Sayson v NT of Australia [2006] NTSC 55

PARTIES: RUBY SAYSON

v

NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: LA1 of 2006 (20408292)

DELIVERED: 18 July 2006

HEARING DATES: 15 May 2006

JUDGMENT OF: THOMAS J

ON APPEAL FROM: LOADMAN SM

CATCHWORDS:

APPEAL – JUSTICES – APPEAL AGAINST DECISION – WORKER’S COMPENSATION

Assessment and amount of compensation – cessation of payments – Work Health Act 1986 (NT) s 69 - definition of “return to work” – onus of establishing advent of alleged recurrence or aggravation of injury – Work Health Act 1986 (NT) s 116 – appeal restricted to a question of law.

Work Health Act 1986 (NT), s 69, s 116;
Work Health Rules (NT) r 8.02

Ju Ju Nominees Pty Ltd v Carmichael (1999) 9 NTLR 1; Wilson v Lowery (1993) 4 NTLR 79, followed.
Terence Carmichael v Ju Ju Nominees Pty Ltd [1998] NTSC 61/97 (unreported), distinguished.
Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32, referred.

REPRESENTATION:

Counsel:
Appellant: J Waters QC
Respondent: M Grant

Solicitors:
Appellant: Caroline Scicluna
Respondent: Collier & Deane

Judgment category classification: C
Judgment ID Number: tho200610
Number of pages: 41

 

 


IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Sayson v NT of Australia [2006] NTSC 55
No. LA1 of 2006 (20408292)

BETWEEN:

RUBY SAYSON
Appellant

AND:

NORTHERN TERRITORY OF AUSTRALIA
Respondent

CORAM: THOMAS J

REASONS FOR JUDGMENT

(Delivered 18 July 2006)

[1] This is an appeal from a decision of the Work Health Court delivered on 19 December 2005. Judgment was entered in favour of the employer. The worker’s claim was dismissed with costs.

Worker’s Claim

[2] The appellant issued a statement of claim on 21 September 2004. In this statement of claim the appellant asserts as follows:

(i) On 20 May 1999, the worker suffered injuries to her left shoulder and neck, during the course of her employment, when transferring a patient at the Alice Springs Hospital from a wheelchair to a bed. The worker notified the employer of her injuries and subsequently lodged a claim. The employer accepted liability for the claim.

(ii) On 16 June 1999, the worker resumed her employment in a restricted capacity. Her hours were increased until she was working full time hours on restricted duties from 24 January 2000.

(iii) The worker complied with her rehabilitation plan as much as possible. However, her condition worsened at various times and on the dates nominated in the statement of claim she was required to cease work due to increasing pain and/or for the purpose of seeking treatment.

(iv) The worker claims that from 4 August 2000, she was provided with restricted supernumerary ward clerk duties for full time hours. The worker was unable to continue in her trial of the ward clerk’s position from, in or about February 2001, due to then commencing maternity leave at that time.

(v) The worker returned to work from maternity leave pursuant to a further graded return to work program. By 22 November 2001, she had built up to full time hours notwithstanding the fact she continued to experience pain from the injuries.

(vi) The worker claims to have suffered recurrences and/or exacerbation or aggravation of her injuries, particularly on 14 March 2002 and 9 May 2003. On certain dates nominated in the statement of claim, between 28 March 2002 and 6 June 2003 and continuously since 21 August 2003, the worker claims to be totally incapacitated.

(vii) On a direction from her nursing support service manager, the worker lodged a further worker’s compensation claim form with respect to the recurrence of injury on 9 May 2003. The worker was advised by her nursing support service manager that she was required to lodge a fresh claim for that recurrence, given that her claim for injuries sustained on 20 May 1999 had been closed. The employer disputed the liability for the claim, alleging the worker’s ongoing injuries were not work related. A mediation conference was held on 20 February 2004, with respect to the employer’s refusal to reinstate the worker’s entitlements to compensation.

(viii) The worker claims the employer suspended the weekly payments due to the worker pursuant to s 64 and s 65 of the Work Health Act on various dates from 9 July 1999. No notification pursuant to s 69 of the Act has ever been received by the worker nor has the employer made any application to this Court pursuant to s 104 of the Act.

[3] The worker sought orders that:

(i) the suspension or cessation of the worker’s compensation benefits on various dates since 9 July 1999 is invalid.

(ii) the worker is entitled to compensation pursuant to the Work Health Act and the employer is to pay the worker weekly benefits of compensation and other benefits as may be outstanding from the date of the accident in accordance with the Act.

