Hashman and Comcare - [2001] AATA 652

DECISION AND REASONS FOR DECISION [2001] AATA 652

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/214

GENERAL ADMINISTRATIVE DIVISION       )
           Re      LYNN HASHMAN
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date13 July 2001
PlaceCanberra

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
COMPENSATION – cessation of liability – chronic pain syndrome – RSI related – incapacity for work – activities performed by the applicant – inconsistent evidence – assessment of applicant's evidence
Safety Rehabilitation and Compensation Act 1988 s.19

REASONS FOR DECISION

13 July 2001 Senior Member J.A. Kiosoglous MBE

This is an application by Ms Lynn Hashman (the applicant) for review of a decision of a review officer of the respondent dated 10 June 2000 (T195) which affirmed upon review a decision of a delegate of the respondent dated 19 April 2000 (T191) to cease liability on and from 19 April 2000 in respect of the applicant's incapacity and medical expenses payments for her repetitive strain injury (RSI) condition.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T195) and supplementary documents (ST1-46), together with 44 exhibits, 11 lodged by the applicant (Exhibits A1-A11) and 33 lodged by the respondent (Exhibits R1-R33). In addition, the Tribunal heard evidence from the applicant, who also called Dr D. Thornton, Radiation Oncologist. The respondent called as witnesses Ms R. Gibbons, self employed shop owner, Ms E. Cantello, publican, Ms K. Meredith, nurse, Ms A. Weekes, former office manager, Mr T. Atchinson, public servant, Mr S. Howe, managing director, and Mr Warren Ahrens and Mr Wayne Ahrens, builders. The applicant was represented by Ms A. Tonkin and the respondent was represented by Mr G. Watson, both of counsel.
history of the appication
The applicant was employed with the Department of Housing and Construction from 1979. In 1984 she developed pain following the use of a keyboard and remained off work for some 6 months. In early 1985 she was certified unfit for continued employment. The applicant commenced on a return to work programme in March 1985, leaving work again in March 1986. She retired from the Commonwealth in August 1987 as a result of her health problems, and has remained on various incapacity payments since that time. A permanent impairment claim was disallowed in March 1995, on the basis that the condition arose prior to 1 December 1988 and therefore fell under the predecessor to the Safety Rehabilitation and Compensation Act 1988 (the Act).
On 19 April 2000 the respondent issued a determination that liability had ceased in respect of the applicant's condition as and from that date (T191). This decision was affirmed upon review dated 10 June 2000 (T195).
applicant's evidence
The Tribunal heard evidence from the applicant at considerable length, and it is unnecessary to repeat verbatim the entirety of her testimony herein. The Tribunal simply sets out various salient features of her evidence, whilst noting that it takes all her testimony, along with the Tribunal's impressions of her as a witness, in coming to its decision.
The applicant told the Tribunal that whilst her initial employment with the Commonwealth was as a photographer, she later worked as a clerk. Prior to leaving work in 1986 she stated that she was doing such duties as running finances, preparing budgets and final reports. She considered that her supervisors did not look after her well in relation to her condition, and stated that her condition never went away. She told the Tribunal that the respondent has twice approached her about rehabilitation programmes, but that she has followed her doctors' advice and has not attempted to return to work, something that she was unhappy about. She further stated that she knew her limits, and that after the unsuccessful attempt in 1985-6, she was afraid of the pain associated with a return to work. She stated that she has been honest in her presentation to all doctors and rehabilitation providers at all times. She finds the rehabilitation process very stressful and would return to work if she could trust Comcare.
The applicant stated that she does not know if her headaches are related to her RSI condition, but that she does get headaches when having chronic pain in her forearms. She also has back pain and neck pain, and has been told that she has cervical spondylosis. She wears a neck brace on occasions for neck pain, and disagreed that most of the medical treatment she has received has been in respect of neck and back pain. She also has an arthritic problem with her thumbs.
