 7:30pm At no stage during those first few days of video coverage had Mr Burns walked into and back from Byron Bay.
On 3 February 2002, the video does not show any activity until 9:23am when Mr Burns went to obtain some milk. He was then back in the van until 11:16am. At 11:45am, Mr Burns walked into Byron Bay and then was back by approximately 1:15pm. Mr Burns attended to chores around the van and was not observed outside the caravan until 4:44pm. That is the only day on the video where Mr Burns is shown to walk into and back from Byron Bay. On 4 February 2002, Mr Burns emerged at 10:59am and then is back in the van until 11:39am after which he walked into Byron Bay at 12:30pm. Mr Burns was observed on that day at various times to be seated. He went to Woolworths, only carried two shopping bags and at 4:00pm caught a bus home. Mr Burns then attended briefly to chores and was not seen outside the van after 5:53pm. On 5 February 2002, Mr Burns obtained some milk and then in the afternoon he walked to Byron Bay at 2:30pm. Mr Burns is seen at the bus stop and catches the bus back at 4:30pm and is not seen again that day after 5:05pm. On 6 February 2002, Mr Elliott noted that Mr Burns is first seen at 11:40am where he is seen to be hitting a shirt to clean it. He was back in the van at 11:59am and over the next two hours and 45 minutes, Mr Burns is not seen. On 7 February 2002, Mr Burns is observed at 10:20am when he obtains a lift into Byron Bay. He has x-rays, returns to the caravan at about 2:24pm and visits someone else's caravan at 2:45pm. The van is opened at 5:00pm but is closed by 7:00pm.
In all of that one hour video coverage, the impression is that Mr Burns is regularly active, regularly walking. However, when attention is directed towards the log of investigation, it is apparent, Mr Elliott submitted, that Mr Burns is not a particularly active man during those days. He emerges late in the morning, is never seen to be consuming alcohol on a large scale while he is under surveillance. The long period of surveillance would provide a good window in which to judge the level and type of Mr Burns' activity, Mr Elliott contended. Whilst it may be that Mr Burns is demonstrating more fluency in his movement than he did in the witness box at the hearing, Mr Elliott asked the Tribunal to recall the first day of the hearing in which Mr Burns stated that he had arisen at 6:00am which is totally contrary to his pattern of living. He is in a different situation at the Hearing than being relaxed at home. It is not surprising that at Hearing he would be demonstrating a somewhat more severe presentation. Mr Elliott submitted that there is very little in the video to allow the Respondent to conclude that Mr Burns is active. It would be extraordinary to say that somebody who arises at midmorning then attends to a few basic chores during the course of the day and is back routinely at the caravan by 5:00pm, could be considered to be very active.
Mr Elliott submitted that surveillance can not show the pain that Mr Burns was experiencing, particularly when he is in the caravan. Mr Burns' evidence is that once he gets back into the van, he lies down and there is nothing shown by the video which is inconsistent with that evidence. There is no coverage of Mr Burns engaging in any particularly rigorous exercise.
Considering Comcare's original decision which suggested that Mr Burns could undertake work as a signwriter or a painter, Mr Elliott submitted that those occupations routinely required people to work on ladders or in awkward, crouched or sustained positions. From the evidence provided by Associate Professor Oakeshott and Dr Hudson, their opinion was that that type of work would not be suitable for Mr Burns. There is nothing from the video surveillance material that would suggest that Mr Burns could work for extended periods at heights on scaffolding or in confined spaces for a full working day. Ms Harrington, Psychologist, had opined that Mr Burns could undertake work such as that of a ticket writer. Mr Elliott submitted that on her assessment, it would still be necessary for Mr Burns' work area to be ergonomically modified. Mr Elliott submitted that it could not be seriously suggested that when Mr Burns had never done that type of work that it would be realistic for him to undertake such work, particularly when it was not suitable. Furthermore, Mr Elliott asked the Tribunal to consider what an employer might do when as a job applicant, Mr Burns presented himself for a ticket writing job, requesting that before he could do the job, he would need to have his work situation ergonomically modified.
