Roberts Limited v Barker, Darryl Owen

[1998] TASSC 137

137/1998

PARTIES:  ROBERTS LIMITED
  v
  BARKER, Darryl Owen

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 7/1998
DELIVERED:  3 November 1998
HEARING DATE/S:  19, 20 and 21 October 1998
JUDGMENT OF:  Evans J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Appeals and stated cases - Question of law - What constitutes - Whether a failure by the Commissioner to give adequate reasons for determination - Whether an error of law - Credibility of the worker - Whether a duty to give sufficient or adequate reasons.

Gulf Industries Pty Ltd & Another v Barnett (1996) 6 Tas R 142; In Returned Services League of Australia (Devonport Sub Branch) v Garwood A59/1995; Burgess v Umina Park Home for the Aged and Another (1993) 2 Tas R 246; Attorney-General (Tas) v Smith A87/1994; McCain Foods (Aust) Pty Ltd v Williams 25/1997; Briscoe v Turner 128/1997, followed.
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed.
Workers Rehabilitation and Compensation Act 1988 (Tas) ss 86(1)(c), 63(1), 61(3) and 86(3).
Aust Dig Workers Compensation [161]

REPRESENTATION:

Counsel:
             Appellant:  M E O'Farrell
             Respondent:  D J Porter QC
Solicitors:
             Appellant:  Dobson Mitchell and Allport
             Respondent:  Walsh Day and Fitzgerald

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  137/1997
Number of pages:  15

Serial No 137/1998

File No LCA 7/1998

ROBERTS LIMITED v DARRYL OWEN BARKER

REASONS FOR JUDGMENT  EVANS J

3 November 1998

The appellant employer appeals against a decision of the Workers Rehabilitation and Compensation Tribunal ordering the employer to recommence the payment of weekly compensation to the respondent worker.  The grounds distil down to an assertion that the learned Commissioner failed to give adequate reasons for his determination.

In the opening paragraph of the reasons for his determination, the learned Commissioner summarised the background to the reference before him as follows:

"The worker was, at all relevant times, employed on a casual basis by the employer to perform duties of a stock assessor and sale yard attendant performing duties at various livestock auctions conducted by the employer. In March 1993 the worker suffered an injury to his back when he was struck by an animal in the course of his employment. This injury did not respond to conservative treatment and in June 1994 he underwent surgery in the form a decompressive hemilaminectomy at L5/S 1. Subsequent to this surgery he recovered to the extent that he was able to return to doing his normal duties. In addition to performing this work with the employer the worker also conducted his own business as a farmer on both a property that he owned and also another property he leased. On 24 October 1995 the worker once again suffered an injury to his back when he fell from a fence railing at a sale yard whilst performing duties in the course of his employment. He was totally incapacitated as a result of this injury and remained so, receiving weekly payments from that date. These weekly payments were terminated on or about 14 April 1997 subsequent to the worker being served with a notice by the employer of such termination as provided by Section 86(3). The employer relied upon a medical certificate provided by Dr T Stewart in accordance with Section 86(1)(c) of the Act. The worker referred this action by the employer to terminate weekly payments to the Tribunal for determination."

In the reasons for his determination, the learned Commissioner correctly enunciated the matter which he had to determine as follows:

"The onus is upon the employer to satisfy the Tribunal that as at the date of the medical certificate relied upon pursuant to Section 86(1)(c) the worker had substantially recovered from the effects of his injury of October 1995 and/or that any incapacity then suffered by the worker was no longer substantially due to that injury. The parties were agreed that the applicable test in this regard was as outlined by His Honour Zeeman J in Gulf Industries Pty Ltd, MMI Insurances Ltd v Barnett A43/1996 where His Honour said at page 6:-

'In Returned Services League of Australia (Devonport Sub Branch) v Garwood A59/1995 I held at 7/8:

"For the purposes of S86(1)(c):

(a)a worker has substantially recovered from the effects of an injury when there no longer are any effects thereof other than effects which are no more than trivial or inconsequential; and

(b)a worker's incapacity is no longer substantially due to an injury where the incapacity no longer is causally related to the injury except to a trivial or inconsequential extent.'

I adhere to that.  Whether a matter is or is not trivial or inconsequential requires a consideration of S69(1).  If there is no incapacity for work within the meaning of S69(1) any subsisting effect of the injury is trivial or inconsequential.  If there is a partial incapacity for work so that S69(1) confers a right on the part of the worker to receive a weekly payment, then the effects of the injury are more than merely trivial or inconsequential.