The applicant stated that she has unsuccessfully tried many medications and treatments over the years. Recently, she has found that physiotherapy reduces the muscle tension in her arms and shoulders, and that counselling was of assistance to find ways to deal with pain. She also stated that she has difficulty with household duties and has help from her daughter, who is almost twenty years of age. She has a cleaner who also does the washing and ironing. She is able to drive a car with power steering and automatic windows. The Tribunal also notes her evidence in relation to how she uses the car boot in a particular manner (Exhibit A4).
The applicant was shown two videos taken in November 1997 and October 1996 (Exhibits ST46 and R28 respectively). In relation to the video from November 1997 she noted various aspects of her behaviour, and drew particular attention to her bending her arms and knees in place of stretching her arms or straightening them. In relation to the second video from October 1996, she agreed in cross-examination, that it appears that she was using her arms in a natural manner, and could not say why she was wearing gardening gloves at one stage. She noted that her arms appeared to be bent a lot.
The applicant stated that she is able to pursue her hobbies within the limits of her pain and fatigue. She has travelled overseas a few times in the past fourteen years, mostly with her partner, Mr Colin Pitson and their respective children (four in total, two on various trips). This has included an eleven month trip through Europe, and smaller journeys through China, India, America, Sri Lanka, Fiji and return trips to Austria and the United Kingdom. She stated that she had assistance with her luggage, and only carried a small backpack herself. She described herself as being an expert in travelling light and was always in pain wherever she was travelling. She believed that travel was important as she was very isolated and has felt suicidal at times being at home all the time. Mr Pitson has been in receipt of Comcare payments for chronic fatigue syndrome throughout the relevant period.
In relation to her involvement with Old Canberra Photographics, she stated that she and her partner set up the business in Federation Square for his daughter to run. The applicant indicated that her personal involvement was minimal, and that she only took an interest, as opposed to an active role. She stated that she did not do anything as a director of the company set up in relation to that business, and believed that she was only a director for taxation purposes. She thought that she may have been at the business every second weekend that it was open, and for maybe one half of the school holiday periods. She denied ever working at the business or sewing at the business, and stated that she just went there out of interest. She could not recall helping with photos.
In relation to the property development at Yarralumla, she told the Tribunal that she and Mr Pitson bought a block of land, and subsequently purchased two adjoining blocks in or about 1994. They entered into a development proposal with another couple from the Northern Territory to build ten townhouses, hoping to sell each off the plan for about $400,000. She stated that she visited the sight about twice a week "more or less", and that whilst she might have signed various letters, she did not prepare many letters herself, but signed letters prepared for her. She agreed that she represented the developers at a Land and Planning Appeals Board hearing, and made several phone calls to various people, but denied being involved in the project beyond taking an interest in colour schemes and landscape designs. The Tribunal heard about the problems faced by the developers, and was told by the applicant that she and Mr Pitson ended up with three units which have since been sold when their relationship ended.
The applicant told the Tribunal that she did not do any raking, sweeping or gardening at the development site, but qualified this response having viewed the October 1996 video, adding that she only did very minor things on a couple of occasions.
In relation to her Tibetan activities, the applicant told the Tribunal that she has a long standing interest in Tibet, and has been involved in various activities over the years. She emphatically stated that any such activities were not volunteer work, as she categorised work as being something where there is a requirement to turn up each and every day. Whilst she agreed that she was involved in the Australian Tibetan Council in the early 1990s, the Australian Campaign for Tibet, the Dalai Lama's visit to Canberra, the Tibet Information Office and the Tibet in Context Conference, she stated that most of these organisations were small, and her involvement was generally limited to the initial stages. Although her address and contact numbers were variously pointed out to her as being the contact points for several of these organisations, she denied that there was much activity generated from such listings.
In relation to a photocopier in her house, the applicant initially indicated that Mr Pitson had "picked it up somewhere". Having been shown an advertisement in one of the Australia Tibet Council newsletters for a photocopier with her home number given as the contact number, she thought that Mr Pitson probably took a call arising from the advertisement and went to pick it up.
