Drake v J G and I Nominees Pty Ltd and VWA

[2010] VCC 1320

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION – WORKCOVER LIST

SERIOUS INJURY DIVISION

Case No. CI-09-03906

DENAE DRAKE	Plaintiff
v
J G & I NOMINEES PTY LTD	First Defendant
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 15 and 16 February and 10 March 2010
DATE OF JUDGMENT:	21 September 2010
CASE MAY BE CITED AS:	Drake v J G & I Nominees Pty Ltd and VWA
MEDIUM NEUTRAL CITATION:	[2010] VCC 1320

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – construction and operation of Section 93CD (as it stood prior to amendment by Act No 9 of 2010) – evidentiary and legal onus.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M C O’Connor	M W Law
For the Defendant	Mr G K Coldwell	Hall & Wilcox
HIS HONOUR:

Introduction

1          By way of proceedings initially issued in the Magistrates’ Court but later transferred to the County Court, Mrs Denae Drake (who I shall refer to as “the worker”) seeks the reinstatement of weekly payments of compensation from 26 August 2006, together with ancillary benefits.

2          The following evidence was adduced on behalf of the worker:

(a)	The worker, her husband, Dr Peter Li, and Brett Cahill all gave evidence and were cross-examined;
(b)	Pages 6-29 of the plaintiff’s Court Book (“Exhibit 1”);
(c)	Notes of Dr Li from November 2002 to 21 October 2009 (“Exhibit 2”);
(d)	Letter from Ms Jean McGowan to Dr Li dated 2 May 2006 (“Exhibit 3”).

3          The following evidence was adduced on behalf of the defendant:

(a)	Pages 9-142 of the defendant’s Court Book (“Exhibit A”);
(b)	Report of Dr Li dated 23 January 2004 (“Exhibit B”);
(c)	Letters dated 6 December 2006 and 19 December 2006 between Cambridge Credit of the Authority and M W Law (“Exhibit C”);
(d)	Request for conciliation from the solicitors acting on behalf of the plaintiff “Exhibit D”.

4 The disposition of such proceeding turns much on the construction and operation of s.93CD of the Accident Compensation Act 1985 (“the Act”) as it stood prior to substitution by the Accident Compensation (Amendment) Act 2010 (Act No 9 of 2010, which I shall refer to as “the Amending Act”).

5 For present purposes, s.93CD (see Reprint 15) reads:

“93CD. Application to continue to receive weekly payments after
expiry of the second entitlement period

(1) A worker who has a current work capacity and is, or has been, entitled to weekly payments under section 93CB or 93CC may apply to the Authority or a self-insurer in accordance with this section for a determination that the worker’s entitlement to weekly payments under this Part does not cease after the expiry of the second entitlement period within the meaning of section 93CB(1).

(2) An application must be made—

(a)	if liability to pay the weekly payments lies with the employer (not being a self-insurer or a subsidiary of a self-insurer) or the Authority—to the Authority; or
(b)	if liability to pay the weekly payments lies with a self-insurer—to the self-insurer.

(3) The Authority or self-insurer may determine that the worker’s entitlement to weekly payments under this Part does not cease after the expiry of the second entitlement period within the meaning of section 93CB(1), if the Authority or self-insurer is satisfied that—

(a)	the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings of at least $132; and
(b)	because of the injury, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work which would increase the worker’s current weekly earnings.

(4) The Authority or self-insurer—

(a)

must within 90 days of receiving an application under sub-section (1), make or refuse to make a determination under sub-section (3) and advise the worker in writing of its decision; and

(b)

must not refuse to make a determination under sub-section (3) on the ground that the Authority or self-insurer is not satisfied that sub-section (3)(b) applies, unless—

(i)	the Authority or self-insurer has referred the medical question whether because of the injury, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work, and if not so incapable, what further or additional employment or work the worker is capable of undertaking for the opinion of a Medical Panel under Division 3 of Part III; and
(ii)	the opinion of the Medical Panel is that the worker is not so incapable and specifies what further or additional employment or work the worker is capable of undertaking.

(5) If the Authority or self-insurer makes a determination under sub- section (3), subject to and in accordance with this Part, the worker is entitled to weekly payments at the rate of—

(a)	the difference between 75 per cent of the worker’s pre-injury average weekly earnings and 75 per cent of the worker’s current weekly earnings; or
(b)	the difference between $1190 and 75 per cent of the worker’s current weekly earnings—

whichever is the lesser.

(6) The entitlement to weekly payments under sub-section (5) continues

until—

(a) the Authority or self-insurer ceases to be satisfied as to the matters specified in sub-section (3); or

(b) the worker otherwise ceases to be entitled to weekly payments.”

6 Section 93CD was inserted by Act No 107 of 1997 and has been subject to minor amendments before its substitution by s.34 of the Amending Act. Section 191 of the Amending Act inserts a new Division 12 in the Act which provides that s.34 of the Amending Act applies in respect of an injury occurring on or after the commencement of its operation – 5 April 2010: (see s.2(7) of the Amending Act).

7          There is no dispute between the parties that:

(i)	The worker is a forty-six-year-old (born 29 March 1964) married woman with four children, aged 24, 17, 14 and 9, with the youngest three children still at home.
(ii)	The worker commenced employment with J G & I Nominees Pty Ltd (“the Defendant”) on 22 November 1999 in the capacity of a full-time accounts clerk and computer operator in Cheltenham.
(iii)	On or about 3 May 2000, she suffered personal injury during the course of her employment with the Defendant when she tripped over a metal bucket, causing her to twist her body. As a result of such incident, she suffered pain in her neck, right shoulder, back and right leg, and later some psychological reaction (“the injuries”).
(iv)	The worker lodged a Claim for Compensation pursuant to the provisions of the Act, and liability was accepted by the Defendant (or its agent), and weekly payments of compensation commenced pursuant to the provisions of the Act.
(v)	By Certificate of Opinion dated 15 April 2004, the Medical Panel found that the worker had an 18 per cent whole person impairment resulting from the accepted lower back, neck, and right shoulder injuries.
(vi)	By Notice dated 13 June 2004, the weekly payments were terminated as at 17 July 2004 on the ground that the worker had received payments for more than 104 weeks and she was capable of suitable employment. The worker did not dispute such decision.
(vii)	In or about mid-2004, the worker returned to work with Goldstream RV Pty Ltd (“Goldstream”) and was working three days per week for 5.5 hours per day.
(viii)	The worker made application under s.93CD of the Act. Unfortunately, neither party could produce a copy of such application. However, it is common ground that such application was based on the worker performing 16.5 hours of actual work per week. Indeed, various contemporaneous documents clearly support such a view (for example, Exhibits C and D).
(ix)	Such application was referred to the Medical Panel, and on 17 January 2005, the Medical Panel found that the worker was likely to continue indefinitely to be incapable of undertaking further additional employment or work because of the injuries.
(x)	Weekly payments were resumed under s.93CD of the Act until the worker was served with a Notice of Termination dated 25 July 2006 (“the Notice”) which provided that payments would cease from 26 August 2006.

(xi) The Notice reads: 

“Dear Denae

Claim No:	08 99 100971
Employer:	J G & I NOMINEES P/L
Date of injury:	03 MAY 2000

Type of Injury: SOFT TISSUE INJURY (Neck, right shoulder, right

leg and back.)