Partial incapacity for work is constituted by reduced physical capacity by reason of the physical disability for actually doing work in a labour marker [sic] in which the worker was working or might reasonably be expected to work (Arnotts Snack Products Pty Ltd v Yacob (1984/1985) 155 CLR 171 at 178. If there is such partial incapacity, and if it is the result of the relevant injury suffered by the worker, then there has not been substantial recovery."

The conflicting medical evidence

The learned Commissioner received evidence from five medical practitioners.  Three of the medical practitioners gave evidence that the worker had substantially recovered from the effects of his injuries, and two of the medical practitioners said that he had not.

All the medical practitioners in substance acknowledged that the reliability of the worker's assertions referable to his disability was of central importance to their assessment of his condition.  The fundamental issue on which the medical practitioners disagreed was the reliability of the worker's assertions.  The two medical practitioners called on behalf of the worker who said that he had not substantially recovered, accepted the reliability of his assertions.  In broad terms, the other three medical practitioners were not prepared to accept the reliability of the worker's assertions, and, in consequence, they concluded that he had substantially recovered.

The following portions of the documentary and oral evidence of the doctors highlight the importance of the credibility of the worker and the reliability of what he told them to their assessment of his condition.  Whilst there was more common ground between the medical practitioners than appears in the evidence to which I will refer, I do not consider that this diminishes the importance that they placed on the worker's reliability.

Doctor Stewart's certificate dated 27 March 1997 included the following:

"3On or about 24^th October, 1995, Mr Barker was at the Cooee Sale Yard and he fell from the side of a pen which he was standing on.  He suffered some bruising and pain in his low back region and shoulder ('the injury').

4In my opinion Mr Barker has substantially recovered from the effects of the injury.  In my opinion there are no longer any effects of the injury which are no more than trivial or inconsequential.  Further, in my opinion Mr Barker's claimed incapacity is no longer substantially due to the injury that is, his claimed incapacity is no longer causally related to the injury except to a trivial or inconsequential extent.

5The grounds for my opinion are as follows:

…

(c)…

Mr Barker stated that as a result of his symptoms he has been unable to work on his farm and is in the process of selling his cattle with a view to leasing out his 60 acre property.  He said he had been unable to perform any farm work at all this year including drenching and de horning the cattle, carting wood or mowing the lawns.  He said he attempted to perform some fencing but was unable to manage the task.

(d)I have viewed surveillance of Mr Barker taken on the 15^th October, 1996, which showed him performing a number of different activities including driving a ute, entering and exiting the ute and reading a newspaper.  More significantly he was seen to be handling boxes which apparently contained stale bread used to feed the animals.  Mr Barker was able to climb up on the ute and bend down on a number of occasions.  He was able to lift each box up to empty it without any obvious disability and on one occasion bent forward to look underneath the ute.

(e)I have also viewed surveillance of Mr Barker taken on the 24^th December, 1996, which showed him in a shed lifting fertiliser bags, again probably containing stale bread, onto a truck.  He lifted at least 9 of these bags and was seen bending down to move the bags around on the back of the truck without any obvious difficulty.

(f)Mr Barker claims to be suffering with a significant impairment as a result of which he is planning to sell his stock and lease out his farm.  He stated that there were a number of activities which were beyond his capacity.  However, the surveillance taken shows that Mr Barker is active and performing manual handling activities which, from the history he gave to me, would be beyond his capacity.

…

(h)When I examined Mr Barker he sat throughout the interview and moved in a satisfactory manner.  The range of movement in his neck was normal.  The range of movement in his upper limbs was normal below shoulder level, but he appeared to experience some discomfort with above shoulder level movements which were performed in a stiff, 'half masted' manner, power, tone and co-ordination in his upper limbs were normal.  The range of movement in his lumbar spine was normal.  Forward flexion, extension, lateral stretching and medial rotation movements were normal.  His lower lumbar limbs revealed no obvious muscle wasting and straight leg raising was equal on both sides at 45 degrees.  Power and reflexes were normal.

…

(k)It is clear that there is a discrepancy between the ongoing symptoms and disabilities as reported by Mr Barker and his actual abilities as seen in the video surveillance.  On formal examination, Mr Barker had a reasonable range of flexibility.  On viewing the video surveillance, his flexibility was excellent.  He does not appear to have any permanent problems as a result of the injury.

(l)In my opinion Mr Barker is fit for the work he was performing on the date of the injury with Roberts Limited as a livestock and sale yard attendant.  Mr Barker believes he is not fit for his normal employment.  However, the video surveillance of Mr Barker contradicts his statements about his alleged incapacity."

Dr Stewart's oral evidence reflected his certificate.  He was referred to reports of the results of examinations carried out on the worker by Doctors Kostos and Wyatt on the same day.  The results of their examinations differed and Dr Stewart, in substance, said that this could also be an indication that the worker was exaggerating his symptoms.