In response to questions from the Tribunal about her presentation on the days of hearing, she stated that she has been in discomfort and would have lain down had she been at home. She told the Tribunal that the digesics medication she had taken had taken the "top off" the pain, but that she was always very uncomfortable, and the pain was there if she lifts her arms up.
dr d. thornton
Dr Debra Thornton, Radiation Oncologist, prepared a written statement dated 29 May 2001 (Exhibit A9) in relation to these proceedings in which she stated (inter alia):
"…
I first met Lynn Russell at the time of the Dalai Lama's visit in 1992. I had a friend in Melbourne who suggested I join the group helping to organise the Dalai Lama's visit. …
Since that time Lynn and I have remained friends with us meeting about twice a month on average though she and her family did live in my house for a short while with me some years ago. I have become aware over time of Lynn's problems of not being able to carry much weight, her difficulty in opening jars, and doing some tasks of daily living including cooking. She has had to spend time recovering by lying down or in bed whenever she has done too much. I know that at times she has required pain killers and for some weeks these on a daily basis. I know that she has attended casualty on occasions to receive pethidine for severe pain. I have been with Lynn when she has been so incapacitated with pain that she has been unable to do anything. I am aware that Lynn now grocery shops on the internet, as it means her order is delivered to her kitchen bench and she does not have to carry any of it except to put it away in her cupboards.
Lynn has tried many times to improve her physical condition with exercise and massage and acupuncture. Often these activities have aggravated her condition and she has had to stop and this has caused her much concern. It appears at times even minor actions can cause exacerbation of her symptoms and thus she is often very frightened to do anything unusual or that could be potentially harmful to her. She certainly cannot do any one activity like writing, using a computer or using a telephone for any length of time. I am aware that Lynn chose her current transport for the ease of driving as she had previously had problems."
In oral evidence in support of her statement, Dr Thornton told the Tribunal that in her observation, the applicant has days in which she cannot get out of bed for the pain she is suffering. She further stated that the applicant has not been actively involved in Tibetan affairs for the past few years, as she is not up to it. She did not know the cause of the applicant's current problems, and did not profess to be an expert in those areas of medicine.
ms r. gibbons
Ms Gibbons, self employed shop owner, prepared two written statements dated 26 January 1999 (ST17) and 3 September 1999 (ST21) in connection with this matter. In oral evidence in support of her statements, she told the Tribunal that she ran a business trading at Federation Square at the same time as Old Canberra Photographics was operating. She stated that she met the applicant when she came into her shop to discuss opening a business. Later she collected mail for the applicant and Mr Pitson, which they would pick up or she would deliver to them in what she took to be their shop. She had no recollection of them performing manual tasks but stated that she had independent recall of the business and the applicant being there in Federation Square.
ms e. cantello
Ms Cantello, publican, prepared a statement dated 9 September 1999 (ST24) in relation to these proceedings. In oral evidence in support of her statement, she told the Tribunal that she believed Old Canberra Photographics to be owned by the applicant and Mr Pitson. She stated that she saw the applicant on a daily basis for about the first two months that Old Canberra Photographics was open, and that the contact tapered off after that, as that business' hours became more irregular. She would have tea with the applicant to discuss business in general terms. She recalled seeing the applicant performing minor repairs on costumes, sewing buttons and the like. She further stated that the applicant's business appeared to be very busy at times, particularly on weekends, and she would see queues of people outside. She estimated that the business would have served hundreds of people over the period of time in which it was open.
ms k. meredith
Ms Meredith, nurse, is currently working as a director of an immunisation strategy and is a prior employee of the respondent. She prepared two written statements dated 6 September 1999 (ST22) and 1 October 1999 (ST29) in regard to this matter.
In oral evidence in support of her statements she told the Tribunal that she met the applicant, whom she then knew as Ms Russell, in the early 1990s whilst she worked with Community Aid Abroad part-time, whilst studying at University. She stated that she gained the impression that the applicant was a well-connected socially intimidating and adept person. She visited the applicant's home in the early 1990s and recalled general talk about the production of the Australian Tibet Council newsletter, as she was interested in such matters for Community Aid Abroad. She recalled seeing that one room had a photocopier in it, along with a desk and computer, and stated that the applicant told her that she did her work in that room.
