Nasir v Northern Territory of Australia
[2010] NTMC 55
•8 September 2010
CITATION: Nasir v Northern Territory of Australia [2010] NTMC 055
PARTIES: CHARLENE NASIR
v
NORTHERN TERRITORY OF AUSTRALIA
TITLE OF COURT: WORK HEALTH COURT
JURISDICTION: Worker’s Rehabilitation and Compensation Act
FILE NO(s): 20828827
DELIVERED ON: 8 September 2010
DELIVERED AT: Darwin
HEARING DATE(s): 10-14 August, 17-21 August, 1 September, 5 October 2009 & 7 January 2010
JUDGMENT OF: R J Wallace
CATCHWORDS:
WORKER’S COMPENSATION – Worker’s Rehabilitation and Compensation Act (NT) s 69 – Reduction of Benefits contrasted with cancellation of benefits – Notice of Reduction - Counterclaim
REPRESENTATION:
Counsel:
Worker: S Gearin
Employer: P Barr QC
Solicitors:
Worker: Ward Keller
Employer: Hunt & Hunt
Judgment category classification: C
Judgment ID number: [2010] NTMC 055
Number of paragraphs: 221
IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIANo. 20828827
BETWEEN:
CHARLENE NASIR
Worker
AND:
NORTHERN TERRITORY OF AUSTRALIA
Employer
REASONS FOR JUDGMENT
(Delivered 8 September 2010)
Mr R J Wallace SM:
INTRODUCTION
This is a claim for worker’s compensation brought pursuant to what is now the Worker’s Rehabilitation and Compensation Act (“the Act”).
The Worker, Ms Nasir, was employed as a school teacher – indeed, as a Faculty Head – at Casuarina Senior College. She was injured in a fall on these premises while she was at work. The Consolidated Pleadings, (“the pleadings”) filed by Mr Neill, then of Messrs Ward Keller, Ms Nasir’s solicitors (and now a magistrate) efficiently laid out the relevant history and issues.
1. Worker’s Statement of Claim dated and filed 26 November 2008.
2. Employer’s Notice of Defence and Counterclaim dated and filed 9 January 2009.
3. Worker’s Reply to Employer’s Defence dated and filed 30 January 2009.
4. Worker’s Amended Defence to Employer’s Counterclaim dated and filed 4 August 2009.
SC1 The Worker was born on 16 September 1948 and is currently 60 years of age.
D1 The Employer admits the allegations contained in paragraph 1 of the particulars of claim.
SC2 The Worker at all material times was employed by the Employer as a teacher.
D2 The Employer admits the allegations contained in paragraph 2 of the particulars of claim.
SC3 On or about 7 August 2003 the Worker fell in the course of employment and suffered injuries (“the injury”).
Particulars of the Injury
(a) Left wrist – undisplaced fracture of the scaphoid;
(b) Right shoulder – rotator cuff tear;
(c) Low back injury – exacerbation of degenerative disease of L/5/S/1 with associated spinal stenosis;
(d) Right knee – soft tissue injury.
D3 The Employer admits the allegations contained paragraph 3 of the particulars of claim.
SC4 The Worker made a claim pursuant to the then Work Health Act on or about 14 August 2003 (“the claim”).
D4 The Employer admits the allegations contained in paragraph 4 of the particulars of claim.
SC5 The Employer accepted the claim.
D5 The Employer admits the allegations contained in paragraph 5 of the particulars of claim.
SC6 The Worker returned to work pursuant to a graduated return to work program on or about 30 August 2005.
D6 The Employer admits the allegations contained in paragraph 6 of the particulars of claim.
SC7 As a result of the injury the Worker suffered total or in the alternative partial incapacity for work from and including 8 August 2003 to and including 29 August 2005.
D7 The Employer admits the allegations contained in paragraph 7 of the particulars of claim save that the Employer does not admit that the Worker’s incapacity was total.
SC8 From on or about 30 August 2005 to date and continuing, the Worker has suffered and continues to suffer partial incapacity for work.
D8 The Employer admits the allegations contained in paragraph 8 of the particulars of claim.
SC9 On or about 9 September 2008 the Worker received from the Employer a Notice of Decision dated 8 September 2008 reducing the amount of weekly compensation payments from $887.65 per week gross to $153.76 per week gross with the reduction to be effective 14 days thereafter (“the Notice of Decision”) and a letter dated 9 September 2008 from the TIO on behalf of the Employer to the Worker.
D9 The Employer admits the allegations contained in paragraph 9 of the particulars of claim.
SC10 The Notice of Decision included a statement in the approved form (“the statement”) pursuant to subsection 69(1)(b) of the Act as follows:
“(a) You suffered a work related injury on 7 August 2003.
(b) Your indexed normal weekly earnings for 2008 is $1,547.76 gross per week.
(c) You currently have an earning capacity based on your fitness to carry out full time work in an alternative position such as a Counsellor or in a full time administrative role.
(d) You have been certified by Dr David Millons as fit to undertake such full time work duties with the restrictions that you must be able to stand and sit as needed and you must avoid lifting anything heavy or undertaking excessive bending.
(e) A suitable position has been identified with your employer as a Careers Counsellor on a T9 level. With your many years of teaching experience, and the capacity of your Employer to provide the flexibility you require, this position is suitable for you and would comply with the restrictions provided by Dr Millons.
(f) As you are fit to work in the alternative position as a Careers Counsellor you have the earning capacity of at least $1,342.75 weekly.
(g) Therefore your weekly compensation entitlement pursuant to Section 65(2)(b)(ii) of the Act is reduced to 75% of the difference between your indexed normal weekly earnings and your earning capacity, namely $153.76 per week”.
D10 The Employer admits the allegations contained in paragraph 10 of the particulars of claim.
SC11 Payments of weekly benefits to the Worker were reduced to $153.76 per week from on or about 23 September 2008.
D11 The Employer admits the allegations contained in paragraph 11 of the particulars of claim.
SC12 The Notice of Decision and the accompanying letter did not enclose any medical reports or any medical certificates from Dr Millons or at all.
D12 The Employer admits the allegations contained in paragraph 12 of the particulars of claim.
SC13 The Notice of Decision and accompanying letter did not enclose any material of any nature relevant to the Careers Councillor position, or any other potential employment.
D13 The Employer admits the allegations contained in paragraph 13 of the particulars of claim.
SC14 The reasons set out in the Statement in breach of sub section 69(4) of the Act did not provide sufficient detail to enable the Worker to understand fully why the amount of compensation was being reduced to that particular figure or at all.
Particulars
(a) The Employer did not enclose details of the position of Careers Counsellor with the Notice of Decision.
(b) The position of Careers Counsellor did not exist or in the alternative if it did, the duties were not those advised to Dr Millons.
(c) The Notice of Decision failed to provide any information, or in the alternative, any sufficient information about the position of Careers Counsellor.
D14 The Employer denies the allegations contained in paragraph 14 of the particulars of claim. Insofar as the particulars alleged the Worker did not have sufficient information or details about the position of Careers Counsellor or did not understand duties of such position, the Employer says the Worker has carried out the duties of a Careers Counsellor for the Employer both before and after the work injury.
Reply In reply to paragraph 14 of the Employer’s Notice of Defence dated 9 January 2009 the Worker denies that she carried out the duties of a Careers Counsellor as alleged because the Employer in its Notice of Decision dated 8 September 2008 failed to identify the position of a Careers Counsellor or the duties involved in any such position or the qualifications and/or experience required for that position.
SC15 The Notice of Decision is invalid.
D15 The Employer denies the allegations contained in paragraph 15 of the particulars of claim.
SC16 The Worker hereby appeals from the Notice of Decision.
D16 The Employer does not plead to the allegations contained in paragraph 16 of the particulars of claim.
SC17 The Worker seeks the following remedies:
(i) a ruling that the Notice of Decision is invalid.
(ii) An Order that the Employer resume payments of weekly benefits to the Worker from the date of Order, in accordance with the Act.
(iii) An Order that the Employer pay arrears of weekly benefits to the Worker from the date of the reduction of weekly benefits to the date of Order in such amount as this Honourable Court determines.
(iv) An Order that the Employer pay interest on the arrears of weekly benefits pursuant to Section 89 of the Act from 7 days after the reduction notified in the Notice of Decision took effect to the date of payment, in such amount as this Honourable Court determines.
(v) An Order that the Employer pay the Worker’s costs of and incidental to the proceedings and to the dispute giving rise to the proceedings to be taxed in default of agreement at 100% of the Supreme Court Scale.
DEFENDANT’S COUNTERCLAIM
The Employer claims as follows:
CC1 If, contrary to the Employer’s pleadings in the Defence above, the Notice of Decision was invalid (whether because the Employer did not include any medical report or medical certificate from Dr Millons or because the Employer did not enclose any material relevant to the Careers Counsellor position or any other potential employment, or because the reasons set out in the Notice of Decision did not provide sufficient details to enable the Worker to understand fully why the amount of her compensation was being reduced to the amount stated in the Notice of Decision, or for any other reasons), the Employer claims an order or ruling as to the Worker’s entitlement to receipt of compensation and the amount of such compensation on the basis of the facts pleaded below.
CC2 As at 9 September 2008, the Worker’s normal weekly earnings as indexed were $1,547.76.
WD1 In response to paragraph 2 of the Counterclaim, the Worker admits that the Employer has relied on the figure of $1,547.76 as the Worker’s indexed normal weekly earnings for 2008 in the Employer’s Notice of Decision and Rights of Appeal dated 8 September 2008 but does not otherwise admit that the figure of $1,547.76 represents the Worker’s indexed normal weekly earnings in 2008.
CC3 As at 9 September 2008, the Worker had the capacity and experience to work as a Careers Counsellor in a full time position or in some other full time administrative position with the Employer subject to the restrictions that she avoid excessive use of her right arm above shoulder height, that she avoid lifting more than 10kg, and that she avoid working in awkward or confined spaces.
WD2 The Worker denies paragraph 3 of the Counterclaim and says that the position pleaded of a Careers Counsellor has not been identified either in terms of its duties or the qualifications and/or experience required for any such position, so that it is not possible to determine whether the Worker had the capacity and experience to work as a Careers Counsellor in either a full time or a part time position.
WD3 The Worker further denies paragraph 3 of the Counterclaim in that she denies that she had the capacity and experience to work in some other full time administrative position with the Employer as pleaded subject only to the restrictions as pleaded, because no such full time administrative position was identified and the duties of any such position and the Worker’s qualification or experience for any such position cannot be know.
CC4 Given the Worker’s capacity pleaded in paragraph 3, the Worker was capable of undertaking and engaging in work as Careers Counsellor at the T9 remuneration level in which she was reasonably capable of earning a weekly amount of $1,342.75.