Dr Kostos' report dated 3 April 1997 included the following:

"EXAMINATION:
On examination I note that his neck movements are all reduced, especially in extension which is non-existent.  However these movements on formal testing seem to be more reduced than those noted on casual observation.  There was not a great deal of pain associated with the movements.  There was however diffuse lower midline cervical spine tenderness to palpation.

Inspection of his thoraco-lumbar spine reveals a small midline lumbar incision, with a flat lumbar lordosis.  All movements were restricted to approximately 50 per cent of the normal range, although this was most noticeable in extension.  All movements were associated with pain.  He was tender along the entire lumbar region as well as both paravertebral areas and he also displayed some right sciatic notch tenderness.

His hip movements are restricted, especially in flexion which was only possible to 60 degrees on both sides, despite observing 90 degrees of flexion when he sat on the edge of the examination couch.  He claims that movements on both sides are painful.

Femoral nerve stretch testing could not be adequately assessed due to restriction of knee movements on both sides, but the reason for this was not entirely clear.

His straight leg raising was 20 degrees bilaterally and he claimed to have positive sciatic nerve stretch tests bilaterally, but he was then able to sit upright with his legs fully extended in front of him, effectively giving him straight leg raising equivalents of 80 degrees.

Neurologically he was generally weak in all muscle groups tested in both lower limbs but his reflexes were normal.  Sensation to pin prick was reduced over the lateral aspect of the right thigh, leg and foot.

…

OPINION:

…

It is quite clear that the laminectomy that he had in 1994 has resulted in a considerable acceleration of the degenerative process at the L5/S1 disc and resulted in a light spondylisthesis at this level, indicative of some instability.

It is also possible that the recent incident that this man described could have aggravated these pre-existing problems again if the history alone was considered.

However I must admit that the examination findings give me considerable cause for concern because there clearly are discrepancies and inconsistencies on his physical examination which would lead me to suggest that this man is trying to exaggerate his disability.

Therefore, although there may be a contribution from the incident at work in 1995, there is also clearly the fact that he has pre-existing problems and for whatever reason is trying to embellish his physical findings.

…

I have also had the opportunity to review the surveillance video tape that you have undertaken and this shows that this man was capable of heavy physical work on at least two separate occasions, which contradicts his statement that he is unable to work.

Therefore in considering all this information, I believe that this man is fit for his normal employment as a Livestock Sales Yard Assistant.

…

It is difficult to know whether he has fully recovered from the effects of the incident in 1995 because he clearly is not demonstrating his true physical capabilities, but the way in which he was able to work on the surveillance video suggests that he probably has made a full recovery and that any ongoing problems relate to his pre-existing spinal problems. …

You have provided further information in your file and I was interested to note the report by Dr T Stewart, dated 21 March 1997, in which he found that the worker had a full range of neck and lumbar spine movements, which would only confirm my opinion that there has been a deliberate embellishment of his physical findings today."

In his evidence, Dr Kostos said that the worker's complaint to him of diffuse tenderness was a sign of a functional feature.  It is apparent from his evidence that by this he meant it was a sign that the worker was exaggerating his symptoms.

With reference to the videos, he said that whilst the worker had said he could not undertake any physical work, this was contradicted by what he saw in the videos.  As to a video in which the worker re-enacted how he had been able to perform the activities shown in the surveillance videos, he said:

"It still didn't alter the fact that there were inconsistencies and discrepancies on the examination and he claimed that he couldn't do any physical work at all, which obviously he's capable of doing."

Dr Kostos was referred to a proof of expert evidence of Mr Liddell and a medical report of Dr Maclaine-Cross, in which those doctors expressed the opinion that the worker had not substantially recovered.  Dr Kostos went into some detail in his evidence explaining why their views did not alter his opinion.

Dr Wyatt examined the worker on the same day that he was examined by Dr Kostos.  The following portions are taken from her report:

"EXAMINATION:

Mr Barker presented as a generally co-operative and generally fit 60 year old man.  His movements were a little slow about the room.  I was not convinced he was demonstrating his full range of movement during formal aspects of testing.

…

In the thoraco lumbar spine Mr Barker demonstrated limited movement.  He could reach his fingertips to the mid-shins.  He demonstrated negligible extension.  Lateral flexion was shown to 20° bilaterally, rotation again to 20° or 2/3rds of normal.

Mr Barker's straight leg raising was limited to 70°, more because of pain in the hamstrings than leg pain.  He had negative sciatic stretch tests.  In the seated position full straight leg raising was achievable.