In the mid 1990s, Ms Meredith worked for the respondent, administering a rehabilitation and return to work programme known as New Horizons. One of the files under her direction was the applicant's. Her job involved organising appointments with Dr Dunlop, whom she considered to be one of the leading rehabilitation physicians in Canberra. She told the Tribunal that she was unaware that Ms Russell was Ms Hashman, and spoke to Ms Hashman on the phone about the programme. She told the Tribunal that Ms Hashman was hysterical and abusive and had an inability to form a useful conversation, she "appeared quite mad". She stated that Ms Hashman was the least cooperative of the New Horizons participants, and would not participate in any way, despite being cleared by Dr Dunlop.
Ms Meredith stated that she had no opinion on whether or not the applicant was sick, as her job was to implement what Dr Dunlop had reported on all participants. She denied in, cross-examination, ever threatening the applicant, and stated that she tried to inform the applicant that if she failed to attend rehabilitation, that her benefits could possibly be cut. She told the Tribunal that she could not have threatened to cut off the applicant's benefits, as she had no authority in that regard. She considered that there was no reason that she would want to give the applicant a hard time. She told the Tribunal that it was some time later that she actually made the connection between Ms Hashman and Ms Russell.
ms a. weekes
Ms Weekes was previously employed as an office manager at Veetemp Heating and Airconditioning, a company, which was involved, in the development project at Yarralumla. She prepared a written statement dated 2 April 1998 (ST1) in relation to these proceedings. In oral evidence in support of her statement, she told the Tribunal that she recalled speaking to the applicant on at least six occasions and that the applicant displayed a detailed knowledge of the works in progress at the Yarralumla development site. She stated that the applicant would discuss accounts and account payment, and called for tradesmen and about dates for completion of certain jobs.
mr t. atchinson
Mr Atchinson is employed with the Department of Urban Services and prepared a written statement dated 15 April 1998 (ST3) in relation to these proceedings. He recalled the applicant making a strong impression on him in 1995 and recalled specific details of his contact with the applicant by reference to his contemporaneous notes of conversations. He told the Tribunal that the applicant contacted him in an effort to get information to assist with a claim in relation to statutory indemnity insurance in relation to the Yarralumla development. He stated that the applicant displayed a knowledge of the matter and gave details about the project. He stated further that she had a good grasp of business matters.
mr s. howe
Mr Howe is the managing director of Veetemp Heating and Airconditioning. He prepared a written statement dated 21 April 1998 (ST4) in connection with this matter. In oral evidence in support of his statement he told the Tribunal that he had a few dealings with the applicant regarding a disputed payment connected with the Yarralumla development.
mr wayne and mr warren arons
Both Mr Wayne and Mr Warren Ahrens were involved in the Yarralumla development, taking over the completion of the project after the first builder went "broke". They prepared written statements dated 9 August 1998 (ST9) and 27 June 1998 (ST5) respectively. Mr Warren Ahrens met the applicant on site several times, and saw her there on a few other occasions.
In oral evidence, Mr Wayne Ahrens, (who was more directly involved as site supervisor), told the Tribunal that he saw the applicant a number of times within the first couple of weeks of the first builder going "broke" (in or about July 1995) and that there were daily site visits by either the applicant and/or Mr Pitson. He stated that he subsequently had fortnightly meetings with the applicant and Mr Pitson about payment, and that the applicant had too much involvement with matters on site to simply be considered as having "an interest" in the project. He stated that he had daily contact with the applicant initially in or about July 1995, and maybe twice per week after the initial period.
other evidence

The Tribunal notes the extensive evidence before it in documentary form, as one might expect for a matter extending over so many years. In particular, the Tribunal has paid careful attention to the medical reports contained in the documentary evidence before it, but feels that it is unnecessary to detail all such material herein. It notes that the doctors that were to give oral evidence for the respondent were not required for cross-examination by the applicant.
applicant's submissions
Ms Tonkin submitted, on behalf of the applicant, that the applicant was a credible witness, who only had minor involvement in the various activities outlined in the matter, and that the respondent had not demonstrated any great involvement contrary to the applicant's evidence. She further submitted that the applicant had behaved in accordance with medical advice in relation to all rehabilitation matters, and presented properly to doctors as requested.
