Northern Co-operative Meat Company Limited v Bennett
[2008] NSWWCCPD 34
•19 March 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Northern Co-operative Meat Company Limited v Bennett [2008] NSWWCCPD 34
APPELLANT: Northern Co-operative Meat Company Limited
RESPONDENT: Adrian John Bennett
INSURER:Self Insured Services Australia Pty Ltd
FILE NUMBER: WCC3687-07
DATE OF ARBITRATOR’S DECISION: 4 September 2007
DATE OF APPEAL DECISION: 19 March 2008
SUBJECT MATTER OF DECISION: Weight and assessment of evidence; weight to be attached to surveillance video evidence; assessment of credit; incapacity; modifications to bathroom; section 40 of the Workers Compensation Act 1987; reasons; natural justice; pre-judgment; bias; application of Jones v Dunkel (1959) 101 CLR 298
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: N W Aussel
Respondent: Bourke Love McCartney Young
ORDERS MADE ON APPEAL: Time to appeal is extended until 9 October 2007.
For the reasons given in this decision, the Arbitrator’s determination of 4 September 2007 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Adrian Bennett (‘the Respondent Worker/Mr Bennett’) started work for Northern Co-operative Meat Company Limited (‘the Appellant Employer/the Co-operative’) on 21 August 1989. He worked in the offal room until 1994. From 1994 until 1999 he worked as a labourer in the boning room and from 1999 until 2004 he worked as a labourer in the Co-operatives “load out” facility.
Mr Bennett sustained minor injuries to his back at work with the Co-operative in 1993 and 1995. On each occasion he had several weeks off work but was able to return to full duties, though with intermittent symptoms from 1995. On 1 September 2004 Mr Bennett suffered further injury to his back when he lifted boxes of meat weighing about 27 kilos. He completed his shift and return to work the following day but was unable to continue after a few hours. After two days off work he attempted light duties for two days but was unable to continue. The Co-operative accepted liability for his injury and commenced voluntary payments of compensation. Mr Bennett has not returned since early September 2004 and the Co-operative terminated his employment on 21 April 2006.
On 16 September 2004 Mr Bennett underwent an MRI scan of his lumbar spine. That scan revealed degenerative changes at several levels of his lumber spine. It also revealed a small broad based posterior disc bulge at L3/4, a right para-central focal posterior disc protrusion indenting the thecal sac and contacting the right traversing L5 nerve at L4/5 and a large right sided posterior disc extrusion compressing the right L5 nerve root at L5/S1. As a result of his back pain and right sciatica Mr Bennett was referred to Dr Coyne, neurosurgeon, in Brisbane.
On 6 October 2004 Mr Bennett underwent spinal surgery in the form of a microdiscectomy and decompression at the L5/S1 level. Whilst the surgery provided partial relief of Mr Bennett’s right leg symptoms, he complained to Dr Coyne on 3 March 2005 of recurrent right leg pain and of left leg pain.
On 17 March 2006 Mr Bennett’s settled his claim for lump sum compensation in the sum of $33,000.00, made up of $20,000.00 in respect of 15% whole person impairment and $13,000.00 in respect of pain and suffering.
Throughout 2006 letters were exchanged between Mr Bennett’s solicitor (Mr Bourke) and the Co-operative in respect of a claim that the Co-operative meet the cost of modifications to his bathroom and the cost of further spinal surgery. By letter dated 9 September 2006 the Co-operative declined to meet either cost on the ground that neither was reasonably necessary medical treatment under section 59 or 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).
By letter dated 18 October 2006 the Co-operative gave notice under section 54 of the 1987 Act that from 28 November 2006 Mr Bennett’s weekly compensation benefits would be reduced to $247.30 per week. The Co-operative arrived at this figure by deducting from Mr Bennett’s probable earnings if uninjured ($790.10 per week) the average award wage payable for a full time sales assistant ($542.80 per week). The decision was based on the following reports:
(a)Interact Injury Management (Interact) Vocational Assessment Report dated 31 March 2006;
(b)Dr Stuart, consultant neurosurgeon, dated 11 August 2006, and
(c)Dr Perla, injury management consultant, dated 26 September 2006.
These reports were served on Mr Bourke by letter dated 3 January 2007. The reports from Dr Stuart and Perla made extensive reference to certain surveillance videos (variously referred to in the evidence as, ‘video tapes’, ‘video cassettes’ or ‘DVDs’) of Mr Bennett engaged in activities said to be inconsistent with his presentation to the expert witnesses in the case.
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 22 May 2007, Mr Bennett claims weekly compensation in the sum of $640.10 per week from 28 November 2006 to date and continuing together with the cost of modifications to his bathroom and the cost of further spinal surgery.
By its Reply filed on 12 June 2007 the Co-operative disputed Mr Bennett’s incapacity from 11 October 2005, or, in the alternative, from 6 April 2006 and his claim for section 60 expenses.
The matter was listed for conciliation and arbitration before a Commission Arbitrator at Byron Bay on 1 and 2 August 2007 when it proceeded to arbitration and Mr Bennett gave oral evidence and was cross-examined. After receiving written submissions from both parties the Arbitrator delivered a reserved decision in favour of Mr Bennett.
The Certificate of Determination dated 4 September 2007 records the Arbitrator’s orders as follows:
“1.That the respondent pay the applicant weekly payments of compensation under s40 of the Act at the rate of $565.70 from 28 November 2006 to date.
2.Such weekly payments to continue in accordance with the provisions of the Act.
3.That the respondent pay the applicant’s s60 [sic] of the Act expenses on production of accounts or receipts.
4.That the respondent pay the applicant’s costs as agreed or assessed.”
By an appeal filed out of time, the Appellant Employer seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not in issue that the thresholds in section 352(2)(a) and (b) of the 1998 Act are satisfied.
Time
Time to appeal expired at 4.30 pm on 3 October 2007, 28 days after the Certificate of Determination. The appeal was initially filed on 4 October 2007 but was rejected by the registry by letter dated 5 October 2007 because Part 3 (certification by a Legal Practitioner) had not been signed. The appeal was filed again on 8 October 2007 and rejected again for the same reason. The appeal was filed again on 9 October 2007.