On 19 January 2005 you were approved for ongoing weekly payments under Section 93CD of the Accident Compensation Act 1985 (“the act”). These payments can only continue to be made while you continue to meet the criteria defined In Section 93CD(3) of the Act.

After considering all available information, we have determined that you are not or no longer entitled to payments under section 93CD of the Act. Therefore your weekly payments will cease on 26 August 2006.

Reasons for the Decision

Your application pursuant to Section 93CD of the Accident Compensation Act 1985 was accepted on 19 January 2005 by the Victorian WorkCover Authority, based on the following:

1.    Matter proceeded to the Medical Panel, who found that you were working 16.5 hours per week, therefore meeting the guideline of working a minimum of 15 hours per week;

2.    You were in receipt of weekly benefits of at least $132.00 (indexed annually);

3.    You were likely to continue indefinitely to be incapable of undertaking further or additional employment or work because of the injury.

Grounds for the Decision

Cambridge is not satisfied you cannot undertake further or additional employment or work on a full time or increased capacity. In particular Cambridge is not satisfied that you are not capable of undertaking further or additional employment or work in your current position, or elsewhere in a similar capacity.

• On 17 January 2005, you were assessed by the Medical Panel, on behalf of the Victorian WorkCover Authority. The Medical Panel concluded that your duties at that time were suitable, but you were working to your maximum physical capacity and that you wore not capable of undertaking any further or additional employment or work.

• Your application was accepted on the basis that you could work a maximum of 16.5 hours per week.

• Dr Peter Li, your treating general practitioner, in his report dated 14 June 2006 considered it was reasonable to try to increase your working hours to 4 days per week. (Previously 3 days x 5.5 hours).

• In his report dated 18 April 2006, Independent Medical Examiner and Occupational Physician, Dr Malcolm Brown stated: “In my opinion Ms Drake has capacity to increase her current work hours to a standard week with no specific restrictions.”

• You are demonstrating that you are capable of working more than 16.5 hours. Current weekly earnings supplied by your current employer Goldstream RV, for the three week period 30/06/06 to 20/07/06 indicate an increase of hours in the first week to 22 and then 24 hours in the second and third weeks of July.

It has therefore been determined that you no longer meet the criteria specified under Section 93CD(3) of the Accident Compensation Act.

Appeal Rights

If you disagree with the decision you have the following rights:

(a)

To refer the dispute for Conciliation (Sections 53-62 of the Act). To refer a dispute for Conciliation you must lodge a Request for Conciliation form with the Senior Conciliation Officer, Accident Compensation Conciliation Service, Level 9, 480 Lonsdale Street, Melbourne 3000 within 60 days of receiving this notice. The Senior Conciliation Officer may increase the time but only upon application and in appropriate circumstances. Request for Conciliation forms are available from this office of the Accident Compensation Conciliation Service (telephone: [phone]). Conciliation is a free service.

(b)

To apply to either the County Court or the Magistrates’ Court to determine any question or matter arising out of this decision (Sections 39 and 43 of the Act). However before court proceedings can be commenced, the dispute must have been referred for Conciliation. Once this has been done, only then may you commence Court proceedings if a Conciliation Officer issues a certificate stating that the Conciliation Officer is satisfied that you have taken all reasonable steps to settle the dispute. A solicitor can advise you about legal action.

As well as your rights of referral to Conciliation or to apply to a Court with respect to this decision you may also request to have the matter referred for review by a Senior Officer of this company. The right to request internal review is in addition to the rights set out above if you disagree with the decision. Where you request an internal review you must still ensure you apply to Conciliation within 60 days of receipt of this notice. Your file and this decision will be reviewed by a Senior Officer who was not Involved in the original decision. You may support your request with any additional information you think appropriate. We will meet any reasonable costs incurred for obtaining such information.

Additional Rights

If in the future you wish to reapply for benefits under Section 93CD and are again:

• Working at least 15 hours per week

• In receipt of current weekly earnings of at least $139.00 per week (indexed annually) and

• Likely to continue indefinitely to be incapable of undertaking further or additional employment or work which would increase your current weekly earnings, then you can apply again for benefits under Section 93CD of the Act.

If you wish to apply, your application should include details of your current weekly earnings and reports from your treating doctor(s) or specialists In support of your application. As part of your application it is recommended that you obtain specific comment from your doctor(s) regarding your capacity to undertake further or additional work or employment.

Your application together with the Information referred to above should be forwarded to:

The Manager – Claims Services
Victorian WorkCover Authority
GPO Box 4306
MELBOURNE VIC 3001

If you wish to discuss any matter about your claim or this decision, including the provision of further information please contact me on 9947 3123.

Yours sincerely,

Jean McGowan Case Manager

Cambridge Integrated Services Victoria Pty Ltd

For and on behalf of the Victorian WorkCover Authority.”

Preliminary Issues

8          Counsel for the worker submits that the Notice was unlawful because:

(a)	on a proper construction of s.93CD, the Defendant was required to refer the question of whether the worker “is likely to continue indefinitely to be incapable of undertaking further additional employment or work which would increase the worker’s current weekly earnings” to the Medical Panel for opinion before it could contemplate terminating payments;
(b)	the Notice is invalid, as it was not supported by adequate or proper material.

9 Before ruling on such preliminary points, some analysis should be undertaken of s.93CD and indeed the Notice relied on by the defendant.

10 Section 93CD provides that:

(a)	a worker who has “a current work capacity” may apply relevantly to the Authority (s.93CD(1)) for a determination that the entitlement to weekly payments does not cease after the expiry of the second entitlement period;
(b)	the application is to be made to the Authority if the liability to pay weekly payments lies with the employer (s.93CD(2));
(c)	the Authority “may” determine that payments do not cease if the Authority is satisfied that—

(i) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings of at least $132 (see s.93CD(3)(a)); and

(ii) because of the injury, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further additional employment or work which would increase the worker’s current weekly earnings (see s.93CD(3)(b)).

Pausing there, it is to be stressed that the Authority has to be satisfied of certain “factual matters” as contained in paragraph (a) of s.93CD(3), and also of what I may refer to as “capacity matters” as contained in paragraph (b) of s.93CD(3). Both aspects have to be satisfied before the Authority could determine ongoing entitlement;

(d)	on receiving an application under s.93CD(1), the Authority must make or refuse to make a determination under sub-s.(3) and advise the worker in writing of its decision. However, and importantly, the Authority must not refuse to make a determination under sub-s.(3) on the ground that the Authority is not satisfied of what I have referred to as the capacity matters in paragraph (b) of sub-s.(3) unless the Authority has referred such a question to the Medical Panel and the Medical Panel is of the opinion that the worker is not so incapable and specifies what further or additional employment the worker is capable of undertaking;
(e)	if the Authority makes a determination under s.93CD(3), the worker is entitled to weekly payments and “subject to and in accordance with this Part”;
(f)	sub-section (6) of s.93CD provides that entitlement to weekly payments under sub-s.(5) continues until the Authority ceases to be satisfied as to the matters specified in sub-s.(3) (see paragraph (a) of sub-s.(6)) or the worker otherwise ceases to be entitled to weekly payments (see paragraph (b) of sub-s.(6)).