The other form of work being contended as suitable for Mr Burns is clerical work, yet, Dr Hudson had opined that that type of work would not be physically suited to him because of his inability to take a full day's work sitting at a desk. Again, there would need to be a benevolent employer who was prepared to take somebody on who also would be very unproductive much of the day because he or she had to move around.
Under the provisions of the Act and the definition of "suitable work", Mr Elliott submitted that suitable work is not judged just by the particular injury and the effects of that injury. One also needs to consider the individual as a whole in assessing what is suitable work. When wider consideration is applied, Mr Elliott submitted that there is no sustainable case that Mr Burns is fit for clerical work. Mr Elliott referred the Tribunal to Re Fuller and Comcare (AAT 11374, 7 November 1996) in which it was said that when considering suitable employment, factors such as: Mrs Fuller being 48 years old; having left school at 16 years of age with no other educational qualifications or training; and, suffering a back condition which precluded bending, lifting, prolonged standing or sitting or twisting, were factors which must be taken into account. Mr Burns obtained his School Certificate but did not pass English. He left school at aged 16 and had a reasonable employment history until the time of his work accident. Mr Burns has never undertaken clerical work. Given these facts and the other issue of Mr Burns being 49 years of age, it is extremely unlikely that he would be able to obtain any sort of employment, let alone clerical work for which he has no skills or experience, Mr Elliott contended. The test for determining suitable employment includes consideration of what is reasonable but there are other statutory factors to be considered, Mr Elliott further contended.
The Tribunal was referred to Mr Burns' psychological traits. Although there are some differences in the way that Dr Roldan and Ms Roberts approached this matter, and noting that Ms Roberts provided a more comprehensive and fairer assessment, Mr Elliott contended that the different approaches still resulted in the conclusion that any form of work was unlikely to be suitable. It may be, on the observations of Ms Roberts and Dr Roldan, that features of Mr Burns' personality, which Mr Elliott submitted were significant, pre-dated the accident. Furthermore, Mr Elliott noted that there is no claim for a psychiatric or psychological condition. Factors such as age, education and personality traits should however be considered when determining suitable work.
Ms Roberts had opined that it is extremely unlikely that Mr Burns would be able to obtain any type of work unless there was some vocational retraining and none has been offered to him in the entire time since 1991, particularly of the type designed to retrain him in clerical work. Ms Harrington's report concluded that as Mr Burns presented to her, he has no viable work options. Accordingly, Mr Elliott submitted that the neuropsychological evidence all points to there being no viable option of Mr Burns undertaking clerical work and indeed suggests that any form of work is now highly improbable.
Mr Elliott submitted that even though the Applicant may have personality features that do not allow him to return to or participate in a particular form of work, as long as he has compensable injury, which it is submitted he does for his back, then that is sufficient and the Respondent must take Mr Burns as it finds him. Mr Elliott referred the Tribunal to Re Beer and Australia Telecommunications Commission (AAT 5974, 20 June 1990) in which the Tribunal noted at paragraph 67 the presumption in tortious liability of the "egg-shell skull", that is to say, in that context, the principle of a defendant taking a plaintiff as he or she finds that person.
Mr Elliott further submitted that the psychometric evidence does not establish that there is a novus actus interveniens in the form of a psychiatric condition that has overtaken anything else that is a non-compensable psychiatric or psychological condition where there is no ongoing physical condition. This issue was discussed in Re Harvey and Comcare (2000) 64 ALD 143. In that decision, the Tribunal referred to another decision of Australian Eagle Insurance Co Ltd v Federation Insurance (1976) 15 SASR 282 in which King J stated at 287:
"It is clear since Harwood v Wyken Colliery Co [1913] 2 KB 158 that the injury at work need not be the sole cause of the incapacity in order to entitle the workman to recover. Even when some non-compensable supervening cause aggravates its effect, liability is not excluded unless the new cause entirely supersedes the original injury: Rothwell v Caverswall Stone Co Ltd [1944] 2 All ER 350; Hogan v Bentinck West Hartley Collieries (Owners) Ltd [1949] 1 All ER 588. As Lord Reid said in Hogan's case (above, at 605) not only must the new cause come in but the old must go out; there must no longer be any cause or connection between the injury by accident and the present incapacity".
