Kreka and Australian Postal Corporation - [2001] AATA 213

DECISION AND REASONS FOR DECISION [2001] AATA 213

ADMINISTRATIVE APPEALS TRIBUNAL )

)No N1999/271 N1999/667 N1999/899

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MARIA KREKA
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member

Date21 March 2001
PlaceSydney

Decision      1.         As regards N1999/271 the Tribunal sets aside the decision under review. 2.           As regards N1999/667 the Tribunal sets aside the decision under review. 3.         As regards N1999/899 the Tribunal varies the decision under review by deciding that liability to pay compensation ceased on and from 23 October 1998. The Tribunal notes that, although two reviewable decisions are set aside, this occurs as a result of the decision in N1999/899 that is favourable to the Respondent. The Respondent is not liable to pay the costs of the Applicant.
   …………………………..
  Senior Member
CATCHWORDS
Australian Postal Corporation – workers compensation – return to work program – incapacity payments – back pain – non-organic condition – whole person impairment – permanent impairment – workplace accident – surveillance videotape – loss of normal movement – significant permanent residual disability – disc degeneration
Safety, Rehabilitation and Compensation Act 1988, ss14, 16, 19, 24, 27, 37

REASONS FOR DECISION

Mr M J Sassella, Senior Member Dr J D Campbell, Member

Mrs Maria Kreka ("the Applicant") seeks a review of three decisions of the Australian Postal Corporation ("the Respondent"). The first decision, dated 12 February 1999, affirmed a decision that the Applicant was fit to participate in a Return To Work Program dated 23 October 1998. The second decision, dated 4 May 1999, affirmed a decision that the Applicant was entitled to compensation under section 19 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in accordance with the Return To Work Program from 17 March 1999. The third decision, dated 26 May 1999, affirmed a decision that the Applicant was entitled to no further compensation in respect of incapacity on and from 18 March 1999 and that the Respondent's liability to pay compensation to the Applicant for all other heads of compensation ceased on 23 April 2000.
At the hearing of these applications the Applicant was represented by Mr M Connolly of counsel and Ms R Henderson appeared for the Respondent. The following material was marked as exhibits:

Exhibit No Description Date
TD1 TD2 TD3 A1 A2 A3 A4 A5 A6 A7 A8 A9 A10 A11 R1 R2 R3 R4 R5 R6 R7 R8 R9 R10 R11 R12 R13 R14 R15 R16 R17 Tribunal Documents for N1999/271 (T1-T81) Tribunal Documents for N1999/667 (T1-T20) Tribunal Documents for N1999/899 (T1-T17) Report of Dr Mahony (1 page) Report of Dr Mahony (6 pages) Report of Dr Whitelock Report of Dr Patrick Report of Dr Dinnen Report of Dr Berley Report of Dr Hosking Report of Dr Mahony Report of Dr Mahony Report of Dr Chan Applicant's Amended Statement of Facts and Contentions Report of Dr Gliksman Report of Dr Maxwell Report of Dr Cant Report of Dr Cant Report of Dr Boland Report of Dr McGill Respondent's Statement of Facts and Contentions Surveillance video Report of Dr Carr Report of Dr Gliksman Report of Dr McGill Report of Dr Cant Report of Dr Carr Report of Dr Donohoo Report of Dr McGee Report of Dr Spencer Report of Dr Cant 12 July 1999 12 July 1999 15 September 1999 18 October 1999 26 October 1999 29 October 1999 6 December 1999 18 February 2000 7 March 2000 17 March 2000 6 September 1999 20 May 1999 17 June 1999 2 July 1999 4 March 2000 9 December 1999 18 February 2000 10 August 1999 16 April 1999 17 April 1999 25 June 1999 13 March 2000 11 January 2000 11 January 2000 13 January 2000 21 February 2000 3 August 1998 22 September 1995 12 August 1998 4 August 1998

Application in relation to matter number N1999/271

On 25 June 1998 the Applicant, Mrs Kreka, an employee of the Australian Postal Corporation, completed an incident report form in respect of what appears to have been "muscular pain" in "left and right shoulder – head and neck" (T12). She had been cleaning out the canisters in a beverage machine. She came to the brewing canister, the heaviest of them. When she lifted the brewing canister the heavy door of the vending machine swung out and tipped the machine forward. Mrs Kreka put her hands up to stop the machine from falling on top of her. The section 37 documents were not legible so this version may be slightly inaccurate.
On 30 June 1998 Mrs Kreka lodged a compensation claim in respect of the same incident (T14). This was for "severe lower and upper back pain also in both arms and shoulders". Mrs Kreka mentioned that about six years previously a claim had been made when the door of a refrigerator fell off and struck her. The documents on this claim are in T4 and T7.
On 19 August 1998 a delegate within the Respondent agency wrote to Mrs Kreka informing her that liability had been accepted for her injuries which were described as "soft tissue injury of upper limbs and upper back" (T22). Liability was to cease on 4 September 1998. This was later extended to 20 September 1998 (T25).
On 29 September 1998 Mrs Kreka sought a reconsideration of the decision (T31). Mrs Kreka considered that she was not fit to return to work and so required ongoing compensation coverage. On 7 October 1998 a delegate advised Mrs Kreka that she had completed a reconsideration and that her compensation entitlements would resume (T34).
On 16 October 1998 a delegate wrote to Mrs Kreka requiring Mrs Kreka to upgrade to full duties in her return to work program under s 37(1) of the Act (T40). On 27 October 1998 the same delegate wrote to Mrs Kreka noting that Mrs Kreka had advised over the telephone that she did not agree with the proposal (T44). She said that one of her doctors, Dr Spencer, had told her general practitioner that Mrs Kreka was not fit for return to full duties. The delegate invited Mrs Kreka to provide specialist advice as to why she was unfit to return to full duties. She was warned that failure to provide a reasonable explanation for her non-participation in the upgrade program would result in suspension of her rights under the Act from 30 November 1998 until she commenced the approved rehabilitation program.
On 20 November 1998 Mrs Kreka wrote to the Respondent providing her reasons for refusing to upgrade her duties (T52). She was finding it difficult and painful to work restricted duties at three days a week, four hours a day. Her specialist, Dr Adler was of the view that her restricted duties might be adversely affecting her back, neck and right shoulder. She was participating in a pain management program recommended by Dr Adler.
Because certain investigations had been ordered the date of possible suspension of Mrs Kreka's payments was adjusted to fall after receipt of the results of those investigations (T56).
On 12 February 1999 the delegate wrote to Mrs Kreka stating that a return to work program dated 23 October 1998 was in her view appropriate. This was a reviewable decision (T70).
On 22 February 1999 the Applicant lodged with the Tribunal an application for review of the decision of 12 February 1999 (T1).
Application in relation to matter number N1999/667
This application stemmed from the same original incident and compensation claim as application number N1999/271. It relates to communications and decisions that occurred after the dispatch by the Respondent of the reviewable decision in that earlier application.
On 17 March 1999 a delegate in the Respondent agency wrote to Mrs Kreka stating that her payments would, as of that date, be made in accordance with the return to work program that the Respondent had specified, irrespective of whether Mrs Kreka complied with it (T8). That same letter also warned Mrs Kreka that, in the writer's view, because of lack of objective evidence in support of Mrs Kreka's compensation claim he proposed that Australia Post's liability should cease on and from 16 April 1999. Mrs Kreka was given until that date to provide any evidence in support of continuation of liability.
On 24 March 1999 a delegate within the Respondent agency wrote to Mrs Kreka stating that she would receive no further payments as of 17 March 1999 on the basis of her failure to engage in the approved return to work rehabilitation program (T8).
On 15 April 1999 Mrs Kreka's solicitor sought a reconsideration of the decisions referred to in the letters dated 17 and 24 March referred to above (T14). On 4 May 1999 the decision-maker reconsidering the primary determinations affirmed the decision of 24 March 1999 to the effect that Mrs Kreka would be paid in accordance with her return to work program as of 17 March 1999 (T17). This was a reviewable decision.
On 6 May 1999 Mrs Kreka applied to the Tribunal for review of the reviewable decision in T17 (T1).
Application in relation to matter number N1999/899
This application stemmed from the same original incident and compensation claim as application numbers N1999/271 and N1999/667. It relates to communications and decisions that occurred after the dispatch by the Respondent of the reviewable decision in N1999/667.
On 4 May 1999 the Respondent notified the Applicant of its decision that it denied any liability for any non-organic condition from which Mrs Kreka apparently suffered and for the numerous physical injuries in respect of which she had claimed (T7). The decision was effective as regards incapacity for work on and from 18 March 1999. For other heads of compensation liability ceased on and from 23 April 1999.
On 13 May 1999 the Applicant lodged with the respondent a claim for compensation for permanent impairment (T5, T9). It was stated to be for 10% whole person impairment relating to the neck and 15% whole person impairment in relation to the back.
On 18 May 1999 the Respondent advised the Applicant's solicitor that all liability had ceased and so Mrs Kreka had no entitlement to payment for permanent impairment (T11).
On 20 May 1999 the Applicant's solicitor sought a reconsideration of the decision in T7 (T10). On 26 May 1999 a delegate affirmed the decision under review (T12). This was a reviewable decision.
On 7 June 1999 the Applicant's solicitor wrote to the Respondent apparently again claiming for permanent impairment (T14). This was taken to be a request for reconsideration and on 8 June 1999 the Respondent wrote to the Applicant's solicitor to say that no action would be taken on the request for reconsideration (T15) in view of the reviewable decision in T12.
In summary then the Applicant is challenging decisions with the following effects:
1)the Respondent has denied all liability for payment of any form of compensation to Mrs Kreka; and
2)even if underlying liability exists, the Respondent has decided that regular payments are to be made only in accordance with a decision as regards Mrs Kreka's return to work program.