WD4 The Worker denies paragraph 4 of the Counterclaim which assumes her capacity pleaded by the Employer in paragraph 3 of the Counterclaim, which capacity is denied, and the Worker does not admit that if any work as a Careers Counsellor existed at 8 September 2008 that such a position paid a weekly amount of $1,342.75.
CC5 As at 9 September 2008 and continuing to date the compensation payable to the Worker under Section 65(1) Work Health Act for loss of earning capacity has been $153.76.
WD5 The Worker denies paragraph 5 of the Counterclaim and says that as at 9 September 2008 and thereafter the Worker’s entitlement to be paid weekly benefits under the Act is to be determined in accordance with the Act.
CC6 The Employer denies that the Worker is entitled to the remedies claimed in paragraph 17 of the Statement of Claim.
The claim, then, is an appeal by Ms Nasir against the reduction of benefits once paid by the Employer. The claim having once been accepted by the Employer, the burden rests upon it to justify the cessation or (as in this case) reduction of benefits.
THE MECHANISM OF REDUCTION
Paragraphs 10 to 15 of the pleadings summarise the issues relating to the Employer notifying Ms Nasir of its decision to reduce her payments.
Section 69 of the Act provides:
69 Cancellation or reduction of compensation
(1) Subject to this Subdivision, an amount of compensation under this Subdivision shall not be cancelled or reduced unless the worker to whom it is payable has been given -
(a) 14 days notice of the intention to cancel or reduce the compensation and, where the compensation is to be reduced, the amount to which it is to be reduced; and
(b) a statement in the approved form -
(i) setting out the reasons for the proposed cancellation or reduction;
(ii) to the effect that, if the worker wishes to dispute the decision to cancel or reduce compensation, the worker may, within 90 days after receiving the statement, apply to the Authority to have the dispute referred to mediation;
(iii) to the effect that, if mediation is unsuccessful in resolving the dispute, the worker may appeal to the Court against the decision to cancel or reduce compensation;
(iv) to the effect that, if the worker wishes to appeal, the worker must lodge the appeal with the Court within 28 days after receiving a certificate issued by the mediator under section 103J(2);
(v) to the effect that the worker may only appeal against the decision if an attempt has been made to resolve the dispute by mediation and that attempt has been unsuccessful; and
(vi) to the effect that, despite subparagraphs (iv) and (v), the claimant may commence a proceeding for an interim determination under section 107 at any time after the claimant has applied to the Authority to have the dispute referred to mediation.
(2) Subsection (1) does not apply where -
(a) the person receiving the compensation returns to work or dies;
(aa) the person receiving the compensation fails to provide to his or her employer a certificate under section 91A within 14 days after being requested to do so in writing by his or her employer;
(b) the medical certificate referred to in section 82 specifies that the person receiving the compensation is fit for work on a particular date, being not longer than 4 weeks after the date of the injury in respect of which the claim was made, and the person fails to return to work on that date or to provide his or her employer on or before that date with another medical certificate as to his or her incapacity for work;
(c) the payments of compensation were obtained by fraud of the person receiving them or by other unlawful means; or
(d) the Court orders the cancellation or reduction of the compensation.
(3) Where compensation is to be cancelled for the reason that the worker to whom it is paid has ceased to be incapacitated for work, the statement under subsection (1) shall be accompanied by the medical certificate of the medical practitioner certifying that the person has ceased to be incapacitated for work.
(4) For the purposes of subsection (1)(b), the reasons set out in the statement referred to in that subsection shall provide sufficient detail to enable the worker to whom the statement is given to understand fully why the amount of compensation is being cancelled or reduced.
The Employer’s Notice of Decision (“the Notice”) became Ex 33 in the case. Its contents are fully reproduced in paragraph SC10 of the Pleadings [although the Notice’s paragraphs are numbered 1 – 7 in the original, not “lettered” (a) – (g)].
It is agreed – see paragraph 12 of the Pleadings – that the Employer did not provide any medical certificate with the Notice. Ms Gearin, counsel for Ms Nasir, argues that the lack of such a certificate renders the Notice invalid. She cites the decision of Mildren J in Newton v Masonic Homes (not reported 25/9/09 SCC No LA8 of 2008). In that case, the Employer ceased all payments to the Worker, who was still admitted to be incapacitated for some work, because the Employer alleged she was capable of work remunerated well enough to reduce her entitlement under the Act to nil.
Mr Barr QC, counsel for the Employer argues, correctly in my opinion, that the Newton decision deals with a different situation than the case of Ms Nasir. In Newton, Mildren J’s entire discussion of the cessation of her benefits is as a “cancellation”. That being so, s 63(9) of the Act had to be complied with ie, a medical certificate had to be provided if the notice of decision were to be invalid.
But, Ms Barr argues, that is not the case of Ms Nasir. The Notice in this case is a reduction, not a cancellation of benefits. Section 69(3) involves a requirement for medical certificate only in a case of cancellation.
Looking at the provisions of s 69 as a whole, it is my opinion that this must be correct. The uses of “cancelled or reduced” “cancellation” (twice) “cancellation or reduction” (once) and “cancel or reduce” (twice) in s 69(1) and of ‘cancellation or reduction” in s 69(2), stand in marked contrast to the bare participle “cancelled” in s 69(3).
Ms Gearin next argues that the Notice does not comply with the requirements of s 69(4). Again, Newton, wherein Mildren J decided (at paragraphs 15-17) that that Notice did not comply with s 69(4) is to the point, but that case differs markedly from this. The Reasons for Decision of Ms Fong Lim, RSM (as she then was) in that matter in this Court (27/8/08, matter number 20718189) reveal that Ms Newton had worked, if briefly, as a teacher’s aide (see paragraph 181 of Ms Fong Lim’s Reasons); and it could therefore be assumed that she would have an adequate grasp of the work involved in that job. Ms Newton’s Notice had recited:
“(i) You suffered a work related injury to your right thumb on or about 14 April 2005;
(ii) Your indexed normal weekly earnings for 2007 is $516.90 gross per week;
(iii) You currently have an earning capacity based on your fitness to carry out at least 37 hours of work with an alternative employer as a teacher’s aid. Your earning capacity from such employment is $600.00 per week;
(iv) You have been certified by Dr Philip Haynes as fit to undertake the work duties required of a teacher’s aid;
(v) You have been certified by Dr Goodhand as fit to undertake the duties with an alternative employer in 37 hours per week;
(vi) You are fit to work as a teacher’s aid for at least 37 hours per week and have an earning capacity of at least $600.00 per week;
(vii) Pursuant to section 65(2) (b) (ii) of the Work Health Act (NT) your weekly compensation benefits is reduced to 75% of the difference between your indexed normal weekly earnings and your earning capacity namely nil”.
(From Ms Fong Lim’s Reasons, paragraph 62).
Ms Gearin’s complaint is twofold. First, she again refers to the lack of any certificate to accompany the Notice and to support the Notice’s assertion (in clause 4) that “you have been certified by Dr David Millons as fit … etc”. Secondly, Ms Gearin argues that, as the test for compliance with s 69(4), which Mildren J has held in Newton to be an objective test, Ms Nasir could not possibly “understand fully why the amount” of her compensation was being reduced, because she did not know and could not know what was entailed in the jobs described in clause 3 of the Notice, “… a Counsellor or a full time administrative role”.
On the evidence, Ms Nasir had never worked as a “Counsellor” and had no qualifications (if any are required) for that job. [On the evidence, it emerged that what the Employer had in mind when using the word “Counsellor”, would have been better conveyed as ‘Careers Advisor”, a facility provided by secondary schools these days, performed by qualified teachers and work of which Ms Nasir had considerable personal experience.] As for a “full time administrative role”, again, Ms Nasir had not done such work, at least not at all recently, and how, Ms Gearin asks, was she to have any comprehension of what was intended? [Again, the evidence established that what was intended was, for example, work in a small specialised unit of the Education bureaucracy.]
Clause 5 of the Notice goes some of the way towards bridging Ms Nasir’s gap in comprehension, speaking as it does of “a Careers Counsellor on a T9 level” and referring to her “many years of teaching experience” as being relevant to the Employer’s conclusion that “… this position is suitable for you …”. There is no elaboration in the Notice of the “administrative role” and as far as that is concerned, I agree with Ms Gearin’s submission that no reasonable Worker, even with her solicitor’s help, could be expected to work out what it would mean.
As regards the “Careers Advisor” verses “Careers Counsellor (her teaching experience being relevant)” description, the case is, in my view ultimately the same. In my opinion a reasonable Worker in Ms Nasir’s position, receiving this Notice would not be expected to understand that the fools who had drafted it had misnamed the job, rather than believing that the job was something different from the one he or she was experienced in doing. The misnomer in itself is not conclusively significant (although it is greater than the “teacher’s aid/teacher’s aide” error that may have existed in the Newton Notice). However, there is a further detail capable of confusing a reasonable Worker. The evidence is that, customarily, those teachers working as Career Advisors did not specialise solely in that work. They went on teaching classes for part of their working hours. The Notice speaks of ‘full time work in an alternative position such as a Counsellor”. In my view, Ms Nasir could not reasonably be expected to understand that what was being proposed for her was a full time job doing what others by and large, did as only part (often the preponderant part) of their employment duties.
I am aware, in coming to this conclusion, that there is at least one teacher known to Ms Nasir, working at Casuarina Secondary College solely as a Careers Advisor. Mr David Cox gave evidence in the Employer’s case. Mr Cox came into Careers Advising after returning to teaching work following what he described as a “nervous breakdown”. For a time he taught as well, until he reached a point where he feared another breakdown. Rather than cease work (as his doctor advised), he chose to strike a deal with the Department whereby he works wholly as a Careers Advisor – work he enjoys and values. Mr Cox’s careers work is still only .75 of a full time position, and he is paid accordingly (and I assume work reduced hours accordingly). In effect, he has been excused working – school teaching in the old-fashioned sense – the .25 of his time that was once expected of him. So although exclusively a Careers Advisor, he is not a full time one.
That being so, the Notice spoke of work the description of which Ms Nasir says she did not recognise, on a full time basis, which in itself would tend to lead her away from identifying that the job was mis-titled. Although I have a lot of reservations as to Ms Nasir’s creditworthiness – as will appear – even if I place no weight on her evidence that she didn’t understand what the Notice was offering, it does not follow that I can conclude that she did and I am of the view that an ordinary reasonable teacher in Ms Nasir’s position, receiving this Notice would not have know what “Counsellor” or “Careers Counsellor at a T9 level” meant. As for “a full time administrative role”, what could be less informative? In my opinion, the Notice did not provide Ms Nasir with sufficient information to understand why the amount of compensation was being reduced. It could be paraphrased as saying “We have a doctor [Millons] who tells us that you are capable of doing a job we have in mind”. In my opinion, a valid certificate needs to tell its recipient more than that.