While that case was in the context of liability, Mr Elliott submitted that it is applicable while applying this definition of suitable employment.
In relation to an hypothesis that there appears to be some alcohol abuse or conscious malingering, Mr Elliott submitted that Dr Roldan was not willing to say that that was the sole feature to explain Mr Burns' condition. Mr Elliott submitted that there are other features of Mr Burns' life that would strongly suggest that chronic alcohol abuse is not present. The video over a ten-day period showed no indications of significant use of alcohol. Mr Burns was seen to be taking a six pack of beer back to his caravan on one occasion and was seen in a bottle shop on another occasion. That does not appear to support a daily consumption of six schooners of beer. Other features not consistent with alcohol abuse relate to there being no medical notes tendered from hospitals or medical practitioners relating to alcohol-related hospital admissions or medical consultations. Furthermore, Mr Burns' evidence was that he has no convictions for drug or drinking problems. There is no corroborative evidence that Mr Burns has a substance abuse problem.
Considering Dr Lewin's report, Mr Elliott submitted that Dr Lewin's opinion must be treated with a degree of caution as he examined Mr Burns on only one occasion. Mr Elliott submitted that Dr Lewin made statements in his report without revealing the precise circumstances of how the matters came to be recorded in the report. There is no evidence that Mr Burns had been arrested for traffic offences or to suggest that Mr Burns falls over regularly drunk. Mr Burns' explanation on the day he was examined by Dr Lewin was that he was vague on that occasion. Furthermore, Ms Roberts' evidence, which Mr Elliott submitted the Tribunal should accept, does not indicate that Mr Burns has a pattern of chronic alcohol abuse. Dr Roldan's evidence is that Mr Burns does not present as a picture of someone with impaired brain function as a result of alcohol abuse. All the evidence does not sustain an hypothesis that Mr Burns went to Byron Bay to indulge in a lifestyle of drugs, alcohol and free living.
While the previous Tribunal made a finding that the Applicant had failed to seek suitable work and that may have been the position until the Tribunal made its determination on 13 November 1998, Mr Elliott submitted that it cannot bind this Tribunal. In Re Devine and Commonwealth of Australia (1982) 5 ALN N28, there is authority for the proposition that the Tribunal making its determination in 1998 in this matter does not bind the Tribunal making a determination in 2002. Mr Elliott submitted that clearly since 1998 when the Tribunal gave its decision, the overwhelming evidence established that Mr Burns has a continuing physical incapacity and he reiterated that this contention has not been challenged in light of the video.
Mr Elliott submitted that in relation to the Respondent's reference to Bogaards v McMahon and Another (1988) 15 ALD 313, it is important to recall that this case was decided under the 1971 Compensation Act. Section 62 of the Act gives express power to reconsider matters, Mr Elliott contended, and that was an issue explored by the Full Federal Court in Plumb v Comcare (1992) 39 FCR 236 which is authority for the proposition that section 62 of the Act gives the Tribunal the power to reconsider matters where it is appropriate. Mr Elliott submitted that Mr Burns' matter is such a case in light of the evidence that has emerged on the issue of suitable employment. There is nothing in the earlier Tribunal's decision, Mr Elliott suggested, that indicated that that Tribunal had gone through the process of considering the definition of suitable employment. The Applicant takes issue with the Respondent in the matter of that decision being functus officio and cannot be determined, relying on the decision in Plumb v Comcare (supra). For the reasons that Mr Elliott submitted, it is apparent that there was no suitable work available for Mr Burns for the period after 1988 and he wished the Tribunal to take similar observations to cover the period from 1991 until 1998.