(iii) a claim for interest and costs.

Summary of the notice of defence

[4] On 13 October 2004 the employer filed a notice of defence. The employer admitted that the worker suffered injury to her left shoulder and neck during the course of her employment on 20 May 1999. The employer subsequently accepted liability for the claim. The employer admits the injury resulted in total incapacity from the date of the injury to 16 June 1999.

[5] The employer admits the worker resumed employment in a restricted capacity on 17 June 1999 increasing her hours until she was working full time hours on restricted duties from 24 January 2000.

[6] The employer admits the worker was absent from work on the dates she asserts but does not admit the worker continued to experience pain or that her condition worsened and she was required to cease work because of increasing pain.

[7] The employer specifically denies that on or about 14 March 2002 and 9 May 2003, the worker suffered recurrences, exacerbation or aggravation of her injuries or suffered any injury as defined by the Work Health Act. The employer denies the worker was totally or partially incapacitated for work on the dates as pleaded. The employer asserts that since 9 May 2003 the worker has been and remains fit to return to her pre-injury employment with the employer.

[8] The employer asserts that on various occasions prior to 9 May 2003, when the employer did not pay the worker weekly benefits pursuant to s 64 and s 65, such payments were not made or payments were reduced because the worker had returned to work or was not entitled to benefits pursuant to the Work Health Act. The employer denies any notification was required to be made to the worker for these periods.

[9] For the period after 9 May 2003, the employer denies liability for the worker’s claim for compensation.

[10] The employer asserts the worker is not entitled to the orders sought by her or to any order.

[11] The employer seeks orders that the worker’s application be dismissed, that the worker is fit for employment and has been so for all periods of time when work health benefits were not paid to her by the employer. The employer seeks a further finding that the worker has abandoned her employment by relocating to Darwin on or about 2 October 2004.

[12] I have prepared a chronology of some of the events relevant to this claim.

[13] In his opening address to the Work Health Court, Mr Waters QC, counsel for the worker, stated that payments were made to the worker but the payments were ceased when a return to work program had been instituted, which brought her back into the workforce on a gradual basis. Mr Waters QC submitted that when the worker resumed employment she was working under a gradual return to work program designed for her by her rehabilitation consultants. Mr Waters QC asserted on behalf of the worker, that the worker remained limited in what she could do and never returned to her full measure of work duties.

[14] Mr Waters QC stated the reason this was important is that the employer bore the onus of justifying the termination of her payments pursuant to s 69 of the Work Health Act.

[15] The principal allegation made by the worker is that she was always on a gradual return to work program. The worker claims this program was never acquitted or resolved or signed off by the relevant rehabilitation service. The worker is claiming recurrence of the original injury to her shoulder. Mr Waters QC stated the employer in the employer’s defence relies upon an allegation that the worker was not entitled to worker’s compensation because she had “returned to work” as provided in s 69(2).

[16] Mr Waters QC submitted that the first issue for the Work Health Court was whether in fact the worker had “returned to work” as provided in s 69(2).

[17] If she had not returned to work but was simply continuing on with her rehabilitation program, then the onus fell upon the employer to establish her level of capacity.

[18] Mr Waters QC submitted that, if the learned stipendiary magistrate found that the refusal to pay the worker's compensation after 2003 was not based on a valid s 69 notice which entitled the employer to terminate payments or upon a valid return to work at sometime prior to 9 May 2003, then the onus is on the employer to establish that the worker was fully fit for employment from May 2003 onward.

[19] Following this opening, Mr Waters QC advised the magistrate that the worker had assumed the responsibility of proceeding dux litus. He stressed this did not mean the worker had assumed the onus of proof which remained with the employer. Evidence for the worker was given by Ms Ruby Sayson, her husband Constable Louie Sayson and Dr Millons, a specialist surgeon. A number of documentary exhibits were then tendered on behalf of the worker. Counsel for the employer, Mr Grant, then called evidence for the employer from Dr Robin Jackson, a consultant orthopaedic surgeon, and Professor RJ Burns a consultant neurologist. At the conclusion of the evidence, both counsel made submissions.

[20] On 19 December 2005, the learned stipendiary magistrate delivered his reasons for decision. His Honour found in favour of the employer and dismissed the worker’s claim with costs.