THE COUNTERCLAIM
The Employer’s Counterclaim in essence recapitulates the matters in the Notice. The pleadings for the Worker in answer to the Counterclaim again raise the issues of the words used describe the “Careers Counsellor” position and of the lack of detail (in the Counterclaim itself) concerning the “full time administrative position”. In my opinion, the Worker’s arguments on these heads are incapable of ultimate success. The details of the various positions emerge on the evidence. Ms Nasir’s capacity to carry out these duties is for the Employer to prove. [Should the Employer succeed in discharging that burden, a question arises as to the date from which payments could fairly be ordered to cease. As far as I know, there is no authority on that point and it might be that continuing uncertainty as to the position offered would weigh on the decision as to that date.]
Not only does the Employer bear the burden of proof, but it is also dux litis. Mr Barr QC, counsel for the Employer set out to prove that Ms Nasir was sufficiently less disabled by her injuries that she had previously been, or had previously been believed to be, that she was capable of undertaking remunerated work in either, if not both, of the two full-time positions that came to be described. At the foundation of Mr Barr’s attempted proof lay an amount – a large amount – of video recorded material (which I shall refer to as “film” – not that any of it ever was). The line of argument built upon this foundation is a familiar one.
First, it is asserted that the film shows Ms Nasir to possess physical abilities beyond what she had said are the limitations imposed by her injuries.
Secondly, it is argued that, if there is a significant discrepancy, Ms Nasir must, to that extent, be disbelieved and her credit on other matters – matters not themselves contradicted by film – cast into doubt.
Thirdly, to the extent that a discrepancy exists between what the film shows and what Ms Nasir has told her doctors, it is argued that the medical opinions based (at least in part) upon what she has said need to be revised in the light of the filmed material. [This part of the argument is simple enough in the abstract, but rather less so in practice. Its force depends upon findings in relation to a number of circumstances, none of them self-evident: how much reliance a given doctor placed upon a thing Ms Nasir told him (all the medical specialists in the case are male); how important that piece of information was among the factors – not all of them verbal information from Ms Nasir – leading to an opinion; how that doctor assessed the degree of discrepancy between the information, on the one hand, and the film, on the other, and how he assessed the importance of that discrepancy. To add to the complications inherent in deciding such matters is the necessity for the Court to assess a doctor’s willingness or capacity to revise his opinion, which may depend on many things, including the doctor’s character. Stubbornness and pride, for example, would perhaps militate against appropriate revision, especially if their possessor were sympathetic to the patient. Anger at being deceived might tend to an exaggerated revision, especially in a doctor wearied by the impostures of malingerers.]
Fourthly, the Employer argues that such of the revised medical opinions that are at all acceptable establish that Ms Nasir has the capacity to perform the duties entailed in the position spoken of – Careers Counsellor (or Advisor), administrative role.
MS NASIR’S INJURIES – HER ACCOUNT
When a Worker is dux litis, the Employer has the opportunity to surprise him or her with filmed material contradicting – sometimes utterly confounding - the Worker’s evidence in chief. The Employer in this case has not had that opportunity. Ms Nasir’s testimony was given after the whole of the Employer’s hand was uncovered. However, her testimony was not the first sworn statement she had made in the matter. Two affidavits, one sworn 10/10/08, the other 23/10/08 became Ex 36 and 37 in the matter. Ms Nasir swore these affidavits on connection with an Application by her for interim benefits. Such Applications are filed separately from the Application for Worker’s Compensation and I know of it only what I have heard in open Court, in and around cross-examination centred on these affidavits. (I do not know, for example, whether interim benefits were awarded: something in the hearing left me with an impression that they may not have been, so vague an impression that I would not rely upon it for anything even if it were relevant to anything, which it is not). And there is a further statement of which Ms Nasir is the author, produced quite late in the piece, commenting on her fitness for the various duties of a Careers Advisor. I defer discussion of that document until near the end of these Reasons.
Apart from her testimony and these Affidavits, Ms Nasir has of course made various statements about her injuries and capacities, most pertinently to various doctors.
(a) The Wrist
It will be recalled from the pleadings that Ms Nasir listed among her injuries are to her left wrist. In her testimony she described that injury and its treatment (see p 500-501 of the transcript). Ms Nasir was not cross-examined about her wrist injury and as I understand the evidence, it is not put forward that it has resulted in any ongoing impediment to her working. So far as it is relevant to the matters in issue, this wrist injury is significant because:
(i) Ms Nasir was advised to have treatment for her shoulder wait upon resolution of the wrist – in order that she have one more or less working arm; and,
(ii) the period her lower left arm stayed in plaster was longer than she had expected and so treatment of her shoulder was accordingly delayed.
(b) The Shoulder
Once Ms Nasir’s wrist was unplastered and restored to some use, she had an operation on her right shoulder. By then three or four months had passed since the accident, and after the operation her shoulder was strapped into an immobile position for what she says were two or three months. She was led to expect her should to go on hurting for four or five months after the operation (or it may be, after the strapping was removed). Ms Nasir had spoken of the pain involved in working her one immobilised wrist back to useful life and her evidence implied she was expecting much the same thing from her shoulder. If so, she was doubly disappointed: first, in that the function eventually arrived at in that shoulder was far from fully resorted and secondly, in that the pain never went away (as it had with her wrist).
Ms Nasir’s own evidence never clearly established the extent to which continuing problems – lack of complete movement, pain – with her shoulder would, on their own, disable her from work. But by aligning her evidence with the various doctors’ reports, it is easy enough to gain an adequate picture. The most obvious reason why Ms Nasir’s own evidence did not isolate the effects of her shoulder problem was that, even as she was convalescing from her shoulder operation, and waiting for function to improve and pain to diminish, she had increasing problems with her legs and back (see transcript 505-508).
(c) The Back
Ms Nasir’s initial description of her injuries hardly touched on her spine. She had bruised areas near her hips and a badly swollen knee, but it was not until she began walking again, following the surgery to her shoulder, that her back began seriously to trouble her. The medical reports speak of a pre-existing degenerative spinal condition aggravated by the accident and Ms Nasir’s evidence speaks of further aggravation being perhaps occasioned by ungainly but necessary movements on her part, when constrained by her shoulder injury and pain caused by it – for example, being unable to go down the stairs of her house other than on her backside, and hopping about (favouring one leg) and being too sore in the shoulder to use crutches (see transcript p 505-508). She arrived at a state where she had lower back pain much if not all of the time and sciatica now in one leg, now in the other and sometimes in both. Worse, she said, than the pain was an associated loss of sensation in her feet, causing her to be unaware of losing her balance until it was too late and she must fall.
She suffered many falls – 23 she said (p 506) – and was persuaded to have spinal surgery by the hope that it might restore feeling in her feet (and not in any expectation that it would relieve pain). It seems the surgery did what was hoped in respect of her feet and hence her balance. Her evidence is that pain persists.
(d) The Knee
Ms Nasir reported a grossly swollen right knee among her injuries soon after the accident. Continuing trouble with that knee played its part in the awkwardness which may have contributed to Ms Nasir’s increasingly bad back, but the first and last serious intervention to the knee itself did not occur until 2008, almost five years after the accident and as far as I can tell, the surgery then performed was successful (see p 516-578).
These, then, were the injuries described by Ms Nasir in her evidence and consistently described by her to the various doctors whose reports and testimony was in evidence – Mr Millons’ (report of 12 March 2008, part of Ex 1), Dr McLaren (report of 16 September 2008, part of Ex 13) and Dr Olsen (report of 27 November 2008, Ex 40).
The injuries themselves and their treatment are not in dispute (s the pleadings made clear). The dispute is about the continuing effects of these injuries on her capacity to work.
SPECIALIST OPINIONS – MR DAVID MILLONS
I believe the first specialist’s opinion in evidence is that of Mr Millons, general surgeon, dated 12 March 2008. There had been earlier reports by Mr Millons “the last … dated 5 December 2005”, according to the first line of the report 12 March 2008, but these earlier reports were not part of the “Millons Bundle”, Ex 1. In preparing the report of 12 March 2008, Mr Millons had reference to his earlier reports; to an examination of Ms Nasir on 11 March 2008 and to the history she then provided and updated; to a report by Dr Vrodos (who had operated on Ms Nasir’s spine) of 15 December 2006 and to various radiographic images of Ms Nasir’s spine and right knee, taken in March, May (twice) and July 2006.
Mr Millons’ report refers to Dr Chin, Dr Vrodos, Mr Sharland, Dr Tamayo and Dr Isherwood-Hicks as having had, or continuing to have parts to play in Ms Nasir’s treatment. The letter of instructions he had received from Ms Osborne (of the Employer’s solicitors), part of the “Millons Bundle” included various reports from the first three doctors. I assume that Mr Millons’ knowledge of the role played by Dr Tamayo (GP) and Dr Isherwood-Hicks (Psychologist) came from Ms Nasir.
Mr Millons’ conclusions, beginning on page 6 of his report of 12 March 2008 were:
OPINION
Ms Nasir does not appear to be travelling too well. She still appears to be suffering the after-effects of the heavy fall on 7 August 2003.
She fractured her left scaphoid in that fall. That seems to have been treated appropriately and has apparently gone on to union in good position. She maintains some intermittent discomfort in the wrist. For completeness sake it might be appropriate at some stage that she have the wrist x-rayed just to be sure that the scaphoid fracture has united and that there are no complications there.
She appears to have torn the supraspinatus tendon at the right shoulder in the heavy fall. Dr Sharland addressed that appropriately. The shoulder remains stiff and irritable with evidence of ongoing capsulitis and impingement.
When I saw Ms Nasir last I felt it could be appropriate that she should undergo an MRI/arthrogram of the shoulder to check on the current situation. Two years have passed since then and while an MRI might demonstrate some problem I doubt whether any further treatment would be indicated and it is probably best at this stage to accept the status quo.
She does have difficulty using her right arm much away from her side and there may well be some subjective loss of strength through the right upper limb.
Ms Nasir has some ongoing problems with her neck which do not appear to have come in for perhaps twelve months after the fall. There are some degenerate changes in the neck which could be being aggravated by the normal activities of daily living.
There may be some referred pain from the restricted movements at the right shoulder with secondary effects on the right shoulder girdle and neck.
Ms Nasir had ongoing problems with her back since I saw her last. Those problems go back many years in time but it seems that the fall in August 2003 could well have caused a significant aggravation of the underlying changes.