Relevant legislation

The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988, in particular sections 14, 16, 19, 24, 27 and 37.
"Compensation for injuries
14. (1) Subject to this Part, Comcare is liable to pay
compensation in accordance with this Act in respect of an injury
suffered by an employee if the injury results in death, incapacity
for work, or impairment.
(2) Compensation is not payable in respect of an injury that is
intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is
caused by the serious and wilful misconduct of the employee but is
not intentionally self-inflicted, unless the injury results in
death, or serious and permanent impairment.
…
Compensation in respect of medical expenses etc.
16. (1) Where an employee suffers an injury, Comcare is liable to
pay, in respect of the cost of medical treatment obtained in
relation to the injury (being treatment that it was reasonable for
the employee to obtain in the circumstances), compensation of such
amount as Comcare determines is appropriate to that medical
treatment.
(2) Subsection (1) applies whether or not the injury results in
death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical
treatment shall, in a case where the treatment involves the supply,
replacement or repair of property used by the employee, be deemed to
include any fees or charges paid or payable by the employee to a
legally qualified medical practitioner or dentist or other qualified
person for a consultation, examination, prescription or other
service reasonably required in connection with that supply,
replacement or repair.
(4) An amount of compensation payable by Comcare under subsection
(1) is payable:
(a) to, or in accordance with the directions of, the employee;
(b) if the employee dies before the compensation is paid and
without having paid the cost referred to in subsection (1) and
another person, not being the legal personal representative of the
employee, has paid that cost-to that other person; or
(c) if that cost has not been paid and the employee, or the legal
personal representative of the employee, does not make a claim for
the compensation-to the person to whom that cost is payable.
(5) Where a person is liable to pay any cost referred to in
subsection (1), any amount paid under subsection (4) to the person
to whom that cost is payable is, to the extent of the payment, a
discharge of the liability of the first-mentioned person.
(6) Subject to subsection (7), if:
(a) compensation in respect of the cost of medical treatment is
payable; and
(b) the employee reasonably incurs expenditure in doing either or
both of the following:
    (i) making a necessary journey for the purpose of obtaining that
medical treatment;
    (ii) remaining, for the purpose of obtaining that medical
treatment, at a place to which the employee has made a journey for
that purpose;
Comcare is liable to pay compensation to the employee:
(c) in respect of the journey-of an amount worked out using the
formula:
specified rate per kilometre x number of kilometres travelled
where:
"specified rate per kilometre" means such rate per kilometre as
the Minister specifies by notice under this subsection in respect of
journeys to which this subsection applies;
"numbers of kilometres travelled" means the number of whole
kilometres Comcare determines to have been the reasonable length of
such a journey as it was necessary for the employee to make
(including the return part of the journey);
(d) in respect of the employee remaining for the purpose of
obtaining the treatment-of an amount equal to the expenditure so
reasonably incurred in remaining for that purpose.
(7) Comcare is not liable to pay compensation under subsection (6)
unless:
(a) the reasonable length of such a journey as it was necessary
for the employee to make (including the return part of the journey)
exceeded 50 kilometres; or
(b) if the journey made by the employee involved the use of public
transport or ambulance services-the employee's injury reasonably
required the use of such transport or services regardless of the
distance involved.
(8) The matters to which Comcare shall have regard in deciding
questions arising under subsections (6) and (7) include:
(a) the place or places where appropriate medical treatment was
available to the employee;
(b) the means of transport available to the employee for the
journey;
(c) the route or routes by which the employee could have
travelled; and
(d) the accommodation available to the employee.
(9) Where:
(a) an employee suffers an injury;
(b) a person has reasonably incurred expenditure in connection
with the transportation of the employee, or, if the employee has
died, of his or her body, from the place where the injury was
sustained to a hospital or similar place, or to a mortuary; and
(c) the employee, or the legal personal representative of the
employee, does not make a claim for compensation in respect of that
expenditure;
Comcare is liable to pay compensation to the person who incurred the
expenditure of an amount equal to the amount of that expenditure.
…
Compensation for injuries resulting in incapacity
19. (1) This section applies to an employee who is incapacitated
for work as a result of an injury, other than an employee to whom
section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay compensation to
the employee in respect of the injury, for each of the first 45
weeks (whether consecutive or otherwise) during which the employee
is incapacitated, of an amount calculated under the formula:
  NWE - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to
earn in suitable employment.
(3) Subject to this Part, Comcare is liable to pay to the
employee, in respect of the injury, for each week during which the
employee is incapacitated, other than a week referred to in
subsection (2), compensation:
(a) where the employee is not employed during that week-of an
amount equal to 75% of his or her normal weekly earnings less the
amount (if any) that he or she was able to earn during that week in
suitable employment;
(b) where the employee is employed for 25% or less of his or her
normal weekly hours during that week-of an amount that, when added
to the amount that he or she was able to earn during that week in
suitable employment, results in an amount equal to 80% of his or her
normal weekly earnings;
(c) where the employee is employed for more than 25% but not more
than 50% of his or her normal weekly hours during that week-of an
amount that, when added to the amount that he or she was able to
earn during that week in suitable employment, results in an amount
equal to 85% of his or her normal weekly earnings;
(d) where the employee is employed for more than 50% but not more
than 75% of his or her normal weekly hours during that week-of an
amount that, when added to the amount that he or she was able to
earn during that week in suitable employment, results in an amount
equal to 90% of his or her normal weekly earnings;
(e) where the employee is employed for more than 75% but less than
100% of his or her normal weekly hours during that week-of an amount
that, when added to the amount that he or she was able to earn
during that week in suitable employment, results in an amount equal
to 95% of his or her normal weekly earnings; and
(f) where the employee is employed for 100% of his or her normal
weekly hours during that week-of an amount that, when added to the
amount that he or she was able to earn during that week in suitable
employment, results in an amount equal to 100% of his or her normal
weekly earnings.
(3A) If, as a result of the incapacity:
(a) the amount per week payable to the employee in respect of his
or her continued employment is reduced; and
(b) a pension under a superannuation scheme is payable to the
employee;
subsection (3) applies in relation to the employee in relation to a
week during which the employee is incapacitated as if the references
in the subsection to the amount he or she was able to earn during
the week in suitable employment were instead references to the sum
of that amount and any amount of the pension referred to in
paragraph (b) that is payable to the employee in respect of that
week.
(4) In determining, for the purposes of subsections (2) and (3),
the amount per week that an employee is able to earn in suitable
employment, Comcare shall have regard to:
(a) where the employee is in employment-the amount per week that
the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee
received an offer of suitable employment and failed to accept that
offer-the amount per week that the employee would be earning in that
employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee
received an offer of suitable employment and, having accepted that
offer, failed to engage, or to continue to engage, in that
employment-the amount per week that the employee would be earning in
that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee
received an offer of suitable employment on condition that the
employee completed a reasonable rehabilitation or vocational
retraining program and the employee failed to fulfil that
condition-the amount that the employee would be earning in that
employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has
failed to seek suitable employment-the amount per week that, having
regard to the state of the labour-market at the relevant time, the
employee could reasonably be expected to earn in such employment if
he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the
employee-whether the employee's failure to accept an offer of
employment, to engage, or to continue to engage, in employment, to
undertake, or to complete, a rehabilitation or vocational retraining
program or to seek employment, as the case may be, was, in Comcare's
opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
(5) Where an amount of compensation calculated under subsection
(3) exceeds 150% of the amount called the "Average Weekly Ordinary
Time Earnings of Full-time Adults", as published from time to time
by the Australian Statistician, the amount so calculated shall be
reduced by an amount equal to the excess.
(6) Where an amount of compensation calculated under paragraph (3)
(a) is less than the minimum earnings, the amount so calculated
shall be increased by an amount equal to the difference between that
amount and the minimum earnings.
(7) For the purposes of subsection (6), the minimum earnings of an
employee shall be taken to be:
(a) $202, or, if subsection (8) or (9) applies in relation to the
employee, the sum of $202 and the amount or amounts required to be
added under whichever of those subsections applies; or
(b) an amount equal to 90% of the employee's normal weekly
earnings;
whichever is less.
(8) If there are prescribed persons wholly or mainly dependent on
the employee, there shall be added to the amount of $202 specified
in paragraph (7) (a) the amount of $50.
(9) If there are prescribed children in relation to whom this Act
applies (whether born before, on or after the date of the injury)
wholly or mainly dependent on the employee, there shall be added to
the amount of $202 specified in paragraph (7) (a) the amount of $25
for each of those children, but an amount shall not be so added for
a child in relation to any period before the date of birth of that
child.
(10) If a prescribed child is:
(a) a prescribed person in relation to the employee; and
(b) the only prescribed person who is wholly or mainly dependent
on the employee;
subsection (9) does not apply in relation to that child.
(11) If 2 or more prescribed children are each:
(a) a prescribed person in relation to the employee; and
(b) wholly or mainly dependent on the employee;
subsection (8) applies in relation to one of those children and
subsection (9) applies in relation to the remainder of those
children.
(12) In this section, "prescribed person", in relation to an
employee, means:
(a) the spouse of the employee; or
(b) any of the following persons, being a person who is 16 or
more:
    (i) the father, mother, step-father, step-mother, father-in-law,
mother-in-law, grandfather, grandmother, son, daughter, step-son,
step-daughter, grandson, granddaughter, brother, sister,
half-brother or half-sister of the employee;
    (ii) a person in relation to whom the employee stands in the
position of a parent or who stands in the position of a parent to
the employee;
    (iii) a person (other than the spouse of the employee or a
person referred to in subparagraph (i) or (ii)) who is wholly or
mainly maintained by the employee and has the care of a prescribed
child, being a child who is wholly or mainly dependent on the
employee.
(13) For the purposes of the definition of "prescribed person" in
subsection (12), relationships referred to in that definition shall
be taken to include illegitimate relationships and relationships by
adoption and relationships that are traced through illegitimate
relationships or relationships by adoption.
(14) For the purposes of the definition of "prescribed person" in
subsection (12), a person who has the care of a child referred to in
subparagraph (12) (b) (iii) shall not be taken not to be wholly or
mainly maintained by an employee merely because the employee pays
remuneration to the person for caring for that child.
…
Compensation for injuries resulting in permanent impairment
24. (1) Where an injury to an employee results in a permanent
impairment, Comcare is liable to pay compensation to the employee in
respect of the injury.
(2) For the purpose of determining whether an impairment is
permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable
rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to
the employee is such amount, as is assessed by Comcare under
subsection (4), being an amount not exceeding the maximum amount at
the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the
same percentage of the maximum amount as the percentage determined
by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of
the employee resulting from an injury under the provisions of the
approved Guide.
(6) The degree of permanent impairment shall be expressed as a
percentage.
(7) Subject to section 25, where Comcare determines that the
degree of permanent impairment of the employee is less than 10%, an
amount of compensation is not payable to the employee under this
section.
(8) Subsection (7) does not apply to any one or more of the
following:
(a) the impairment constituted by the loss, or the loss of the
use, of a finger;
(b) the impairment constituted by the loss, or the loss of the
use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is
$80,000
…
Compensation for non-economic loss
27. (1) Where an injury to an employee results in a permanent
impairment and compensation is payable in respect of the injury
under section 24, Comcare is liable to pay additional compensation
in accordance with this section to the employee in respect of that
injury for any non-economic loss suffered by the employee as a
result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare
under the formula:
           ($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24
to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide
to be the degree of non-economic loss suffered by the employee.
…
Provision of rehabilitation programs
37. (1) A rehabilitation authority may make a determination that
an employee who has suffered an injury resulting in an incapacity
for work or an impairment should undertake a rehabilitation program
and, where the authority so determines, it may make arrangements
with an approved program provider for the provision of a
rehabilitation program for the employee.
(2) A rehabilitation authority shall not make arrangements with an
approved program provider who is not approved by Comcare under
section 34.
(3) In making a determination under subsection (1), a
rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36 (8);
(b) any reduction in the future liability to pay compensation if
the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee's opportunity to be employed
after completing the program;
(e) the likely psychological effect on the employee of not
providing the program;
(f) the employee's attitude to the program;
(g) the relative merits of any alternative and appropriate
rehabilitation program; and
(h) any other relevant matter.
(4) The cost of any rehabilitation program provided for an
employee under this section shall be paid by the relevant authority
in relation to that employee.
(5) Where an employee is undertaking a rehabilitation program
under this section, compensation is not payable to the employee
under section 19 or 31 but:
(a) if the employee is undertaking a full-time
program-compensation is payable to the person of an amount per week
equal to the amount per week of the compensation that would, but for
this subsection, have been payable under section 19 if the
incapacity referred to in that section had continued throughout the
period of the program; or
(b) if the employee is undertaking a part-time
program-compensation is payable to the employee of such amount per
week as the relevant authority determines, being an amount not less
than the amount per week of the compensation that, but for this
subsection, would have been payable to the employee under this Act
and not greater than the amount per week of the compensation that
would have been payable under paragraph (a) if the employee had been
undertaking a full-time program.
(6) An employee who is entitled to receive compensation under
subsection (5) during a period is not entitled to receive
rehabilitation allowance under the Social Security Act 1991 during
that period.
(7) Where an employee refuses or fails, without reasonable excuse,
to undertake a rehabilitation program provided for the employee
under this section, the employee's rights to compensation under this
Act, and to institute or continue any proceedings under this Act in
relation to compensation, are suspended until the employee begins to
undertake the program.
(8) Where an employee's right to compensation is suspended under
subsection (7), compensation is not payable in respect of the period
of the suspension.