Paragraph (a) of sub-s.(6) in its reference to sub-s.(3) encompasses what I have referred to as the factual matters contained in paragraph (a) of sub-s.(3) and the capacity matters contained within paragraph (b) of sub-s.(3).

11 Section 93CD is a curious provision, as it discriminates in favour of workers who have resumed some type of employment for at least 15 hours per week and are in receipt of current weekly earnings of at least $132 a week. Seemingly there is a lacuna where a worker, after the expiry of the second entitlement period, cannot satisfy s.93CC of the Act – that is, having no current work capacity, and likely to continue indefinitely to have no current work capacity (refer s.93CC(1) of the Act), but has a current work capacity which renders him incapable of working 15 hours or more and earning at least $132. It may be that the purpose of s.93CD is to encourage workers to work a reasonable number of hours per week and fully exercise their current work capacity.

12 Under the heading ‘Reasons for the Decision’ in the Notice, the agent confirms that following on from the Medical Panel opinion (17 January 2005), the worker’s application pursuant to s.93CD was accepted on 19 January 2005, there being satisfaction that she was working at least 15 hours a week, earning at least $132 a week, and that she was likely to continue indefinitely to be incapable of undertaking further additional employment or work because of the injury.

13        Under the heading ‘Grounds for the Decision’ in the Notice, the agent states that it is –

“… not satisfied you cannot undertake further or additional employment

or work on a full-time or increased capacity. In particular Cambridge is not satisfied that you are not capable of undertaking further or additional employment or work in your current position, or elsewhere in a similar capacity.”

Thereafter, the agent again refers to the Medical Panel opinion dated 17 January 2005 and that the application under s.93CD was accepted on the basis that the worker could work a maximum of 16.5 hours per week.

14        The agent of the Authority then relies on the following information to ground the decision made to terminate payments:

(a)	A report from Dr Peter Li (the general practitioner of the worker) dated 14 June 2006, who “considered it was reasonable to try to increase your working hours to 4 days per week (previously 3 days x 5.5 hours)”.
(b)	A medical report dated 18 April 2006 from an Independent Medical Examiner and Occupational Physician, Dr Malcolm Brown, who opined:

“In my opinion Ms Drake has capacity to increase her current work

hours to a standard week with no specific restrictions.”

(c) The worker was demonstrating that she was capable of working more than 16.5 hours, and the current weekly earnings supplied by Goldstream for the 3-week period from 30 June 2006 to 20 July 2006 indicate an increase of hours in the first week to 22, and then 24 hours in the second and third weeks of July.

The agent concludes this part of the Notice by stating:

“It has therefore been determined that you no longer meet the criteria specified under Section 93CD(3) of the Accident Compensation Act.”

The Notice also informs the worker of additional rights where she can “reapply for benefits under s.93CD subject to her meeting the requirements of the section”.

15 I consider it clear enough that the Notice relied on by the agent has been issued on the basis that the Authority has ceased to be satisfied of the capacity matters of paragraph (b) of s.93CD(3) of the Act. It may be that in some circumstances the Authority may be satisfied as to the matters specified in paragraph (a) of s.93CD(3) of the Act where factually the worker is working less than 15 hours per week and/or is earning less than $132 per week. Section 93CD(6)(b) most likely caters for situations, for example, where fraud is involved or where perhaps the worker has reached an age where weekly payments are no longer payable.

16 Counsel for the worker submits that s.93CD(6)(a) in relation to matters specified in paragraph (b) of sub-s.(3) (“the capacity matters”) should be construed in a way that the Authority can only have satisfaction that such matters have ceased after a medical opinion has been obtained from the Medical Panel. In support of such a construction, counsel for the worker submits:

(a)	If payments can be ceased on the basis of a decision by the agent (rather than the Medical Panel), a worker would certainly need to make a further application immediately (as suggested in the Notice) and the matter would have to go back to the Medical Panel if not determined in favour of the worker.
(b)	Considering that the Medical Panel formed the opinion as to the extent of her work capacity, such was the touchstone for any change in circumstances, and it was appropriate that the Medical Panel give an opinion as to whether or not there has been a change in circumstances.
(c)	Given the “scheme” of s.93CD, a purposive interpretation of the section – and in particular sub-s(6) – should be given, consistent with a scheme that utilises the Medical Panel to assess the current capacity of any worker. In particular, counsel refers to and relies on the decision of Victorian WorkCover Authority v Balogh [2004] VSCA 200, wherein Nettle JA, on behalf of the Court of Appeal, referred to the principles of purposive statutory construction as set out by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381.

17        Counsel for the defendant opposed such a construction on the following grounds:

(a)	Section 93CD(6)(a) is unambiguous, and there is no indication within the sub-section that Parliament intended for Medical Panels to determine all decisions to terminate weekly payments under s.93CD(6)(a) of the Act.
(b)	In contrast to s.93CD(6)(a) of the Act, the mechanism of mandatory referral under s.93CD(4)(b) of the Act can only be triggered by an application pursuant to s.93CD(1) when a worker is seeking a determination of the application.

18        I reject the submissions made by counsel for the worker in relation to the first preliminary point.

19 I am of the view that s.93CD(6), properly construed, does not require the Authority to seek a Medical Panel opinion in order to be satisfied that the medical matters contained within paragraph (b) of sub-s.(3) of s.93CD are no longer satisfied. I have come to this view for the following reasons:

(a) The plain reading of s.93CD(6) is unambiguous, and deals with the circumstances where the entitlement to weekly payments under s.93CD(5) comes to an end. This must be compared to s.93CD(4)(b), which only involves the Medical Panel in circumstances that before any refusal to make a determination under sub-s.(3) can occur there must be a Medical Panel opinion. Sub-section (3) makes it clear enough that the determination referred to in s.93CD(4)(b) is the determination that the worker’s entitlement to weekly payments does not cease after the expiry of the second entitlement period.

Two different situations are contemplated: the making of the application pursuant to s.93CD(1) of the Act, and the cessation of the entitlement under s.93CD(6) of the Act. It is only in the first situation that the Medical Panel has an express role to play.

(b)

Clearly, the Medical Panel would have no role under s.93CD(6)(b), for example, where payments come to an end because of the age of the worker or indeed in circumstances where the worker’s hours and/or earnings have dropped below the requisite amounts. It is to be noted that s.93CD(6)(a) of the Act refers to sub-s.(3) in a composite way, and, to give meaning to the submission of the worker, the Medical Panel would only be involved when s.93CD(6)(a) is operative when referring to the “capacity matters” within s.93CD(3)(b) of the Act.

(c)

Section 93CD implicitly recognises that a worker may make more than one application. Indeed, the Notice invites the worker to make a further application under s.93CD. If such an application is made, the Authority (or its agent) may make a determination under sub-s.(3) or refuse to make a determination after the involvement of the Medical Panel through the operation of s.93CD(4)(b) of the Act. Furthermore, when payments are terminated, I see no reason why a worker could not refer a medical question (for example, see “medical question” (abc) contained in s.5(1) of the Act) to a Medical Panel to determine such an issue. In such circumstances a worker is not shut out of any potential rights he or she may have after the termination of payments by the Authority or its agent.