Ms Tonkin submitted that the respondent has had some five and a half years to catch the applicant out on video, but has failed to do so. She submitted that the videos before the Tribunal showed no inconsistencies to what the applicant has claimed to be able to do in both her evidence before the Tribunal and to various doctors over the years. She further submitted that no appropriate Commonwealth employment has ever been offered and that it was impossible to determine on the medical evidence when the applicant ceased to have an ongoing problem. In her submission, such evidence suggests to the contrary, in that the applicant continues to have an ongoing problem.
respondent's submissions
Mr Watson submitted, on behalf of the respondent, that the evidence does not support a finding that the applicant is incapacitated for work, and that the applicant's only argument is total incapacity, which is not demonstrated. He further submitted that in the absence of any objective medical evidence, the Tribunal must address the issue of credibility, and in that regard, there is an inconsistency between what the applicant claims to be able to do and what she actually does. He referred to her travel and involvement in the Yarralumla development, the Tibetan activities, and Old Canberra Photographics.
Mr Watson submitted that the applicant tailored her evidence having viewed the 1997 video but has presented to various doctors inconsistent to the video evidence. He also submitted that she was an evasive witness, and that Dr Littlejohn's opinion should be preferred.
discussion and findings
The Tribunal has only briefly set out the evidence and submissions, but takes all the material before it into account in coming to its decision. It has given careful attention, in particular, to the extensive history of medical reports dating back to the 1980s.
Section 19 of the Act establishes the respondent's liability for incapacity payments, with sub-section 19(3) relevantly providing that the respondent is liable "for each week during which the employee is incapacitated". Whilst there was some argument at the bar table as to when (if at all) it may be said that the applicant was no longer incapacitated for work, the decision under review purports to consider the issue as at the date of review. In the narrow sense therefore, in reviewing that decision, the task of the Tribunal is to consider the extent of incapacity as at that time. Necessarily in the context of the present application however, the Tribunal needs to bear in mind and consider the full extent of the history of this matter.
There is no dispute that the applicant has had an accepted injury for the purposes of the Act, and has indeed been in receipt of long standing incapacity payments and medical expenses. In that regard, there is a plethora of medical documentation which has led to both the acceptance of liability by the respondent, and the payment of incapacity payments. The respondent now alleges, however, that the applicant is not now incapacitated as a result of her accepted employment-related condition, and considers further that, as a result, she no longer requires payment in respect of medical expenses related to that condition.
The essence of the respondent's case, is to challenge the applicant's credibility. It puts forward the proposition that the applicant has demonstrated a far greater capacity in actuality than what she has presented to various doctors and claimed to the respondent over time and accordingly, this is the crucial issue before the Tribunal.
The Tribunal did not find the applicant to be an impressive witness. It finds that she was equivocal and evasive in answering questions. Whilst at times Mr Watson's questioning style bordered on being inappropriate in civil proceedings, the import of his cross-examination was to draw out many inconsistencies in the applicant's evidence, which, in the Tribunal's opinion, have not been adequately explained by the applicant.
The applicant has been engaged in a number of "hobbies" over the years, or "taken an interest" in a number of activities, none of which she would describe as work. The overall impression gained by the Tribunal from the applicant's evidence in relation to her Tibetan activities, the Yarralumla development and the Old Canberra Photographics business, was that the applicant was being far from forthcoming as to the true extent of her involvement in these matters.
Although the applicant sought to minimise her involvement in Tibetan affairs, there is a large volume of contrary documentary evidence. The Tribunal accepts that whilst her involvement in recent years may have diminished, she has been variously involved as the National Director of the Australian Campaign for Tibet, the Federal Government Liaison Officer for the National Executive of Tour Groups (Exhibit R18), involved in the incorporation of the Australian Tibet Council, the Australian Campaign for Tibet and Ticket Information Office. She has used her address and phone number as the contact point for many of the activities with which she was involved (by way of illustration see Exhibits R18, R19, R20, R22, R24, R25, R26, and R27). She was involved in organising a conference, and listed her address as that to which people were to reply by way of registration (Exhibit R29). The Tribunal does not accept her evidence in this regard, which it found to be less than adequate by way of explanation.