An extension of time in which to appeal is governed by Part 16 Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’). Rule 16.2(11) provides:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
In support of its application to extend time to appeal the Appellant Employer submits:
(a)it served an unsealed and unsigned copy of the appeal on Mr Bourke by letter dated 4 October 2007;
(b)the circumstances that led to the appeal being filed one day out of time are set out in a statutory declaration declared by its counsel, John Edward Keesing, on 4 October 2007;
(c)those circumstances are that Mr Keesing dictated the grounds of appeal on Sunday 30 September 2007 and emailed them to his secretary on the same day in anticipation that they would be typed and ready to be filed on 2 October 2007;
(d)Mr Keesing believes that on 3 October 2007 he may have inadvertently deleted the grounds of appeal after they were typed and emailed to him by his secretary, and this caused a delay in the filing of the appeal;
(e)its solicitor acted promptly to refile the appeal after it was rejected on 4 and 8 October 2007;
(f)the Respondent Worker will suffer no prejudice if time to appeal is extended;
(g)the appeal raises arguable issues, and
(h)if it loses the right to seek leave to appeal, it will suffer demonstrable and substantial injustice.
The Respondent Worker submits:
(a)exceptional circumstances are required to enliven the discretion to extend time to appeal (Archbold v Toll Pty Ltd [2007] NSWWCCPD 211 (Archbold)) and no exceptional circumstances have been established in the present matter;
(b)reliance is also placed on Department of Corrective Services v Buxton [2007] NSWWCCPD 55 (Buxton) and Department of Education and Training v Mekhail [2006] NSWWCCPD 1 (Mekhail);
(c)the Respondent Employer was aware of the date and details of the award;
(d)the Respondent Employer’s solicitor should have prepared for the contingency that counsel’s advice or submissions may not turn up on time;
(e)the Arbitrator’s reasons are concise and contained within 33 paragraphs;
(f)any competent solicitor of more than five years standing should be able to prepare submissions in support of an appeal against an Arbitrator’s decision, and
(g)the appeal does not demonstrate that the Arbitrator’s decision is affected by some legal, factual or discretionary error.
It is accepted that exceptional circumstances are required to enliven the discretion to extend time to appeal and this issue is considered further below. In respect of the Respondent Worker’s other submissions, I note:
(a)that the Appellant Employer was aware of the date of the award is not in dispute and not relevant to the issue before me. Mr Bennett’s submissions on this point are unhelpful;
(b)the fact that the Arbitrator’s reasons are concise and are contained within 33 paragraphs is irrelevant to whether time to appeal should be extended;
(c)whilst appeals and the submissions in support of them are often prepared by solicitors, the fact that they were not prepared by a solicitor in this case is of no consequence;
(d)the circumstances in the present matter are distinguishable from those in Archbold, Buxton and Mikhail. In Archbold, Acting Deputy President Snell did not accept that the fact that a solicitor’s office was closed for a period over Christmas was sufficient, without more, to constitute exceptional circumstances (see [42]). In Buxton, exceptional circumstances were held not to exist where the appeal was out of time due to an error in calculating the time in which to file the appeal. In Mekhail, the delay resulted from an inadvertent failure to send documents promptly for filing, and
(e)each case depends on its own facts and all relevant circumstances must be considered. In the present matter the delay has been explained.
In the context of Rule 31.18(4) of the Uniform Civil Procedure Rules 2005, the NSW Court of Appeal considered the meaning of the phrase “exceptional circumstances” in Yacoub v Pilkington (Australia) Ltd (2007) NSWCA 290 (Yacoub). Campbell JA (with whom Tobias JA and Handley AJA agreed) said at [66] and [67]:
“66. Another question of construction concerned ‘exceptional circumstances’ in rule 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]- [69], I gave consideration to the expression ‘exceptional circumstances’ in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).67. In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005.”
Having regard to the circumstances of the present matter and bearing in mind the decision in Jacoub, I have concluded, for the reasons set out below, that exceptional circumstances do exist in the present matter that justify time to appeal being extended:
(a)counsel for the Co-operative was aware that time to appeal expired on 3 October 2007 and took steps to ensure that the necessary documents would be prepared and ready for filing by 2 October 2007;
(b)due to a combination of circumstances that were “unusual” (though not unique), namely, an error in electronic communications and an error in attempting to retrieve information from a computer, the appeal documents were not ready for filing on 3 October 2007;
(c)the appeal was initially filed only one day out of time;
(d)the Respondent Worker has pointed to no prejudice he will suffer if time to appeal is extended, and
(e)the circumstances of the present matter are distinguishable for those in the cases relied on by the Respondent Worker.
I extend time to appeal until 9 October 2007 and grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Co-operative submits that it is inappropriate to deal with the appeal ‘on the papers’. It argues:
(a)there is a large quantity of surveillance film to be viewed and compared to the medical and other experts reports;
(b)the question of credit arises but can be dealt with on review due to the large amount of surveillance film which is reasonably contemporaneous with Mr Bennett’s histories to medical and other experts, and
(c)the interest of justice is best served by the parties being represented on review.