20 In relation to the second preliminary point, counsel for the worker submits that the Notice was invalid, as it was not supported by adequate or proper material. Such issue involves a consideration of which party carries any evidentiary and/or legal onus. In this respect, counsel for the worker submits that the defendant carries both the evidentiary and legal onus, whereas counsel for the defendant submits that his client has an evidentiary onus and a legal onus to the extent that it must establish it has formed a relevant satisfaction as specified in s.93CD(6) of the Act. In particular, as I would understand the written submissions of the defendant, it is submitted that it does not carry the legal onus of demonstrating that the worker can undertake further or additional employment at work which would increase the worker’s current weekly earnings.

21 In relation to the second preliminary point, I am of the view that the defendant has the evidentiary onus to discharge in satisfying the Court that the material relied on by the employer in its Notice was a reasonable basis to be satisfied that the matters specified in s.93CD(3)(b) have ceased. Furthermore, I have formed the view, in the circumstances of this matter, that the defendant has the legal onus of persuading the Court that the worker is not likely to continue indefinitely to be incapable of undertaking further additional employment or work which would increase the worker’s current weekly earnings. Of course, the Court must be persuaded as at the time that the Notice was given to the worker.

22        I am of such a view for the following reasons:

(a)  The present circumstances have some similarity to the matter of Drobis v Victorian WorkCover Authority and Anor (1994) VACR 73-382 wherein the then Judge Rendit stated, at 83-453:

“What the court is required to do is to see if the authorised insurer had before it probative evidence which could support the decision to terminate on the ground or grounds set out in the notice. That of course is quite a different exercise to examining the decision on a judicial review basis. The present inquiry is limited to seeing whether the authorised insurer had before it at the time that the decision was made probative evidence in support of it.”

In a similar way, the agent of the Authority has the onus of establishing that it had probative evidence which could support the decision to terminate on the grounds set out in the Notice.

(b) On the assumption that there was probative evidence to support the decision to terminate on the ground or grounds set out in the Notice, clearly some party has the legal onus of persuading a court as a matter of probability of the change in circumstances. In this respect, I refer to Green v Victorian WorkCover Authority [1997] 1 VR 364 wherein Phillips JA, in determining which party had the legal onus in that matter, referred to Phillips v Commonwealth (1964) 110 CLR 347 and Commonwealth v Muratore (1978) 141 CLR 296. At page 381, Phillips JA stated:

“Thus, their Honours distinguished between a case in which the claim for compensation was being adjudicated upon initially and a case in which, while the employee had a right to compensation under an antecedently existing determination, the Commissioner was applying to terminate that right by reason of some change in circumstances. In the latter case, the Commissioner might well bear the onus of proving critical facts - and no doubt their Honours had in mind those critical facts upon which an exercise of the power to terminate the employee's right to compensation depended. … .”

In a similar way, I am of the opinion that through the operation of s.68(4) of the Act, it is for the defendant to establish as a matter of probability any relevant change of circumstances at the time of the Notice to bring about the termination of payments. Section 68(4) clearly applies to the Medical Panel opinion made on 17 January 2005. Section 68(4) reads:

“For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”

In this sense, s.68(4) of the Act amounts to “an antecedently existing determination” from which there must be established a change of circumstances.

Has the Defendant discharged its evidentiary onus of establishing that it had appropriate probative evidence to support the issue of the Notice?

23        I am of the view that the defendant has discharged its evidentiary burden. At the time of the issue of the Notice, it had in its possession the following probative material:

(a)	A report from Dr Li dated 14 June 2008 considering that it was reasonable for the worker to increase her working hours to four days per week; and
(b)	Material from Goldstream indicating that over the period from 30 June to 20 July 2006 (immediately prior to the issue to the Notice) the worker had increased her hours and earnings.

24        The reliance by the agent of the defendant on the medical report of Dr Malcolm Brown dated 18 April 2006 is problematical, as he seemingly only consulted with the worker on 18 April 2006, and was not informed of the Medical Panel opinion dated 17 January 2005. In such circumstances, it is difficult for such a doctor to form any view as to whether or not there has been a change in circumstances. Even where a doctor may well say that a person has completely recovered from the compensable injury, such an opinion may have little or no evidentiary value if it cannot be established as to what was the opinion of that doctor at the time of the Medical Panel opinion. The touchstone for any change in circumstances is that, based on the Medical Panel opinion dated 17 January 2005, the worker was only capable of performing 16.5 hours work per week at that date.

Has the Defendant discharged its legal onus?

25        The worker gave the following relevant evidence:

•  When she suffered her injury with the defendant of 3 May 2000, she was working full-time performing clerical work. Prior to that, save for maternity leave, she had been largely a full-time worker performing clerical work.

• When she commenced work with Goldstream she “roughly just started working 9 until 3 three days a week with half an hour lunch”: (T40 L6-8.)

• Her hours changed, she thinks, in “roughly June” 2006 in the following circumstances:

“Q:	What preceded your hours changing at that time?---
A:	Jean McGowan from WorkCover – or the insurer – rang me on my mobile phone and because I was getting on quite well with her, she was my case worker, she said – recommended to try and increase my hours of work and I said, ‘Yes, I will try but I need to get a certificate from the doctor to give to my employer so they know that I can increase my hours.’ So I did that and I only lasted two weeks at the extra hours and they ceased my payments straightaway.
Q:	All right. So you commenced and there are pay slips to show that your hours commenced from 30 June 2006 to 6 July 2006, you increased to 24 hours?---
A:	Correct.
Q:	That was from your base position of 18 hours, was it?---
A:	Yes, 18 hours.
Q:	17 January 2006 until 13 July 2006 your pay records show you were working 22 hours that week?---
A:	Yes.”

(See T40 L16–31).

• She chose to work “in between school hours, 9.00 to 3.00”: (see T41 L25– 26).

• She was asked further questions in relation to her ability to cope when increasing her hours. Such questions included:

“Q:	If you had been perfectly fit, was there a full-time job available for you?---
A:	Yes, they wanted me full-time but I just couldn’t do it.
Q:	I see, and indeed, as I understand your evidence so far, in the middle of June or middle of 2006 you were contacted by your case officer to try and increase your hours?---
A:	Correct.
Q:	You get a medical certificate from Dr Li - - -?
A:	Dr Li, yes.
Q:	…to increase the hours in the order of 22 to 24 hours a week?- --
A:	Yes.
Q:	In practical terms what was that? How many days a week?---
A:	That made it four days a week.
...   Q:	Then what happened when you did those two weeks?---
A:	The pain just increased.
Q:	The pain increased where?---
A:	In my lower back, my legs. I started getting really bad migraines and you just get home from work, doing the extra day, and you have just got no energy.
Q:	... Then the third week from 14 July to 20 July 2006 indicates that you were paid for 24 hours also but it shows 18 hours as the base hourly and then sick pay for six hours?---
A:	Correct.
Q:	So do you recall what happened in relation to that?---
A:	Not really, no, it was too long ago.”

(See T41 L27–T42 L23).

• After what she believed to be a two-week period in June/July 2006, she resumed working from 9 am to 3 pm three days a week.

• Over the period of time that she worked from 9 am to 3 pm, she was paid $15.50 an hour and it worked out to about $255 per week.