By way of example, some time was spent in evidence in relation to the photocopier at her home. As the evidence mounted up in that regard, so the applicant's story kept changing. It was initially "some old thing that Mr Pitson got somewhere" but the applicant was then suddenly able to recall that he must have taken a phone call about it in response to an advertisement in the Tibet Council Newsletter, which had again listed the applicant's home phone number as a contact point. Ms Meredith recalled the applicant showing her a room which was described as the room where the applicant did her work, and the Tribunal has no doubt that this was in fact the case. The applicant was clearly working, albeit for what may have been worthy causes. The very fact that she was engaged in all this work puts her level of incapacity into dispute.
This is further put into dispute with regards to the Old Canberra Photographics business. Whilst the Tribunal accepts that recalling events of some years past is difficult, the applicant's memory during the hearing could be described as being selectively good, or convenient. Clearly there are discrepancies between the other witnesses as to the specifics of what occurred back in the early 1990s in Federation Square, but the Tribunal found Ms Cantello in particular, to be a no nonsense forthright witness. She has no vested interest in this matter, and whether or not her recall was affected by what the Comcare investigator told her, she has a clear recollection, which the Tribunal accepts, of the applicant being at Old Canberra Photographics daily in the initial phase, and regularly after that, doing things which would again constitute work. That the business was simply set up for Mr Pitson's daughter flies in the face of both the documentary evidence, and the contrary oral testimony, which suggests that the applicant was more deeply involved in this business venture than she would lead the Tribunal to believe.
In relation to the Yarralumla development, the Tribunal does not accept the applicant's evidence of a minimal involvement and passing interest in colour schemes and the like. It finds to the contrary that she was deeply involved in this venture, and that it took up a lot of her time, as one might expect of someone embarking on a venture of this scale. Ms Tonkin cross-examined the Ahrens brothers as to the applicant's involvement, and elicited testimony that after the collapse of the first builder, cash flow was critical. Of course the applicant and Mr Pitson found the situation difficult, and had to ensure that things were continuing to progress. This is all understandable, but the important point to note, is that the Tribunal's clear impression is that it was the applicant herself who attended to matters (as further demonstrated by Ms Weekes' evidence). Mr Atchinson, with the benefit of contemporaneous notes, could recall the applicant having a thorough working knowledge of the project. This is borne out in the written correspondence bearing her name (see Exhibit R10 and the typed letters and handwritten facsimiles contained in Exhibit R11 by way of illustration). The fact that she did do this demonstrates a capacity which is contrary to the total incapacity for work which the applicant maintains. The Tribunal must pause to ponder that if the applicant could deal with all these matters, why could she not do similar administrative and organisational duties in the workforce?
In this regard, the applicant contends that no suitable rehabilitation programme was offered. Contrary to this, the Tribunal has the evidence of Ms Meredith, who was cross-examined at length by Ms Tonkin. Again, Ms Meredith has no vested interest in this matter and the Tribunal found her to be an impressive witness. It accepts her version of the events surrounding the rehabilitation programme offered to the applicant in about 1994. It is apparent from the evidence that the applicant adopted a belligerent attitude towards returning to work. Whilst she may have had genuine concerns about the effects of returning to work, it would have been reasonable behaviour to cooperate to a much greater extent than what the evidence suggests she actually did.
The applicant also gave evidence as to her overseas travel. The Tribunal accepts that most of the trips have been of short duration, excepting of course, the 11 months that the applicant spent travelling in Europe. Quite correctly, Mr Watson asked the applicant how she could possibly travel so extensively given her level of incapacity. The Tribunal found the applicant's answers to that line of questioning to be particularly unimpressive. Even were the Tribunal to believe that the applicant was extremely adept at light packing, had all the assistance in the world in carrying items about the place (bearing in mind her partner's chronic fatigue syndrome), and slowly meandered through Europe, extensive travel of any description is exhausting by its very nature. It necessarily requires some considerable degree of lifting, carrying and moving about, attending to all the tasks of accommodation, food and travel arrangements. To travel as extensively as the applicant has, would, in the Tribunal's opinion, require a degree of capacity somewhat greater than what the applicant has presented to the Tribunal. Such travel is at the very least comparable in its level of activity to what one might expect to encounter in performing a range of duties found in the applicant's prior employment. The Tribunal has difficulty accepting that the applicant was totally unable to contemplate any sort of a return to work, but found it possible to travel to the extent that she has done, and finds there to be an inconsistency in this evidence.