If the Tribunal determined against the Applicant and was to say that it was bound by the earlier decision of the Tribunal, then this Tribunal would still have to undertake the task of applying subsection 19(4)(f) of the Act which the Tribunal in the earlier decision had not done. Thus, if the Tribunal found that it was bound by the subsection 19(4)(e) finding of the previous Tribunal, this Tribunal was still bound to consider subsection 19(4)(f) because that matter was not determined in the earlier proceedings and requires consideration of whether Mr Burns' failure to seek suitable work was reasonable in all of the circumstances. In this regard one must have regard to Mr Burns' actual disability which also must include consideration of his age, lack of education, personality traits, lack of vocational training and that it was entirely reasonable not to be seeking work of the type of a painter, sign writer, ticket writer or clerical officer. Mr Elliott concluded that the decision under review should be varied to award Mr Burns compensation based on his ability to earn a component of "zero"under section 19 of the Act for the relevant period and furthermore, the Applicant sought an order for costs with regards to the matter.
In relation to the Respondent's submission that Mr Burns was a "glib liar", if that suggestion was going to be put, then it should have been put to Mr Burns and Mr Elliott submitted that this was not done in cross-examination.
On all of the evidence, Mr Elliott submitted, there is an overwhelming case that the type of work suggested for Mr Burns is not suitable. Mr Burns was for a period able to be productively employed. He has an incapacity that prevents him from working. The test is not whether he is incapacitated for his old work, the test is whether he is incapacitated for work. In conclusion, Mr Elliott submitted that the evidence does establish that he is incapacitated for the old work and is incapacitated for other work as well.
Ms Henderson, for the Respondent, submitted that Mr Burns is a person left partially incapacitated as a result of a back injury which he sustained while working for the ABC. He has been sustained financially to the present time on a Disability Support Pension.
When Mr Burns was last before the Tribunal in 1998, it decided that he had lost half the normal range of movement and awarded him a 15 per cent impairment under Table 9.6 of the Comcare Guide. That Tribunal also decided that Mr Burns had a 5 per cent loss in relation to each of his legs. Referring to the medical evidence, Ms Henderson noted that Associate Professor Oakeshott listed the restrictions that he considered appropriate for Mr Burns as a result of an examination on 19 May 2000. Ms Harrington's evidence, which Mr Henderson submitted is uncontested, is that taking the physical injury into consideration and Associate Professor Oakeshott's list of restrictions, Mr Burns could work as ticket writer or a retail sign writer and remarks that such positions would entail duties in a similar form to those he undertook at the ABC for the two years after his injury. Mr Henderson submitted that it is no answer for Mr Burns to rely on an argument that no employer could possibly be found who would make ergonomic adjustments to an employee's work situation. The test that the Tribunal must look at is not whether an employer would make ergonomic adjustments, but rather was it reasonable for Mr Burns not to look for work over the period for which he is claiming compensation. The only evidence in support of Mr Burns' position is his own evidence and his claims, which, in the Respondent's submission are unreliable.