• When queried about various payroll advices from Goldstream running from 21 July 2006 (see pages 114 and following of Exhibit A), which indicate that the hourly rate of the work was $25 and that she was receiving a gross pay of $755, the worker gave the following evidence:

“Q:	Do they accurately reflect the hours you were working?---
A:	Well, it doesn’t say hours worked. It just says a gross pay of $755.
Q:	Do they accurately reflect the income you were earning?---
A:	No.
Q:	So what hours were you in fact working over that time?---
A:	What hours? 9.00 to 3.00, three days a week.
Q:	What was your pay over that period?---
A:	$15.50 an hour, it worked out about $255 per week.

HIS HONOUR:

Q:	So even the hourly rate seems to be incorrect, does it?---
A:	Yes, the hourly rate is $25, but then they’ve got an annual salary of 23,400. These were printed on the 11/9/08 when I was not at Goldstream for a payroll period of 1 July 2006 to 30 June 2007, and in that period - - -
... Q:	So you dispute these pay records at several levels: One, the hourly rate is wrong?---
A:	Correct.
Q:	You say that the salary said to be paid to you can’t be right because ‘I was only doing three days a week, six hours a day’?---
A:	Yes.”

(See T48 L7-27).

• The worker was also referred to pay advices from Goldstream for the period ending 3 August 2006 and 10 August 2006 (see pages 23 and 24 of Exhibit 1) which would suggest that she was working 16½ hours per week at a rate of $15.50 per hour. The plaintiff was also referred to similar pay advices for the period ending 25 January 2007, 1 February 2007, 8 February 2007 and 22 February 2007 (see pages 25-29 of Exhibit 1). She gave the following evidence:

“Q:	When you were working with Goldstream, how did you receive those pay slips?---
A:	These pay slips – given to us in envelopes at the end of the day. On the end of the working day on Thursday.

HIS HONOUR:

Q:	On a weekly basis?---
A:	Yes, weekly basis, yes.
... Q:	I see. The records to which you were taken to earlier showing the $25 per hour and the greater amount per week …?---
A:	Yes?
Q:	When was the first time you saw those records?---
A:	Today.
Q:	Today? I see. So do you say to the court that you were never given those records at any time during your employment?---
A:	Correct.”

(See T50 L26–T51 L10).

• When queried as to how the payslips contained within Exhibit A – indicating a higher and larger gross earnings – came about, the worker stated:

“I – really, I don’t know. Only that there was a short period of time when my husband’s pay was split with my pay for taxation purposes – but those, I don’t know.”

(See T52 L10-17).

• She ceased employment with Goldstream on 19 December 2007.

• Since then she has continued to work for her husband’s business which is called Trail Cross Pty Ltd which manufactures caravans, although it is only in the research and development stage at the moment.

• Her husband also contracts with MCF Trailers, and he “decks out horse- floats for them”.

• She mainly works for him with Trail Cross and helps out with his accounts for MCF Trailers, and could work between 10 hours and sometimes could be up to 16 hours.

• Her physical complaints have “remained similar” over the last six years.

• Home activities such as vacuuming and mopping aggravate her condition, and she cannot hang clothes on the line.

• Her sleeping continues to be interrupted, and that has been the same since 2004.

• She takes three Endep every evening at 50 milligrams each tablet, one Imovane (a sleeping tablet) at 7.5 milligrams, and presently takes two Panadeine Forte three times a day for pain relief.

• The Panadeine Forte gives her a reaction which makes her itchy, and she takes Voltaren 50 milligrams, up to two a day.

• The medication is prescribed by a Dr Li or from the South East Medical Clinic where she sees either Dr Shiba or Dr Fox-Smith.

• She goes to physio a couple of times a month and swims, and such physio exercise regime has not changed since 2004.

• Her ability to do tasks around the house has not changed since 2004.

26        Under cross-examination, the worker gave the following pertinent evidence:

•  She commenced seeing Dr Li in about November 2002.

•  At Goldstream she was working three days, starting at 9 and finishing at 3 pm, with half an hour for lunch.

•  She generally worked Monday, Wednesday and Thursday, although she could alter those days, except Thursdays, which could never be altered.

• She has not been referred to any specialist since June 2005 and her physiotherapy treatment has been not consistent.

•  She believes that when her payslips showed her working 18 hours a week, that is 5½ hours a day for 3 days together with half an hour for lunch: (see T76 L7-19.)

•  When queried about her group certificates and the pay advices contained in the defendant’s Court Book, the plaintiff gave in part this evidence:

“Q:	Do you accept, given that that group certificate shows that you’ve received – this is the 06-07 certificate – $37,395 over that financial year, that you’ve received payments per week clearly in excess of the $255 that you say that you earned?---
A:	It shows that. I didn’t earn that, but it shows that.
Q:	When you say you didn’t earn that, you received that?---
A:	Combined income received that, yes.
Q:	Well, I’ll take you to that. If you go to page 114, Mrs Drake. You see the top of that page, it says on 27 July 2006?---
A:	Yes.
Q:	Does that indicate, does it not, that you were paid for that week $755?---
A:	I was paid it, yes.

...

HIS HONOUR:

Q:	Just to interrupt there. Mrs Drake, no doubt this will be explored further, but your evidence is, is it, that for that particular week, leaving aside the circumstances, but the fact is you were paid a gross figure of $755?---
A:	I was paid, yes.
Q:	Similarly, for those slips in the defendant’s court book in front of you, for the weeks running from early July 2006 right up till effectively when you stopped in late 2007, the amounts said on those documents is factually the amount you were actually paid?---
A:	I was paid that, but I did not work the hours for it to be paid.
Q:	I think I understand the point you’re making, but I just – did you physically get paid the money each week – that amount of money?---
A:	I don’t know how to answer that because we was income splitting, so I’ll say yes.
... Q:	You say to me for that period of time, although you received that amount of money, you did not work the hours which that amount of money suggests?
A:	---Yes.
Q:	I see. Over that period of time from July 2006 up until you ceased work in July 2007, what hours do you say you worked each week?---
A:	I worked 9.00 to 3.00, three days a week. So I worked 18 hours, half an hour for lunch, so it was 16.5 hours per week I worked.”

(See T94 L8–T95 L20).

• When queried further about the income splitting, the worker gave the following evidence:

“Q:	As far as you’re concerned, why was it from the beginning of about July 2006 that seemingly the income splitting started at that point?---
A:	New financial year.
Q:	It also coincidentally is about the time that your compensation aspect stopped, isn’t it?---
A:	Yes, but it was a coincidence, not anything, you know – it was just end of financial year, new financial year and this was the way we were told to do it. To get extra income, net income per week.”

(See T96 L13-21).

• She accepted that the records provided by Goldstream reflect what she received in money but did not reflect the hours she worked.

• The income splitting came to an end in about September 2007 and her hourly rate increased from $15 to $25 an hour.

• She could not explain the pay advice for the period from 5 August 2005 to 11 August 2005 which records a gross pay of $396, although she asserted that she:

“… never earned that type of money ... I’ve always earned 255 a week, roughly around that, for 18 hours week or 16 and a half ... .”

(See T200 L17-24).