Factual material and Evidence

The following facts and evidence emerged from the section 37 and other documents and from the witnesses' oral evidence at the hearing.
Mrs Kreka's evidence
Mrs Kreka was born on 23 September 1952 in Croatia. She came to Australia in 1968. She worked at Arnotts biscuit factory and then for Rothmans where she stayed for 17 years. She commenced with the Respondent, the Australian Postal Corporation, in 1989. Her work for the Respondent involved the servicing of coca-cola and other machines in the workplace.
In 1992 there was an incident in the workplace involving a refrigerator door. As she opened the refrigerator in the course of her duties the door fell off its hinges and landed on Mrs Kreka. She was thrown against a brick wall. Her head, neck, shoulders and lower back were impacted. In cross-examination Mrs Kreka mentioned that she hit her head on a cabinet attached to the wall. Her Manager, Ms Scragg, was a witness. Mrs Kreka had five weeks away from work starting a week later. This was recreation leave. She said she spent five weeks in bed. She had physiotherapy but there was a surviving pain in her lower back. She returned to normal duties but was assisted in heavy work by friends. She had a reduced capacity to lift weights at first but this later improved. She resumed full household duties. She saw Dr Fong and a physiotherapist at this time. This incident is recorded in the N1999/271, T4-T7.
On 25 June 1998 Mrs Kreka endured another work incident. She said in evidence that a coffee machine "fell at" her. She was servicing it. She was leaning into the machine. It began to fall forward and she held it back upright using her hands. The door opened out, took much of the weight and the machine stabilised, although there is some evidence that it eventually fell to the floor.
In the hearing Mrs Kreka said she had pain in her neck, arms, wrist and upper body. She had three months off work. She had physiotherapy, hydrotherapy and cortisone injections. She returned to work in October 1998 on light duties. On the first day she was encouraged to take it easy but she found it difficult to walk down stairs at the end of the day. She had pain in her neck, arms shoulder, legs, "everything".
Mrs Kreka's light duties have continued. She works four hours a day three days a week. She tried to work four days but could not manage because of pain in shoulder blades, arms and wrists. She goes home, lies on the lounge, has dinner and then goes to bed. At work she lies down for a time each day in the sick room. Before her injuries Mrs Kreka could do the full range of domestic chores. Now she has to rely on her daughter, husband and friends for help.
Domestically, Mrs Kreka's husband suffered a heart attack two days after the June 1998 incident. He now assists Mrs Kreka as best he can. He is self-employed.
Asked to list her symptoms Mrs Kreka said, "My neck's sore, getting in the lock-up stage, between my shoulder blades, my hand's sore, my right leg and my buttock down to my knee is getting numb, so is me fingers on me hands. In the morning, takes the while before I could feel them." (Transcript, 15)
Mrs Kreka described her current duties as counting money, serving customers, making sandwiches, cleaning and washing. She can take breaks. She can alternate between sitting and standing. She does not lift boxes and weights are limited to five kilograms. She said that she had always worked since arriving in Australia. She had enjoyed work in Australia Post before the injury. She used to laugh a lot. Now she is not happy. She is in pain. She is treated differently by others.
In cross-examination Ms Henderson took Mrs Kreka to her compensation claim history. This included:
· A compensation claim in 1986 at Rothmans for right shoulder pain. Drs Fong and Bannister attended to this injury. Mrs Kreka said that the shoulder was sore for only a little while.
· A compensation claim in 1983 for right wrist problems in 1983 incurred while unscrewing a bobbin.
Counsel referred Mrs Kreka to a report for the Respondent dated 9 December 1999 (Exhibit R5) by Dr Boland, a psychiatrist, who reported in direct quotes that Mrs Kreka said, "I have worked for thirty years and I have had no compo previously". Mrs Kreka responded with "I would – I never say that" (Transcript, 19).
Counsel took Mrs Kreka to her incident report from 1992 (N1999/271, T4). Mrs Kreka explained that it was completed on her behalf by someone else at her direction. She agreed that she had reported only pain to neck and base of head. In the hearing she demonstrated the pain sites as at the back of the skull and cervical spine posteriorly down to the upper thoracic. There was no mention in T4 of back pain. However, Mrs Kreka said that the pain from the refrigerator door incident later went down to her lower back.
Counsel queried whether Mrs Kreka was as ill as she said following the 1992 incident. She appears from the Respondent's leave records (N1999/271, T90) to have worked on after the incident until going on recreation leave as of 13 April 1992. Mrs Kreka did not recollect that to have been the case. She thought she was off work pretty much immediately following the event.
Mrs Kreka had said that she was in bed for five weeks as a result of that event. However, counsel suggested that the contemporaneous clinical notes of Dr Chan show something different. Mrs Kreka did not see Dr Chan about lower back pain until 2 May 1992, about four weeks after the incident. This evidence did not accord with Mrs Kreka's evidence in chief. Counsel suggested that Mrs Kreka could not have been as ill as she says if she waited that long to see her doctor. Mrs Kreka in response explained that she had not been in bed for absolutely all of the time during the five-week period. Mrs Kreka also said that she was not prone to seeing her doctor unless a symptom was fairly serious.
Counsel also put to Mrs Kreka that Dr Chan's clinical notes do not show that in 1992 she attributed her lower back symptoms to the detaching of the refrigerator door. Mrs Kreka said that she may not have done so because she was on a holiday and not associating the medical problems she had at the time with compensation.
In later questioning Mrs Kreka said that the site of her greatest and longest lasting pain was in her sacrum.
Mrs Kreka's evidence was that she completed the compensation claim for her 1992 injury (N1999/271 T7) only to gain access to payment for physiotherapy. She received no incapacity payments. She also said that her back caused intermittent pain in succeeding years and she took medication for that pain but worked on regardless.
Counsel put to Mrs Kreka that she had seen other doctors after 1992 such as Dr Dight (about a fever contracted from a mosquito bite) and Dr McGee (a gynaecologist) but had not mentioned any back problems to them. Mrs Kreka responded by explaining that her back condition was not relevant to the symptoms she had that required their intervention. She also said that these doctors had not asked her about any back pain.
Counsel then moved on to the incident that occurred on 25 June 1998 involving the unsteady vending machine. Mrs Kreka said that the injuries she had from this incident were bruising on her arms, shoulder pain, pain in shoulder blades and lower back pain. She had pain also in both wrists. Mrs Kreka said that the bruising was not a worry to her. She mentioned too that her neck was painful from June 1998 and that it started "locking up" from January 1999. When this occurs it lasts about two weeks. Mrs Kreka said she cannot move the neck in any direction when it is "locked". She said that her neck was not locked at the time of the hearing but she was unable to move her head sideways at all when asked to try and do so at the hearing. She twisted her entire upper body. She said that this effect had pertained ever since the 1998 incident.
Mrs Kreka admitted to driving between June 1998 and January 1999 despite her restricted neck movements. She said she drove only short distances. Later she said that driving was limited also because of pain sitting in the driver's seat of the car for any length of time. She said that her limit driving was 10 to 12 minutes.
Mrs Kreka found that her lower back pain worsened during the second half of 1998. She could not bend. She had to squat rather than bend. This has continued since then to be the case.
Counsel asked Mrs Kreka about problems with her leg. Mrs Kreka said these commenced in January 1999.
Counsel put to Mrs Kreka Mr Hosking's observations (Exhibit A7) that Mrs Kreka could lift three kilograms from the floor to waist and from waist to chest and from chest to above the head. Mrs Kreka could not recall how she had done this in view of the restrictions on movement she had earlier indicated. Mrs Kreka said that she would have to squat to pick something up from the ground. She would use both hands to pick up something in front of her. She would be unable to lift weights above five kilograms. Mrs Kreka said that she has pain if she lifts her arms above waist level. Mrs Kreka said she could not swing a lifted object from side to side – she could not rotate her back. In a demonstration requested by Tribunal Member, Dr Campbell, Mrs Kreka was able to rotate 10 to 15 degrees to the left and 30 to 40 to the right. She demonstrated very limited flexion when asked to bend forward.
Mrs Kreka said she walked slowly in the mornings. Then she would walk faster but could walk in total for only 15 or 20 minutes.
Mrs Kreka said she shops for the family, usually with her daughter. She has the vendors put the goods into the car for her and her husband unload the car at home. Mrs Kreka said she would pick up and handle only lightweight shopping herself.
The Respondent then produced a surveillance videotape which was played in the Tribunal. This was Exhibit R8. It was recorded on 16 and 17 and April and 25 June 1999.
It was established that the videotape showed the Applicant. Ms Henderson put a number of matters to Mrs Kreka.
The tape showed Mrs Kreka wheeling a full supermarket trolley. There was no sign of anyone with her who might provide assistance with the goods in the trolley either when loading them into her car or shifting them from her car to her residence. Mrs Kreka observed that she would get help as it became necessary to do these things and the tape shows nothing to the contrary.
At the end of her Tribunal evidence Mrs Kreka answered questions from the Tribunal. From these it emerged that she is right handed. She confirmed that in the 1992 incident her head hit against a medicine cabinet attached to the wall behind her. Her shoulders and back hit the wall itself. As regards the aftermath of the 1992 incident, Mrs Kreka explained that she had back pain for two or three days a month each month after the accident. She said this was not invariable and that it was an average of the frequency. The days of pain could be three or four weeks apart. Between those times she was "not bad".
Ms Tina Ostojic
The next witness was Mrs Kreka's daughter, Ms Tina Ostojic. Ms Ostojic could recall little about the 1992 injury which occurred while she still lived in the family home. She had been used to assisting with the domestic duties since 1991.
Ms Ostojic recalled the 1998 injury rather better. Her mother came home. She said she had hurt her back. She lay on the couch immediately. The next morning she could not get out of bed. Ms Ostojic had to do all the ironing, washing, "everything". She spent all Saturday cleaning the house whereas previously she and her mother had shared that duty. She did gardening. Essentially what she and her mother had shared doing Ms Ostojic had to do alone. Ms Ostojic said that her mother had become quieter since 1998. She is always irritable and never happy.
In cross-examination it was established that Ms Ostojic was intending to tell her current employer for whom she is a temporary employee that she had assisted her mother to visit the doctor rather than tell the employer about the Tribunal. She pointed out that her employment agency was aware that she was supporting her mother at the Tribunal.
Ms Ostojic moved out of her mother's house when she married in August 1999. She and her husband visit Mrs Kreka between once and three times a week. Mrs Kreka cooks for the four people in her house at those times.
Dr D J Roebuck
Dr D J Roebuck, an orthopaedic surgeon, gave evidence for the Applicant. He had provided a report dated 9 March 1999 which was T4 in the documents for N1999/899. In that report physical examination revealed loss of half the normal range of movement in all directions of the neck and back. There was a normal neurological examination in relation to Mrs Kreka's arms and her legs. There was no clinical evidence of nerve root pressure, intra-spinal lesion or disc protrusion in her neck or back. A magnetic resonance imaging (MRI) scan of 17 December 1998 showed damage and intradiscal rupture of T11/12, L1/2, L4/5 and L5/S1 discs. An x-ray of the neck dated 3 August 1998 showed evidence of disc narrowing and degeneration at the C6/7 and C7/T1 spaces. He said there was a significant permanent residual disability in Mrs Kreka's neck and back. He assigned whole person impairment figures of 10% (neck) and 15% (back) under table 9.6 of the Comcare tables.
In oral evidence Dr Roebuck said that the MRI scan showed a diminution in the intensity of the magnetic waves coming back from the disc spaces. This meant that there was a discontinuity of the disc, an intradiscal rupture. The disc was damaged inside itself. There was no disc protrusion. He regarded these observations as consistent with Mrs Kreka's complaints of pain.
Ms Henderson cross-examined Dr Roebuck. She ascertained that, beyond approximations such as "half normal movement", Dr Roebuck had no precise measurements of Mrs Kreka's ability to move her neck or back.
In answer to questions from Tribunal Member, Dr Campbell, Dr Roebuck considered that the second work injury would have been the greater cause of Mrs Kreka's physical problems. Dr Campbell also asked Dr Roebuck to comment on the videotape evidence. The videotape had shown a considerable degree of freedom of movement in the Applicant as she went about the business of shopping. Dr Roebuck responded that it is very difficult to interpret spinal disability from isolated instances on different days. These conditions can be variable depending on a patient's activities and medication usage. He counselled against making conclusions from videotapes unless a tape shows persistent effort at a repetitive movement that the patient has denied ever making. He said that sudden flex and sudden movement do not mean anything at all.
Dr G G Mahony
The next witness was Dr G G Mahony, an orthopaedic surgeon. He provided two reports dated 12 July 1999 (Exhibits A1 and A2), a report dated 18 February 2000 (Exhibit A8) and a report dated 7 March 2000 (Exhibit A9). In Exhibit A1 he assessed Mrs Kreka as having a 50% whole person impairment. This consisted of figures under the Comcare Tables as follows: table 9.1 (right arm 10%; left arm 5%), table 9.2 (right leg 10%; left leg 10%), table 9.6 (cervical spine – two registrations of 15%). In Exhibit A2 Dr Mahony reported on several examinations. In the earlier examination on 16 April 1999 he reported little movement of neck or back "because of guarding". Shoulders moved to 90 degrees of abduction and rotation was restricted to about half normal. As regards upper limbs there was tenderness on palpation of lateral epicondyles and hyperaesthesia on percussing the right median nerve at the wrist. There was nothing else of significance. In the lower limbs straight leg raising and tendon reflexes were normal There was no abnormality of significance in lower limbs.
Dr Mahony reported on investigations. X-rays of the cervical spine (3 August 1998) showed early degenerative changes and some thinning of the C6/7 and C7/T1 disc spaces. There was some enlargement of the transverse process on the left side of C7. Thoracic x-rays of the same date showed degenerative changes at T10 and T11. Lateral views of the lumbar spine suggested early degenerative changes.
He referred to the same MRI scan as Dr Roebuck and ordered electromyography of the cervical nerve roots and median and ulnar nerves which (on 11 May 1999) showed normal results and no evidence of median neuropathy at either wrist nor cervical radiculopathy.
When examined on 24 June 1999 Mrs Kreka again guarded when her neck and back were examined. She moved shoulders to about 75 degrees of abduction. There was the complaint of tenderness on palpating the posterior aspect of the lower humeral area and complaint of less feeling on testing the right hand both ventrally and dorsally when compared to the left. As for the lower limbs, straight leg raising was 45 degrees on both sides. Tendon reflexes and all else were normal.
Summing up, Dr Mahony found that Mrs Kreka had developed symptoms referable to a cervical strain in association with degenerate changes with nerve root irritation affecting the upper limbs, bilateral carpal tunnel syndrome, a thoracic back strain in association with degenerate changes as well as a low lumbar back strain in association with early degenerate changes with nerve root irritation affecting the right lower limb. Numbness in the outer aspect of the right thigh suggested tension within the low discs.
This was said to be consistent with the 1992 incident which produced injuries to her head and thoracolumbar region. The 1998 incident produced added symptoms referable to her neck and arms and aggravated the thoracolumbar region and produced added symptoms referable to nerve root irritation affecting the right lower limb with tension in the low discs. Dr Mahony said it was reasonable that she was having persisting symptoms as described. He recommended physiotherapy and restriction to activities not involving significant bending or lifting or moderate to excessive use of the upper limbs. This was for three four-hour days a week.
On 7 March 2000 Dr Mahony wrote a fourth report (Exhibit A9). This report added little to earlier reports. There was again guarding of the neck. In the back there was a tender thickened area approximately to the posterior aspect of the left 6th rib a little left of mid-line. His conclusions remained as before except that he noted some evidence of thickening of the left trapezius muscle which he considered to be post-traumatic.
In questioning before the Tribunal Dr Mahony considered it reasonable that Mrs Kreka may have worked on after the 1992 incident before going off on holidays. Her concentration on the upcoming holiday would have made her cope with the pain. Nevertheless, the 1992 injury was not trivial.
He was asked about the extent of the 1998 injury. He noted it was a large vending machine.
He was not fussed about the guarding of neck and back. It was normal behaviour that meant little. Unfamiliarity with a specialist can produce guarding behaviour.
Dr Mahony could not say whether he had personally seen the MRI scan of 17 December 1998 referred to in Exhibit A2. However, he agreed with Dr Roebuck's view that there was evidence of damage and intradiscal rupture.
As regards the numbness Dr Mahony detected in Exhibit A9, he suggested it was indicative of tension within the discs. He also said that the thickened area in the back described in the report in Exhibit A9 could not be feigned. Its cause would likely be muscle spasm.
Dr Mahony was shown a report by Dr G Carr, a rheumatologist, dated 13 March 2000 (Exhibit R9). Dr Carr wrote that he was surprised to have been given an ultrasound examining the area between the shoulder blades. He had never heard of an ultrasound being done in that area in the past. It was said to be of no medical significance. He said he disagreed with Dr Mahony's assessment that the thickening of the left trapezius muscle was post-traumatic. Dr Mahony's response was quite intemperate. He said it was Dr Carr's problem if he had not heard of ultrasound being done in the shoulder blade region. He said that if an ultrasound demonstrates a thickening it is necessary to identify a cause. The Tribunal notes that Dr McGill also commented in Exhibit R6 on 18 February 2000 that this was an unusual investigation to have undertaken.