I do not accept these submissions and I do not believe an oral hearing is necessary in this matter. The fact that a large quantity of film is in evidence does not require an oral hearing. It is neither appropriate nor necessary that I view the film during an oral hearing in order to appreciate its significance.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)giving little or no weight to the surveillance tapes which contradict Mr Bennett’s statements of his restrictions in physical examinations by doctors and other experts (‘surveillance tapes/Mr Bennett’s evidence’);
(b)concluding that the surveillance tapes were only evidence that Mr Bennett was “prone to exaggeration” (‘surveillance tapes/Mr Bennett’s evidence’);
(c)denying the Appellant Employer natural justice by concluding that Mr Bennett was limping at the end of “the second walk into town” when most of the film was shown “on fast forward and no such observation was made during the showing of the film, allowing it to be re-shown and no observation was made by the medical and other specialists who have seen the surveillance tapes” (Appellant Employer’s submissions paragraph 13) (‘denial of natural justice’);
(d)pre-judging important issues in the case before oral evidence was given and submissions were heard (see Appellant Employer’s Further Submissions in Reply filed 23 January 2008) (‘pre-judgment’);
(e)his assessment of Mr Bennett’s evidence and in his assessment of Mr Bennett’s explanation of his activities in the surveillance tapes (‘surveillance tapes/Mr Bennett’s evidence’);
(f)concluding that “The Commission sees many workers who have exhibited non-organic or psychosocial elements in their presentation on examination” when there was no evidence of non-organic or psychosocial elements before the Arbitrator (Appellant Employer’s submissions paragraph 18) (‘no evidence’);
(g)relying on the report of Dr Bryant dated 14 February 2006 (assessing Mr Bennett to be fit for light duties for 12 hours per week) when that assessment was made:
i.in the absence of seeing any of the surveillance tapes;
ii.prior to the most significant surveillance tapes of 6, 7, 8 , 10 and 11 April 2006, and
iii.was out of date and irrelevant for present purposes as it did not take into account relevant facts; (‘Dr Bryant’s evidence’)
(h)concluding that Mr Bennett’s surgery “had not been wholly successful in part because of likely scar tissue” (‘effect of surgery’);
(i)accepting that at times Mr Bennett’s symptoms were worse than when he was examined when there was no evidence of this (‘no evidence’);
(j)concluding that when Mr Bennett did not leave his house this was evidence of “occasions on which the symptoms are worse” when there was no evidence of that fact (‘no evidence’);
(k)giving little or no weight to the vocational reports and functional assessments performed during 2005 and 2006, without providing any cogent reasons (‘reasons’);
(l)rejecting the evidence of Dr Perla because he did not examine Mr Bennett (‘rejection of evidence’);
(m)finding that muscle spasm is clear evidence of serious back injury (‘factual findings’);
(n)finding that there was clear evidence of a serious back injury in the MRI reports (‘factual findings’);
(o)finding that due to the use of medications Mr Bennett is able to live as normally as possible when Mr Bennett told Dr Stuart “that he does nothing except mope around the house” (‘factual findings’);
(p)concluding that the medication does not completely remove Mr Bennett’s symptoms when there was no evidence one way or the other (‘factual findings’);
(q)finding that the modifications to Mr Bennett’s bathroom were reasonably necessary in that he ignored Mr Bennett’s sworn evidence as to why he sought the modifications (‘bathroom modifications’);
(r)concluding that the voluntary weekly payments being made to Mr Bennett were not the appropriate measure of his entitlement under section 40 of the 1987 Act (‘section 40 assessment’);
(s)having found that Mr Bennett was “prone to exaggeration”, then found that the exaggeration had no affect upon:
i.Mr Bennett’s credit;
ii.the reliability of the history and complaints recorded by the expert witnesses and the reliability of their reports, and
iii.the diagnoses and prognoses of medical practitioners who had not seen the surveillance tapes (‘reliability of expert reports’);
(t)giving no weight to Dr Stuart’s evidence (‘Dr Stuart’s evidence’);
(u)not inferring that Mr Bennett did not show the surveillance tapes to his experts “due to the probability that the ensuing report would be of no assistance to the Applicant” (Appellant Employer’s submissions, paragraph 44) (‘Jones v Dunkel’);
(v)misdirecting himself, not directing himself or ignoring the statutory regime prescribed for calculating benefits under section 40 of the 1987 Act (‘section 40 assessment’);
(w)ignoring the fact that Mr Bennett has a fork lift drivers license and a truck license and failing to assess Mr Bennett’s capabilities in terms of hours and rates of pay in performing those jobs (‘section 40 assessment’);
(x)giving no reason for rejecting the opinions of Ms Ford and Ms Harvey about Mr Bennett’s capacity to work in other occupations for which he is qualified (‘section 40 assessment’);
(y)giving no reasons why Mr Bennett is restricted to 12 hours per week working in a sedentary occupation (‘section 40 assessment’), and
(z)making a determination against the weight of the evidence (‘the weight of evidence’).
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
THE ARBITRATOR’S REASONS
At paragraph 14 the Arbitrator referred to 10 of the alleged inconsistencies between Mr Bennett’s evidence and the histories recorded by the expert witnesses. He then accepted and found:
(a)that taking the evidence of “discrepancies into account overall that Mr Bennett is prone to exaggeration of his restrictions” and he is not at all times restricted to the extent reported in the histories and examinations by the doctors and other practitioners (Reasons, paragraph 15);
(b)there were occasions when Mr Bennett exceeded some of the restrictions complained of to the expert witnesses, but on other occasions Mr Bennett was seen limping as demonstrated at the end of his second walk into town and back on the same day and when he arrived at the airport after driving from Casino (Reasons, paragraph 15);
(c)whilst accepting that there were discrepancies, Mr Bennett did not set out to deceive (Reasons, paragraph 16);
(d)the Commission sees many workers who have exhibited non-organic or psychosocial elements in their presentation on examination and this behaviour is often associated with relatively serious injuries to the low back. Dr Bryant noted three of “Waddell’s tests and signs were positive” and that Mr Bennett displayed pain avoidance behaviour and “some inconsistencies in the examination”. Having assessed that there were non organic elements, Dr Bryant nevertheless assessed Mr Bennett capable of only working 12 hours per week with restrictions (Reasons, paragraph 16);
(e)“the simple fact is that Mr Bennett has a serious back injury” and has had surgery which has not been wholly successful (Reasons, paragraph 17);
(f)Mr Bennett does not seem to understand the difference between “several” and “seven”. He walks more than three kilometres in the video, but on one occasion is limping by the end of the walk. Mr Bennett told Interact in July 2005 he could walk for approximately 45 minutes but then agreed with his wife who said he could only walk for three or four blocks. Given the variation in his symptoms, it is likely that both assertions are correct (Reasons, paragraph 18);
(g)Mr Bennett is seen to get in and out of his car without apparent difficulty on most occasions in the film, but when he arrived at the airport after driving from his home he was obviously limping (Reasons, paragraph 19);