• When specifically queried about whether she worked 15.5 hours or 18 hours per week, she gave the following evidence:

“Q:	Can I just ask you – sorry to interrupt, Mr Coldwell, but it’s best I be clear about this. Mrs Drake, sometimes you’ve talked about 16 and a half hours but you were there from 9.00 to 3.00?---
A:	Correct.
Q:	So that’s six hours. Of those six hours half an hour was allocated lunch. Is that correct?---
A:	Yes.
Q:	Were you actually paid for lunch?---
A:	Well, sometimes yes and sometimes no.
Q:	The 16 and a half hours, what would that represent?---
A:	Maybe I went out of the office for lunch or maybe I went down the back of the factory for lunch.
Q:	What, meaning that you weren’t paid for lunch?---
A:	Correct.
Q:	What would the 18 hours represent?---
A:	If I sat at my desk.
Q:	I see. So it wasn’t a case that you got paid for lunch come what may as part of your working day, it was whether you were actually working, you’re telling the court?---
A:	Sometimes I didn’t leave my desk.
A:	No, I understand you might not have left your desk but, correct me if I’m wrong, is the distinction you’re making you got paid the half hour if you worked the half hour. If you left your desk and did something else for the half hour, went down and had a chat to a friend, you wouldn’t get paid for the half hour?---
A:	Some days yes, some days no.”

(See T204 L26–T205 L18).

• Before income splitting, any purported extra income may have been brought about by “cashing cheques” which she considered she was not permitted to discuss under a signed agreement with Goldstream when her husband’s interest with that company came to an end. In particular, the worker stated:

“Q:	So that could explain the increased amount?---
A:	Could be. But these are the things that I wasn’t allowed to discuss once under our signed contract with Goldstream when we settled our – bought our shares in Goldstream. I wasn’t allowed to speak about anything, so that’s why I asked my solicitors if I can explain everything to the court.
Q:	Why didn’t you tell me that on Tuesday, or why didn’t you tell Mr …?---
A:	I told my solicitor.
Q:	No, you were asked questions this morning. Why didn’t you say it then?---
A:	I’m still worried I’m going to get in trouble by the Goldstream solicitors.”

(See T206 L23–T207 L2).

• The taxation returns lodged for the financial years 2007 and 2008 are consistent with the amounts given in the group certificates.

• As to why the agent of the Authority only receives pay advices such as those at pages 25-29 of Exhibit 1 (that is, nominating 16.5 hours per week at $15.50 per hour) when, in fact, she was working 18 hours per week (including the half hour for lunch), she stated:

“Q:	Did you understand that if you worked more than 16 and a half hours per week that that had the potential for affecting those payments?---
A:	Not for doing 18 hours, no, nor doing – because they told me to do three hours – you know, work three days a week. So I did work three days a week and sometimes I worked lunchtime, sometimes I didn’t. I was always there 9.00 till 3.00. So I was there six hours every three days.”

(See T215 L26–T216 L2).

• When not working, she was occupied looking after her family, and in 2006 her youngest child had commenced school.

27        Graham Andrew Drake, the husband of the worker, gave evidence and described his present occupation as a caravan-builder and fitter of horse- floats. Furthermore, he also described himself as one of the four part-owners of Goldstream until late 2007.

28        Although not sure of the date, he gave evidence that he and the worker were involved in “salary splitting” from mid-2006 to August 2007. In the words of Mr Drake, some of his income “went onto hers, onto her pay”: (see T279 L1-2).

29        When he left Goldstream in late 2007, the situation was “pretty nasty” with two of the other part-owners, after which an agreement was “brokered” by the accountant.

30        When working at Goldstream, Mr Drake ran the factory, and from about mid- 2004 the worker commenced with Goldstream. He was asked the following questions:

“Q:	Are you aware of the hours she was working?---
A:	Yes, she basically did the kids at school; she’d arrive between, I think, 9.00, 9.30, roughly; and she’d work up until wherever she had to leave to pick the kids up, which would have been, I don’t know, quarter to 3, I suppose.
Q:	Are you aware of how many days a week she was in, working?---
A:	Yes, she was only working the three.
Q:	Are you aware what days those were?---
A:	Yes, it would have been she was there Mondays, Wednesdays and Thursdays.”

(See T281 L4-12).

31        When queried as to whether those days of work altered at all, or her hours changed, Mr Drake gave the following evidence:

“Q:	Now, did that time frame, those days for working, did that alter at all?---
A:	No. It might, maybe years ago, you know, if she was crook. You know, if she missed a Monday, but I don’t think so. They wouldn’t have – no.
Q:	In terms of attempts to increase her hours, were you aware of her attempt to increase hours?---
A:	Yes, there was – I don’t know when it was, it was a long time ago but, yes, she was asked to increase them or something.
Q:	Do you know how long she physically increased her working hours for at that time?---
A:	Maybe – a long time ago.
Q:	Well, in terms of time frames, was it a year, six months?---
A:	No, no, it was only - - -
Q:	Three …?---
A:	Look, it would have been probably weeks, if anything. No, it wasn’t long-term because she couldn’t do it. She had a go at it but couldn’t do it.”

(See T281 L13-27).

32        Under cross-examination, Mr Drake stated that over the last few years he has done most of the cooking “if she’s not well”: (see T290 L24). He was further asked:

“Q:	What I’m really saying is that in your own mind do you put any limits on what you believe your wife could do in the office as you expand?---
A:	I don’t think she could do the hours she did before in my opinion.
Q:	Why is that?---
A:	Well, it’s just getting to the point where like she’s – they’re changing the medication and doing this and that and, you know, I don’t know what stuff she is on but there is nights there she is sitting there like a zombie, you know. You have to carry – help her to bed and then you’ve got to wake her up and this is barely after tea time sometimes.”

(See T293 L13-23).

33        Mr Drake was queried about his wife increasing to four days a week. The following evidence was given:

“Q:	But there was at least one period you’re aware of where she worked for four days a week?---
A:	There was something about someone asked her – she had to have a go at working extra hours or something or other at one stage. I don’t know where it come from or something or other, and I know she give it a go, but, yes, as to how long it lasted, it didn’t last long.

HIS HONOUR:

Q:

Why didn’t it last long?---

A:

She just couldn’t cope. She was getting home and basically going straight to bed, you know, after she’d grabbed the kids. You know, it was just the same old thing. Like, if she’s had a good day or a bad day, you could sort of judge it, you know? Like, if she’s having a real bad day, she’d take the pills and then all of a sudden she’s falling asleep early after tea, you know? If she’d had a good day, you know, she’d last about – her bedtime I think is normally just by about 9 o’clock or about 9.30 she’d go to bed on a normal day. But you can judge it by, yes, just the way she is.”

(See T305 L20–T306 L7).

34        Mr Drake also gave the following evidence in relation to the three days and children’s commitments. The evidence was:

“Q:	I’m asking you, was that three days a week brought about, at least in part, by commitments at home with the children? In other words, if you were a childless family at that stage …?---
A:	Yes.
Q:	… would she have worked more than three days?---
A:	Definitely, yes. Yes.”

(See T308 L8-13).

35        Evidence was also given by Brett Alfred Cahill, who generally worked as a labourer but was currently unemployed. Between 2004 and 2008 he was employed by Goldstream as a water plumber and factory hand, working between 8 am and 4 pm with half an hour for lunch.

36        He knew the worker when he was working at Goldstream. He gave the following evidence in relation to the work habits of the worker:

“Q:	Do you recall roughly the hours she was working?---
A:	Roughly. I think she turned up about 9, 9.30 and leave before I did at 4. I can’t give a specific time, like I was out on the floor so roughly it was around 9.00, 9.30 I think it was she used to turn up. I think she had to drop her kids at school or something in the mornings and she would leave before I left.
Q:	What time?---
A:	Like the factory – I really couldn’t give a good description of the time but I know she left before I did at 4.00.