In the neck Mr Barker demonstrated moderately limited movements, with most movements demonstrated to around 2/3rds of normal.  There was some mild tenderness around the neck.

…

Mr Barker tells me that he has a significant disability.  He advises not being able to mow the lawn, fix fences or engage in any degree of manual handling.

Unfortunately the video surveillance suggests that Mr Barker has a substantial capacity.  He is seen to engage in physically demanding tasks on more than one occasion.

Certainly this indicates that Mr Barker is fit for his pre-injury duties as they are described.

Even more disconcerting is Mr Barker's failure to return to two hours of work a day, on non physically demanding tasks.  This leads to the conclusion that Mr Barker is not complying with the rehabilitation process.

In answer to your specific questions:

…

2Mr Barker tells me that he has ongoing back pain. Whilst this may be so he clearly has a significant capacity for physically demanding tasks.  It should be noted that 20-30% of the population has some degree of ongoing pain and yet most people are able to do a wide range or [sic] normal activities.  Similarly some 10-15% of the population has a long term back problem.  Mr Barker may be one of that group.  It does not however seem to be limiting his activities.

3In my opinion it is not possible to state whether Mr Barker's ongoing back pain has a contribution from the incident of 25^th October, 1995, … but on the information presented Mr Barker's story of his problems is not reliable.

…

6Noting Mr Barker's presentation on the video I think that his prognosis is reasonably good.  He obviously has a significant capacity for activity.

7I think Mr Barker is fit for his pre-injury duties. …

8I do not think Mr Barker is incapacitated for his normal employment.

…

10I do not think Mr Barker has an incapacity for his normal duties as a result of the incident of 24^th October, 1995.  I do not think he has an incapacity for his normal duties from any other pre-existing or any other work injuries.

11Noting Mr Barker's physical capacity and physical tasks undertaken I consider that he has recovered from the effects of the incident of 24^th October, 1995.  I am not able to state whether he has ongoing pain or not, but the problem does not seem to be causing a disability or incapacity."

In her evidence Dr Wyatt said:

"In determining how much of his back problem comes from each individual situation - one needs to rely very much on what the patient tells you about their back pain.  Unfortunately, Mr Barker's description of his disability is quite different from that shown in the video and that means that I can't rely on the history that he provided so if you are asking about how much pain he has got that is hard to tell because I can't be inside his head."

She said her assessment of the worker's ability to return to his pre-accident work was "very heavily weighted on the video evidence".  At a later stage in her evidence she said of the video evidence:

"That was the major issue.  The second issue was that I didn't have the impression he was endeavouring to demonstrate his full movement when I saw him, and that is only an impression.  It is not hard fact.  It is just an impression one gains.  It is a soft sign.  So there were those two features that were disconcerting."

Later again in her evidence she said:

"… if I hadn't seen the video I would have come to a differing opinion based on the information presented by Mr Barker."

In response to cross-examination on the basis that prior to the accident the worker had worked fourteen hours a day, more often than not, seven days a week and had had a dramatic reduction in the amount of his work since the accident, she said:

"I guess you are indicating that the reason there has been a reduction in work hours has been because of a disability and we again come back to the notion that how do you assess a disability.  In most cases you rely on the patient's information.  In this case I am being given other information which tells me that what Mr Barker has said to me is inaccurate.  Therefore, I can't rely on the information and therefore I can't tell you why there has been a reduction in work hours.  I can't assume that that's an incapacity or because of a back disability."

When she was asked to accept that the activities she saw the worker perform in the videos were only carried out every second day and caused him pain and inconvenience, she replied:

"I wouldn't have a problem with that save for the fact that Mr Barker has told me that he is inactive.  He has told me that he wasn't fit and couldn't do his normal job and he couldn't even do some modified duties which were provided for a few hours a day.  The difficulty that I have is not that he has done those activities at his farm but there has been such a disparity between statements about his capacity and his return to works."

Mr Liddell saw the worker on 6 June 1996 and 21 April 1997.  On the first occasion he did not examine the worker in detail, but noted that he appeared generally well.  On the second occasion he did not examine the worker as he was running late.  He had carried out surgery on the worker at L5/S1 on 14 June 1994 and was familiar with the underlying problems with the worker's back.  He reviewed cervical x-rays and a lumbar-sacral CT scan and arranged a cervical and lumbar-sacral MIR scan.  His proof of evidence details the history given to him by the worker and concludes with the following opinion:

"I believe that Mr Barker quite likely sustained injuries to his lumbosacral spine, as a consequence of the work related accidents that occurred in March of 1993, and October, 1995.