(h)for Mr Bennett to have done the things filmed at soccer practice means that he was relatively pain-free at that time, even if partly due to his medication. The evidence in the film confirms the opinion of Dr Bryant as to “some pain behaviour”. Dr Stuart’s opinion that Mr Bennett can resumed pre-injury duties without restrictions is not consistent with the rest of the evidence (Reasons, paragraph 20);
(i)Mr Bennett’s evidence of variations in his symptoms from time to time and that Mr Bennett is an uneducated and relatively unintelligent man who was easily disorientated and confused at the hearing. It was likely Mr Bennett had difficulty understanding what he was being asked by practitioners on occasions but even making an allowance for that he “exaggerated during some of the examinations as noted by Dr Bryant” (Reasons, paragraph 21);
(j)at times Mr Bennett’s symptoms were worse than when he was being examined. In coping with a job Mr Bennett would not have the flexibility to rest when his symptoms are at higher levels. When medicated he could possibly cope easily with the hours set by Dr Banks but this must be balanced against the occasions when his symptoms are worse, “such as on the occasions when he did not leave the house in the period over which he was filmed”. The surveillance resulted in activity consistent with Mr Bennett’s stated restrictions or in no appearance outside his house (Reasons, paragraph 22);
(k)the recent vocational and functional assessment of July 2007 was not of great assistance as to capacity. He preferred to grapple with the medical reports rather than those of physiotherapists such as Ms Ford, Ms Harvey and Mr Sprogis (Reasons, paragraph 23);
(l)the value of Dr Perla’s report is limited by the fact that the doctor did not examine Mr Bennett (Reasons, paragraph 24);
(m)there is clear medical evidence of a serious back injury including objective findings of muscle spasm. Mr Bennett’s symptoms are not constant and though his medication helps him live as normally as possible it does not completely remove his symptoms. The video supports a variation in symptoms. On some occasions the favouring of the right leg is imperceptible while at other times it is quite pronounced (Reasons, paragraph 25);
(n)12 hours per week in suitable employment is Mr Bennett’s capacity for work. Allowing $18.70 per hour gives a theoretical capacity to earn of $224.40 per week (Reasons, paragraph 26), and
(o)the difference between probable earnings and ability to earn is $565.70 per week and there were no reasons to reduce that amount in the exercise of the section 40 discretion (Reasons, paragraphs 28 and 29).
SUBMISSIONS AND FINDINGS
Surveillance Tapes/Mr Bennett’s Evidence
The Appellant Employer submits that the Arbitrator:
(a)gave little or no weight to the surveillance tapes which directly contradict Mr Bennett’s statements about his restrictions with respect to his ability to stand, weight bear on his right leg, bend and extend his spine, squat, walk, drive and lift;
(b)did not correctly associate chronologically the observed behaviour in the surveillance tapes with Mr Bennett’s statements of his restrictions in histories to expert witnesses;
(c)erred in concluding that Mr Bennett’s evidence that he could only flex his back so that his hands reached his mid thigh was only evidence that he was “prone to exaggeration”;
(d)erred in concluding that Mr Bennett’s evidence that he could not squat or squatted with difficulty was only evidence that Mr Bennett was “prone to exaggeration”;
(e)erred in concluding that when, at the suggestion of his wife, Mr Bennett changed his history from saying he could walk for 45 minutes a day to only three or four blocks when a surveillance tape showed him walking 7.3 kilometres, this was only evidence that Mr Bennett was “prone to exaggeration” rather than Mr Bennett being prepared to deceive;
(f)erred in finding that the contrast between Mr Bennett’s complaint to Dr Boyce on 22 June 2005 that he could not drive without significant pain and Mr Bennett’s ability to drive regularly without any obvious difficulty was only evidence that he was “prone to exaggeration”;
(g)erred in ignoring Mr Bennett’s stated restrictions in Mr Sprogis’ second report dated 17 January 2007, which are contradicted by much of the content of the surveillance tapes obtained in 2006 which demonstrated no restrictions;
(h)erred in concluding that Mr Bennett’s complaints of restrictions made to Dr Darveniza on 6 April 2006 (which were contradicted by the surveillance film exposed on 6, 7, 8, 10 and 11 April 2006, which demonstrated no such restrictions) were only evidence that Mr Bennett was “prone to exaggeration” and evidence that “he is not at all times restricted to the extent reported in the histories and examinations by the doctors and other practitioners” (Reasons at paragraph 15);
(i)erred in concluding that there was surveillance evidence showing Mr Bennett to be limping “at the end of his second walk into town” (Appellant Employer’s submissions, paragraph 12);
(j)erred when he ignored or gave no weight to “the absurdity of the Applicant’s evidence” (Appellant Employer’s submissions, paragraph 14) that whenever he saw doctors or other experts he was having a bad day but when he was recorded on a surveillance film he was having a good day;
(k)erred, in reaching his conclusion that Mr Bennett was “prone to exaggeration”, in giving no weight to the fact that Mr Bennett failed to tell any expert witness that when he was seeing them he was having a bad day;
(l)erred in giving little or no weight to the fact that Mr Bennett told Dr Stuart that he “does nothing except mope around the house”, when surveillance films showed him to be actively engaged in going to town and back to his home both by car, on foot and on motorbike, to be engaged in soccer coaching, crouching, squatting and bending when involved in activities;
(m)erred in concluding that Mr Bennett was “prone to exaggeration” when the sheer number of contradictions over time made such a conclusion untenable;
(n)erred in finding that Mr Bennett was a witness of truth but also a witness “prone to exaggeration” when Mr Bennett did not admit exaggeration in his oral evidence but explained the discrepancy between his complaints to experts and the activities in the surveillance tapes on the basis of good days and bad days;
(o)erred in concluding that there was a variation in Mr Bennett’s symptoms when Mr Bennett told all experts there was no variation in symptoms;
(p)erred in accepting a variation in symptoms as an explanation for Mr Bennett adopting a “dishonest/inaccurate” description of how far he walks given by his wife to Ms McHugh, occupational therapist with Interact, on 27 September 2005 (see report from Ms McHugh dated 5 October 2005, page three);
(q)erred when he concluded that Mr Bennett was “seen to get into and out of his car without apparent difficulty on most occasions in the films” (Reasons, paragraph 19) when he did so on all occasions on the surveillance tapes;
(r)erred in concluding that the film confirmed Dr Bryant’s opinion as to some pain behaviour;
(s)erred in concluding that when film showed Mr Bennett to be engaged in activities he denied to the experts, it only meant that Mr Bennett was relatively pain free at that time even if partly due to his medication;
(t)erred in concluding that Mr Bennett had difficulty understanding what he was being asked by experts when there was no evidence that he had such difficulty;
(u)erred in concluding that when Mr Bennett became argumentative, defensive and vague in cross-examination it was evidence he was easily disoriented and confused rather than evidence that he was evasive;
(v)erred in concluding at paragraph 22 of his Reasons that the surveillance tapes showed that most of the surveillance resulted in activity consistent with Mr Bennett’s restrictions or in no appearance outside the house;
(w)the fact the Mr Bennett was in his house during some of the periods of surveillance did not support any conclusion other than the fact that Mr Bennett was in his house. Any other conclusion is irrational and inappropriate and probative of nothing, and
(x)erred in concluding that the film supported a variation in symptoms.