Mr Connolly had Dr Mahony look at a segment of the surveillance videotape. It showed the Applicant lifting a long and apparently heavy bag of what appeared to be onions from a low-level position into her shopping trolley. Dr Mahony was asked whether he would expect a person on restricted work duties to be able to do this. He responded that he considered Mrs Kreka fit for work for four hours a day three days a week. He did not think the shopping exhibition on the tape lasted for four hours. He could not see why Mrs Kreka could not go shopping. He saw no indication of pain. He did not know what her reflexes were like. It was just a brief view of a person who is shopping. It would not be possible to draw a conclusion from the depiction. Dr Mahony did not believe that a 24 ½ minute video taken over three days could facilitate a useful diagnosis as regards the Applicant's condition and capacities.
Dr Mahony thought that a person like Mrs Kreka might lift a bag of onions once but he would not advise her to do so continuously. The Tribunal commented to Dr Mahony that the relative freedom of movement demonstrated by Mrs Kreka in the videotape was quite different from that described in a number of the medical reports. Dr Mahony replied that much depended on who was present at the medical examinations and their attitude to the patient. Dr Mahony in fact suggested that a patient would display freer movement to a trusted doctor than to a doctor he or she did not know or trust. As far as Dr Mahony was concerned, the Applicant bent forward only a "very, very small amount" when picking up the onions and there did not seem to be too much physical activity involved. Nevertheless he said he was not prepared to look at video evidence. It was wrong medically.
Ms Henderson cross-examined Dr Mahony. She ascertained that he had not asked Mrs Kreka to attempt many movements such as forward flexion of back because she was guarding her movements to such an extent. He held to his position that she had demonstrated very little degree of movement. He agreed with Ms Henderson that over time he had not noticed any improvement in her degree of movement. Dr Mahony had diagnosed cervical strain. He related this primarily to the incident in 1998. He said she had sustained a head injury in 1992. Neck pains occur commonly in association with a head injury. She reported neck injury in June 1998. The 1998 incident would have the most influence on her neck and a radiating pain to the upper limbs and occipital headaches.
Ms Henderson queried how Mrs Kreka sustained neck injury merely by putting out her hands to steady the falling vending machine. Dr Mahony replied that the spine would tense up. He said the same as regards the thoracic spine. It became clear that the doctor assumed that Mrs Kreka had taken the full weight of the machine in attempting to save it from falling. He spoke of her taking a weight of 200 kilograms. He had not taken in that the machine was saved by the open door preventing it from falling fully forward. This suggests that he assumed that Mrs Kreka bore more of the machine's total weight than she actually did. Dr Mahony, however, said that he would not read much into this.
Dr Mahony mentioned at one point that Mrs Kreka's straight leg raising was normal. He saw that as evidence that she was not embellishing her symptoms as this test would be an obvious test to fake if one were exaggerating. However, in a later examination the Applicant's straight leg raising was limited to 45 degrees in both legs. Dr Mahony denied that this deterioration aroused suspicion. The Applicant had complained that she was forced by another doctor in the meantime to perform a painful procedure and this may have caused her to be more cautious with Dr Mahony on the occasion in question.
Ms Henderson queried why Mrs Kreka had limited straight leg raising in her left leg given that he had in his diagnosis explained why he thought pain radiated to her right leg. She also queried why he had accorded Mrs Kreka a whole person impairment of 10% in both legs under table 9.2 of the Comcare tables when her right leg was worse than her left leg and she had no knee or ankle complaints. Dr Mahony responded by saying that 10% is nothing. It means she is really 90% efficient. This may suggest that Dr Mahony does not appreciate that the Comcare tables relate to whole person impairment. In that context a major impairment affecting one limb will attract a relatively low per-centage rating in relation to the whole person. In fact, as Ms Henderson pointed out, table 9.2 requires that an employee has lost up to half the normal range of movement of hip or knee. Dr Mahony at page 97 of the transcript described the Comcare tables as including a schedule (table 9.2) which he finds "a most ridiculous and stupid schedule I've ever had the misfortune to read." He would "not accept that schedule". He commented that movement is a voluntary thing. He said the whole schedule is based on a voluntary thing. "It's the worst schedule I've ever seen. I find it an insult to have to make a comment about it."
Dr M D Gliksman
The next witness was Dr M D Gliksman, an occupational physician. He was called by the Respondent. Exhibit R1 is his report dated 20 May 1999. Exhibit R10 is his report dated 11 January 2000. The latter report comments on the surveillance video material. Dr Gliksman was of the view that, having seen the videotape, there was no medical reason for any restriction in her Australia Post duties. At the date of the hearing she was working four hours a day on three days a week. He considered that Mrs Kreka was fit to undertake a rehabilitation program to return her to full duties but that it was unnecessary.
Dr Gliksman explained that in his report in Exhibit R1 he had recommended that no increase in duties take place until there was additional information about one clinical finding. That finding was that the different circumferences of Mrs Kreka's lower limbs did not accord with her dominant handedness. This could be caused by sciatica. However, the video showed that there was present no sciatica capable of causing a significant impairment. The video showed no objective impairment of lumbar flexion, no impairment preventing Mrs Kreka from repetitive bending, lifting, walking or walking upstairs. If she had sciatica each of these movements would have been affected.
In Exhibit R1 Dr Gliksman mentioned sighting a MRI scan. He considered that that scan did not demonstrate an intradiscal rupture (which Dr Roebuck had found in the MRI). The finding was more consistent with disc dehydration due to degeneration. This was at the T10/11 and T11/12 vertebrae where it could not cause sciatica. Nerves emerging from T10/11 and T11/12 are not the same nerves as supply the lower limbs. The lower limbs are connected to nerves from L1 to the termination of the sacral exits. He regarded pain on the side of the right thigh and numbness in that area as connected to around the L2/3 vertebra, although he said he would prefer to check this in the books.
In cross-examination Mr Connolly for the Applicant asked Dr Gliksman whether the MRI scan results at T10/11 and T11/12 could also have been caused by a traumatic incident, rather than by disc dehydration due to degeneration. Dr Gliksman responded that there would need to be other indications of trauma as a cause before that would be an acceptable explanation. Later in answer to Tribunal Member Dr Campbell, Dr Gliksman said such indications might be an annular rupture and signs of a protruding disc rather than a mere disc bulge. Dr Gliksman disagreed with Dr Mahony that it would not be possible to tell from a MRI scan whether a disc dehydration was due to degeneration or post-traumatic injury. He said that Dr Mahony's views did not reflect received medical wisdom.
Dr Gliksman also disagreed with Dr Roebuck's assessment that the MRI scan of 17 December 1998 showed evidence of damage and intradiscal rupture of T11/12, L1/2, L4/5 and L5/S1 discs. However, he conceded that he had not seen the scan for some time and might change his mind if he saw it again.
When asked about the video Dr Gliksman pointed to the lack of a distinct limp, lack of hesitancy and Mrs Kreka's ability to bend 90 degrees as suggestive that she did not have the sorts of difficulties expected of one with sciatica. Dr Gliksman admitted in evidence that he did not see Mrs Kreka in the video performing any functions inconsistent with his recommendations that she not engage in repetitive bending or lifting of weights greater than five kilograms. He later commented that he had seen Mrs Kreka bending, notably over her supermarket shopping trolley. From viewing the video, and from his examination of Mrs Kreka, he considered that she could perform sustained physically demanding activities. He explained that he observed Mrs Kreka bending repetitively, bending to 90 degrees at the lumbar sacral spine, full bending and squatting. In examination Mrs Kreka would not voluntarily bend forward more than 20 degrees. The video showed movements totally incompatible with that. Dr Gliksman observed that there did not appear in the video to be significant pain sufficient to inhibit Mrs Kreka's movements. Dr Gliksman did concede that Mrs Kreka could be differently affected by her symptoms on particular days or by her medication. This might explain greater freedom to move. He also agreed that he did not know whether Mrs Kreka suffered later on the days when the video was made, that is whether she suffered after-effects of her exertion. Mr Connolly also put to Dr Gliksman that Dr Gliksman did not see her face, for example for grimaces and the like, in the video. Dr Gliksman did not recall.
Extracts from the videotape were then shown to Dr Gliksman. He called attention to a number of indicative movements. These included:

Mrs Kreka entered her car in a way involving a relatively rapid flexion of the spine to 90 degrees.

Mrs Kreka bent to a lower shelf while shopping. That involved a near 90 degrees flexion equivalent.

Mrs Kreka was removing items from the shopping trolley. Dr Gliksman commented on the repetitive bending to less than 90 degrees but growing deeper progressively.

Mrs Kreka was seen lifting a large string bag of (apparently) onions from a pile into her shopping trolley. Dr Gliksman said the bag was clearly of some weight. The movement demonstrated unrestricted bending with partial rotation and lifting one-handed.

Mrs Kreka was filmed walking up stairs. Dr Gliksman said the walking was neither fast nor slow but it was certainly unimpaired.

In answer to later cross-examination Dr Gliksman observed that Mrs Kreka could not have entered her car in the way that she did if she suffered from sciatica.

Dr Gliksman agreed that he could not say what subjective discomfort Mrs Kreka may have felt climbing the stairs.

A number of matters raised by Dr Gliksman in Exhibit R1 should also be mentioned. These include:

The history he took from Mrs Kreka was that the vending machine did eventually fall to the floor without striking Mrs Kreka.
Mrs Kreka said that her symptoms interfere with "everything". She said she could not garden, iron or mop. Later she said she could do these things "for a little while".
Mrs Kreka said she could drive but only short distances.
In the surgery Mrs Kreka walked without a limp, seated herself for 40 minutes giving her history and then rose rapidly without any evidence of pain.