Dr Vrodos elected to proceed to an L5-S1 fusion in April 2006 with a disappointing outcome. Symptomatically she maintains ongoing problems with her lower back and lower limbs. Her back is stiff and irritable. There is no convincing evidence of any frank nerve root irritation or neurological deficit in the lower limbs. The findings of a stocking hypoesthesia through the left lower limb suggest that there is a degree of introspection and the non-organic about her presentation.
Ms Nasir claims to have some problems with her right knee. She injured the right knee in the fall. Radiologically there are some degenerate changes present. She is about to be reviewed by Dr Sharland with a view to an arthroscopy. I suspect that such problems as she may have in her right knee now would really be more a reflection of the normal activities of daily living and her weight playing on some constitutionally based attritional changes rather than specifically relate to the after-effects of the fall, although it would be hard to be dogmatic on that.
Ms Nasir is now attending Dr Chin for pain management. Her medications have been modified and no doubt she will continue to remain under his regular review.
On the work front she is only working three hours a day, three days a week as a school careers adviser. I would have thought that if she is able to manage three hours a day, three days a week that perhaps she could manage three hours a day, five days a week, but would accept that she would be incapable of returning to full-time teaching activities, both now and in the future.
I have reviewed the report from Site Safe NT. There they note her physical capacities and tolerances which are much in line with what she told me.
It is noted that the aim is to obtain agreement from medical providers regarding work hours and rehabilitation goals. It is noted that there her inflexible perceptions of her work abilities and reported pain are a primary barrier to exploring Ms Nasir’s potential. That would seem a fairly apt comment.
Finally, I turn to matters raised by you in your instructing letter of 7 March 2008.
·Current physical status in relation to the various injuries
Outlined above.
·Confirmation of the tolerances discussed in the report by Site Safe NT
I can confirm the tolerances discussed in the report from Site Safe.
·Current Treatment
I have outlined that above.
Ms Nasir would certainly benefit from ongoing physiotherapy supervised hydrotherapy exercises to try and maintain a level of fitness.
I note that she is about to see Dr Sharland in regard to her right knee. An arthroscopy of the right knee may be suggested. I doubt whether an arthroscopic debridement will add much to the equation.
·Any investigations suggested in order to further assist Ms Nasir in relation to her incapacity
I suggested above for completeness sake the possibility of X-rays of the left wrist and an MRI of the right shoulder but I doubt whether such investigations will materially affect outcomes.
·View as to capacity for Ms Nasir in a sedentary role and restrictions and recommendations in relation to any potential role
Ms Nasir has limited sitting, standing, bending, lifting and walking capacity. She is currently working three hours, three days a week as a careers adviser, no doubt changing her position as needs demand. I suppose in that role she might be able to increase her hours to three hours a day, five days a week.
I would accept that she would be unfit to return to work as a teacher. Her restricted mobility an agility and restricted bending and lifting and restricted use of her right upper limb would preclude her from working in the front of a class at the blackboard.
·Recommendations in relation to further rehabilitation for Ms Nasir
Rehabilitation seems to have really stalled and I would doubt whether any further rehabilitation from here is likely to be successful.
·Prognosis
The prognosis is guarded. Ongoing problems and complaints would appear inevitable.
Mr Millons was soon given reason to reconsider these conclusions. The Employer has had Ms Nasir under surveillance by private detectives for some time. By letter dated 7 April 2008 and part of the “Millons Bundle”, Ms Osborne informed Mr Millons of that fact. Her letter read (in part):
“We have extensive surveillance and I have enclosed (*) a summary of the surveillance reports and activities undertaken by Ms Nasir.
You are more than welcome to look at all the surveillance, however by way of example, I have enclosed (*) two tapes which contain similar activities to the remainder of the tapes. The two tapes I have provided you with are tapes dated 9 August 2007 and February 2008”.
And:
“You note in your report that Ms Nasir is only working three hours per day three days a week which seems to be in contrast with the abilities shown once she is not at work.
I also note your indication that Ms Nasir would not be able to work full time as a teacher, however I write to advise that Ms Nasir is a career’s advisor which is working in small groups or on a one to one basis. I wonder, with the tolerances shown on the tape, whether Ms Nasir would be able to undertake a position as a full time career’s advisor, or in any other administrative role, especially if she was able to move freely and alter her position at any time.
Once you have had a chance to consider the information provided, I would appreciate a further report as to your view of Ms Nasir’s fitness for work. I would request you include your opinion as to her fitness to return to work as a counsellor as well as work generally. I would also ask that you suggest any restrictions and capacities she has based on the evidence you have at this stage”.
The “summary” spoken of by Ms Osborne is a two page spreadsheet outlining the actions of Ms Nasir in 2007 (1 and 26 May, 25 August, 9 and 15 November) and 2008 (23 and 24 January, 15 February – 3 times, 21, 22 and 23 February and 7 March). It is perhaps worth remarking that the descriptions of Ms Nasir’s actions in that summary are in the most neutral terms possible, eg “played a poker machine then walked to her car” (of 1/5/07) or “Attended Tropicus Centre” (of 15/2/08). In my opinion, there is no likelihood that such unexceptionable language could have unfairly prejudiced Mr Millons. As for the film supplied to Mr Millons and his thereby reconsidered opinion, he reported on 14 April 2008 (part of the Millons Bundle, Ex 1). I quote pages 2 – 5:
REVIEW OF VIDEOTAPES
Fifteen minutes of videotape shot on 09/08/07 show Ms Nasir walking along, pulling a shopping trolley behind her with her right arm and hand out behind her. She arrives at the car, opens the rear passenger door and puts two cartons into the back of the car. She then pushes the trolley away. At one point, she puts her right hand up behind her head.
She is then seen getting out of a car from the passenger side. The driver gets out. The driver has more of a problem than Ms Nasir does with, clearly, left hip and lower limb problems. Ms Nasir seems to walk away with a reasonable gait. She is very overweight.
She is then seen in the shopping centre, standing around. At one point, she puts her right hand up behind her back.
She is then seen at a counter in the shopping centre, reaching out with her right arm at least to 90˚ as she conducts a transaction over the top of the counter.
She is then seen back at the vehicle. She opens the rear driver side door. She transfers bags of shopping from the shopping trolley with her right hand and swings them in onto the back seat. She does that several times with bags of shopping and only uses her right arm to do that.
She is then seen walking along, swinging her right upper limb. She then gets into the passenger side of the vehicle.
A distant view is then seen of a garden.
Comment: The way Ms Nasir walks pulling the shopping trolley behind her with her right arm and then unloads bags of shopping with her right hand and swings them into the back of the car is not really indicative of someone who is carrying an active problem in the shoulder.
A short section of videotape shot on 10/08/07 shows Ms Nasir walking across a road.
I then reviewed one hour of videotape of activities undertaken by Ms Nasir on 22/02/08, playing poker machines apparently at the Casino.
She initially is seen sitting at a machine. At one point, she waves her right arm out sideways.
She spends some ten minutes sitting at the machine before getting up and walking away to another machine where she spends another seven minutes.
At times, she sits back in the chair. At other times, she seems to sit forward on the chair with her left foot on the rail and her right foot on the floor. She is seen reaching out with her right arm to touch something above the screen on the machine. She is then seen to lean back on the chair.
She then moves one machine to her left and spends a couple of minutes there before moving away to another machine where she spends a few more minutes.
She is then seen at a different machine again for some nine minutes, sitting forward and leaning back, playing the machine with her right hand.
There is a gap in the videotape for some seven minutes but, when the tape starts up again, she is seen still sitting at the same machine where she remains for another few minutes.
She is then seen standing, playing two machines, one in front of her and one out to the right. She reaches out to the machine on the right with her right arm and seems to be touching something over the top of the screen. She does that for some three minutes, then sits down playing the machine in front of her, still reaching out to the right.
She then stands again and plays the two machines.
She is then seen sitting at the machine on the right of the two for some 22 minutes. She uses her right hand on the buttons. She reaches with her arm above the horizontal to touch something above the screen.
She seems to field a phone call after a while. She has the phone in her left hand and has her right finger in her ear. She then holds the phone in her right hand for a couple of minutes.
She moves freely between the machines and uses her right arm with seemingly no restriction.
I understand from your instructing letter that Ms Nasir has been shown to spend many hours sitting at poker machines.
OPINION
Certainly the appearance of Ms Nasir on the videotape forwarded and certainly the activities demonstrated there are in quite marked contrast to how I found her when I saw her in March this year.
She claimed to have a sitting tolerance of 15 minutes maximum. While sitting at the poker machines, she did not appear to be in discomfort and certainly, at one point, she sat for more than 20 minutes without any obvious difficulty. I understand that she has been shown sitting for longer periods than that which tend to give the lie to her statement.
She was not shown bending.
She maintained problems with her head and neck. She did not really move her head and neck through a full range of movements through the length of the videotape that I saw.
When I saw her, she claimed to have considerable problems with her right shoulder and found it hard to reach out and reach up.
The videotape of her pulling the trolley behind her and then loading the vehicle with bags with her right hand and then spending long periods of time with her arm out in front of her, playing the poker machines and an ability to lift her arm above shoulder height, put her hand up behind her head and up behind her back are in contrast to how she presented to me.
She claimed to have right knee problems when I saw her. She does not appear to be particularly disabled as she walks.
You note that Ms Nasir walks from the car park at the Casino to the Casino on a regular basis and walks for significantly further than 20-30m which would seem to be in conflict with the walking intolerance that she told me about.
All in all, one would have to say that while Ms Nasir does appear to have injured several parts of her anatomy in the fall on 07/08/03 and does appear to have had various surgical procedures, she is not as disabled as she claims. One could not deny that there may be some irritability in the right shoulder and lower back as a result of problems sustained in the fall and subsequent surgical procedures.
One is reliant on the patient’s statement as to how affected they are. Ms Nasir claims to be moderately affected. A review of the videotape would suggest that that is not the case.
When I saw her last, I felt that she should be able to work 3 hours a day, 5 days a week as a careers adviser. If she was just doing careers advising work on a one to one basis, then she should probably be able to handle that work full-time, particularly if she was able to spend long hours sitting down as demonstrated at the Casino.
I note when I first saw her that she was teaching tourism. Face to face teaching of a classroom of students may be difficult if one accepts that there is some minor irritability at the right shoulder and in the lower back.
To give her the benefit of the doubt, she would be advised to avoid excessive use of her right arm above shoulder height, to avoid lifting more than 10kg or working in awkward or confined spaces. Provided she was able to sit, stand and move around as needs demand, she should be able to handle work with those restrictions.
After some further correspondence with Ms Osborne, Mr Millons wrote, in a short letter of 30 April 2008:
I refer to our telephone conversation of yesterday’s date in regard to the above matter following on my supplementary report to you dated 14 April 2008. That was in response to your communication of 7 April 2008.