[21] The worker has appealed that decision to this Court. On 15 May 2006, the worker was granted leave to file an amended notice of appeal. The grounds of appeal as amended are as follows:

“1. That the learned Magistrate erred in law in having found as a fact that the cancellation of compensation payments in 2002 was not pursuant to section 69(1) of the Work Health Act (the Act) and having found as a fact that the worker had not returned to work as contemplated by section 69(2) of the Act, at that time (see paragraph 28 of the judgment), in failing to find that the worker was entitled to the continuation of benefits under the Act until a cancellation of compensation pursuant to section 69(1), or a return to work pursuant to section 69(2), or until further order of the Court prompted by a section 104 application, or a counter claim instituted by the Employer (none of which occurred).

2. That the learned Magistrate erred in law in having found the worker at a relevant time incapable of a full time return to work as defined by the Act as a consequence of deconditioning (see paragraph 104 of the judgment), he failed in the teeth of the evidence, to find that the deconditioning arose out of the or as a result of the compensable (admitted) injury.

3. That the learned Magistrate erred in law in treating the worker’s history of post 2002 recurrences of incapacity as if there was a primary claim for compensation rather than a section 69 appeal made by the worker or as if the Court was considering an employer’s section 104 claim or a counter claim when none was made or before the Court (see paragraph 105 of the judgment).

4. That the learned Magistrate erred in law in applying the onus of ‘beyond reasonable doubt’ to the employer (see paragraph 14(c) of the judgment), in circumstances where the employer did nothing but deny liability and in finding the onus of ‘establishing the advent of the alleged recurrences, exacerbation or aggravation’ of injury from 14 March 2002 ‘rests upon the worker’ (see paragraph 89 of the judgment), where the worker did nothing but assert her continuing (proven) incapacity for work (she was at all relevant times participating in a return to work program) and in finding that ‘the worker bears the onus of establishing that, since 14 March 2002 she has suffered incapacity and consequent economical loss referable to an injury arising out of, or, in the course of her employment’. (see paragraph 30 of the judgment).

5. The learned Magistrate erred in law in that his factual findings:

(i) that ‘It is the unanimous conclusion of all the medical experts that the swelling … was not attributable to any soft tissue injury which may have been sustained on 20 May 1999 …’ (paragraph 103 of judgment).

(ii) that ‘There is no identified medical organic cause found to exist, either for the existence or continuation of such symptoms on and after 14 March 2002 …’ (paragraph 101 of judgment).

were made in the absence of any accepted evidence to that effect or at all and in finding that such evidence was necessary to establish the Appellant’s case.”

[22] The employer has filed a notice of contention which states as follows:

“1. The learned Magistrate found that the worker was not undertaking full duties as at January 2002 in circumstances where there was no evidence to support that finding.

2. The learned magistrate misdirected himself as to the law in determining that a ‘return to work’ could only occur where the worker was performing full duties or the work previously performed.”

Background facts:

[23] There are a number of matters which are either not in dispute or were findings of fact by the learned stipendiary magistrate. I will outline those before dealing with the grounds of appeal.

[24] On 13 May 1999, the worker obtained a full time permanent position in the capacity of a patient service assistant at Alice Springs Hospital. The work involved lifting, and assisting with lifting, adult patients. The applicant was a “worker” within the definition of “worker” under the provisions of the Work Health Act at the relevant time.

[25] On 20 May 1999, the worker suffered an injury. The worker was taking a patient from the x-ray facility in a wheelchair. The patient stood preparatory to getting onto the bed. As she did so, the patient fell, grabbing the worker’s left shoulder and jerking the worker’s left arm downwards. The worker took the patient’s full weight in her left arm and both of them fell to the floor. The worker suffered an injury. The worker notified the employer of the injury on the date it occurred. She lodged a worker’s compensation claim on 30 May 1999. The employer accepted liability for the claim. The worker was totally incapacitated for work from the date of the accident to 16 June 1999.

[26] On 17 June 1999, the worker returned to Alice Springs Hospital pursuant to a return to work program devised by the worker’s approved rehabilitation consultant at CRS Australia. She commenced working two hours on restricted duties five days a week. By 5 July 1999, the worker’s daily hours were increased to four hours per day and from 16 August 1999 to six hours daily. The worker’s hours were further increased until she was working full time hours on restricted duties from 24 January 2000.

[27] In February 2001, the worker gave birth to a male child, Gabriel. Complications with the pregnancy precluded her from resuming her employment. On 25 October 2001 she returned to her duties at the hospital. Exhibit A5 is the return to work papers that were tendered in the Work Health Court. The page marked R53, in the top right hand corner, indicates that from 25 October to 31 October 2001 she would work four hours a day five days a week. Her duties were as follows:

“Work as a supernumerary Patient Services Assistant in paediatric ward. This has reduced manual handling demands than the other wards. Perform hygiene tasks, carbolising beds and pushing of wheelchairs/beds but avoiding assisting with transfer of older children. Duties include dishing out food.”