HIS HONOUR:

Q:	So in your evidence, she left before 4 pm?---
A:	Yes. That is correct.

Mr O’CONNOR:

Q:	Do you recall what days she worked?---
A:	She always worked on a Thursday, because it was the day before pay day and she always worked on a Monday because that way if we had anything wrong on the Friday we had to wait for her until the Monday to come in and it was usually on a Wednesday was the third day she worked.
Q:	To your knowledge, did she work more than three days a week?---
A:	Not to my knowledge, no.

(See T272 L19–T273 L7).

37        Dr Peter Li gave evidence on behalf of the worker and described himself as a general practitioner practising at the Eastcare Medical Centre, Main Street, Pakenham, and thereafter gave the following pertinent evidence in chief:

•  He prepared the report dated 14 June 2006 (see page 8 of Exhibit 1) in response to a letter from Ms Jean McGowan, an officer of the agent of the Authority. Omitting formal parts, such letter stated:

“Mrs Denae Drake has recently attended several s.112 independent
medical examinations to help determine employment capacity.

Dr Malcolm Brown, occupational physician, examined her on 18 April 2006 and she was previously examined by Mr Brian Davie, orthopaedic surgeon, on 28 November 2005.

Both these doctors suggest that Ms Drake could increase her hours from 3 to 5 days a week. I have enclosed copies of both reports.

Cambridge Integrated Services Victoria Pty Ltd requested a report from you to comment on Ms Drake’s current capacity and to give consideration to the capacity and work restrictions on the next certificate of capacity.”

• He had seen the worker on 19 April 2006 and 10 May 2006, largely complaining of insomnia, back and neck pain, with no improvement from that point.

• The reference in the report dated 14 June 2006 to the worker making a previous attempt to increase her working hours relates to an attempt prior to July 2006 when she tried to increase her hours and could not cope.

• The attempt to increase her working hours again from the three days in July 2006 was also unsuccessful. In particular, the doctor gave the following evidence:

“Q:	At the time you prepared the report, you say ‘Now I think it is reasonable to try to increase her working hours again, perhaps to four days a week’?
A:	---Yes.
Q:	As far as you’re aware, was that attempt successful?---
A:	No.
Q:	Why wasn’t it successful?---
A:	We tried two or three weeks, I think, at the time; and then she complained soreness in wrist - - -
Q:	Soreness, sorry?---
A:	The soreness in the neck - - -
Q:	Soreness in the neck, yes?----
A:	And the back has increased, and so - - -
Q:	Sorry, doctor, soreness in the neck, soreness in the back, and - - -?
A:	---Yes. Then increased, and more stress, you know, at the time, in terms of depression. So we couldn’t increase, and went back to the original hours. Yes.
Q:	As at that time, would you have described her condition as fairly stable, as at in the time you provided your report on 14 June 2006?---
A:	Yes.
Q:	She had commenced her part-time hours in mid-2004. Would you have described her condition as in terms of her capacity to work as fairly stable between mid-2004 and mid-2006?---
A:	Yes. I hadn’t seen her condition change much, you know, during the whole time, really. Sometimes a bit better and sometimes a bit worse.
Q:	In terms of over the last few years, are you aware that she’s attended another general practitioner over the last few years?-- -
A:	Since 2008, I saw her not as frequently, only two or three times since then. She told me, you know, because it’s closer to her home, she’s attending to another general practitioner.”

(See T144 L14–T145 L11.)

• Up until 2006, when he received the letter from Ms McGowan, Dr Li had been giving certificates for modified duties for 5½ hours three days a week.

• Such certificates were given consistently over that period of time, and in particular he gives the following evidence:

“[Answer] But we’ve been trying to increase. In my opinion, though,

she has already make a very good effort to try to work, you know.”

(See T150 L16-18).

38        Under cross-examination, Dr Li gave the following pertinent evidence:

• He had been the treating doctor of the worker since November 2002 and his diagnosis since treating her in relation to the subject injury was a soft- tissue neck and back injury.

• Over the period from 2004 to 2006 her condition had slightly improved.

• The attempt to increase her hours mid-2006 was partly prompted by the insurance company, and he considered “it’s worth a try, but I had not much confidence”: (see T156 L9-L25).

• He wrote certificates in July and September and probably August 2006 that she was capable of performing work for four days a week for 5½ hours each day. On 5 October 2006 he reverted to the original certificates of 5½ hours three days a week, because “the symptoms got worse, she couldn’t cope”: (see T168 L2-L5).

• When seen on 11 July 2006 he has recorded “neck, lower back pain, tender stiff”: (see Exhibit 2).

• He records on 21 August 2006 “migrain [sic], neck pain sore worse tender”: (see Exhibit 2).

• He recorded on 12 September 2006 “migraine, poor memory”: (see Exhibit 2).

• He recorded on 5 October 2006 “headache, neck pain worse, tender, stressed”.

39        The solicitors for the worker also relied on medico-legal examinations by Mr G. Grossbard, orthopaedic surgeon, on 2 August 2006 (see report dated 3 August 2006 at page 10 of Exhibit 1), and Dr James Rowe, specialist occupational physician, on 13 July 2009: (see report of same date at page 15 of Exhibit 1).

40        The solicitors acting for the Defendant also rely on various medico-legal examinations as follows:

(a)	Dr Chris Baker, specialist in occupational medicine, who examined the worker on 22 March 2004 (see report dated 21 April 2004 at page 24 of Exhibit A), on 4 October 2008 (see report dated 6 October 2008 at page 15 of Exhibit A), and on 5 January 2010 (see report dated 7 January 2010 at page 11 of Exhibit A);
(b)	Professor George Mendelson, psychiatrist, on 26 November 2002 (see report of same date at page 70 of Exhibit A), on 16 March 2004 (see report of same date at page 59 of Exhibit A), 24 November 2005 (see report of same date at page 44 of Exhibit A), and on 4 December 2009 (see report of same date at page 32 of Exhibit A);
(c)	Mr Robert Marshall, general surgeon, on 16 January 2007 (see report of same date at page 88 of Exhibit A), and on 25 September 2008 (see report of same date at page 84 of Exhibit A);
(d)	Dr Malcolm Brown, to whom reference has been made earlier in this judgment;
(e)	Mr Brian Davie, orthopaedic surgeon, on 24 April 2002 (see report of same date at page 92(h) of Exhibit A), on 28 November 2005 (see report of same date at page 92(e) of Exhibit A), and on 19 December 2006 (see report dated 22 December 2006 at page 92(a) of Exhibit A).

41        I have read all the medico-legal reports and indeed all the exhibits.

Analysis of the Evidence

42        The starting point is the opinion of the Medical Panel made on 17 January 2005. Has the defendant discharged its legal onus in establishing a change of circumstances as at the date of the Notice?

43        Consistent with my earlier comments in relation to the medical report of Dr Malcolm Brown dated 18 April 2006, I consider that all the medico-legal reports (on both sides) are of little assistance, as seemingly no doctor was aware of the Medical Panel Opinion of 17 January 2005 or were advised that the touchstone for any change in circumstances was predicated on the basis that the worker was only capable of doing approximately 16½ hours’ work per week. This problem was also exemplified when some of the medico-legal doctors retained by the defendant would suggest the worker suffered no permanent impairment as a result of her injuries. Such a view is inconsistent with the opinion of the Medical Panel dated 15 April 2004, which assessed her to have an 18 per cent whole person impairment resulting from the “accepted lower back, neck and right shoulder injuries”: (see page 6 of Exhibit 1).