I refer to your instructing letter. In that you ask me whether Ms Nasir with the tolerances shown on the videotaped evidence would be able to undertake a position as a full-time careers adviser or in any other administrative role, especially if she was able to move freely and alter her position at any time.
I understand that she could be moved into the Curriculum Branch where she could be offered work in an office based environment where she could sit and stand as needs demand, avoid lifting anything heavy or undertaking excessive bending.
By way of clarification then I accept that she would be capable of doing careers advising work on a one to one basis full-time.
I also believe that she could work full-time in an administrative role in an office area whereby she was afforded the facility to sit and stand as needs demand and was able to avoid excessive bending or lifting anything more than 10kg.
I hope that clarifies the matter for you.
Obviously there is a thematic connection between this letter and the Employer’s Notice of Decision of 9 September 2008 reducing Ms Nasir’s payments.
Just before that, by letter dated 1 September 2008, Mr Neill, then of Messrs Ward Keller, Ms Nasir’s solicitors, had written to Dr Niall McLaren, Psychiatrist, confirming an appointment for consultation by Ms Nasir enclosing some reports from Mr Sharland, all the material Mr Neill then had to hand, and requesting a report. Mr Neill’s letter is part of Ex 13, the “McLaren Bundle”. So is the report dated 16 September 2008, the same day as Ms Nasir’s consultation, and as it happened, Ms Nasir’s 60th birthday.
The initial reason for Dr McLaren’s involvement in the case – to see whether Ms Nasir was suffering from a psychiatric or psychological condition, and if so, whether it was work related – has come to nothing. No such condition or relation is pleaded. His involvement continues to be relevant in respect of the history provided to him by Ms Nasir and the incapacities etc described by her to him, compared to and contrasted with her activities and life as revealed by the film. Dr McLaren’s report of 16 September 2008 reads:
Further to your referral, I saw the above-named today in order to assess her current mental state. Mrs Nasir said that she had just returned to work as a school counsellor after having five weeks off work with back pain. She has an accepted disability for a back injury which occurred some time in August 2003. At present, she works three hours a day, three days a week. She is taking ten separate drugs, including four for the pain relief.
She lives alone in a house which has internal stairs. She must use the stairs every time she goes out.
PRESENTING COMPLAINTS
At present, she frequently becomes “upset and emotional” and has trouble sleeping. Most nights, she sleeps poorly. She goes to bed at about 9.00pm and gets to sleep by 1.00-2.00am. She wakes at 6.00am, before the alarm, and does not sleep in on the weekends. Her sleep is broken due to pain. She said the delay in sleep onset is due to pain. Her appetite is not very good and she has lost ten kilos in the last 12 months, without any effort. She is pleased with the weight loss but she still weighs about 120kg. She has very little energy and her activity level is low. She has little interest or motivation in her private life but enjoys her work and would like to get back to work full-time although she is starting to think it will never happen. Socially, she avoids contact with people in her private life but gets on reasonably well with the people at work.
She described her memory as “shot”, by which she meant she is forgetful over daily details, partly due to lack of sleep and partly due to becoming distressed. Her concentration is not very good as her mind wanders, especially when she is tired. She delays making decisions where possible. She has trouble thinking clearly if she is tired and the thought content focuses on her pain and disability. There were no disturbances of perception although she mentioned tinnitus.
She described her mood as “in turmoil and not coping”. She said she feels low and miserable about a third of the time but it was difficult to get her to describe the intensity. With close questioning, she said she is sick of things as they are and occasionally sick of life itself. Sometimes, she thinks that death would be a relief but there are no suicidal ideas. The unhappiness is due to “not coping”, by which she meant she has a great deal of trouble getting through her days due to back pain. She cannot do the things that she would like to do or feels she ought to do. There are no other problems in her life at present.
She described bouts of quite intense agitation, during which she has many somatic symptoms of anxiety. These include shaking, sweating, churning stomach, pounding heart, shortness of breath and dizziness. With these bouts, she feels tense and becomes weepy. She feels frightened during them and tries to get away from whatever is bothering her. She has two to three bouts per day lasting up to several hours each. They are due to “spasms in the back”. She becomes panicky if she feels she has to stand in a queue, eg at the ban [sic.] because she knows she will start to get back pain and won’t be able to sit down. She also becomes agitated under any sort of pressure or with appointments (she had actually had five appointments today). She is greatly bothered by having to deal with this case and is also frightened of falling on uneven ground.
On direct questioning, she is frightened of heights and uneven on slippery surfaces. She fears open spaces because she will not be able to sit down. She is frightened of crowds, queues and actively avoids any sort of disputes. She denied all other significant fears but it would appear that she spends most of her time secluded from the world. She denied any paranoid symptoms and there were no obsessive compulsive phenomena.
Physically, she has constant low back pain, with pain going down the back of both legs to the knees. In addition, she has what she described as “muscle spasms”, which consist of bouts of quite intense pain travelling up the back from the operation site in the low back. The back pain is made worse by having to sit or stand for long periods (meaning more than five or ten minutes) and by walking on hard surfaces. She gets pain walking up stairs or by having to carry things, by bending or by hanging up things such as clothing, etc. She cannot kneel due to pain in the right knee, and has trouble with her right shoulder which was injured in the original accident. Her left thumb aches if she uses the hand too much and she has spasms of discomfort in the right side of the neck. She appears to be in more discomfort if she leaves her home because she may have to sit for long periods or stand. She is able to sit 15 minutes comfortably but then wants to get up and walk around (in the interview, she sat 45 minutes before she stood up briefly).
RECENT HISTORY
On a day in August 2003, while at school, she tripped on a kerb and fell face forward into a bicycle rack. She suffered back, shoulder and knee pain from the time of the injury. She had a plaster on her left wrist for about 14 weeks and, some time after that was removed, she underwent surgery to the right shoulder (2004). In 2006, she underwent a spinal fusion but she is left with a considerable degree of pain. Prior to the accident, she said she had some back discomfort but nothing like what she experienced afterwards. At present, she sees a physiotherapist twice a week and goes to hydrotherapy three times a week. She also sees a psychologist at irregular intervals, mainly when she is upset. She had no previous psychiatric history.
PERSONAL BACKGROUND
She was born in Melbourne and raised in Darwin from the age of ten. Her father, who died in 1995 while in his 80s was a businessman. Her mother died of cancer in 1978, while in her mid-fifties. The mother owned hotels. She described both her parents favourably. She was the third of four children. A 66yo brother is a businessman in Darwin, a 65yo sister is a retired shop assistant living in Melbourne and a 58yo sister in Melbourne worked in childcare. She described her elder sister as “very bossy” but said the others are pleasant. There is no family history of mental illness, substance abuse or criminality.
She went to a private school in Melbourne then local state schools in Darwin after they moved. She left school at the age of 17yrs, having passed Year 12 with good marks. She said she got on extremely well with the teachers and “excellent” with the other children. She was not shy, nervous or aggressive and played plenty of sport. While at school, her home life was very good. On leaving school, she had clerical jobs to the age of 26yrs, then she became a nursing aide at the hospital for about two years. Subsequently, she worked in administration at a school and studied teaching part-time. She started teaching full-time in 1992 and has been at the same school throughout.
Socially, she was married between 1969 and 1982. She had two sons who are now in their late 30s, both of whom live in Adelaide. She feels the marriage simply drifted apart. She does not drink, uses no illegal drugs and has no police record. She leads a very quite social life and has no hobbies or other interests. Her general health is quite poor. She is grossly overweight and has hypertension, diabetes, hypothyroidism and high cholesterol.
SELF ASSESSMENT
She said that normally, she was a very happy person. She was not nervous and not bothered by guilt, shame, or self-consciousness. She has always been an assertive person but said she tries to keep the peace. She is tidy, patient, follows rules and gets on well with authority. She is a trusting and social person, who is not jealous and does not hold grudges. She sees her temper as “very moderate”, her intellect as “smart” and her self esteem as “high”.
MENTAL STATE EXAMINATION
The mental state showed a grossly obese, elderly woman dressed in clean, plain, casual clothing who limped heavily as she came into the office. She fidgeted constantly and did not settle and after 45 minutes stood for a few minutes. She was agitated, garrulous, vague and rarely answered questions directly. Her answers were long winded, tangential, oblique and it was only with difficulty that she was held to the point. She was anxious and agitated and took a long time to settle. In the main, she was unhappy but tried to laugh it off. She was not hostile or suspicious. There were no signs of a psychotic disorder and nothing to indicate an organic impairment of brain function. Intellectually, she is functioning in the bright normal range.
FURTHER INFORMATION
At the end of the interview, she was encouraged to speak freely. She said she has a 45 acre property at Berry Springs where she had hoped to retire to breed chickens but she is now aware that she cannot do this. She said her house “wears her down” as she cannot manage it and she doesn’t want to think about what to do about it. The uncertainty about her future is “really knocking me around. That was my future but all my plans are gone”.
I note the documents you provided as outlined in your instructing letter. The content of these reports is consistent with the history she relayed to me. My reading of the orthopaedic reports is that they are conservative and practical.
OPINION
At present, your client’s major problem is persisting back, shoulder and knee pain with a considerable limitation on her capacity to function independently. However, her mental state is cause for concern. She shows features of a variable, reactive type of depression of mild to moderate severity but the major finding is an untreated and moderately severe anxiety state. In my view, the anxiety state is a significant impediment to her returning to work and I would be most surprised if she were to make any further progress without a proper resolution of the anxiety symptoms. On her account, the anxiety is largely, if not wholly, related to fears for her physical wellbeing and her future security but a lot of these are unrealistic and would be addressed in formal treatment of her anxiety state.
I accept that her present mental symptoms are a complication of her accepted or work related disabilities. The mental symptoms are a result of her failure to adjust to her changed circumstances and it is therefore appropriate to assess her as having an Adjustment Disorder with Anxious and Depressed Mood. The work related injury of August 2003 was a major and direct contributing factor to her present mental injury.
She requires standard outpatient treatment for an anxiety state. There is nothing to be gained from further counselling sessions with a psychologist. She would require psychiatric treatment for approximately six to twelve months. I would expect that the total cost of treatment, including medication, would not exceed $2,500.00. The outcome would be an improvement in the quality of her life and a reduction in the perceived levels of pain. It is possible that she would be able to increase her hours at work as a result of the psychiatric treatment but this, of course, cannot be guaranteed.
At the present, it is not possible to issue a permanent impairment assessment on the basis that her mental state is unstable and she should benefit from treatment.