In addition, I believe that he quite likely sustained an injury to his cervical spine, as a consequence of the latter.

His main problem at present, relates to ongoing low back, and bilaterally lower limb discomfort - aggravated by prolonged standing, especially on concrete.

It follows from what I have said that in my opinion, Mr Barker has not, at the present time, substantially recovered from the injuries sustained in the accident that occurred on the 24^th October, 1995.

I am unclear as to the extent of his present incapacity.  Nevertheless, I have no reason to doubt that he continues to experience significant discomfort, as a consequence of the affects of the accident in question."

In cross-examination, Mr Liddell said he did not have a clear understanding of the work the worker had been required to do, so he could not say if he was disabled from returning to work.  He said that insofar as he could recall, the activities he had seen the worker performing on the videos were performed reasonably well.  He acknowledged that he may have been assisted in his diagnosis had he examined the worker.  He said several times that he could not be absolutely certain which of the accidents - March 1993 and October 1995 - were the cause of the worker's ongoing symptoms.  When re-examined, he was reminded of the history he had taken from the worker, which was to the effect that following the surgery he had carried out on 14 June 1994, the worker appeared to have been completely relieved of his leg discomfort and the worker had remained well, at least until the time of the accident on 24 October 1995.  Having been directed to that history from the worker, Mr Liddell said:

"I think I am pleased that you pointed that out because I think that is correct, if that history is correct, and I mean that is obviously what I have got to go by, if he did recover fully from the original operation and he remained well until the time of the second accident then I would adhere to that opinion to the effect that he continues to experience significant discomfort as a consequence of the affects of the accident in question."

Dr Maclaine-Cross examined the worker on 17 September 1997.  Prior to the examination he had been provided with the certificate of Dr Stewart, the reports of Doctors Kostos and Wyatt and the proof of evidence of Mr Liddell.  He had also been provided with the surveillance videos of the worker's activities and the worker's re-enactment video.  At the time of the worker's examination by Dr Maclaine-Cross, the worker was well aware of the surveillance videos.  The worker provided Dr Maclaine-Cross with a detailed history of his activities, including the activities revealed in the surveillance video.  Dr Maclaine-Cross' extensive report of 29 October 1997, includes the following:

"Throughout the interview Mr Barker presented as straight forward, open and honest in his presentation of the history.  During the examination I found him co-operative and there were no signs that suggested functional overlay, or that he was attempting to exaggerate his symptoms or disability."

With reference to the activities performed by the worker in the videos, Dr Maclaine-Cross said:

"Mr Barker is quite open about performing these activities and the method that he used to allow him to continue, despite the problems that he has with his neck and back.  The video recordings only demonstrate what he freely admits are his activities in getting the bread from the bakery and subsequently feeding it out to his cows.  Although, if these tasks were performed for long periods of time they could easily exacerbate back pain, I don't see them as being inconsistent with him having a genuine problem with is back.

…

It is quite possible for people at this age to have osteoarthritis that is not causing significant symptoms.  Therefore his statement that up until the time of the accident he did not have significant symptoms can be reasonably accepted.

…

I do not agree with the views that have been expressed by Doctors Stewart, Kostos and Wyatt.  I am in broad agreement with the opinion expressed by Mr John Liddell in his Proof of Evidence.

…"

In his evidence, Dr Maclaine-Cross said the patient's history was overwhelmingly the most important part of an examination.  The history is the most important, the physical examination is the second most important, and, in most cases, the special investigations are the least important.  When cross-examined on the basis that if the worker was having back problems, they could be the result of ongoing degeneration of his spinal column, Dr Maclaine-Cross said they could be, but rejected that possibility because, "you have to accept the history".  He said his conclusion was based on the history he had received from the worker, which he considered to be reliable and was consistent with his physical examination findings of the investigations that were performed.  He acknowledged that there were no hard objective signs of the worker's disability which did not have a subjective element to them, such as what the worker said or demonstrated.

The reasons for determination

In his reasons for determination, the learned Commissioner first summarised the evidence of each witness without endeavouring to deal with or resolve any conflicts in the evidence.  His summary of the worker's evidence included the following:

"The worker was cross-examined in some detail as to information he is alleged to have given to various doctors concerning the extent of his disability which has shown to be allegedly misleading or incorrect.  In particular this related to his description of not doing any work around his farm and also as to the number of days he attended the rehabilitation program at the Burnie store and whether this program was terminated by the employer.  The worker generally stated that such instances could be explained by the doctor not accurately recording what was spoken or misunderstood the information provided."

…

He did not agree that he had exaggerated the extent of the physical nature of his pre-injury duties nor that he had exaggerated the extent of his limitations."