Ms Henderson submitted that the Tribunal on the last occasion reached a serious level of doubt about Mr Burns' reliability. In the Respondent's submission, the present Tribunal should find itself in the same position. Considering Dr Lewin's report at T16, p130 and 131, Mr Burns denied making any of the statements there. Ms Henderson submitted that she took Mr Burns very carefully line by line through Dr Lewin's report, including the quotations contained within Dr Lewin's report of what Mr Burns told him. Ms Henderson submitted that Mr Burns told this Tribunal that none of the alcohol or marijuana history was true. He also stated that he told Dr Lewin none of the things Dr Lewin had reported. Ms Henderson submitted that it is highly improbable that Dr Lewin actually sat down and composed a set of statements that were never made to him. Unless the Tribunal was prepared to find against Dr Lewin, the Tribunal would have to accept that Mr Burns did make those statements to Dr Lewin and that he is a man capable of giving an account of himself which on his sworn evidence now before the Tribunal was completely untrue and therefore cannot be relied upon. Mr Burns went so far, according to Dr Lewin, as to describe classic withdrawal symptoms which would have been associated with a long period of drinking. Ms Henderson submitted that when the various conclusions made by Dr Lewin were examined, time and time again it is shown that what Dr Lewin was reporting was dependent on the history Mr Burns gave him. Dr Lewin was basing his conclusions on the symptoms described to him by Mr Burns, not suppositions on Dr Lewin's part. If the Tribunal accepted that Mr Burns gave a completely fantastic history to Dr Lewin as he seems to have done, then it must follow that Mr Burns is a person who cannot be relied upon when he makes statements about himself. Ms Henderson submitted that this view would be further reinforced from the position in which the last Tribunal found itself. That Tribunal did not have the benefit of video evidence. Ms Henderson referred the Tribunal to the previous Tribunal's decision at T5, p54, in which it was noted that Mr Burns' appearance was dishevelled. He was very focused on his back condition and the previous Tribunal considered that it could not accept the Applicant's evidence as a significant basis for its decision unless it was corroborated.
Referring to the video evidence, Ms Henderson submitted that under cross-examination, Mr Burns had said that if he had to bend down to pick something up from the floor, then he would have to brace, lean his arms against something or somehow support himself. He stressed that this was something which could only be done very slowly and carefully. Ms Henderson invited the Tribunal to contrast the rapid forward and sideways bending seen on the video as compared with the oral evidence he provided to the Tribunal indicating he had great difficulty in undertaking such movements. Furthermore, Mr Burns had stated that the hardest thing he has to cope with is making his way to the shops at Byron Bay and doing his grocery shopping. He stated that he can only go and obtain very small numbers of items at a time because that is all he can manage. In contrast to that statement to the Tribunal is the video evidence which showed Mr Burns setting out on consecutive days with none of the observable discomfort that was demonstrated to the Tribunal. On one of the days that Mr Burns went shopping in Byron Bay he is seen returning with two unmistakably full shopping bags.
Also in the video evidence, Mr Burns is seen to be "dusting off clothes on a clothes line". Contrary to Mr Elliott's submission that this showed Mr Burns cleaning his clothes, in fact the term "dusting off" is a form of boxing terminology. "Dusting off" means "boxing at something". Thus, Mr Burns was dusting off an item on the clothes line because it pleased him to do that on that particular day, not because he was removing dust, Ms Henderson submitted. The important thing from this piece of video evidence is that Mr Burns was seen to move freely using his arms when his sworn evidence under cross-examination was that he cannot use his arms to do a great deal. Furthermore, Ms Henderson referred the Tribunal to Mr Burns throwing blankets over a car.
Ms Henderson submitted that on the video it appeared that Mr Burns was swimming doing a very good Australian crawl freestyle. While Mr Elliott noted that Mr Burns did not dive into the pool, Ms Henderson stated that the video indicated that there was somebody in Mr Burns' lane and therefore he would not have been able to dive, even if he had wanted to. Furthermore, in relation to his walking, Mr Burns had stated it was one kilometre into town. He stated that he tried not to walk and tried to obtain lifts with compassionate friends. Mr Burns had stated that he requires a pain-killer in order to attempt the journey and cannot walk back. The day on the video, where Mr Burns is shown walking back from Byron Bay, it was evident that this was occurring without any evidence of there being great discomfort. The point Ms Henderson wished to make from the video is that it is apparent that Mr Burns can do vastly more than he has stated he is able to do.
Ms Henderson referred to Mr Burns' physique observed on the video which, she submitted, gave lie to his claims that he simply lays about most of the day. Ms Henderson submitted that one cannot retain muscle bulk without activity and Mr Burns' musculature seriously contradicted the account he gave of his typical lifestyle. Ms Henderson submitted that the Tribunal is being asked to accept that by an extraordinary coincidence, the investigators happened to film the Applicant during the only period in the last few years when he chose to take more pain-killers than usual, to head off on regular trips to Byron Bay and swim for the first time in some considerable time. In the Respondent's submission, it is simply not credible that such a coincidence could be accepted. Mr Burns' answers, for example, to questions about his activities on the video should, Ms Henderson contended, cause the Tribunal to regard Mr Burns as a "glib liar" who came up with "the story" while he was watching the video.