By letter dated 17 October 2008, Ms Osborne informed Dr McLaren of the evidence of surveillance reports. The letter included a summary of the film taken between 12 September and 19 September 2008 (a few days either side of Ms Nasir’s birthday on which she saw Dr McLaren). I reproduce the text of the entire letter so that the bases for Dr McLaren’s response is clear:
I refer to your report of 16 September 2008 which was provided to Ward Keller, Barristers and Solicitors, in relation to Charlene Nasir.
I advise that I act on behalf of the employer in relation to the worker’s compensation claim by Ms Nasir.
I advise that we have significant surveillance reports in relation to Ms Nasir and they seem to be in contrast to the information provided by her to you.
I refer especially to page 2 of your report in which you indicate that Ms Nasir “spends most of her time secluded from the world”. You make further comments in relation to her concern about leaving home as she may have to “sit for long periods or stand. She is able to sit 15 minutes comfortably but then wants to get up and walk around …”.
What follows is a brief summary of Ms Nasir’s activities for the period around her appointment with you:
Friday 12 September 2008
Ms Nasir seemed to have family with her in preparation for her 60th birthday celebrations. She attended the Tropicus Centre for a session at the pool and then returned home. Ms Nasir then attended Casuarina Shopping Centre where she met with a female companion. Ms Nasir then met another female companion with whom she had lunch and then they browsed and shopped around the centre. After departing from Casuarina Shopping Centre she attended at the Oriental Emporium and was there for a few minutes before she returned home. At home she seemed to engage with a number of family and friends for the afternoon.
Saturday 13 September 2008
Ms Nasir remained at home all day interacting with family and friends, and was observed preparing food on the balcony and making other arrangements seemingly in preparation for a party. Party equipment was seen to arrive at the address and the party started at about 8.00pm. A number of people arrived and the party lasted until after midnight and appeared to be with a number of family and friends.
Sunday 14 September 2008
Ms Nasir remained at home all day and was observed cleaning up after the party. This activity included removing rubbish to bins, watering plants, moving chairs, using a sweeper and/or a mop. She also had a number of family and/or friends over and socialised freely with them.
Monday 15 September 2008
Ms Nasir was observed sweeping, watering plants, cleaning around the property generally, feeding the chooks and moving vehicles around the property. She then attended Darwin Private Hospital and Casuarina Secondary College.
Tuesday 16 September 2008
Ms Nasir attended the Darwin Day Surgery in Fannie Bay and then returned home. She then attended on the ANZ Bank in Darwin then returned home once again. Shortly after she left in the company of two males and went to the Casino and then returned home where she was picked up by a driver. Ms Nasir was located at the Casino playing pokies from approximately 1.00pm to 6.30pm. During this period, she played on the poker machines remaining seated for the majority of the time with occasional periods of entering the Keno lounge. It appears she had two female friends also playing.
Wednesday 17 September 2008
No observations of Ms Nasir.
Thursday 18 September 2008
Ms Nasir was at home with a friend and then she attended the Darwin Day Surgery in the morning and in the afternoon attended at the Casino from the early afternoon until approximately 6.30pm. She appeared to be in the Platinum Room at the Casino for this period.
Friday 19 September 2008
Ms Nasir attended the Tropicus Centre in the morning for her hydrotherapy and then attended the Careers Advisory Centre.
I understand that your diagnosis and suggested treatment of Ms Nasir is based on the history she provided you in your discussions on 16 September 2008. You have accepted that Ms Nasir’s physical problems had limited her capacity to function independently and that the reported difficulties she has on her day to day life leads you to assess her as having an adjustment disorder with anxious and depressed mood.
I wonder whether the information we have provided as to Ms Nasir’s considerable social and physical activity may lead to a different conclusion. I would be happy for you to view the video if that would be of any assistance and I am happy to discuss this matter with you.
Dr McLaren’s response, like Ms Osborne’s letter, part of the McLaren Bundle, also dated 17 October 2008 reads:
Further to your faxed letter of October 17th, I advise that I have reviewed the summary of the surveillance reports as provided, and have also reread my report of September 16th 2008. In brief, the surveillance reports place an entirely different light on my conclusions regarding the worker’s physical and mental conditions.
You will see from my report that I questioned her in detail about her current physical symptoms. The reason is that her physical condition, including pain, is a major factor in her presentation and it would be remiss not to pay careful attention to it. Chronic pain definitely lies within the area of expertise of psychiatrists. However, most of my report concerned her mental state, and you will now be familiar with the history she gave me and the extent to which she claimed this is affecting her life.
The section entitled “Presenting Complaints” details the mental and physical symptoms she is experiencing in her current life. While taking this part of the history, I emphasise a number of times that we are concerned just with the past three or four weeks, ie it is meant to convey an accurate picture of the patient’s current actual level of function, not what they used to do or what they would like to do. I avoid giving my own opinion during this state and will often give direct quotes from the patient’s statements to show exactly the tenor of the complaints. I carefully avoid using terms such as “extremely” and other clichés or tendentious prose.
You will see at various points the following comments:
“Socially, she avoids contact with people in her private life…”
“…she has a great deal of trouble getting through her days due to back pain. She cannot do the things that she would like to do or feels she ought to do”.
“She has two to three bouts (of intense agitation) per day lasting up to several hours each”.
There are other comments, but these illustrate the nature of her complaints as she replied to specific questions during the standardised interview.
Manifestly, her self-reports symptoms and abilities are very substantially at variance with the surveillance reports. Pending a full viewing of the original video material, I have to withdraw the opinions expressed in the last part of my report of September 16th 2008. As it stands, I expect I would have to revise my report to a different conclusion. It may be the case that some of those opinions will be found to be justified but I cannot commit myself at present. If you require more specific details of the points of variation of that report, I would need to view at least some of the material.
This alteration of his opinion, I should stress, was given, as Dr McLaren notes, based upon written summaries of film, not viewing film itself.
In June 2009, Dr McLaren provided two more reports, the first at the request of Ms Nasir’s solicitors, and the second at the request of the Employer’s. In each report Dr McLaren clearly sets out a summary of the material provided by the solicitors. I reproduce the text of Mr Neill’s letter of 12 June 2009. (The attachments to that letter in the McLaren Bundle are well over a centimetre thick).
I confirm that we continue to act on behalf of Mrs Nasir whom you saw on our behalf on 16 September 2008 and in respect of whom you have provided a report dated 16 September 2008.
Subsequently, lawyers Hunt & Hunt on behalf of the employer/insurer wrote to you and provided you with some further reports/surveillance material. This caused you to reserve your position, pending clarification of what appeared to be significant inconsistencies between what Mrs Nasir had told you, and the material provided to you by Hunt & Hunt.
Shortly after you first saw Mrs Nasir on our behalf, we arranged to have her assessed by Brisbane specialist occupational physician Dr Johnn Olsen. He provided his initial report dated 27 November 2008 before he became aware of surveillance material and contrary opinions. We have subsequently provided Dr Olsen with copies of all the surveillance material including video/DVD material which the solicitor for the employer has made available to us, and Dr Olsen has provided us with a further report dated 9 June 2009.
I enclose herewith for your consideration copies of Dr Olsen’s reports dated respectively 27 November 2008 and 9 June 2009. In addition to Dr Olsen’s report dated 9 June 2009 I also enclose a copy of his article entitled “Injured Workers & Psychological Health”.
As you may have noticed from previous reports for previous clients provided by Dr Olsen, he makes a practice of having clients complete a questionnaire relevant to their psychological health when he assesses them for their physical health. This enables him to express a preliminary opinion as to whether psychological issues of any significance might be involved in each particular case. In so doing, Dr Olsen does not intend to provide any definitive opinion, rather he is simply observing an indication.
In the case of Mrs Nasir he did this in his first report and recommended that she should be assessed by a qualified psychologist/psychiatrist. In his second report, he has expressed the opinion that psychological issues are playing a significant role in Mrs Nasir’s case, as he believes they do in many similar cases.
Your Report
I should be grateful if you would consider Dr Olsen’s reports, particularly his recent report and if you would then advise me whether you would be prepared to receive and view all the surveillance material which Ward Keller provided to Dr Olsen? Alternatively, I invite you to advise me whether you believe you need to receive and view that material in the light of the detailed analysis which Dr Olsen has made in his report dated 9 June 2009?
On a purely preliminary basis, in the light of Dr Olsen’s enclosed reports, are you still concerned that there is a major inconsistency between Mrs Nasir’s original presentation to you on which you based your first report, and material which you subsequently became aware of?
If you no longer see such a major inconsistency, then I request that you be prepared to prepare and provide me with a further report in relation to Mrs Nasir. Would you like the opportunity to see her again to assess her in the light of all this further material, before provided such a further report? If so, we shall make the necessary arrangements for her to see you, at Ward Keller’s expense.
CONCLUSION
I look forward to receiving your prompt response to this further material. Thank you for your assistance.
That letter and its attachments drew this response from Dr McLaren:
Further to your letter of 12th June, I have reviewed the reports provided by Dr Johnn Olsen, an occupational physician in Brisbane. These are dated 27th November 2008 and 9th June 2009. The first report relates to his examination of Mrs Nasir. He concludes that, nearly six years after the original injury, she remains quite severely disabled, partly by physical symptoms and partly by mental symptoms. He is pessimistic as to the likelihood of her returning to work or even increasing her present hours.
His report of June this year summarises the extensive video surveillance material provided to him, which I have not seen. He noted that she appeared to perform better in the video material than during his examination but did not see reason to amend his opinion that there would be no significant increase in her present working hours.
His findings in the report of November 2008 are similar to my original report, dated September 16th 2008. I found that she was significantly affected physically and mentally and I did not think that there would be much improvement until the mental symptoms had been brought under control. Subsequently, as you are aware, I provided a supplementary report based on summaries of the video material provided by the employer’s solicitor. My view was that the descriptions provided by the solicitors were at variance with the level of symptoms she conveyed to me, and that this required me to revise my opinion.
Dr Olsen’s review of the video material clearly indicates that she was able to do more than she had stated during the original interview, which was my conclusion as well. He then said he doesn’t expect there will be any significant improvement in the next three to five years. However, that is not an opinion I can support because I have not seen the video material.
The finding that her symptoms tend to vary a lot more than she indicates is not inconsistent with the diagnosis of a psychiatric component to her total disability. Moreover, it does suggest that, with appropriate treatment, her functional level could be improved quite significantly, certainly more than the nine hours she is working at present. From her point of view, this is important. I would not care to suggest she will ever recover function to the extent of moving to her property at Berry Springs to raise chickens, as per her original retirement plan, but she should be much more mobile and independent than appears to be the case at present.
In the absence of viewing the twelve hours or more of video material, I am not able to give a definite opinion as to the likelihood of her increasing her hours at work. I am not in the position to commit myself to finding free time in the next few weeks but I could do so, if you consider it necessary, once I return from annual leave in mid July. I will await your further instructions.