Having summarised the evidence and correctly stated the issue which he had to determine, the learned Commissioner proceeded as follows:

"On the evidence of the worker he has been involved during all of his working life with employment relating to farm related activities and in particular to the breeding, and sale of livestock.  He also has particular experience in the classing of livestock and the conduct of sales of same.  This is the appropriate labour market in considering whether at the relevant time the worker was incapacitated for such work.  Although Drs Kostos and Wyatt suggest that given the nature of the surgery conducted on the worker's back in 1994, that he would subsequent to that date have had ongoing symptoms in relation to that injury, this is contrary to the worker's evidence and also to the history he has provided to various medical practitioners.  I see no reason to accept this supposition over and above the worker's sworn evidence which was in relation to this aspect unaffected by cross-examination nor was there any other evidence supportive of that supposition.  It is reasonable to accept given the worker's age and the heavy nature of his work activities and in addition the widespread degenerative changes which have been illustrated by radiological tests that the worker would from time to time suffer back symptoms in the course of performing both his employment activities and also those around his farm.  It is critical to note however that subsequent to the surgery conducted in 1994, after a short period of recuperation, the worker returned to performing the full range of his employment duties and also managed to conduct all the necessary physical work involved with running his farm which, I am satisfied, amounted to him being actively engaged for up to 14 hours per day.  It was the further insult to his back as a result of the accident in October 1995 that materially affected his capacity for work both in his employment duties and also in running his farm.  I am therefore satisfied that the disability that flowed from that date was as a result of that further insult occurring by reason of the accident in October 1995.  As to the question of the extent of such disability, I do find that the worker has at times not been accurate in describing the extent of his symptoms and the degree of his physical disability.  In particular I accept the evidence by Drs Stewart, Kostos and Wyatt that the worker described to them a lifestyle of very little, if any, physical activity and in particular an inability to perform day to day activities around his farm.  I also note and accept the subjective inconsistencies identified during the examination conducted by Drs Kostos and Wyatt.  The worker's reluctance to openly and fully explain the nature of his activities is highlighted by the history that he gave to Dr Maclaine-Cross, who was the only doctor to examine the worker subsequent to the worker becoming aware of the contents of the video surveillance conducted upon him.  The history provided to Mr Maclaine-Cross is in stark contrast in respect of his physical activity to that provided to the other doctors.  Notwithstanding this however I am not satisfied that the worker has recovered to the extent necessary to be 'substantially' recovered within the meaning of that term set out above."

The learned Commissioner then dealt with the evidence of the physical nature of the work the worker had been required to perform.  He noted that the worker had given evidence that the activities included lifting sheep.  He did not accept that that was a requirement of the worker's work.  He found that the worker was required to do manual work of medium intensity, and that on occasions the worker needed to perform quite heavy physical work.  The learned Commissioner then concluded his determination as follows:

"I do not accept that the activities displayed on the video surveillance are such to lead to a reasonable inference or conclusion that the worker has substantially recovered from his work injury.  Clearly the worker conducts these duties at his own pace and he has devised mechanical measures to assist him for that purpose.  I do not accept that the performance of those duties from time to time can be equated with the requirements to work in the livestock auctions on 7 days a fortnight performing the duties set out above.  It is also important to note that the worker has found himself unable to perform the various duties required of him in running a farm and that he has surrendered the lease on one property and sold a great proportion of the stock that he was running prior to his accident.  My impression is that the worker has changed from a person performing up to 14 hours per day actively running a farm on his own account as well as his part-time work with the employer to a person who potters about on his farm performing the lighter style of physical activities in his own time and allowing for appropriate rest breaks when his symptoms of low back pain increase as a result of performing those duties.

In conclusion therefore I do not accept that he has substantially recovered, but additionally I do not accept that he is totally incapacitated but rather partially incapacitated, to the extent of being unable to perform full-time per day medium to heavy activities involving the twisting or bending of his back, nor standing for prolonged periods on concrete floors.  I am satisfied that he would be able to perform some of the less physical duties involved in a livestock auction or about a livestock farm but I am not satisfied that he could perform all the duties required of him and for which he was performing prior to October 1995.

I consider that the worker did not provide appropriate endeavour to the rehabilitation options provided and also suggest there might well be suitable employment or business in which he could earn an income (Section 69(1)(b)).  The employer however pursued only a termination of payments and it was not its case that a reduction was justified and ought be ordered (McCain Foods (Aust) Pty Ltd v Williams 25/1997).

Accordingly I am not satisfied that the termination of weekly payments was appropriate and I will order that such payments be reinstated."