An important question in this matter is whether Mr Burns actually looked for work. Whether it is reasonable in all of the circumstances for someone not to look for work is an objective test. Deputy President McMahon considered the equivalent provisions to subsection 19(4) of the Act in Re Spano and Australian Telecommunications Commission (1987) 15 ALD 121. The present subsection 19(4) of the Act was then subsection 46(4A) of the 1971 Act. In Re Spano and Australian Telecommunications Commission (supra), this case considered an offer of suitable employment, and although not strictly relevant to the present case, is important for its recognition of the application of an objective test in determining 'suitable work'.
In Ms Henderson's submission, such matters as Mr Burns' belief that the vibrations of the earth due to water pipes are discomforting is not an adequate explanation for his relocation to Byron Bay to live in a caravan. The fact that one has to look at reasonableness as an objective matter in Ms Henderson's submission does not mean, as Mr Elliott submitted, that non-compensable personality factors come into the equation and become compensable. It is true that the Respondent must take Mr Burns as he is, and this refers to the principle of the "egg-shell skull". Ms Henderson submitted that this case is not one however where such considerations apply. There is a pre-existing unusual personality. The medical evidence is that the effect of the physical injury has not changed the underlying personality. Ms Roberts, despite her testing, was unable to reach any conclusions to that effect. The other psychologists and psychiatrists are of the same view, Ms Henderson submitted. The vulnerable personality or bizarre personality has not been effected by the accident in Mr Burns' case. He has not become compensable in terms of his personality or psychiatric condition as a result of the accident.
Ms Henderson agreed with Mr Elliott's submissions in relation to the principle of novus actus interveniens, but that principle speaks in terms of a compensable incapacity being overtaken by something else which becomes the cause of a person's incapacity provided that the first incapacity has fallen away. The novus actus interveniens principle does not relieve the Tribunal of consideration of liability if the original capacity is still there or would still otherwise have been there, Ms Henderson submitted. There was no challenge made by the Respondent in relation to this principle, Ms Henderson submitted. It is acknowledged that there is a partial incapacity for work. Professor Oakeshott has said that in his report and it is not disputed. Ms Henderson submitted however that nothing in subsection 19(4) of the Act converts a non-compensable personality into a compensable person. Ms Henderson concluded that Mr Burns' failure to seek suitable employment is not reasonable in all the circumstances. He cannot rely on the unusual aspects of his personality by saying that he cannot possibly be expected to go out and seek work. Ms Henderson submitted that the only compensable matter in relation to Mr Burns is his back and one must look at the reasonableness in terms of the particular condition which he has.
Ms Henderson contended that what troubled the Tribunal on the last occasion was that it did not know whether the personality characteristics and behavioural problems of the Applicant were related to his employment (at paragraph 159). The previous Tribunal felt that in deciding whether it was reasonable or not for Mr Burns to look for work, one had to discern whether those particular personality aspects had some nexus with what occurred to him at the ABC. From the expert views of Dr Roldan, Ms Roberts and others who have examined Mr Burns, there is no such connection.
In relation to Bogaards v McMahon and Another (supra), which was referred to in Plumb v Comcare (supra), there was an important consideration as to whether there was an issue of estoppel in this Tribunal. The position is that this Tribunal could not revisit the precise issue which had formally been decided by a previous Tribunal. It is also relevant to look at the later authority in Plumb v Comcare (supra).