Ms Osborne wrote to Dr McLaren on 23 June 2009. The text of her letter is a little longer than Mr Neill’s, but owing to her extracts from the opinions of Mr Millons, it is necessary to reproduce it. (The attachments to Ms Osborne’s letter, entirely comprised of surveillance reports, came to a fractionally thicker file than Mr Neill’s attachments to his.). The underlining, I think, is Ms Osborne’s:
Ward Keller have provided us with a copy of your report dated 17 June 2009.
We seek your further opinion as requested below, and you may need to view an hour or so of video film, but not 12 hours.
The essential issue in this case is whether Ms Nasir is and was as at 8 September 2008 capable of doing (1) careers advising work on a one-to-one basis full-time and/or (2) full-time office work in an administrative role whereby she were afforded the facility to sit and stand as needs demand and was able to avoid excessive bending or lifting anything more than 10 kg.
Our client’s case is that, if the worker can sit at the casino for many hours without having to cease gaming activity, or needing to take substantial breaks, she has the ability to participate in the duties of a career counsellor or to do general administrative work on a full-time basis.
Mr Millons opinion in his report dated 14 April 2008 was as follows:-
“If she was just doing careers advising work on a one-to-one basis, then she should probably be able to handle that work full-time, particularly if she was able to spend long hours sitting down as demonstrated at the Casino”.
And in his report dated 30 April 2008, Dr Millons wrote as follows:-
“By way of clarification then I accept that she would be capable of doing careers advising work on a one to one basis full time”.
“I also believe that she could work full-time in an administrative role in an office area whereby she was afforded the facility to sit and stand as needs demand and was able to avoid excessive bending or lifting anything more than 10 kg”.
Dr Olsen wrote in his report dated 9 June 2009 (at bottom page 32):-
“Although I do not have a description of the nature of the work performed by Ms Nasir, I understand the work performed by a careers counsellor at high schools. A careers counsellor would access source documents both in written format and also via the internet outlining various facts related to careers and personal and individual characteristics which may indicate that a career may be suitable or not suitable for any particular person. This therefore is by nature a helping profession and one which involves minimal physical exertion, it would be in the category of the lowest physical demands in occupations generally. I would consider it on an equal basis in terms of physical demands as general administrative work.
“Although there may be certain things such as accessing a compactus, accessing faulty filing cabinets and draws and lifting archive boxes which may be performed in administrative occupations, such tasks are not essential and could easily be excluded in any person’s work description. It is therefore not the nature of the work itself in my opinion that would prevent Ms Nasir from resuming work on a full-time basis”.
Dr Olsen nonetheless was of the view that Ms Nasir could not increase her hours beyond 3 hours per day, 3 days per week. We do not understand his reasons – but they are set out by him at pages 33-34 of his report dated 9 June 2009. At page 34.4 he stated that his opinion was not “simply based on any clinical examination findings”. He went on to say (at page 34.5):-
“… any medical specialist who gives an opinion as to whether a patient is capable of increasing their working hours or not must consider other factors than those that are usually ascertained by most of my specialist medical colleagues. By this I mean that a much more extensive enquiry is necessary. I have performed such an extensive enquiry and it is my opinion after watching 12 hours 50 minutes of surveillance video that Ms Nasir remains unfit for any increase in her present working hours”.
Dr Olsen had said (at page 30) that his viewing the 12 hours or more of video did not provide “assistance over and above the clinical findings … obtained [in October 2008]”, because the film was in short segments and thus did not contribute to Dr Olsen’s assessment “in relation to her endurance and her capacity for sustained work”.
Dr Olsen also stated that most doctors would be at a disadvantage in assessing whether the worker is capable of working full-time on at by virtue of “not having a consultancy status in occupational medicine or extensive experience with the examination and treatment of injured workers”.
We seek your opinion as to the following matters:-
Is there any reason – in terms of a psychiatric or other medical condition on which you are qualified to comment – which prevented Ms Nasir as at 8 September 2008 from doing (1) careers advising work on a one-to-one basis full-time and/or (2) full-time office work in an administrative role whereby she were afforded the facility to sit and stand as needs demand and to avoid excessive bending or lifting anything more than 10kg?
(We are not asking you to exclude the existence of a possible psychiatric condition, simply to comment on the extent to which it may have affected her ability to do the specified work).
We enclose:-
Typed surveillance observations (pages 3 – 7) for Thursday 21 February 2008, Friday 22 February 2008 and Saturday 23 February 2008.
Report of Willoughby’s dated 31 October 2008 with particular note of the following dates Thursday 28 August 2008, Thursday 4 September 2008, Saturday 6 September 2008, Tuesday 9 September 2008, Friday 12 September 2008, Saturday 13 September 2008, Tuesday 16 September 2008, Thursday 30 September 2008, Wednesday 1 October 2008.
We ask you to assume that the summary and typed surveillance observations accurately record the observations made by the operatives and are consistent with the video film. Should you wish to see the video film or any part of them please contact Nikki Williams of this office and let her know the dates and times you would like to see.
Fourthly, there is the matter raised at paragraphs 57 and 58 of these Reasons concerning Dr Olsen’s opinions being based in part upon his own research findings. I refer in particular to Dr Olsen’s fourth report, Ex 43, of 30 July 2009, leading to the passage I have quoted already (p 4):
My findings are not new in the sense that work in Sweden Linton et al has described the powerful effect of psychological and psychosocial factors resulting in long term occupational disability.
Linton is in fact the author of the OMPQ and it is clear that this measure is the best indicator in workers with long term injuries of whether that person is back of work or is likely to return to work.
It is only too simple to watch the patient play poker machines, reaching for things, walk around and sit around and assume that there is nothing to stop her returning to work because the effort required of her work is no different to the effort required to play poker machines, reach for common objects, walk around the street and speak to her family and friends. There is however no scientific basis on which one can reasonably insist that that is the case.
Here Dr Olsen’s incorporation of psychological and psychosocial factors into his assessment of capacity could hardly be more explicit. I cannot, in my judgment safely apply an assessment so arrived at to a case pleaded as incapacity caused by pain.
THE JOBS ON OFFER
It will be recalled that one of the positions asserted by the Employer as suitable for Ms Nasir’s full-time employment was a Careers Advisor position. Ex 26 is a two page list of 50 or 60 dot points listing the tasks and duties of Careers Advisors. As a guide to assessing the physical requirements of the job, the list is fairly useless. What, for example, would a person have to do who was detailed to “Oversee enrolments for both NTOEC and interstate Open Access Colleges?”.
A second document, also from Casuarina Senior College, apparently collects these dot points and rearranges them under 15 sub-headings that make it more possible to have some sort of idea what actions might be required to carry out each of them. This document was forwarded to Dr Olsen with a letter dated 12 June 2009 from Ms Nasir’s solicitors, and the document and letter of instructions are attached to his Supplementary Medical Report, dated 15 July 2009, Ex 42. (Also forwarded to Dr Olsen was a document of which Ms Nasir was the author, in which she related her beliefs as to her capacity to carry out the tasks contained under those 15 sub-headings. I will come to Ms Nasir’s document in due course. A copy of it became Ex 21 in its own right).
Two witnesses in the Employer’s case worked as Careers Advisors at CSC, and their evidence fleshed out the bare descriptions provided by the documents. The second of these was Mr Cox, whom I mentioned in paragraph 16 of these Reasons. He was called principally, I think, to demonstrate the real (as opposed to theoretical) flexibility of the Employer when it came to dispensing with the usual classroom teaching component of a teacher mainly employed in careers advising. His touching evidence – that the job had been a lifeline for him – did not much go into detail as to the physical demands of the job.
The first of the two was Ms Kylie Murphy. Her evidence and her cross-examination were largely concerned with expanding the information in the job description. On p 429 of the transcript, Ms Gearin, in the course of a question, said “… I can see that you’re a very enthusiastic and physically well person …”. I thought so too. She was also fairly young – in her early thirties perhaps. The reader of her evidence, which was to the effect that the physical demands of the position are so trivial as to scarcely warrant a mention, needs to bear these things in mind, when measuring up the duties against Ms Nasir, who is hurt, looks older than her 61 years, and is anything but enthusiastic. Ms Murphy was one of these witnesses – Ms Bannan was another – whose commitment to and enthusiasm for the work they are doing, motivated by a belief in its value, make me feel ashamed to be a lawyer.
Dr Olsen, in his report Ex 42, considered the various tasks involved in the Careers Advisor job, and concluded that, by and large, the biochemical demands were low. He had some reservations in relation to her taking part in excursions – to work places, etc. Further, it is my opinion that Dr Olsen misunderstood the physical tasks involved under the heading “Careers Expo”. I make no criticism of that – the job description is quite opaque, and only Ms Murphy’s evidence – for example on p 418 – permitted me to grasp that this heading too involved excursions outside of the school being responsible for and (hopefully) in control of numbers of students. Had Dr Olsen had the benefit of that evidence, I am sure he would have had reservations about that task as well.
Once or twice in her evidence (at p 524, for example), Ms Nasir spoke feelingly of an episode that happened at Bunnings, when her sciatica flared up to the point where she simply could not go on. I was impressed by this piece of her evidence and I am persuaded that it happened. I do not know how often similar things have happened to Ms Nasir when she was out and about – her evidence, where it tended to generalise from this example, was not persuasive. I also accept that such a thing having happened even once, she would be very apprehensive of its happening again. I accept her evidence generally that she cannot say in advance whether a given day in the future will be a good day for her, or a bad day. (As a general rule, if I understand correctly her evidence concerning her medications, the days immediately after she applies a fresh analgesic patch are quire likely to be good, and the days at the end of a patch’s useful life are much less likely to be good, but neither is guaranteed).
Dr Olsen’s opinion as to the biomechanical demand of the various tasks would seem to be unaffected whether Ms Nasir were working three hours per day, three days per week, or full-time. But his opinion as to Ms Nasir’s capacities was that she would be limited to the 3 x 3 pattern of work. I infer that his reservations (about the tasks that involve her getting out and about) would be stronger if he could be induced to suppose Ms Nasir to be capable of working full time. These reservations might also extend to the tasks described as “Parent Information/Open Nights” and “Professional Development”, if those tasks involve much in the way of movement by Ms Nasir without constant opportunity to sit down when she needs to.
Mr Millon’s opinion of her capacities, revised in the light of the limited amount of film he watched was, as he wrote in his report of 14 April 2008 at p 5:
When I saw her last, I felt she should be able to work 3 hours a day, 5 days a week as a careers adviser. If she was just doing careers advising work on a one to one basis, then she should probably be able to handle that work full-time, particularly if she was able to spend long hours sitting down as demonstrated at the Casino. [My emphasis].