44        The critical witnesses in the matter are, of course, the worker and Dr Li, who has been the treating general practitioner encompassing the period from the Medical Panel opinion to the date of the service of the Notice.

45        Counsel for the Defendant has submitted that I should not find the worker to be a credible witness, or at the very least totally unreliable. There is some force in such submission, as I did not find the worker to be a particularly satisfactory witness, and on occasion, during her evidence, had to direct her to answer questions, and counsel on many occasions had to press her for responsive answers.

46        In particular, counsel for the defendant attacked the credit of the worker in the following way. There was no issue between the parties that at all material times the worker lodged so-called pay advices with the Authority (or its agent) as detailed at pages 23-29 of Exhibit 1. Such pay advices detailed her working 16.5 hours a week at a rate of $15.50 per hour, which amounted to $255.75 gross with a net pay of $233.75. Counsel for the Defendant highlighted the following matters:

(a)	Many of the payroll advices supplied by Goldstream for the period running up to when the Notice was served would suggest that the worker was working 18 hours per week at a rate of $22 per hour: (see pages 8- 111 of Exhibit A);
(b)	The payroll advice slips for the period from 21 July 2006 up until late August 2007 would suggest that she was earning $725.62 gross per week, which was highly suggestive of her working more than 16.5 hours per week: (see pages 114-132 of Exhibit A);
(c)	The group certificate for the year ending 30 June 2007 was consistent with the higher earnings as suggested in the Goldstream pay material.

47        Ultimately, as I understood her evidence, the worker asserted that she attended the premises at Goldstream from approximately 9 am to 3 pm three days a week at all material times, save for her failed increase of hours in July 2006. Furthermore, she ultimately accepted that the monetary amounts set out in the material relied on by counsel for the Defendant were correct. However, she asserted quite strongly the following matters:

(a)	From in or about July 2006, on the advice of an accountant, she and her husband “income split”, with the effect that although she was continuing to work only 16½ hours per week her income was exaggerated for because of income splitting;
(b)	Because of an acrimonious split-up of Goldstream which was controlled by four people, one of whom was her husband, an agreement had been entered into in late 2007, and she was concerned as to what she could say, given that agreement.

48        She did concede that in the period running up to the so-called failed attempt, she may well have been paid for 18 hours a week, the extra 1½ hours being for a half-hour lunch period for each of the three days. However, she maintained, consistently, that after her failed attempt she was only working 16½ hours per week, consistent with her doctor’s advice.

49        It is to be noted that evidence was given by the husband of the worker and a former employee of Goldstream, Brett Cahill. I found both of these witnesses to be frank and honest.

50        Mr Drake was not a sophisticated witness, and made clear that he was the “hands-on” person in the manufacturing side of Goldstream. However, he was well aware that his wife would arrive about 9 and leave at or about 3, three days a week. He also gave evidence of the accountant advising them of the advantages of income splitting, which was pursued, although he had no real detail of how that worked. However, what I did find impressive from the evidence of Mr Drake is that without any prompting, the description of his wife at night and her inability to perform certain activities because of her injuries, and the requirement to take and change her medications to be able to cope, all of which gave indirect support that she was only capable of working 3 days a week.

51        Counsel made reference to some evidence from Mr Drake (see T308 L4–13) where he was asked, absent his wife’s family commitments, she would have “definitely” worked more than three days a week. Although such evidence was clearly given, I ultimately saw that in the context of Mr Drake assuming that his wife was free also of her injuries. His description of her activities at night, her changes of medication, and her difficulties around the house and the like, are totally inconsistent with any other interpretation.

52        The witness, Cahill, had no association with the worker, save that he worked for Goldstream, and I see no reason to reject his evidence.

53        Accordingly, a consideration of all the evidence would suggest that other than her failed attempt to increase her hours, the worker worked approximately 16½ hours per week during the time that she was employed at Goldstream. Perhaps the one aberration is her admission that she may well have been paid for an extra half hour per day when she may have worked during the lunch period. Of course, it must be kept in the context of the following matters:

(a)	It was never in issue that the worker did attend the premises of Goldstream from 9 am to 3 pm (at least according to the worker);
(b)	The case was put by the defendant that her increase in hours was for at least an extra day per week, rather than what I may call a very technical argument as to whether or not she was paid for her lunch half-hour or not.

In all the circumstances, I would not be persuaded that this aspect of the matter gives rise to a discharge of the onus by the employer.

54        Notwithstanding criticism by counsel for the defendant of Dr Li, I essentially found Dr Li a caring doctor who had the interests of his patient paramount at all times. It is to be noted that prior to the attempted increase in hours in July 2006 there had been a failed attempt to increase hours prior to that. Dr Li had regularly seen the plaintiff over 2005 up to July 2006 with ongoing generalised complaints relevant to her compensable condition. It was essentially at the behest of the agent of the Authority that an “attempt” be made for her to increase her hours in July 2006. The agent contacted the worker requesting that she attempt to increase her hours. Such an attempt was undertaken, and failed, with Dr Li reverting back to certificates for 16½ hours per week as from 5 October 2006. On that date, his notes indicate “headache, neck pain worse, tender, stressed”.

55        Counsel for the defendant raised the issue that on the evidence of the worker she only worked two, maybe three weeks, at the increased hours (see page 113 of Exhibit A), whereas seemingly Dr Li gave certificates for 5½ hours four days a week from 11 July 2006 up to the change on 5 October 2006. The evidence of the worker was that she just could not cope, and indeed I do note that the records of Dr Li on 21 August 2006 are stated to be “migrain [sic], neck pain sore worse tender”.

56        Counsel for the defendant submitted that the evidence from Dr Li at and around this period only revealed similar complaints to that which had been occurring over the time up till then. I consider that the fact that he did reinstate the regime of 5½ hours per day for three days a week rather than four is clear and unequivocal evidence that the worker was not coping with the increased hours.

57        No evidence was called by the defendant from Goldstream to rebut any of the evidence given by the worker, her husband, or Cahill.

Conclusions

58 After consideration of all the evidence, I have formed the view that the employer has failed to discharge the requisite onus, and accordingly, I order the reinstatement of payments pursuant to s.93CD of the Act from the date of termination, and for such payments to be paid thereafter in accordance with law.

59        I make no findings as to how any weekly payments are to be assessed, given the evidence of the worker that from about July 2006 to about August 2007, she was “actually” receiving a larger income as a result of income splitting with her husband.

60        Furthermore, since commencing effectively employment with her husband in his self-employed role, it was not clear whether the worker would necessarily satisfy what I referred to as the factual matters of earning the requisite amount each week, and working for the requisite number of hours each week.

61        I do note that at one stage counsel for the defendant indicated that it sought to amend the Defence in this matter to raise what I have referred to as “factual matters” – in this case, the amount of alleged earnings of the worker; but I was informed that that aspect of the matter would not be proceeded with.

62        I will hear the parties on the question of costs and if there are any other ancillary matters.

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