The Respondent Worker submits:
(a)for the most part, the Appellant Employer has done nothing more than express its disagreement with the Arbitrator’s findings;
(b)the Arbitrator considered the evidence;
(c)a difference of opinion is not an appeal point;
(d)the Arbitrator took into account all the evidence and, having seen and heard Mr Bennett give oral evidence, it was a matter for him to determine the weight to put on that evidence, and
(e)the Appellant Employer’s counsel is not the arbiter of fact.
I have not found the Respondent Worker’s submissions of any assistance in resolving the issues argued on appeal.
Proper consideration of the Appellant Employer’s grounds of appeal requires a careful analysis of the extensive video of Mr Bennett’s activities over several periods and a comparison of those activities with Mr Bennett’s evidence and his presentation to the expert witnesses in the case. The film is recorded on eight videocassettes and has been viewed by me for the purpose of this review. The cassettes are numbered as follows: A1, B1, C1, D1, D(A)1, D(B)1, E1 and F1. The film on cassette A1 relates to activities on 27 September 2004 and was not relied on at the arbitration (T16.3) and I will not refer to it, as it is unclear if it was tendered. If it was tendered at the arbitration, neither side relied on it either at the arbitration or on appeal.
Cassette B1 is said to record activities on 28 July 2005 but the date displayed when the tape is played is “28 May 2005”. The report from the investigators (North Coast Appraisals) is dated 2 August 2005 and refers to surveillance conducted on 26, 27 and 28 July 2005 and I assume the video was taken on 28 July 2005.
The relevant activities in the video tapes may be summarised as follows, with my comment in the right hand column:
Date, Time and Video Cassette Number Length of Surveillance and Activity Comment 26 July 2005 Four hours – Mr Bennett was not sighted.
27 July 2005 Six hours – Mr Bennett drove to a doctor’s surgery.
28 July 2005 (wrongly dated as 28 May 2005 on the screen) (B1) Seven and a half hours – 17 minutes and 20 seconds of video showing Mr Bennett getting into and out of his four wheel drive vehicle, driving, walking, standing with his weight on both feet, standing for about 25 seconds with his left foot on a windowsill (or ledge at a shop front), standing for about two minutes and 20 seconds leaning on a hand rail with his weight mainly on his right leg.
Mr Bennett shows no apparent restriction and demonstrates an ability to take most of his weight on his right leg whilst leaning on a handrail on one occasion and whilst his left foot is resting on a windowsill on another occasion. 11 October 2005 (C1) Eight hours and 45 minutes – Mr Bennett walks about 3.8 kilometres in approximately 1 hour and 10 minutes and then 3.5 kilometres in a similar time later on the same day.
Mr Bennett demonstrates a slightly uneven gait (favouring his right leg) at times in this video. It is especially noticeable at 09:48 when crossing the road carrying plastic shopping bags and again crossing the road at 13:57, 14:02 and 14:09/10. The investigators comment on this at page six of their report of 24 October 2005 as follows, “The claimant occasionally walked with a limp, but it seemed ‘contrived’ to our investigator”. I observed no evidence on the video to support the suggestion that the uneven gait was contrived. 14 October 2005 (C1) Eight hours and 15 minutes – Mr Bennett is seen walking, standing for about 20 minutes while leaning against a car, driving, getting into and out of his car. Mr Bennett is seen walking with an uneven gait (favouring his right leg) at 11:56. 6 April 2006 (D1) Five and a half hours – Mr Bennett drove 27 kilometres to Lismore Airport, attended at a soccer field to coach a soccer team where he is seen standing, squatting and lifting a bag of soccer balls which he carries two or three metres and places into the rear of his car. Mr Bennett noticeably favoured his right leg walking from the car park to the airport terminal at about 06:16.
At 16:47 Mr Bennett walks with a pronounced right sided limp from the airport terminal to the car park.