Mrs Kreka could remove her shoes, socks and jacket prior to the examination with a full range of lumbosacral flexion, cervical flexion and bilateral cervical rotation. However, when asked to reproduce these movements "the cervical range of movements became suddenly and inexplicably grossly limited in all directions, in the absence of any observable paracervical muscular spasm". Lumbar flexion suddenly became limited to 20 degrees, extension to zero degrees, and bilateral rotation to ten degrees only. "If this were an accurate reflection of Ms Kreka's physical capabilities, she would not be able to seat herself, rise from a seated position, lie on an examination couch or raise herself from that position, without considerable physical assistance." Straight leg raising was limited to 15 degrees laterally. "If this were an accurate reflection of her actual physical abilities, she would not be able to ambulate without mechanical assistance." The Applicant was observed to rise rapidly from a lying to a sitting position without actual physical assistance.
Dr N W McGill

The next witness called by the Respondent was Dr N W McGill, a rheumatologist. He had provided three reports. The first, dated 20 April 1999 is T15 in N1999/667. The others were Exhibit R6 (dated 18 February 2000) and Exhibit R11 (dated 11 January 2000).
Dr McGill discussed the MRI scan of December 1998. He did not agree that it demonstrated an intradiscal rupture. He saw Schmorl's nodes at T10/11 and T11/12. Dr McGill's evidence was that a Schmorl's node occurs where the disc goes through a facet in the vertebral body end plate. In some people that end plate is partially deficient such that the disc material protrudes into the vertebra. This is a developmental abnormality. It is common. A Schmorl's node is asymptomatic. Mrs Kreka had some of these.
Dr McGill considered that Mrs Kreka's impairment level under Comcare table 9.6 (cervical and thoracolumbar spine) was nil. He favoured a nil rating for table 9.1 (upper extremities). He was not convinced there was any upper body pathology attributable to the compensable incidents and Mrs Kreka's lack of co-operation in her examination made an assessment difficult. He said the same about table 9.2 (lower extremity).
Mr Connolly cross-examined Dr McGill and asked him about the December 1998 MRI scan. He was asked to comment on the report of that scan which identified intradiscal rupture of C11/12, L1/2, L4/5 and L5/S1 discs. Dr McGill thought the radiologist was referring to the Schmorl's nodes. He rejected any suggestion that these were created traumatically. This is because:
"the 1998 episode occurred on 25 June. The bone scan was performed on 28 August and the MRI was performed on 17 December. If trauma on 25 June caused a disc to protrude through a vertebral end plate into a vertebra, then the bone scan in August would have been markedly abnormal. A bone scan would represent a fracture of the vertebrae, a bone scan remains very hot for months and becomes hot within a couple of days and it remains hot for months and is usually still visible even after some years but certainly is hot after months. So if what I think is … nodes, you know, if there's a suggestion that that was actually traumatic then the bone scan should have been very hot at that point of time and it was normal." (Transcript, 126)
Dr McGill said that if a trauma had been any part of the cause here it would have had to occur in the distant past. He agreed that a 1992 injury might have filled the bill. He didn't believe that the pathology present was attributable to 1992 injuries, however.
Dr McGill addressed the matter of Dr Mahony ordering an ultrasound of the shoulder blades. He had noted that this was a most unusual investigation to have ordered (Exhibit R6). He reiterated this in cross-examination. He had never heard of it being done before. Dr McGill went further and suggested that the ultrasound findings suggesting a thickening in Mrs Kreka's left trapezius muscle might not be reliable. He explained that ultrasound was operator-dependent and if the angle of the ultrasound beam is not exactly at 90 degrees to the item being photographed it will be artificially thickened in its presentation.
Dr McGill also disagreed with Dr Mahony, as he had in Exhibit R6, that the uneven thicknesses of the left and right scapulae show that Mrs Kreka was genuinely in difficulties. Dr McGill said the issue was not so much whether Mrs Kreka may have been deliberately trying to contract the scapulae. Rather the scapulae will present differently from each other if one stands asymmetrically. He considered that the Applicant could have feigned the tender thickening to the left of the sixth rib. Tenderness is easily feigned. The thickness could result from postural asymmetry.
Dr McGill finalised by stating that he did not think that the 1998 incident caused any significant injury.
Other relevant material from Dr McGill's reports is as follows.
In T15 under the heading, "examination", Dr McGill wrote:
"there was clear evidence of non-organic behaviour during the physical examination. …When asked to demonstrate upper limb joint movements she initially performed incomplete fist formation in both hands but was subsequently able to complete the fist formation…Attempts to move the shoulders passively were reported to cause pain. A little later during the physical examination she adjusted her right bra strap and while doing so abducted her right shoulder to 90 degrees fluently and without any suggestion of discomfort."
During the interview she frequently shook her head when answering no. During the formal examination she performed extremely slow and very restricted neck movements.
Although she was able to demonstrate good lumbar flexion while sitting on the examination couch bending forward to remove her socks, when asked to demonstrate the range of back movement while standing erect she offered essentially no (less than 5 degrees) movement in her lumbar spine.
There was no objective evidence of any abnormality in the upper limbs.
There was no objective abnormality in either lower limb. Although she alleged profound lower limb weakness, that was clearly inconsistent with her ability to demonstrate good power while standing on her forefeet, standing on her heels and performing a partial squat. She reported patchy, variable sensory loss in the right lower limb.
There was no swelling of any joints.
Assessment of muscle power in the upper limbs was also hampered by a complete lack of co-operation in which she offered almost no effort in any muscle group.
"Straight leg raising was performed to 90 degrees bilaterally and she reported that it produced back pain."
In summarising, Dr McGill wrote that "Her examination revealed no objective abnormality and unfortunately clear evidence of non organic behaviour and attempts to allege weakness and restriction of movement that were clearly not genuine." He said she was fit to resume her full normal work duties immediately.
In Dr McGill's report that is Exhibit R6 he said that the ultrasound findings did not provide objective evidence of any abnormality. He also said that his examination findings, above, do not support Dr Mahony's diagnosis with the exception of minimal constitutional degenerative change in the cervical and thoracic regions.
In his report that is Exhibit R11 Dr McGill commented on the video evidence. He wrote:
"In the video she was filmed walking slowly carrying a bag in one hand and then talking to a person. During and after the conversation with the person she demonstrated fluent neck movements with nodding and full rotation to the right. When stepping into her car she performed near full neck rotation to the left and there was no indication of abnormal movement.
In the second section of the video she was shown walking from a house and entering a car. She was then videoed in a shop picking objects from the supermarket shelves. Neck movements were full and fluent in both directions. The use of her upper limbs was normal. Her gait was normal. When accessing the lowest shelf at one stage she squatted down and then stood up again. Her posture and movements of her back during that action were normal. When removing articles from her shopping trolley she performed repeated bending movements with the back which looked fluent and normal.
In the fruit shop she similarly performed reaching and bending movements while collecting her fruit and vegetables.
In the third section of the video obtained on 25 June, 1999, she was filmed walking along a street and then in a shoe shop where she examined shoes and made a purchase.
Over the course of the video she demonstrated normal function with her neck, upper limbs, low back and lower limbs. The function demonstrated during the video was not surprising in light of the inconsistency of her alleged incapacity during the formal examination. The video evidence supported my impression, expressed in my report of 20 April, 1999, that she has no abnormal physical condition."

Dr D C Maxwell

The Respondent then called Dr D C Maxwell, an orthopaedic surgeon, to give evidence. He had provided a report dated 17 June 1999 (Exhibit R2). Dr Maxwell had seen the video evidence and was asked about it. He commented that what he observed in the video was partially inconsistent with what he saw when he examined Mrs Kreka.

In the examination she was reluctant to move her neck in any direction. In the video there was no restriction whatsoever of neck movements.
She was reluctant in examination to flex and bend her lumbar spine below her reach to her lower thigh. In the video she was bending and crouching quite freely.