In relation to the video evidence, there was a marked difference in the applicant's evidence in relation to the 1997 video, to which she had prior access, and the October 1996 video to which she did not. In relation to the latter, she agreed that it could be perceived as inconsistent that she was wearing gardening gloves. She is seen coming and going from the Yarralumla development site, sweeping with a broom of some sort, sitting on the grass and opening and closing the car boot at one stage. Taken as a whole, the Tribunal finds that the October 1996 video evidence supports its earlier conclusions as to the level of the applicant's involvement in the Yarralumla development project. It displays the applicant engaged in a number of activities that contradict her claim of total incapacity, and suggest a level of involvement above and beyond a mere passing interest.
Turning to the medical evidence briefly, given the conclusions which the Tribunal has reached as set out herein, it prefers the medical opinion of Dr N. McGill, as stated in his report dated 4 October 2000 (Exhibit R7), namely that:
"…
This 49 year old lady has cervical spondylosis in the moderately severe range accounting for restriction of neck movement and discomfort and grating in her neck. She also has a long history of psychological problems dating from her young life and Dr Saboisky in his report described a deterioration of circumstances outside her work place (marriage break up and hereditary dementing illness of her mother) in the period prior to her stopping work. The description of her initial musculoskeletal symptoms that she provided today emphasised her psychological reaction to her symptoms rather than being a description of a physical disorder. Her comment that when she was totally disabled she would attempt to brush her teeth by holding the toothbrush still and waving her head around was one example of the type of description which was in keeping with an abnormal psychological state rather than a response to a physical problem.
On examination the only significant abnormality was the presence of cervical spondylosis which clearly is unrelated to her previous work duties. That disorder accounts for her neck symptoms but cannot account for the majority of her symptoms nor her periods of alleged incapacity in the past.
She does not have evidence of any current physical condition which would prevent her from performing the normal duties for which she was employed previously.
With respect to diagnosis, she has cervical spondylosis. She reports a long history of pain for which there is no physical explanation. Without attempting to determine the genuineness of her feelings, a label of chronic pain syndrome could be used. The differentiation between malingering and genuine pain on a psychological basis, I cannot make on the basis of the information currently available to me.
There is no physical condition present related to her previous work. Her cervical spondylosis is entirely constitutional.
…"
It also notes Dr McGill's conclusions having viewed the 1997 video (Exhibit R8) which are also consistent with the Tribunal's conclusions herein.
The Tribunal concludes on the evidence before it, that any pain suffered by the applicant as at the date of the reviewable decision, and indeed as at the current time, is not related to the condition which has had some connection to her employment, and is either related to her cervical spondylosis condition, or an unrelated psychological condition.
This is not inconsistent with Dr Thornton's evidence that the applicant was in pain during the time she stayed with Dr Thornton, as Dr Thornton accepted that she did not know the cause of the applicant's pain, and did not wish to speculate. Clearly the applicant does suffer pain due to her cervical spondylosis, but given the evidence before the Tribunal, it is not satisfied that she remains incapacitated as a result of her previously accepted condition. There are simply far too many inconsistencies in her evidence for the Tribunal to place any reliance upon it as an accurate reflection of her level of incapacity over the past number of years, and there is a great volume of evidence to contradict what the applicant told the Tribunal.
In those circumstances, the decision under review is the correct one, and the Tribunal so finds.
decision
For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .................(Signed)...................................................
  Personal Assistant
Date/s of Hearing  4, 5 & 6 June 2001
Date of Decision       13 July 2001
Counsel for the Applicant             Ms A. Tonkin
Solicitor for the Applicant              Lander & Co
Counsel for the Respondent        Mr G. Watson
Solicitor for the Respondent        Phillips Fox