In conclusion, Ms Henderson submitted that it would not be necessary for the Tribunal to detain itself with consideration of either Bogaards v McMahon and Another (supra) or Plumb v Comcare (supra). The fundamental submission of the Respondent is that, given the material before the Tribunal, it could not conclude that the failure of Mr Burns to seek suitable employment in the capacity that was nominated by Ms Harrington was reasonable. In the Respondent's submission therefore, the Applicant has no entitlement to incapacity payments under the Act and the decision under review should be affirmed.
FINDINGS
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.
Mr Burns suffers from partial incapacity as a result of a work accident on 21 November 1988. He has not worked since accepting a voluntary redundancy from the ABC on 5 April 1991.
It is contended that as a result of Mr Burns' physical incapacity, he has been unable to work since 5 April 1991 and that therefore it is not reasonable for him in all of his circumstances to have sought work, let alone the suggestion that he can work as a sign writer, ticket writer or undertake clerical work.
Section 19 of the Act deals with compensation for injuries resulting in incapacity. Subsection 19(4) of the Act deals with earnings from suitable employment as discussed in subsection 4(1) of the Act. Subsection 19(4) of the Act sets out factors which are to be taken into account in determining what an employee is able to earn in suitable employment.
In Mr Burns' circumstances, having accepted a voluntary redundancy in April 1991, he moved in 1996 to Byron Bay for a number of reasons, including to be near friends who could be supportive of him and because he had felt uncomfortable in the accommodation in which he had resided prior to 1996. Mr Burns cited as a major factor in his leaving his accommodation, that vibrating pipes aggravated his painfully sensitive back condition. Mr Burns states that he has not been able to work because he is in constant pain, can barely move his arms, for example, to pick up coins from the floor and finds activities such as washing and shopping to be his hardest activities. Mr Burns' evidence was that he has a very sedentary lifestyle with very little, if any, activity. He furthermore gave evidence that he would not be able to undertake clerical work because he has never done such work, he did not pass English at school, and his back condition made such work unsuitable. Thus, a combination of educational experience and physical problems would prevent him from undertaking clerical work. Moreover, in relation to sign writing or ticket writing, Mr Burns' evidence was that he would physically be unable to do this. The personality traits that have been commented upon by most of the experts in this matter must also be, on the Applicant's submission, taken into account as the Tribunal must consider Mr Burns as it finds him with all of his various conditions and circumstances. Mr Burns states that he does not have an alcohol problem nor does he have a marijuana habit, though he does smoke marijuana occasionally, especially at night to help him sleep.
Contrasted to Mr Burns' direct evidence to the Tribunal is the evidence contained within the documents and on video. In relation to the video evidence provided to the Tribunal, although only one hour out of some five hours of video footage spanning ten days was shown, Mr Burns asks the Tribunal to accept that on the occasions he was filmed, this was an unusually active period for him and he was taking more pain-killing medication than usual. Mr Burns was given the opportunity of explaining this seeming inconsistency and that was the explanation he provided. The Tribunal finds that Mr Burns' attempts to explain the discrepancy between the video coverage and his evidence to the Tribunal and others is not convincing. The Tribunal is confirmed in this view when it considers evidence provided in the documents. It simply does not ring true that Dr Lewin in his very explicit reference to the information provided to him by Mr Burns would "misunderstand" that information or that he would make this information up. Furthermore, when Mr Burns was assessed by Dr Roldan, he indicated that he had memory and cognitive problems while when he saw Ms Roberts, there were no such memory or cognitive problems described to her. Overall, the Tribunal is of the view that the evidence provided by Mr Burns is inconsistent and places doubt on his credibility. The Tribunal also finds that while Mr Burns may have an unusual personality or personality traits, these do not represent, on all of the evidence, any psychosis or inability to distinguish reality.
The Tribunal was also asked to accept that during the Hearing before it, Mr Burns took considerable amounts of pain-killing medication, and yet he exhibited pain symptoms. When Mr Burns was seen on the video, when he also told the Tribunal that he was taking larger amounts of pain-killing medication, he was able to go about various activities without any evidence of or manifestation of pain. The evidence provided to the Tribunal prior to the video contrasted markedly with the evidence seen by the Tribunal on the video. The activity Mr Burns undertook including boxing at clothes, lifting and moving his arms raised while putting a cover over a car and carrying two fully ladened shopping bags cannot be ignored. Furthermore, Mr Burns physical attributes shown on the video belie the type of lifestyle he described to the Tribunal. While Mr Burns indicated that he considered himself to be "flabby" this was not evidenced when the video was considered.