Dr Maxwell answered an allegation by Mrs Kreka that he had pulled her arm upwards causing her a pain which had persisted between the shoulder blades. He refuted this allegation and explained that he relied in examination on having subjects actively lift their arms. He does not engage in passive examination. In any event her shoulder movements for him had been full.
In cross-examination Dr Maxwell agreed that he did not see Mrs Kreka doing anything unduly fast or light-hearted in the video.
In relation to the MRI scan of December 1998 Dr Maxwell disagreed with Dr Roebuck that it showed evidence of intradiscal rupture of the T11/12, L1/2, L4/5 and L5/Si discs. Dr Maxwell said the scan showed developmental changes of small nodes. "But to call this an intra-discal rupture I think is misinterpreting the scans." (Transcript, 143)
Dr Maxwell disagreed that damage to Mrs Kreka's back would necessarily follow if she had had her head inside the coffee vending machine in 1998 when it began to topple towards her. It was more likely that her hands and arms would bear the brunt of the forces. However, he later conceded that there could be a transference of that weight through Mrs Kreka's legs to the ground and a significant traumatic injury, although he did not think that such an injury occurred in this case. He said those types of forces occur against people regularly and the result is not permanent injury. A back injury might be possible, but that is all.
In his report (Exhibit R2) Dr Maxwell made the following additional, relevant points. Mrs Kreka in her physical examination was reluctant to move her neck in any direction. He felt this was a voluntary restriction "as during the taking of the history she gesticulated and moved her neck normally". She demonstrated a full range of movement of both shoulders, elbows and wrists.
He considered that Mrs Kreka may have sprained her neck in an accident at work. The effects had resolved. He could find no cause for the reported symptoms and signs suggesting extreme stiffness of the cervical spine. He considered she suffers from no work-related injury. No further treatment was indicated. She was fit to perform all the normal duties of a canteen assistant without restrictions. Her prognosis was excellent. She had no permanent impairment according to the tables.
Dr W G D Patrick
The Applicant then called the final witness, Dr WGD Patrick, a surgeon, who wrote a report dated 18 October 1999 (Exhibit A4). In examination Dr Patrick said that his assessment that the incidents in 1992 and 1998 were significant would not be affected if Mrs Kreka had not gone off work during the first five days after the first incident. He felt that Mrs Kreka presented as genuine but there may have been some overlay in her presentation. He agreed with Mr Connolly that overlay may be associated with a person's medications and that this could apply in Mrs Kreka's case. He thought Mrs Kreka may exhibit elements of chronic pain syndrome.
Dr Patrick addressed the MRI scan of December 1998. He tended to support Dr McGill's assessment of there being present Schmol's nodes and his discussion of these, while fuller than Dr McGill's, was largely consistent with McGill. He did think that incidents such as those experienced by Mrs Kreka in 1992 and 1998 could prolong symptoms from constitutional conditions. He emphasised that what he saw were end plate irregularities, not, as Dr Roebuck had said, intradiscal ruptures. He agreed with Dr McGill that it is not generally possible to tell from a MRI scan a degenerative disc from a post-traumatic disc. He said that it is more likely a traumatised disc if the person is young.
Dr Patrick did not think that Mrs Kreka was fit to return to her normal work.
In his report Dr Patrick found flexion of the cervical spine was 70% of that expected, extension virtually nil, and lateral rotation 20% to each side. There was probably overlay at the examination. There was a diminished range of movement at both shoulders, contrary to Dr Maxwell's findings. The thoracolumbar spine was stiff. She could flex with fingertips to knees. Extension was 30% of expected. Lateral flexion to right was 30% of expected. Lateral flexion to the left was 40% of expected. Straight leg raising was 80 degrees (left) and 70 degrees (right). There was a negative sciatic stretch test.
From the 1992 incident Dr Patrick diagnosed cervical strain injury with causation or acceleration of minor spondylitic change at the lower cervical spine between C6 and T1. She sustained some low back strain injury at the same time. There was nothing suggesting any disc protrusion. From the 1998 incident there was significant musculo-ligamentous strain injury to the neck, upper thoracic spine, lumbar spine and scapulo-costal regions. He believed her ongoing symptoms to be genuine, consistent with and significantly resulting from the work injuries as described. He thought there was overlay evident in clinical examination but no conscious exaggeration. Mrs Kreka was partially incapacitated for her work. She had a 31% combined values whole person impairment under tables 9.1 (10% related to right upper extremity; 5% relating to the left upper extremity) and 9.6 (10% relating to the cervical spine; 10% relating to the thoracic spine).
In cross-examination it was established that a number of items in a long list of symptoms at page three of Dr Patrick's report would not be attributable to the incidents in question. In response to a question from Tribunal Member, Dr Campbell, Dr Patrick identified as the only matters of which one can be certain as that there are good reasons in the way the incidents occurred for there to be psychological effects on Mrs Kreka, that she has lower thoracic spine pathology that has probably not been caused by either incident, although the incidents may have caused prolonged symptoms; and that there is some minor pathology at the cervical spine.
Further documentary evidence
In the T documents and exhibits there was a considerable amount of additional medical evidence. The following is a summary of anything from that material, additional to what has been covered above, that may be relevant to resolving the matters before the Tribunal.
N1999/271
T5 is an x-ray report dated 4 May 1992 by Dr C M Donohoo. It assesses Mrs Kreka's spine as showing minor disc degeneration lumbo-sacrally and in the thoracolumbar spine.
T21 is a report for the Respondent by Dr P W Van Gelderen, a surgeon, dated 10 August 1998. This report largely supported Mrs Kreka. The writer considered the Applicant to have sustained considerable soft tissue injuries on 25 June 1998.
T24 shows the bone scan dated 28 August 1998 referred to by Dr McGill in his evidence above.
T30 is a report by Dr R Chase, occupational physician, dated 29 September 1998. He found Mrs Kreka's arms essentially pain free. There was injury to soft tissue in the thoracic and cervical spine. He expected her to fully recover. She was fit for a graduated return to work leading to a return to full duties. He detected pain behaviours possibly associated with her husband's heart attack and its effect on her.
T51 is a report dated 17 November 1998 by Dr R Adler, a consultant in musculo-skeletal medicine and pain management. He was seeking payment for an MRI scan to be done which, in the end, was completed in December 1998. He said that a sudden severe fierce transmission to the cervicothoracic and lower thoracic areas may have occurred. Severe strain to the facet joints at these sites and a paraspinal sprain are likely to have occurred. This could cause annular tear disc injury at either area of the spine.
T57 is the MRI scan result dated 17 December 1998 discussed by a number of earlier witnesses.
T62 is a report by Dr C H New, an orthopaedic and spinal surgeon. It is dated 12 January 1999. It notes that the MRI scan showed no obvious fracture, disc prolapse or instability. A bone scan was required to see if there was an arthritic trigger point. Mrs Kreka was unfit for full duties.
T65 is a report by psychologist, Susan Huxley, dated 25 January 1999. She considered the Applicant seriously depressed. In testing she had high scores for somatisation, obsessive/compulsive, depression, anxiety and hostility. She was having problems adjusting to her injury and expected specialists to provide all the solutions. She needed up to six counselling sessions and might return to work with much support provided by her employer.
T72 is Dr Chase's second report dated 18 February 1999. He noted the normal MRI scan result. He commented on inconsistencies in Mrs Kreka's presentation as have other doctors earlier in these reasons. He said she was having difficulty adjusting to her soft tissue spinal injuries. She was fit for a graduated return to work. He was of the view that a return to work was preferable in the interests of Mrs Kreka's psychological health which was becoming a problem.
N1999/667
T6 is a report by Dr Adler dated 22 March 1999. It supports the provision of a TENS machine to aid in Mrs Kreka's rehabilitation.
T9 is a report dated 26 March 1999 by Dr G Carr, a rheumatologist. He refers to inconsistencies in her presentation at examination, much as have other doctors. He suggests that she has a chronic pain syndrome. There was no disc abnormality, in his view. He diagnosed a chronic pain syndrome and saw a functional aspect to her continued pain from her 1998 accident. She was not fit for any work upgrade program.
N1999/899
T3 is a report by Dr Fong, Mrs Kreka's general practitioner, dated 7 March 1999. This is essentially a history of Mrs Kreka's consultations with Dr Fong, especially since the June 1998 incident. He mentions several incidents of reported upsurges in Mrs Kreka's pain in November 1998 and January 1999.
Exhibits not mentioned earlier
Exhibit A3 is a thoracic spine CT scan report dated 15 September 1999 showing a normal examination.
Exhibit A5 is a report by psychiatrist Dr A Dinnen dated 26 October 1999. He diagnosed that Mrs Kreka was suffering a mild depressive illness as a consequence of her back injury and ongoing pain and disability. She had a dysthimic disorder. The condition was causing significant impairment in its own right. He recommended antidepressant medication on a long-term basis.
Exhibit A6 is the CT scan result covering the shoulder blades discussed in earlier evidence by Drs Mahony, McGill and Carr.
Exhibit A7 is a report by rehabilitation counsellor, Steve Hosking, dated 6 December 1999. He concluded that the best vocational outcome for Mrs Kreka was to assist her to maintain her then current employment with the Respondent. She did not present as a viable candidate for vocational rehabilitation, retraining or assistance into an alternative occupation.
Exhibit A8 is a set of comments by Dr Mahony on the remarks made by Drs Cant and Maxwell in their reports dated 2 July 1999 (Exhibit R3) and 17 June 1999 (Exhibit R 2), respectively. He expressed reservations about doctors drawing conclusions about a patient's freedom of movement when dressing and undressing. He considers that Dr Cant ignored some of Mrs Kreka's ongoing symptoms. As regards Dr Maxwell's observations of Mrs Kreka's lack of neck movement, Dr Mahony says much the same as he said in his oral evidence in the Tribunal about the nervousness of patients being examined. He reaffirms his opinion that Mrs Kreka suffered a head injury. She has symptoms referable to cervical strain in association with degenerate changes with nerve root irritation affecting the upper limbs. He diagnosed other conditions: carpal tunnel syndrome, thoracic back strain associated with degenerate changes, low lumbar back strain associated with degenerate changes and nerve root irritation affecting the right lower limb.
Exhibit A10 is a report by Dr G Chan, Mrs Kreka's general practitioner in 1992. He said Mrs Kreka had consulted him about the 1992 incident on 2 May 1992 (lower back pain that lasted two or three days) and 4 May 1992 (to discuss x-ray results). He next saw her in December 1992 about another matter and assumed she had recovered.
Exhibit R3 is a report by rheumatologist Dr B R Cant dated 2 July 1999. Dr Cant wrote:
"The physical signs I found on examination are those of abnormal illness behaviour. It is not possible to objectively measure the range of movements of the spine or the joints in the limbs as the observed ranges are those demonstrated by the patient. I found a much more restricted range of movements of the cervical and thoracolumbar spine than that which had been documented previously and a much more restricted range of movements of the shoulders. The type of extreme sensitivity to touching that Mrs Kreka demonstrated cannot be attributed to any type of physical injury. She appeared to have severe discomfort when I merely touched the skin over the paraspinal muscles, without causing any indentation of the subcutaneous tissues. Such gentle touching could not have caused significant stresses upon the structures which might have been injured. The type of sensory loss she demonstrated has no neurological explanation. Were Mrs Kreka really as weak as she appeared to be when I formally examined muscle strength, she would be in hospital, probably in an intensive care unit.
Radiological investigations and the bone scan demonstrate no abnormality. There are some minor degenerative changes which are not in any was exceptional for a woman of Mrs Kreka's age.
… Mrs Kreka did not sustain any permanent injury as a result of the accident about seven years ago. … Th[e] latter accident would have been of a frightening type and she may well have thought that she would be crushed by the coffee machine. However, its forward movement was arrested when the door struck the floor. …
It is my opinion that soft tissue injuries of the type Mrs Kreka may have sustained as a result of the accident in June 1998 may have caused her considerable discomfort for some time. However, these symptoms would be expected to resolve within a matter of weeks. There is no objective evidence of any more serious injury and it is my opinion that her present disability is entirely due to abnormal illness behaviour.
…the pattern of behaviour Mrs Kreka demonstrated when I examined her more closely resembled deliberately feigned illness rather than a disability resulted unconsciously from psychological stress."
Dr Cant concluded that the Applicant had no physical disability. Her apparent disability was due to abnormal illness behaviour. She was fit to resume her normal duties as a canteen assistant.
Exhibit R4 is a report dated 4 March 2000 by Dr Cant. This report comments on the CT scan of the shoulder blades which demonstrated an unequal trapezius muscle thickening to the left of the spine. Like Dr McGill he sees little in this finding. He posits several explanations why the scapula may be uneven. He agrees that the scapula muscles can be voluntarily controlled. The thickening could mean that the muscle was being contracted voluntarily. He concluded that the finding could be best explained as caused by a posture voluntarily adopted by Mrs Kreka.
Exhibit R12 is a report dated 13 January 2000 written by Dr Cant. He comments on the video evidence. Dr Cant wrote:
"The woman shown in this video, who resembled Mrs Kreka, performed a number of day to day activities in normal fashion. None of them appeared to cause her any discomfort and she did not behave in a manner suggesting that she anticipated that these movements would cause her discomfort. She moved her head from side to side normally and bent forward and squatted normally. She could reach various levels with both upper limbs in a normal fashion and on one occasion nearly fully elevated her right upper limb to reach a shelf. On another occasion she lifted what appeared to be a heavy bag of onions with a fluid twisting motion using her right hand. This is not the type of activity which would be attempted by a person with a significant disorder of the lumbar spine and it is an activity which might well be avoided by a person with a significant disorder of the right shoulder.
…this video suggests that Mrs Kreka would be able to do work of the type for which she was employed by the [Respondent].
The discrepancy between the range of activities demonstrated in this video and the range of movements I found when I examined Mrs Kreka on 1 July 1999 indicates that my findings on that occasion did not demonstrate her physical abilities. As I stated in my report of 2 July 1999 the limitations she appeared to have when I examined her were due to abnormal illness behaviour. Abnormal illness behaviour may result from unconscious psychological mechanisms or be deliberately feigned. The normal behaviour demonstrated in the video suggests that the limitations I found when I examined her were not due to an unconscious psychological mechanism but were deliberately feigned at the time of the examination."
Exhibit R5 is a psychiatric report by Dr C A Boland dated 9 December 1999. Dr Boland diagnosed an adjustment disorder with mixed anxiety and depressed mood. Her pains are explained as abnormal illness behaviour. He rejected Dr Dinnen's diagnosis of dysthimic disorder as Mrs Kreka's depressed mood had not existed long enough to satisfy the diagnostic standards. Mrs Kreka's disorder was not attributable to her employment. It was a result of her husband's illness and her involvement in the medico-legal process. He regarded her as competent to perform her normal duties as a canteen assistant. He recommended continued use of antidepressants for six months.
Exhibit R13 is a report by Dr Carr, rheumatologist, dated 21 February 2000 concerning the video evidence. Dr Carr makes similar observations to those by Drs McGill and Cant. He states that the video tape cannot deny that Mrs Kreka actually has pain but it does suggest that her incapacity is considerably less than as suggested by Dr Carr in N1999/667, T9, dated 26 March 1999. The tape suggests that she would be fit enough to work in an upgraded program.
Exhibit R14 is a radiological report by Dr C M Donohoo covering Mrs Kreka's thoracic and cervical spine. It is dated 3 August 1998. He finds minor degree disc degeneration with no progression since May 1992 in the T10/11 and T12/L1 vertebrae. He finds minor degree disc degeneration in the C6/7 and C7/T1 vertebrae.
Exhibit R15 is a report dated 22 September 1995 by Dr T McGee concerning a gynaecological condition affecting Mrs Kreka.
Exhibit R16 is a report by Dr D Spencer, specialist in rheumatic diseases, dated 12 August 1998. It simply details the treatment he was giving her at that time.
In Exhibit R17 Dr Cant opines that Mrs Kreka has no permanent impairment of any part of the body.
Counsel's submissions
In final submissions Ms Henderson for the Respondent made the point that the work incident relevant to the review in this case was the incident that occurred on 25 June 1998. The earlier incident on 6 April 1992 resulted in compensation liability in the Respondent which provided coverage for the Applicant for her physiotherapy sessions. Her evidence was that that claim was for no other purpose. The focus in the Tribunal's assessment of the final submissions is therefore on the 1998 injury and its aftermath.

Mr Connolly pressed the following arguments:

In N1999/271 at T13 a witness to the 1998 incident reported hearing a "big bang". Counsel considered that referred to the coffee vending machine falling on its side with the door wide open. The Tribunal notes that Dr Gliksman received a history suggesting that the machine fell. This appears in Exhibit R1 at page 3 and in the transcript at page 104. Counsel described the accident as a very significant industrial accident.

Counsel argued that the range of medications ordered for Mrs Kreka after the accident points to the extent of her injuries.

Counsel put that Mrs Kreka was a witness of truth. Her oversight regarding compensation claims made in 1983 and 1986 should be excused given the lapse of time and her difficulties with English language. She was a hard worker with a long work history through to the date of the hearing.