Mr Bennett stands for about 27 minutes.7 April 2006 (D1) Six hours – driving, walking for several minutes. Mr Bennett displays a light but noticeable uneven gait favouring his right leg at 08:30 8 April 2006 (D1) and (D(A)1) Six hours – driving, walking, attending a game of soccer, standing, lifting a bag of soccer balls, bending, squatting. Mr Bennett is seen standing on a log (possibly an old telegraph pole lying on the ground) for about 15 minutes during which time he alternates between balancing with both feet on one log and then with one foot on each of two logs. During the game he is seen standing for about 100 minutes without any indication of discomfort. He also squats fully and straightens on at least four occasions, and bends from the waist and lifts apparently light items (jumpers, a water bottle and a plastic crate) from the ground on five or six occasions. His movements do not cause any apparent discomfort, but when he bends he also bends his knees. He lifts and carries over his right shoulder a bag containing about six soccer balls. 9 April 2006 Six hours – Mr Bennett was not sighted. 10 April 2006 (D(A)1) Seven hours – walking, driving. Mr Bennett walked very slowly. 11 April 2006 (D(A)1) and (D(B)1) Six hours – walking, attends soccer training. At soccer training Mr Bennett is standing and moving about for about 105 minutes, giving instructions to his players. He gently taps a soccer ball with his left foot on a couple of occasions and squats for about two and a half minutes on one occasion (16:36) and then rises without any apparent restriction. He is seen to jog very slowly for about 4-5 metres (16:43) and to gently tap a ball with his right foot on a couple of occasions. He also demonstrates how to approach a kick (16:49), but does not make contact with the ball. He bends to pick up a ball (17:01) and squats again for about five seconds (17:28). In general, his movements are slow, measured and restrained. 26 September 2006 Four hours – Mr Bennett not sighted. 30 September 2006
Four hours – Mr Bennett not sighted. 5 October 2006 Five hours – walking, riding a motorbike. Mr Bennett is seen stepping onto a motorbike by taking his weight on his left leg and swinging his right leg over the bike. 18 October 2006 Four hours – Mr Bennett not sighted. 2 January 2007
(F1)Eight hours – standing, walking and driving at a caravan park. Mr Bennett is seen to bend slightly from the waist with his knees bent at a service station to pick up an air hose which he uses to inflate the tyres of bicycles positioned at waist height in rear of his four wheel drive vehicle. 16 January 2007
(F1)Nine hours – intermittent walking and standing. 25 January 2007 Half an hour No sighting 26 January 2007
(F1Seven hours – intermittent walking, standing and driving.
Before I deal with each ground of appeal I make the following general observation. In its written submissions to the Arbitrator (which have been re-labelled and headed “Submissions in Support of Appeal by Insurer/Scheme Agent” and attached to the appeal) it was put that Mr Bennett is “exaggerating his incapacity and his disabilities” (Appellant Employer’s submissions, page 11). The Arbitrator substantially agreed with that submission and found that Mr Bennett was prone to exaggeration and that he exaggerated during some of the experts’ examinations. On appeal, it is argued that the Arbitrator was in error in making this finding.
After referring to the history recorded by Dr Stuart that on a typical day Mr Bennett “does nothing except mope around the house”, the Appellant Employer submitted to the Arbitrator that Mr Bennett “has set out to deceive” (Appellant Employer’s submissions, page 27). This submission was not developed, either before the Arbitrator or on appeal. Though counsel for the Appellant Employer (Mr Keesing) cross-examined Mr Bennett at length and was even reprimanded for “getting too aggressive” (T47.37), he never put to Mr Bennett that he “set out to deceive”. It has never been made clear whether it is alleged Mr Bennett set out to deceive the doctors or the Arbitrator, nor the extent of the alleged deception. I assume it is alleged that Mr Bennett set out to deceive as to the nature and extent of his disability. Nevertheless, the Arbitrator dealt with this issue and rejected the assertion that Mr Bennett set out to deceive (Reasons, paragraph 16). He was entitled to reach that conclusion.
The Appellant Employer’s case squarely raised Mr Bennett’s credit as an issue in the case. Having seen and heard Mr Bennett give evidence the Arbitrator was not satisfied that he set out to deceive and accepted that he has a serious back injury. Though the Arbitrator did not make any express finding on credit, his finding that Mr Bennett’s symptoms “are not constant” (Reasons, paragraph 25) was a clear acceptance of Mr Bennett’s evidence that he has good days and bad days (T45.36). That finding could only have been made if the Arbitrator accepted Mr Bennett’s evidence.
The Arbitrator did not expressly rely on Mr Bennett’s demeanour, but considered the discrepancies highlighted by the video evidence (Reasons, paragraph 14) and weighed those discrepancies against the objective evidence that Mr Bennett has a serious back injury (Reasons, paragraph 17). In these circumstances his findings are not immune from challenge but must be considered and assessed in a careful review of all the evidence to determine whether they disclose an error of fact, law or discretion. Whilst the Arbitrator’s findings are entitled to respect, they do not prevent me from drawing my own inferences and conclusions from the evidence. As the joint judgment in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 emphasises (at 126-127 [25]):
“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.” (citations omitted)
Their Honours added at 128 [28] and [29]:
“…the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion.” (citations omitted)
Prima facie, the Arbitrator’s general approach was open to him. Whether his conclusions were contrary to incontrovertible facts, glaringly improbable, or contrary to compelling inferences in the case so as to amount to an appealable error, requires a careful consideration of all of the evidence and submissions on review.