Findings which reflect on the worker's credibility

The learned Commissioner found that the worker had not been accurate at times in describing the extent of his physical symptoms and the degree of his physical disability.  The learned Commissioner specifically accepted the evidence of Doctors Stewart, Kostos and Wyatt that the worker described to them a lifestyle of very little, if any, physical activity and, in particular, an inability to perform day to day activities around the farm.  The learned Commissioner in substance observed that the worker's lack of frankness was highlighted by the history which he gave to Dr Maclaine-Cross, the only doctor to examine the worker after he was aware of the contents of the surveillance video.  That history was in stark contrast to the history the worker gave to the other doctors in relation to his physical activities.  Under cross-examination the worker explained the apparently incorrect information which he gave to the doctors about his activities on the basis that they had failed to accurately record what the worker had said to them, or had misunderstood what he said.  Implicit in the learned Commissioner's acceptance of the evidence of Doctors Stewart, Kostos and Wyatt on what the worker had told them about his activities is a rejection of the worker's evidence on this matter.

The learned Commissioner noted and accepted the subjective inconsistencies identified during the worker's examination by Doctors Kostos and Wyatt.  He did not explain what flowed from that acceptance.  The logical inference is that he accepted that the worker had not been frank with the doctors when the worker carried out the movements he was requested to demonstrate.

The learned Commissioner rejected the worker's evidence that his work involved lifting sheep.  He found that the worker had not applied himself appropriately to the rehabilitation options made available to the worker.  He did, however, expressly accept the worker's evidence that subsequent to the surgery he had in 1994, he had been symptom free.  As to that evidence, the learned Commissioner said that the worker's evidence had been unaffected by cross-examination and there was no evidence to the contrary.

Findings which relied on the worker's evidence

Whilst the learned Commissioner dealt with the worker's credibility in relation to the matters referred to above, he at no point confronted and dealt with the general credibility of the worker.  The learned Commissioner relied on the worker's evidence to make findings:

1. about the appropriate labour market to consider when assessing the worker's capacity;

1. that prior to the October 1995 accident, the worker was able to conduct all the necessary physical work involved in running a farm and work for up to fourteen hours per day;

1. that it was only after the October 1995 accident that the worker was disabled;

1. that the worker had not substantially recovered from the disabilities he suffered in the October 1995 accident and could not perform all the duties required in order to carry out his pre-October 1995 work;

1. accepting the worker's explanation of how it was that he had been able to carry out the activities he performed in the surveillance video; and

1. that the worker was now unable to perform the work necessary to run his farm.

The duty to give sufficient or adequate reasons

In his determination, the learned Commissioner made some findings which reflected badly on the worker's credit and rejected some of his evidence.  There was conflicting evidence referable to the worker's credibility.  The determination of a number of issues depended upon the acceptance or rejection of the worker's evidence.  The reliability of the worker's assertions was at the centre of the conflict between the medical evidence.  The learned Commissioner in part rejected the worker's evidence and in part accepted it.  In these circumstances, was it incumbent upon the learned Commissioner to make reasoned findings in relation to the credibility of the worker, and explain his reasons for accepting and rejecting parts of the worker's evidence?

Pursuant to the Workers Rehabilitation and Compensation Act 1998 ("the Act), s61(3), and the common law, the learned Commissioner was obliged to give adequate reasons for his decision and a failure to do so amounts to an error of law for the purposes of the Act, s63(1), which governs appeals. Burgess v Umina Park Home for the Aged and Another (1993) 2 Tas R 246; Attorney-General (Tas) v Smith A87/1994; Gulf Industries Pty Ltd & Another v Barnett (1996) 6 Tas R 142; McCain Foods (Aust) Pty Ltd v Williams 25/1997.  The following passage from the decision of Underwood J in Burgess v Umina Park Home for the Aged (supra) at 262 is apposite:

"It is now well established that persons acting judicially have a duty to give adequate reasons in appropriate cases for their decisions. See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Sun Alliance Insurance v Massoud [1989] VR 8; Palmer v Clarke (1989) 19 NSWLR 158; Pettitt v Dunkley [1971] 1 NSWLR 376; Stojkovzki v Fitzgerald [1989] WAR 328. Relevant to the present matter, the obligation to give adequate reasons was, as Moffit JA said in Pettitt v Dunkley (supra) because 'where an appeal is provided, the trial at first instance does not exhaust the rights which parties may have.'  In Stojkovzki v Fitzgerald (supra) it was held that appealable error occurred if there had been a failure to comply with the duty to state the issues involved and the critical findings of fact thereon or to disclose the reasons for the conclusion reached.  All these matters are essential for the determination of the parties' rights in the appeal court.  This common law duty is enshrined in the Workers Compensation Act, s61(3), which requires the commissioner to provide a statement in writing of his reasons for making a determination in respect of a claim for compensation other than one made by consent. Of course, in short simple cases the reasons need not be elaborate but, in each case, they must be sufficient to enable the parties to ascertain what facts were found, which of the arguments put to the commissioner were accepted and which were rejected and what law was applied to arrive at the ultimate determination."