The videotape evidence is a "red herring". It shows a woman shopping, not playing tennis, playing golf, lifting heavy weights or dancing at a wedding. It shows her picking up food and putting it in a trolley and getting in and out of a car. It covers three days in 24 ½ minutes. She is doing normal, necessary things required if she is to get on with life. She has never denied being able to do the things shown on the video. The video showed her lifting a bag of onions, an action along the lines of those she would perform in her work as a kitchen hand. The video was not of a quality that would show any pain or discomfort experienced by Mrs Kreka. It has never been said that Mrs Kreka could not perform such bending as was required to empty her trolley for several minutes at the cost of some pain. Even Dr Cant in Exhibit R12 said that the activities were not of a particularly demanding nature. Dr Carr in Exhibit R13 commented that Mrs Kreka walked in the video without an obvious limp. Mr Connolly replied that no one ever said she walked with a limp or a stick. As regards the large bag of potatoes, as Dr Carr described it, picked up by Mrs Kreka, there was no evidence of what was in the bag or of how much it weighed. Nor was there evidence of what occurred after the video stopped. Counsel said that Mrs Kreka will, where she can, avoid any pain producing situations. Where she cannot she just gets on with it. He pointed out that when asked to perform movements in the Tribunal she had been asked how far she could move without incurring pain. The resultant movements were very limited. In the video environment she was not asked to act within that limitation. To the extent that there is a discrepancy between the two sets of movements they are not strictly comparable.

Dr Mahony's evidence as regards the reasons for guarding during an examination and the effect of the head injury on Mrs Kreka's spine was urged on the Tribunal. His evidence as to why Mrs Kreka was not feigning symptoms was also emphasised. He is a treating specialist and has a particular credibility in that position.

The Applicant has undergone a variety of treatments such as spinal cortisone injections, high dose anti-inflammatories, muscle spasm agents, benzodiazepams, Voltaren and Panadeine.

Some of the Respondent's doctors have supported the Applicant. These include Dr Van Gelderen (N1999/271, T21), discussed above, Dr Carr (N1999/667, T9), also discussed above, and Dr Cant (Exhibit R3), also discussed above, and Dr Spencer (Exhibit R16), although he was not strictly a Respondent's expert witness.

Ms Henderson for the Respondent made the following main points:

Mrs Kreka's evidence was unreliable in many respects. She did not recall that she waited for seven days after the 1992 incident on 6 April 1992 before going off work. Her evidence had been that she missed work from the next day. She did not see a doctor until 2 May 1992 and that was for back pain lasting three or four days. This suggests that Mrs Kreka did not, contrary to her evidence, suffer great discomfort during April. Neither Dr Chan, the first practitioner to treat her, nor Dr Fong, whose report is in N1999/271, T3 say anything of ongoing complaints of pain after the 1992 incident. Mention is made of Mrs Kreka's referral to Dr J Harrison but there are no reports and there is no evidence that Mrs Kreka ever saw him.

Ms Henderson suggests that the 1998 incident was less dramatic than Mr Connolly had represented. In particular, she did not accept that the eyewitness account relied on above by Mr Connolly supports his assertion that the coffee machine fell on its side. Indeed, the witness statement at T13 does not mention the machine falling to the ground. However, as noted earlier, there is other evidence from Dr Gliksman's history suggesting that this did occur.

There is nothing to suggest any traumatic injury in 1998 reflected on MRI or x-ray findings. Rather, x-ray evidence establishes that Mrs Kreka had degenerative changes in 1992. These had not advanced when she was x-rayed again in 1998 following the accident.

No doctor had said that the MRI scan dated December 1998 was indicative of traumatic injury.

Ms Henderson addressed the diagnosis of chronic pain syndrome, and similar diagnoses, advanced by several doctors. She submitted that such a pain condition should be borne out by the presence of muscle wasting if it is present. There was no muscle wasting to be found, except for a minor element found by Dr Gliksman affecting Mrs Kreka's calf muscles. He discarded this as not relevant after viewing the video evidence.

All investigations show nothing apart from minor degeneration. There have been a whole body bone scan, nerve conduction studies of her arms (normal result), and a CT scan of the back (normal result). The MRI scan of December 1998 did not support the presence of any traumatic lesions.

Ms Henderson referred to the frequent comments of examining doctors about inconsistencies in Mrs Kreka's presentation to them. These are fully discussed earlier. Dr Mahony appeared to miss the point when he explained that a person sent to an insurance doctor is likely to engage in guarding conduct during the examination. On the contrary here, Mrs Kreka was observed by Drs Gliksman and McGill to demonstrate considerable freedom of movement only moments before or after denying she could perform such movements in formal examination.

The video evidence, fully described above, was pressed on the Tribunal. In essence the value of the videotape is that it demonstrates that the Applicant has considerably more freedom of movement than she demonstrated in the Tribunal or to doctors.

Ms Henderson disagreed that Drs Van Gelderen and Carr offered much in the way of support for Mrs Kreka. Dr Van Gelderen thought Mrs Kreka would be fit for a return to work in three or four weeks. Dr Carr was strongly influenced against the interests of Mrs Kreka at the end of the day by the video evidence (Exhibit R9).

Ms Henderson addressed the core of application N1999/667. She submitted that Mrs Kreka is fit to engage in a return to work program and was so at the date of the decision under review. The video evidence is relied on, along with the various Respondent's medical assessments.

Ms Henderson addressed application N1999/899 which dealt with the decision to cease liability entirely. She relied on the videotape evidence to argue that it demonstrated that Mrs Kreka was able to perform normal, easy, fluid movements as required of a canteen attendant. Additionally the medical evidence supports a conclusion that Mrs Kreka has no disability and she is well able to participate in a return to work program if she needs one at all.

Findings on material questions of fact and the evidence on which those facts have been found

There are several sets of issues to be considered as a result of the several decisions under review in this matter. The first set stems from the decision to cease liability for payment of compensation to the Applicant. Section 14(1) of the Act states that an employer is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee, such as Mrs Kreka, if the injury results in death, incapacity for work, or impairment.
Section 4(1) defines an "injury" as an injury suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment. It can also be an aggravation of a physical or mental injury (other than a disease) that arose out of or the course of the employee's employment. It can also be an aggravation of an ailment (such as a spinal condition) that was contributed to in a material degree by the employee's employment. The issues that arise are therefore:
1)Has Mrs Kreka suffered an injury and, inferentially, if so, was she suffering from that injury on 12 February 1999, the date of the earliest of the reviewable decisions, and continuing?

2)If so has that injury resulted in death, incapacity for work, or impairment?

The refusal to pay Mrs Kreka in respect of an alleged permanent impairment raises the issue in s 24(1) of the Act. This is:
3)If an impairment has resulted is it permanent in that it is likely to continue indefinitely as required in s 4(1) of the Act? If so, then a permanent impairment payment may be made if the impairment is sufficiently serious and a number of other conditions are met.
The refusal to pay Mrs Kreka because of her refusal to enter into a return to work program requires consideration of s 37 of the Act. A rehabilitation authority must have made a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program (s 37(1)). The rehabilitation authority must have made arrangements for the provision of that rehabilitation program (s 37(1)). Where the employee refuses or fails, without reasonable excuse, to undertake the rehabilitation program that has been provided the employee's rights to compensation under the Act are suspended. The relevant issues are:
4)Has a rehabilitation authority made a determination that Mrs Kreka, who must have suffered an injury resulting in an incapacity for work or an impairment, should undertake a rehabilitation program?

5)If so, has the rehabilitation authority made arrangements for the provision of a rehabilitation program for Mrs Kreka?

6)If so, has Mrs Kreka refused or failed to undertake the rehabilitation program?

7)If so, has Mrs Kreka refused or failed to undertake the program without reasonable excuse?

The Tribunal now considers these issues in turn.
Issue 1 - Has Mrs Kreka suffered an injury and, inferentially, if so, was she suffering from that injury on 12 February 1999, the date of the earliest of the reviewable decisions, and continuing?
Medical certificates in N1999/271, T3 issued by Dr Fong commencing in June 1998 diagnose strained muscle cervical, middle thoracic and lumbar area and shoulder. Dr Van Gelderen told the Respondent on 10 August 1998 (N1999/271, T21) that she had received soft tissue injury in the incident on 25 June 1998. Likewise Dr Chase told the Respondent on 29 September 1998 (N1999/271, T30) that Mrs Kreka's history was consistent with injury to the soft tissues of the thoracic and cervical spines.
The Applicant's statement of facts and contentions claimed that Mrs Kreka sustained injuries to her neck, low back, shoulders, arms and thoracic spine. She was said also to have aggravated her neck and low back injuries in the incident.
The Tribunal finds on the basis of the evidence of Drs Fong, Van Gelderen and Chase that, at least at first, the Applicant suffered a injury. The more difficult issue is whether that or a related injury was still present at the relevant dates some time later.
This requires consideration of the major evidence in this case, the medical and related evidence.
There is a considerable bulk of material providing support for the Applicant.
Dr Roebuck's interpretation of the MRI scan results dated 17 December 1998 was to the effect that she had sustained intradiscal rupture at T11/12, L1/2, L4/5 and L5/S1. He said this was shown by the diminution in intensity of the magnetic waves coming back from the disc spaces. This indicated a discontinuity of the disc, an intradiscal rupture. The disc was damaged within itself. There was no disc protrusion. He also saw x-ray evidence of disc narrowing and degeneration in the C6/7 and C7/T1 spaces.
He said there was a significant permanent residual disability in Mrs Kreka's neck and back.
Dr Roebuck also dismissed the videotape evidence largely because it was filmed on discrete days.
Dr G G Mahoney agreed with Dr Roebuck that the MRI scan results were evidence of intradiscal rupture. He diagnosed Mrs Kreka's condition as cervical strain in association with degenerative changes and nerve root irritation affecting the upper limbs, bilateral carpal tunnel syndrome. thoracic back strain in association with degenerate changes as well as a low lumbar back strain in association with early degenerate changes with nerve root irritation affecting the lower limb. Numbness of the outer aspect of the right thigh suggested tension within the lower discs. He suggested that the cervical spine could have been affected when Mrs Kreka held the vending machine back because her spine would have tensed up.
Dr Mahony detected a tender thickened area approximately to posterior aspect of the left 6th rib a little left of mid-line. There was also thickening of the left trapezius muscle which he considered post-traumatic. In his evidence Dr Mahony accepted that Mrs Kreka took the brunt of considerable weight when arresting the fall of the vending machine said to weight 200 kilograms. He also considered that the incident with the refrigerator door in 1992 had caused Mrs Kreka a head injury of a type that readily produces neck pain. Dr Mahony considered it reasonable that Mrs Kreka continued to have symptoms as described.
Drs Roebuck and Mahony were less concerned than other medical experts about the inconsistency and apparent lack of co-operation Mrs Kreka has demonstrated in medical examinations. Dr Mahony repeatedly mentioned that Mrs Kreka engaged in guarding behaviour when asked in examination to move her neck or back. He thought this reflected a natural tendency to avoid exposing herself to pain and it was more likely to occur when a person is examined by a medical expert the person does not know. He pointed to 90 degree straight leg raising which Mrs Kreka had done at his request. He opined that straight leg raising is one of the easier tests to fake if one is trying to maximise one's disability. In a later examination, however, she was able to straight leg raise to only 45 degrees in both legs.
Dr Mahony dismissed the video evidence showing Mrs Kreka lifting a long and large bag of what appeared to be onions. He seemed to think she could do this in any event if she was cleared to work four hours on three days a week He could not see why Mrs Kreka should not go shopping. The video did not show what pain Mrs Kreka may have experienced. It was too brief. A 24 ½ minute video over three days would not help diagnose the Applicant's condition and abilities. Dr Mahony did not accept the view put to him by the Tribunal that Mrs Kreka appeared to have a freer and fuller range of movements in the video than she had told the Tribunal and various doctors she had. Dr Mahony said he thought she had leaned forward only a "very, very small amount" in the video and that he was not really prepared to look at video evidence. The Tribunal's assessment of Mrs Kreka's movements as seen by it in the video is much the same as that of such witnesses as Dr McGill, Dr Glicksman and Dr Cant.
Dr W G D Patrick considered Mrs Kreka to be genuine but he thought there may have been some overlay in her presentation but no conscious exaggeration. He was prepared to connect this with her medications or see it as related to a chronic pain syndrome.
As against that medical and related evidence there is a considerable body of opinion from Drs Gliksman, McGill, Maxwell and, to an extent, Patrick, who gave evidence. Amongst the documentary evidence there are assessments in agreement by Dr Carr.
Considering Dr Gliksman first, he did not agree with Dr Roebuck about the MRI scan results. The scan did not indicate an intradiscal rupture. It was more consistent with disc dehydration due to degeneration. Further, this affected the T10/11 and T11/12 vertebrae where it could cause sciatica. He also said that the leg symptoms were inconsistent with disc problems at T10/11 or T11/12. Rather they were associated with nerves from around the L2/3 vertebra. Dr Gliksman also rejected these effects as having resulted from traumatic incident rather than degeneration. He would have wanted to see corroborative signs such as annular rupture or protruding disc before accepting that the cause had been trauma.
Dr Gliksman saw the video as powerful evidence that there was little wrong with Mrs Kreka. He considered her fit to engage in her full duties or in a return to work plan aimed at restoring her to full duties. The video showed no evidence of sciatica. There was no impairment of lumbar flexion. She could lift, bend, walk, and walk upstairs. None of these movements were retarded by sciatic symptoms. He went on to comment on the lack of any limp, ability to bend to 90 degrees. Mrs Kreka's movements in the video were totally inconsistent with her presentation at examination where she would not voluntarily bend further forward than 20 degrees. In the video she repeatedly bent to 90 degrees or to an extent not much less than 90 degrees. He commented on Mrs Kreka's ability to lift the bag of alleged onions with a partial spinal rotation.
He had noticed inconsistencies in her presentation at examination where she rose from sitting rapidly and without pain. Likewise she removed clothing with a full range of lumbosacral flexion, cervical flexion and bilateral cervical rotation but would not repeat these movements in formal examination. Her straight leg raise for Dr Gliksman was only 15 degrees. She also rose rapidly and unaided from a lying to a sitting position.
Dr McGill agreed in large part with Dr Gliksman. He detected Schmorl's nodes, which are common and asymptomatic, from the December 1998 MRI scan. He also rejected any notion that the features of the MRI were caused by trauma. This was because the bone scan done in August 1998 would have shown a recent fracture if there was one. It did not show any such effect.
Dr McGill disagreed with Dr Mahony's conclusions about the unevenly thickened trapezius muscles and the uneven thicknesses of left and right scapulae. Whereas Dr Mahony had seen these findings as organic evidence, unable to be feigned, showing that Mrs Kreka was genuinely disabled, Dr McGill considered them to be postural effects or effects resulting from tensed muscles. Dr Cant agreed largely with this analysis (Exhibit R4).
Dr McGill made copious findings related to Mrs Kreka's non-organic behaviour in examination and he observed many movements she made more freely when not being formally examined. These have been fully set out above. He detected only minimal constitutional degenerative change in the cervical and thoracic regions.
Dr McGill saw the video evidence as confirmatory of his suspicions about Mrs Kreka's non-organic behaviour. Again, his full description of his observations was quoted earlier in these reasons.
Dr D C Maxwell agreed in his evidence with Dr McGill's analysis of the MRI scan. He said it showed developmental changes of small nodes, not intra-discal rupture. He had noted that Mrs Kreka moved more freely in his surgery when she was not being formally examined. He considered the video to show activities partially inconsistent with what he had observed in examination. In his examination Mrs Kreka had displayed a full range of shoulder movement, which was not demonstrated in other examinations. This meant that some aspects of the video were less unexpected in Dr Maxwell's case.