Dealing specifically with the Appellant Employer’s grounds of appeal set out in paragraph [37] above, and following the same paragraph numbering, I make the following comments and findings:
(a)the Arbitrator considered the video evidence and the question of the weight to attach to that evidence was a matter for him. The video evidence contradicted some of the observations and histories recorded by several experts. The Arbitrator acknowledged that, but that fact did not mean that the whole of Mr Bennett’s case had to be rejected and the Appellant Employer’s case had to be accepted, if that is what is being implied in this ground of appeal. The Arbitrator had a duty to consider the whole of the evidence in the light of the video evidence and to assess the weight to be attached to it. He did that. I reject this ground of appeal;
(b)the Arbitrator was aware of the dates when the surveillance was carried out and of the dates of the various experts’ examinations. Much is made of the fact that on 6 April 2006 Mr Bennett is seen to walk with a limp in the video and presented to Dr Darveniza in an incapacitated state, but is then observed later that day with no apparent limp. Mr Bennett’s evidence is that on his return from Sydney he had a hot shower and took medication (T61.35). The Arbitrator was entitled to accept that evidence. Moreover, whilst I agree that the video on the evening of 6 April 2006 does not show any pronounced limp, nor does it show Mr Bennett engaged in any strenuous activities inconsistent with his presentation to Dr Darveniza. Dr Darveniza’s findings on examination confirmed the following objective signs: a loss of lumbar lordosis, right paraspinal muscle spasm and numbness of the right great toe accompanied by impaired vibration sense and joint position sense in that toe. I do not accept that this ground of appeal is made out;
(c)it was open to the Arbitrator to find that Mr Bennett’s history that he could only flex so that his hands reach as far as his mid thigh was evidence that Mr Bennett was “prone to exaggeration”. In assessing this part of the evidence it is relevant to note that whilst Mr Bennett is seen in the video to bend further than to his mid thighs, he does so with his knees bent. Therefore, the video does not show “unrestricted” bending. The Arbitrator’s finding discloses no error;
(d)this finding was open on the evidence and discloses no error;
(e)the allegation that Mr Bennett was “prepared to deceive” was never put to him in cross-examination though it was raised in the written submissions before the Arbitrator. The Arbitrator did not accept it. His rejection of that submission discloses no error;
(f)this finding was open to the Arbitrator and discloses no error;
(g)the Arbitrator did not refer to Mr Sprogis’ report of 17 January 2007 or the inconsistencies in that report but did refer to Mr Sprogis’ report of 7 December 2005 (Reasons, paragraph 14(f)). In the 2007 Mr Sprogis concluded after his subjective and objective examination, “Mr Bennett’s findings are consistent with the findings of a previous examination performed on 7/12/05” (Mr Sprogis’ report 17 January 2007, page five). The inconsistencies on which the Appellant Employer relies are set out in the 2005 report and the Arbitrator dealt with them. His failure to make specific reference to the 2007 report is of no consequence;
(h)this finding was open to the Arbitrator and discloses no error;
(i)the Arbitrator does not identify the date of the video he was referring to when he concluded that Mr Bennett was limping at the end of his second walk into town (Reasons, paragraph 15). I have viewed all of the video evidence. I believe the Arbitrator was referring to the video taken on 11 October 2005. On that day the video demonstrates that Mr Bennett walked with an uneven gait (favouring his right leg) while walking home from the shops. It is especially noticeable at 09:48 when crossing the road carrying plastic shopping bags and again at 13:57, 14:02 and 14:09. The Appellant Employer’s own investigators commented on this at page six of their report of 24 October 2005 where they said, “The claimant occasionally walked with a limp, but it seemed ‘contrived’ to our investigator”. I saw no evidence that the uneven gait that I observed was contrived. The Arbitrator’s observation accords with mine and with that of the investigator who took the video. The Arbitrator’s observation and finding was open on the evidence and discloses no error;
(j)the Appellant Employer’s submission that Mr Bennett agreed that whenever he saw a doctor he was having a bad day and whenever he was filmed he was having a good day, is an oversimplification of Mr Bennett’s evidence. The statement “Every time he sees a doctor it’s a bad day…and every time he’s on film it’s a good day” is not from Mr Bennett, but from Mr Keesing (T72.52). At T46.18-21 Mr Bennett attempted to make the point that the second half of the day he walked into Casino “didn’t seem to be that good”. That evidence relates to the video taken on 11 October 2005, referred to at [49(i)] above. It is correct, however, that, in general, Mr Bennett agreed that any restrictions noted by the experts were on bad days. The Arbitrator referred to the Appellant Employer’s submission, as it was put by Mr Keesing (Reasons, paragraph 14(j)), but did not expressly deal with it again except to say at paragraph 21 of his Reasons that Mr Bennett “exaggerated during some of the examinations” and at paragraph 15 where he said that Mr Bennett was “prone to exaggeration”. I do not accept that the Arbitrator was in error on this issue;
(k)the Arbitrator referred to this submission at paragraph 14(j) of his Reasons. He clearly considered it. The weight he attached to it was a matter for him. I do not accept the Arbitrator erred on this ground;
(l)the question ultimately put by Mr Keesing at T55.40 was “He [Dr Stuart] then asked you about your typical daily activities and you said you didn’t do anything except mope around the house, didn’t you? A. Yeah.” The Arbitrator referred to this evidence at paragraph 14(f) of his Reasons. The weight he attached to it was a matter for him. He referred to the activities on the video that were, on one view, inconsistent with the answer to Dr Stuart. However, this submission fails to acknowledge that Mr Bennett’s involvement with his son’s soccer team were not “typical daily activities”. Apart from coaching soccer, walking to the shops and driving his car, Mr Bennett was largely inactive during the majority of the time he was under surveillance. I do not accept the Arbitrator was in error on this issue;
(m)the Arbitrator’s finding that Mr Bennett was prone to exaggeration was open to him and discloses no error;
(n)the Arbitrator did not use the expression “witness of truth” to describe Mr Bennett, as the Appellant Employer has submitted, but found him to be a witness who was prone to exaggeration. It is true that Mr Bennett did not admit to exaggeration in his oral evidence. That question was never put to him in those terms. This issue discloses no error;
(o)the evidence of a variation in Mr Bennett’s symptoms is found in the video noted above and in Mr Bennett’s oral evidence when he said he has good days and bad days (T45.36) and that his medication helps (T54.19). It was open to the Arbitrator to accept that evidence. The Appellant Employer’s submission that Mr Bennett told all the experts that there has been no variation in his symptoms is inaccurate. Evidence of a variation in Mr Bennett’s symptoms is also found in the report of Mr Crawley, physiotherapist, dated 4 May 2005, who concluded that Mr Bennett presented with a “significant pain state and it can be expected that his pain levels will continue to fluctuate” (emphasis added) (page four). Mr Hayward, physiotherapist, reported on 17 October 2005 that Mr Bennett reported “variable low back and leg pain/numbness”. Ms Hartcher, occupational therapist with Interact, recorded at page four of her report of 7 March 2006 that Mr Bennett stated that his pain varies in intensity but stays in the same location. The Arbitrator’s finding was open on the evidence and discloses no error;
(p)given that it was open to the Arbitrator to find that Mr Bennett’s symptoms fluctuate, it was also open to the Arbitrator to find that the different descriptions given by Mrs Bennett and by Mr Bennett as to how far he walks were both “correct on occasions” (Reasons, paragraph 18);
(q)whilst I accept that the video did not demonstrate Mr Bennett experiencing any obvious difficulty at any time when getting into and out of his car, the Arbitrator’s statement at paragraph 19 of his Reasons must be considered in the context of the video that demonstrated Mr Bennett walking with a noticeable limp favouring his right leg. I do not believe the Arbitrator’s inaccurate statement that the video showed Mr Bennett getting into and out of his car without apparent difficulty on “most occasions” is of any significance in the overall assessment of the case;
(r)the significance of the Arbitrator’s reference to the video confirming Dr Bryant’s opinion “as to some pain behaviour” (Reasons, paragraph 20) is difficult to follow. I do not see how the pain behaviour referred to by the Arbitrator is confirmed in the video evidence, which demonstrates Mr Bennett engaging in a range of activities inconsistent with his presentation when examined by several experts in the case. The Arbitrator may merely have meant that the range of activities demonstrated in the video is confirmation of Mr Bennett’s generally inconsistent presentation. If so, that comment was open to him. If the Arbitrator was in error on this issue, I do not consider the error to be such that, but for it, a different result would have followed;
Whilst the Appellant Employer places great weight on the video, I do not believe the video overcomes the objective evidence referred to above. Further, the video lends some corroboration to Mr Bennett’s complaint that he walks with a right-sided limp, albeit not all the time. In my view the video shows a man with a moderate disability. A good example of this is seen when one observes the slow pace at which Mr Bennett walks, and his very restrained and limited activities at soccer training. He did not engage in any vigorous kicking or running with his team, as might reasonably be expected of a man in his mid thirties coaching a team of teenage boys. On the other hand the video does show Mr Bennett engaging in activities he has denied being able to perform, namely, stand for more that 30 minutes, squat, and standing with his weight on his right leg, to name a few.