I note when I first saw her that she was teaching Tourism. Face to face teaching of a classroom of students may be difficult if one accepts that there is some minor irritability at the right shoulder and in the lower back.
To give her the benefit of the doubt, she would be advised to avoid excessive use of her right arm above shoulder height, to avoid lifting more than 10kg or working in awkward or confined spaces. Provided she was able to sit, stand and move around as needs demand, she should be able to handle work with those restrictions.
As far as I could tell, even at the end of his cross-examination, Mr Millons had not been asked systematically to consider the biomechanical demands of the various tasks, properly explained, of the Careers Counsellor position. His discussion of the position appear to assume that the job is restricted to advising students, one on one, in the workplace setting i.e. at CSC, and doing the necessary moving about in that setting to collect materials pertinent to that task. Notably he was not aware, as far as I can tell, before being cross-examined, of the tasks that involve movements out of the office. If he had been, he would have been less well placed than Dr Olsen to comment on Ms Nasir’s capacities to perform these tasks, because he had seen less of her moving in the (fairly short) sections of film he had watched.
THE “FULL TIME ADMINISTRATIVE ROLE”
Ms Bannan’s evidence was touched upon in paragraph 84 above. I accept her evidence that the tasks she had in mind for Ms Nasir, if Ms Nasir joined her unit, was principally as a research officer. She said (transcript p 478):
“I hadn’t thought that this position would entail school visits or anything like that. Obviously, as a bona fide member of the team, to refer calls, you know, deal with general enquiries, yes”.
And Ms Bannan went on to say that there was enough work, by way of research, plus a bit of this general enquiry answering, to justify a full time position.
No description of the tasks associated with this position was ever given to Ms Nasir, nor to Dr Olsen or Mr Millons – for good reason: the job had never been done; it was a new idea; its content would no doubt have evolved if Ms Nasir had taken it up. So I am not in receipt of any expert opinion as to Ms Nasir’s capacities to perform this position’s tasks. I must do what I can with the material I have.
I have twice (paragraphs 24 and 202) of these Reasons, mentioned another source of information from Ms Nasir, Ex 21. She wrote this document, her own commentary on her fitness for the various duties of the Careers Advising position, to be forwarded to Dr Olsen for comment. The document is ten pages long, single spaced and very repetitious. I quote a page or so of it, her comments in relation to one of the duties:
Question 1 Subject selection/subject advising
1. do I have the qualifications/an or skills to do this duty
I do have the qualification and skills to do these tasks. The Educ Dept has planned that in the future all employees must have a qualification in Career Advising and whilst on Work Comp leave and sick leave during the past two years I have undertaken the inservices required to pass this Certificate.
2. Walking, standing, sitting down time and face to face meetings with students and others
These tasks undertake one of the major roles in this position. At certain times of the year, Pre Sem 1, first five weeks of Sem 1, End Sem 1, Beginning of Sem 2, end of Sem 2 and during holiday breaks on enrolment teams, these tasks are constant.
It involves hours of sitting, walking about to get photocopies, find resources, do internet searches and to meet and greet parents and studies when they arrive and depart. Constant.
Face to face meetings with students and parents is virtually all day, everyday and particularly busy at recess, lunch and the rest of the time is attending to students, parents who are booking in at 20 and/or 30 minute intervals. It involves setting up the room, furniture, displays etc. both high and low displays, twisting, bending to adhere posters and attach drawing pins.
3. How this affects my health?
The major affect on my health is on a scale. On a reasonable day, I can attend to my booked in students/parents. I get up and down as required, but as it requires researching, copying etc. I find it impossible for me to stretch my back and ‘rock’ sideways to stretch whilst photocopying, but from my experience over the past five years whilst participating three days a week, 3 hrs a day, I am quite tired when I go home. I often go to Hydro to stretch and then go home to lie straight, to ease the resulting pain immediately across my lower back and sharp sciatica. The only way to alleviate it is to take two Panadol Forte and continue regular pain killer Norspan Patches and other medications and lie down for at least ¾ hour.
On the other hand, on a bad day, ie. a day when my lower back is already painful before I go there to work and the sciatica is already ‘ripping’ from my rump to the back of my both legs, the tasks are virtually unbearable. Even if I took two Panadol Forte and then started, it has been a nightmare for me to attend to ‘clients’ continuously as when I sit the pain in the lower back is accentuated when I have to lean forward to show students and parents information, lift up resources, get up and find the resources, both physical and online, walk to the printer and/or photocopier, return to clients, sit and go through that idea, then get up and follow up other options, repeating the task often dozens of times.
I am also conscious of how I am walking, ‘shuffling along’, ‘walking like a duck’, and I am more conscious of this when I have spoken to my Psychologist and I am in a depression period. When I have severe lower back and sciatica pain, I don’t stand straight and my right shoulder is always lower when I see a reflection in the glass doors, it embarrasses me to see the images.
On an average day, when lower back pain and sciatica is present, but appears in hand, it does increase the level of the lower back pain and sciatica, and by the end of the three hours, it is then necessary for further pain killers and lying flat.
4. What is difficult for me in my current role?
The major problem is not being able to say I am ‘work ready’ on any given day or for a nominated timeframe. An example, is, I do not shop on any given day or timeframe. I go when my lower back is not spasming or having sharp pain. As standing still aggravates this pain to an unbelievable level, waiting in shopping queues and bank lines is unbearable. So when I volunteered to return to work after my accident, I built up to three days per week and three hours per morning. As I cannot, and of course it is not possible, for me to select these times, I find the three types of health I may be suffering as detailed above, really dictate my work activities, in addition to my home life, and daily tasks and activities.
I now realise that over the past years I have been suffering from many bouts of heavy depression. I cry very easily and often for no significant reason. I guess I am just sick of feeling sore and having spasmatic sleep patterns subject to sciatics and back and shoulder pain. I find that I am embarrassed about how I have to ‘shuffle’ and take very small steps to try to remain stable, and the pressure on my ankles. I once saw my reflection in the front double glass doors as I walked to greet a parent, and I was embarrassed to see my shuffling ways and my crooked dropped right shoulder reflection.
My assessment of this, as of Ms Nasir’s evidence passim to much the same effect, is that I do believe she has suffered each of the pains she has mentioned, and sleeplessness caused, at least sometimes, by pain and some confusion caused sometimes perhaps by pain and by her medication. Her oral evidence and the way she gave it persuaded me of that. However, I am not persuaded that these acute episodes are frequent, and I cannot believe her evidence to the extent that she says they are. Her falsehoods, elaborated on at length above, have so destroyed her credit that I can’t see how I could accept her uncorroborated evidence of such matters. Why should she be accepted as any more reliable as to these matters than the matters of walking, standing, sitting, bending?
CONCLUSIONS
My situation is similar in my assessment of Ms Nasir’s capacities. I reject, for the reasons given above, Dr Olsen’s opinions as to her limitations. Mr Millons (and Dr McLaren) have revised their opinion as to her limitations, based as it was on self reporting which they had been given later reason to reject. I can apply each doctor’s reasoning to the material I have heard and seen, and I also have had opportunity to observe Ms Nasir during the two weeks of the hearing, where she seemed better on some days than on others, sat and stood for longer intervals on some days than on others, and occasionally swallowed a tablet – I assume a painkiller of some sort – in a non-theatrical fashion. In appearance, as I have said above, she looked older than her years. The film was taken over a period of about 15 months or so, and her appearance does not greatly change in that time. A year or so after the most recent film, at trial, she looked to have aged more than one would have expected. Some of that I have no doubt is properly attributable to the strain of litigation. In giving her evidence she was sometimes very much to the point and at places in her cross-examination, she counterpunched with some wit and flair. On a couple of occasions, contrariwise, she seemed deflated, spiritless and somewhat unresponsive. I could not discern any pattern linking her listless periods with her more physically uncomfortable periods (signalled by her changing positions from sitting to standing to leaning more often, among other things) nor it seems, was there any clear connection between her use of medications and her spiritedness. She gave a lot of evidence on 19, 20, 21 August and 1 September, and a little on 5 October 2009. She was sitting, or standing, or (very occasionally), leaning in Court during nearly all of the Employer’s case between Monday 10 and Monday 17 August. I was not, of course, paying much attention to her during that time, because evidence was being given.
In my opinion, the film, combined with the Casino records, clearly establish that Ms Nasir has been able, often, since her injury, to function physically doing things that she wants to do for much more than three hours per day, three days per week. Because of the misinformation, not to say falsehoods that she has given to doctors, to Mr Pennington, and to this Court in her affidavits, and because of her evasiveness on these matters in cross-examination, I cannot accept her claims as to how limited she is. In the end, I find that the film, unsatisfactory as it is in quality (and also quantity, although I cannot honestly say I wish there were more) is the most reliable guide I have to her capacities and the Casino records to her stamina.
In respect of the position in Ms Bannan’s unit, the “administrative position”, that there I am well satisfied that there is no task implicit in that job which is beyond Ms Nasir’s capacities, and I am satisfied that it is more likely than not that Ms Nasir could perform those tasks on a full time basis.
In respect of the Careers Advising position, I am well satisfied that Ms Nasir could perform each of the requisite tasks of that job at CSC and that she could, more likely than not, perform them on a full time basis. I am not satisfied that she could perform the tasks that would involve her taking groups of pupils on worksite visits, etc and I have doubts of her capacities in relation to the other tasks that would necessitate her getting out and about. As I understand the Employer’s case, the Employer would redefine the position to allow Ms Nasir to “teach” careers advising full time (with no class room teaching), but I did not understand it to be the case that the tasks of careers advising could be stripped down to those within Ms Nasir’s capacities. On that understanding, I am not satisfied that she could return full time to that work. The crucial aspect of her capacities to this part of my decision is her slowness, evident in all the film of her moving. I cannot see how someone operating at that pace – and I have no reason to believe her capable of moving faster – could supervise and properly care for students outside the careers advice centre.
Accordingly, the Counterclaim succeeds, at least on the basis of the full time administrative position. The evidence suggests that it would have been reasonably possible for Ms Nasir to start work in Ms Bannan’s unit at the commencement of the 2009 school year – I am not sure of the exact date, but I mean the day that teachers would be first expected to attend at school (whether there were pupils there or not) to start their year’s work.
In view of my findings about the Employer’s Notice, in the first part of these Reasons, and in view of my doubt about Ms Nasir’s fitness to resume full time work as a Careers Advisor, I conclude that the reduction in her benefits until that date in 2009 was not justified, and the reduction after it was.
I will hear the parties as to any further orders that may flow from this decision, and as to costs.
Dated this 8th day of September 2010
_________________________
Richard J Wallace
STIPENDIARY MAGISTRATE
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