Like Dr McGill he considered that Mrs Kreka was not suffering from any work related injury. She may have sprained her neck in a work incident but the effects had resolved.
Dr Patrick agreed with Dr McGill as regards the MRI scan results. He identified Schmol's nodes as present. He did not think that the 1992 and 1998 incidents would prolong symptoms emanating from constitutional conditions. He said he saw plate irregularities in the MRI scan, not intradiscal ruptures. He said that it was not generally possible to discern a degenerative disc from a post-traumatic disc, although a young person would be more likely to have a traumatised disc.
Dr Patrick elicited a greater range of movements from Mrs Kreka than most others, but less shoulder movement than Dr Maxwell did. Dr Patrick considered that both incidents had ongoing effects. The 1992 incident caused low back strain injury and cervical strain injury which precipitated or accelerated minor spondylitic change at the lower cervical spine between C6 and T1. The 1998 incident caused significant musculo-ligamentous strain injury to the neck, upper thoracic spine, lumbar spine and scapulo-costal regions. He accepted Mrs Kreka's ongoing symptoms as genuine and consistent with the work injuries as described. He did not think Mrs Kreka was fit to return to her normal work. However, in later evidence he tended to stress that psychological effects would flow from the work incidents. He also conceded that her lower thoracic pathology was probably not caused by either accident, although the incidents may have prolonged them. He described the cervical spine pathology as minor.
Dr Cant in Exhibit R3 identified abnormal illness behaviour. He said that Mrs Kreka's 1998 soft tissue injuries would have settled within a few weeks. He suggested deliberately feigned illness. He was confirmed in this when he saw the video evidence. In Exhibit R12 he identified full and free movement. He considered Mrs Kreka fit to do the work for which she was employed, presumably full-time.
Considering the totality of this medical evidence the Tribunal makes the following findings for the reasons stated:
1)Generally the evidence of the Respondent's doctors has been preferred. This is because it is notably consistent in its observations about non-organic effects in examinations and in assessing the video evidence. It is also consistent in its refutation of theories such as Dr Roebuck's suggestion that a MRI scan indicated intra-discal rupture. Although Dr Roebuck attracted support for this theory from Dr Mahony, the other medical experts dismissed it. In addition they tended to agree that the MRI showed Schmorl's nodes which are asymptomatic. Even Applicant's doctor, Dr Patrick agreed with this assessment.

2)The Respondent's doctors also refuted the theory that the spinal effects noted on the MRI scan were caused traumatically. Dr McGill most convincingly dealt with this suggestion by incorporating reference to the findings in the August 1998 bone scan.

3)The Tribunal was not impressed with the Applicants' doctors' handling of the video evidence. The videotape may not have been technically perfect but the subject was plainly Mrs Kreka and she plainly performed acts alone which she told the Tribunal she would do only with assistance. She also demonstrated a fullness and freedom of movement totally inconsistent with the closely restricted movements she was prepared to demonstrate to the Tribunal. The videotape was short for a depiction of three days. However, there was, in the Tribunal's view, enough clarity and variety of content to give the lie to much of the Applicant's presentation to doctors and the Tribunal. Effectively Drs Roebuck and Mahony refused to enter into constructive dialogue about the video content. The Applicant's witnesses tended to suggest that the video showed Mrs Kreka going about essentially normal shopping and driving activities and so the video showed nothing of interest. In the Tribunal's view this missed the point that Mrs Kreka's position was that she is disabled from performing these very activities without considerable assistance.

In view of these findings it will be clear that the Tribunal was unimpressed with Mrs Kreka's presentation before it.
The Tribunal notes that several doctors suggested that Mrs Kreka may have symptoms of non-organic psychological or psychiatric disorders. However, the Tribunal is unable to accept any of these as compensable on the current state of the evidence.

Dr Patrick said in passing in examination in chief that Mrs Kreka may be exhibiting elements of chronic pain syndrome. He did not enlarge on this.
Dr Carr, a rheumatologist, in T9 suggested in March 1999 that Mrs Kreka "may" have a chronic pain syndrome and saw that as his diagnosis. However, again he did not expand on how this might be linked to the workplace incidents and this was not pursued by Mrs Kreka's counsel.
Dr Dinnen in Exhibit A5 diagnosed a dysthimic disorder but that diagnosis was rejected by Dr Boland in Exhibit R5. Again, it was not a diagnosis pursued on Mrs Kreka's behalf.
Dr Cant in Exhibit R3 thought that Mrs Kreka's apparent disability was due to abnormal illness behaviour but that she was fit to resume her normal duties as a canteen assistant. In Exhibit R12, after viewing the video evidence, Dr Cant wrote further on any possible abnormal illness behaviour. He said it may result from unconscious psychological mechanisms or be deliberately feigned. The normal behaviour demonstrated in the video suggested that Mrs Kreka's limitations were deliberately feigned on examination. They were not the result of an unconscious psychological mechanism.
Dr Boland, a psychiatrist, in Exhibit R5 diagnosed adjustment disorder with mixed anxiety and depressed mood. Her pains were explained as abnormal illness behaviour. Her disorder was not attributable to her employment. It was a result of her husband's illness and her involvement in the medico-legal process. She was competent to resume her normal duties as a canteen assistant.

As that survey of the evidence indicates, there is no consensus as to any psychological or psychiatric condition suffered by Mrs Kreka. If she suffers from such a condition it is not considered probable, on this evidence, especially that of Dr Boland, that it was related to her employment. There is also convincing opinion that any such condition does not preclude Mrs Kreka from returning to her full duties.
The Tribunal derived little assistance from the evidence of Mrs Kreka's daughter. She had no recall of the 1992 incident or its aftermath. Her evidence as regards the aftermath of the 1998 incident suggests that Mrs Kreka's behaviour at home was and is physically restricted. At the same time her evidence was that Mrs Kreka is nevertheless capable of preparing meals on a regular basis for a group of four.
The Tribunal, having made these findings on the evidence before it, has also decided that it prefers the diagnoses of the Respondent's medical experts who effectively rebutted the views of the Applicant's doctors who were of the view that Mrs Kreka had sustained considerable physical injury and was manifesting genuine symptoms.
The corollary of these findings on the stated evidence is that the Tribunal finds that the injury was no longer present on 23 October 1998, the date of effect of the first of the decisions under review.
Issue 2 – Has that injury resulted in death, incapacity for work or impairment?
Clearly no death has resulted from the injury.
The Respondent accepted that incapacity for work resulted from the injury on 25 June 1998 (T22). However, incapacity payments ceased as of 17 March 1999 (T8). For the reasons given above the Tribunal considers that there was no incapacity for work as of 17 March 1999.
There could nevertheless be an impairment attracting a payment under ss 24 and 27 of the Act. Section 4(1) of the Act defines an "impairment" as "the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function". Section 28 of the Act authorises the publication of a Comcare "Guide to the Assessment of the Degree of Permanent Impairment" which must be used in assessing whole person impairment levels (in per-centage terms) for the purposes of the Act.
The Tribunal, for the reasons given earlier, accepts the evidence on impairment given by the Respondent's medical experts in preference to that given on behalf of the Applicant. Dr Gliksman in Exhibit R10 concluded that there was no medical condition capable of explaining any or all of Mrs Kreka's alleged symptoms or signs.
Dr McGill assigned impairment ratings of nil in respect of all the sites of symptoms suggested by Mrs Kreka. He was not convinced that there was any upper body pathology attributable to the compensable incidents. Dr Maxwell considered that Mrs Kreka had no permanent impairment in accordance with the Comcare guide. Dr Cant considered that the Applicant had no physical disability and no permanent impairment of any part of the body.
It is noted that Drs Roebuck, Mahony and Patrick assigned impairment ratings to Mrs Kreka but for reasons given earlier the Tribunal does not accept that Mrs Kreka had any continuing impairment on 13 May 1999, the date when the permanent impairment claim was lodged.
This finding disposes of issue 3. If there was no impairment at the relevant time there can be no inquiry as to the impairment's permanence.
Likewise, issues 4 to 7 evaporate. While the Respondent made decisions requiring the Applicant to undergo rehabilitation and return to work programs, which she objected to pursuing, the Act provides for these on the basis that the employee is suffering from an injury resulting in an incapacity for work or an impairment. The Tribunal findings are to accept the views of Dr McGill and Dr Cant, which do not support the existence of an incapacity or an impairment by 23 October 1998. In the Tribunal's view the Applicant was fit for her normal duties on that date. Several of the Respondent's expert witnesses (notably Drs Gliksman, Dr McGill, Dr Maxwell, and Dr Cant) considered that there was no barrier to the Applicant's immediate return to work on full duties at the various times when they were writing.
Conclusion
The Tribunal has concluded on the basis of the above findings that the Respondent was on 4 May 1999 justified in denying all liability for payment of any form of compensation to Mrs Kreka in respect of her injury of 25 June 1998.
This has the effect that the Respondent is not liable to make any compensation payments to Mrs Kreka even if she enters into a return to work program. The Tribunal is aware from Mrs Kreka's evidence that she is working part-time at present. This means that Mrs Kreka is eligible only for part-time wages or salary with no supplementary payments by way of compensation. She would presumably qualify for full wages or salary if she commences to work full-time.
Decision
As regards N1999/271 the Tribunal sets aside the decision under review.
As regards N1999/667 the Tribunal sets aside the decision under review.
As regards N1999/899 the Tribunal varies the decision under review by deciding that liability to pay compensation ceased on and from 23 October 1998.
The Tribunal notes that, although two reviewable decisions are set aside, this occurs as a result of the decision in N1999/899 that is favourable to the Respondent. The Respondent is not liable to pay the costs of the Applicant.

I certify that the 208 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr J Campbell, Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  10-12 May 2000
Date of Decision  21 March 2001
Representative for the Applicant              Mr M Connolly
Representative for the Respondent        Ms R Henderson