Even allowing, at its highest, and contrary to the Arbitrator’s soundly based findings (with which I agree), that the video demonstrates a man who has deliberately exaggerated his symptoms and disabilities to the experts and has, in some instances, given inaccurate and misleading statements of his restrictions, that does not mean that the Appellant Employer’s case should automatically be accepted. What is required in such a case is that the claim be carefully examined and assessed in order to determine its reliability in the light of the objective evidence (Malco Engineering Pty Limited v Ferreira (1994) 10 NSWCCR 117). Having undertaken that task on review, I am comfortably satisfied that the Arbitrator’s conclusion discloses no error.
Taking all the evidence into account and having regard to the terms of section 43A of the 1987 Act, I believe that the Arbitrator’s assessment of Mr Bennett’s ability to earn in the labour market reasonably accessible to him was appropriate, even excessive, if full weight were to be given to Ms Black’s evidence about the significant psychosocial factors involved. The Arbitrator’s conclusion as to Mr Bennett’s entitlement under section 40 discloses no error and, subject to the additional reasons in this decision, I agree with it.
Bathroom Modifications
The Co-operative argues that the Arbitrator, in finding that the claimed bathroom modifications are reasonably necessary, ignored Mr Bennett’s sworn evidence that:
(a)he sought the modifications because showers are slippery (T68.42-47);
(b)he had falls in the bathtub (where his shower is located) (T68.52) and he “blacked out” (T68.55);
(c)slipperiness is sometimes the problem (T69.8);
(d)the main problem is in stepping over the side of the bath (T69.17) when he conceded it was easier than mounting a motor bike (T69.30-39), and
(e)the difficulty in getting into the shower is explained on the basis that the bathtub is narrow (T76.58) and, as it has not been put in straight, it is on a 45 degree lean (T77.6).
In his report dated 8 November 2006 Dr Banks stated that because of his lumbar disc lesion affecting power and sensation in his right leg affecting Mr Bennett’s mobility and balance, it would be reasonable for him to have his bath and shower removed and replaced with a stand flat shower cubicle with other modifications “to avoid further injury to his back”.
In addition to relying on the video and Mr Bennett’s evidence in cross-examination, the Co-operative also relies on the report of Dr Perla of 26 September 2006 who said that, given the evidence in the DVDs, he did not consider the modifications reasonable and necessary.
The Arbitrator rejected the Co-operative’s submission that the video demonstrated that the bathroom modifications were not reasonably necessary and he accepted Dr Banks’ evidence.
Whilst the Appellant Employer’s submissions on this issue are inaccurate (Mr Bennett did not say that he sought the modifications because showers are slippery), I do not have to consider them in order to dispose of this aspect of the appeal. As I understand Mr Bennett’s case, he seeks the modification because his current shower is located in the bath and the bathtub is lower than the floor. As result, getting into and out of the bath is dangerous because his legs have a propensity to give way (Mr Bennett’s statement 5 June 2007, paragraph 44).
The claim for bathroom modifications is also considered by Mr Sprogis in his report of 7 December 2005 at page 10 where he said that Mr Bennett has “nearly fallen a few times in the past because of severe local and lancinating pain that can be felt when [he] weight bears through the right leg too much and for too long”. He added that a shower modification providing for a normal shower recess would be in the insurance company’s interests as a preventative measure to reduce any future injury.
The test for the recovery of home modifications is whether they are “reasonably necessary” (section 60 of the 1987 Act) as a result of the injury. In addition, the modification must be “directed by a medical practitioner” (section 59 of the 1987 Act). Judge Burke considered the meaning of the phrase “reasonably necessary” in Bartolo v Western Sydney Area Health Service (1997) 14 NSWCCR 233 where he said at 238:
“The question is should the patient have this treatment [or, in this case, modification] or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
The evidence in the present matter does not satisfy this test. Neither Dr Banks nor Mr Sprogis turned their minds to the terms of the legislation. Dr Banks merely stated, “it would be reasonable” to have the modifications done and Mr Sprogis did not address the terms of the legislation at all. Therefore, the evidence does not satisfy the requirements of the legislation and the Arbitrator’s finding cannot stand. I make no finding whether the claimed modification is in fact reasonably necessary, merely that the evidence does not currently support the claim. This does not prevent a further application being made at a later time if appropriate evidence is obtained.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 4 September 2007 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
19 March 2008
I NING DONG CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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