Mr Burns asks the Tribunal to accept that he cannot undertake any employment because of his back condition and the significant reason that he cannot undertake such activities is because he takes so much pain-killing medication. On his evidence however, he was able to undertake a great many activities as shown by the video without any seeming ill effects of that pain-killing medication.
The Tribunal does not doubt that Mr Burns suffers pains, but does doubt his inability to undertake suitable work, which it finds is reflected in employment as a ticket writer. The Tribunal does not consider that Mr Burns would be able to undertake clerical work and considers that it would not be reasonable for him to do so in all of his circumstances, given his experience and educational level. However, given the Tribunal's observance of Mr Burns during the video evidence, it finds that it would not be unreasonable for him to undertake ticket writing type activities. It is quite usual in today's environment that employers provide their employees with work conditions which are ergonomically sound. Occupational health and safety standards demand this. Therefore, it would not be unreasonable for this to be provided for Mr Burns. In relation to Mr Burns being effected by the pain-killing medication, this was not evident in the video. Furthermore, Mr Burns' level of concentration or issues of him being able to get up and move around are also quite capable of being accommodated by an employer as a routine matter, and not as a result of that employer being particularly compassionate.
There was considerable discussion about Mr Burns' personality. It is evident to the Tribunal that he does have an unusual personality, but on the evidence, Mr Burns had that prior to his work injury and furthermore, many people who have unusual personalities or indeed psychiatric problems are able to distinguish reality and participate in employment. The fundamental difficulty in this matter is that the Tribunal considers that Mr Burns has been less than frank with it about his various abilities. On the Tribunal's finding, Mr Burn is prepared to tell some people one set of information and provide a different set of factual scenarios to others.
The Tribunal notes Mr Burns' evidence to it that he had discussed pain management strategies with his General Practitioner, Dr Simpson, but had not undertaken any pain management program. The Tribunal notes that under section 36 of the Act, Mr Burns may make an application to the Rehabilitation Authority, in this case the ABC, to assist him with such a rehabilitation strategy. The Tribunal would recommend that Mr Burns does this. There was an attempt at rehabilitation at least in 1993 and perhaps on one further occasion but this rehabilitation did not proceed. The Tribunal has no power to review any decision or lack of decision in terms of a pain management rehabilitation strategy but does recommend that Mr Burns pursue this, and on this matter notes Comcare v Chang (1996) 24 AAR 120.
In all of the circumstances, the Tribunal finds that given its finding about Mr Burns' poor credibility and its understanding of other factors such as the level of his disability, his age, experience, skills level and personality factors, it is not unreasonable for Mr Burns to seek suitable work which it considers to be ticket writing or similar positions. The video evidence in addition to the type of restrictions suggested by Dr Hudson and Associate Professor Oakeshott, combine to reinforce the Tribunal's view that there would be suitable work available in the form of the ticket writing activity, where he would not be required to go up ladders or be working in confined spaces. Mr Burns has not tried to obtain suitable employment and the Tribunal considers this unreasonable in all the circumstances. The unreliability of Mr Burns' evidence is simply too great for the Tribunal to ignore and in all the circumstances, the Tribunal has decided that pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review should be affirmed.
I certify that the 121 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr MEC Thorpe, Member.
Signed.....................................................................................
AssociateDates of Hearing 14 and 15 March 2002
Date of Decision 4 November 2002Counsel for the Applicant Mr G Elliott
Solicitor for the Respondent Mr J Forster, Forsters Solicitors
Counsel for the Respondent Ms R Henderson
Solicitor for the Respondent Mr M Allatt, Australian Government Solicitor
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