Were reasoned findings on credibility necessary?

Counsel for the respondent submits that the determination is sufficient in relation to the credit of the worker as it is apparent from the determination which evidence of the worker has been accepted or rejected.  Counsel submits that as the learned Commissioner was the ultimate fact finder it was unnecessary for him to explain his acceptance or rejection of portions of the worker's evidence.  Reliance was placed on the following passage from the decision of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (supra) at 281:

"If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done.  If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility.  But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough."

I do not consider this passage to have any application where significant issues have been raised in relation to the credit of a key witness, or where the decision-maker, without explanation, accepts some of the witness' evidence whilst rejecting other portions of the evidence.  It is clear from the decision of McHugh JA that if a decision involves the consideration of different evidence and probabilities, the reasons for the decision including the reasons for preferring one conclusion to another should usually be given.  This should also be the approach where the conflicting evidence relates to the credibility of a key witness.

In the same case, Kirby P, having noted that the appeal was limited to questions of law, observed at 258:

"This is a consideration of particular importance in the instant case because of the fact that appeals are limited to questions of law.  That does not exempt the judge from logical and reasoned decisions on questions of fact duly justified where they have been contested. On the contrary, because the judge is in this respect the final arbiter, and is not a juror, the duty to expose his or her reasons, however briefly, is enhanced, not diminished."

At 259 he said:

"This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion.  But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues.  Only if this is done can this Court discharge its functions, if an appeal is brought to it.  Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged.  Justice has not been done and it has not been seen to be done.  Where it is necessary, for default of reasons, to resort to inferences which point to a reason for the decision of highly dubious relevance to the statute being applied, the result is that an error of law has occurred which this Court can and should correct."

In Attorney-General (Tas) v Smith (supra), Zeeman J said that the statutory duty imposed on a Commissioner by the Act, s61(3), required that the Commissioner:

"1make findings with respect to the essential facts relied upon by the parties relevant to the references before him;

2where the evidence with respect to any fact was in dispute or unclear, state the basis for making a particular finding in respect thereof;

3where appropriate, state the inferences drawn from the facts found and, where necessary, the basis for drawing such inferences;

4expose the reasoning process which resulted in his determination to the scrutiny of the parties and any appellate court."

Consistent with the above, there is an obligation to state the reasons for accepting or rejecting the evidence of a key witness where there is conflicting evidence referrable to the witness' credibility.

In Briscoe v Turner 128/1997, Underwood J considered a motion to review a magistrate's decision in which the magistrate, without explanation, accepted part only of the complainant's evidence.  His Honour rejected a submission based on the decision of McHugh JA in Soulemezis v Dudley (supra) that as the case depended entirely on credibility, the reasons for the magistrate's decision were adequate without any explanation for the acceptance of part only of the complainant's evidence.  Underwood J in substance said that in dealing with the issue of the credit of a principal witness, all the relevant evidence required careful consideration and that the reasons given were inadequate as:

"… without explanation, the learned magistrate found some of the evidence of the complaint acceptable and some of it unacceptable …

As I understand the learned magistrate, he rejected the account given by the complainant with respect to the circumstances leading up to the altercation, but accepted his account of the altercation itself.  He gave no reason for doing this.  Such a course is inconsistent with a general finding that the evidence of one witness is to be preferred over that of another.  It was perfectly open for the learned magistrate to take the course he did, but it could not be said that he expressed adequate reasons for doing so.  In order to properly exercise his right of appeal, the applicant was entitled to be given reasons why the learned magistrate accepted part of the complainant's evidence but rejected other parts of it."

His Honour was considering a motion of review which, unlike an appeal under the Act, s63(1), is not confined to appeals on points of law. I consider his observations to be equally applicable to appeals confined to points of law. I have already referred to authority that a failure to give adequate reasons for a decision is an error of law.

For these reasons I have concluded that the learned Commissioner erred in law by failing to give adequate reasons for his determination.  He did not give reasons for accepting part of the worker's evidence whilst rejecting other parts.  He did not make a reasoned finding on the issue which divided the doctors, that is, whether the worker's assertions in relation to his history and disability could be relied upon.

The appeal is upheld and I order that the determination and order made by the learned Commissioner be set aside and that the reference be remitted for hearing before another Commissioner.