[28] This document shows her hours were gradually increased and that from 29 November 2001 she was to resume normal duties including normal roster on full time hours. The report shows a copy of this document was provided to the worker.

[29] The next document is titled “Territory Health Services Return to Work Program Progress Report” and is a report by Jennifer Fry, Occupational Therapist dated 28 November 2001. This report stated at p 2:

“On 28 November 2001, when reviewed for the second time, Ms Sayson had upgraded to full time work and was managing the full range of duties, excluding buffing, which had not been required during her return to work program.
At this time, Ms Sayson reported ongoing feelings of tiredness and some shoulder discomfort at night, but noted improvement on the previous two weeks.
Overall, she was managing duties well.”

Copy is noted as being provided to the worker.

[30] The next document is a Rehabilitation Progress Report dated 5 December 2001 which, omitting formal parts, states as follows:

“SUMMARY OF PROGRESS
A detailed progress report was forwarded on 28 November 2001.
Ms Sayson continues to manage well and has upgraded to her full normal roster.
We anticipate case closure on 21 December 2001.
PLAN UPDATE REQUIRED: No
CLOSURE DUE: 21 December 2001”

[31] The following document is a Rehabilitation Closure Report dated 2 January 2002. The pages are numbered R53 and R54. The final four paragraphs of that report state as follows:

“Ms Sayson successfully followed the graded program and was monitored in her full time original position for a further month. Ms Sayson did have a number of days off work, which in the latter part of her program were related to caring for sick children, rather than because of her injury.
Ms Sayson, [on] the conclusion of the program was performing the full range of duties of a PSA in the paediatric unit at Alice Springs Hospital. She reported that she had some pain in her shoulder, but ‘didn’t think about it often’. Pain is not preventing her performing any task.
Ms Sayson was advised to maintain her vigilance in caring for her shoulder and to increase her strength through exercise to help prevent a reaggravation.
Her case is now closed.”

There is nothing to indicate the worker was given a copy of this report.

[32] The worker claims that throughout the course of her undertaking her various rehabilitation plans, and particularly on 14 March 2002 and 9 May 2003, the worker suffered recurrences and/or an exacerbation or aggravation of her injuries in the course of her employment and was consequently totally incapacitated for work again on certain nominated dates and continuously since 21 August 2003.

[33] The employer denies these claims and asserts that since 9 May 2003 the worker has been, and remains, fit to return to her pre-injury employment with the employer.

[34] I will deal with each of the grounds of appeal and the matters raised in the respondent’s notice of contention:

Ground 1: That the learned magistrate erred in law in having found as a fact that the cancellation of compensation payments in 2002 was not pursuant to s 69(1) of the Work Health Act and having found as a fact that the worker had not returned to work as contemplated by s 69(2) of the Act, at that time (see paragraph 28 of the judgment), in failing to find that the worker was entitled to the continuation of benefits under the Act until a cancellation of compensation pursuant to s 69(1), or a return to work pursuant to s 69(2), or until further order of the Court prompted by a s 104 application, or a counter claim instituted by the employer (none of which occurred).

[35] It is not in dispute that the employer had not given notice of cessation of payments under s 69(1) of the Work Health Act. In this particular case, whether or not cessation of payments was lawful, depends on the meaning of the phrase “return to work” under s 69(2)(a) of the Work Health Act. Section 69 provides as follows:

“(1) Subject to this Subdivision, an amount of compensation under this Subdivision shall not be cancelled or reduced unless the worker to whom it is payable has been given –

(a) 14 days notice of the intention to cancel or reduce the compensation and, where the compensation is to be reduced, the amount to which it is to be reduced; and

(b) a statement in the approved form –

(i) setting out the reasons for the proposed cancellation or reduction;

(ii) to the effect that, if the worker wishes to dispute the decision to cancel or reduce compensation, the worker may, within 90 days after receiving the statement, apply to the Authority to have the dispute referred to mediation;

(iii) to the effect that, if mediation is unsuccessful in resolving the dispute, the worker may appeal to the Court against the decision to cancel or reduce compensation;

(iv) to the effect that, if the worker wishes to appeal, the worker must lodge the appeal with the Court within 28 days after receiving a certificate issued by the mediator under section 103J(2);

(v) to the effect that the worker may only appeal against the decision if an attempt has been made to resolve the dispute by mediation and that attempt has been unsuccessful; and

(vi) to the effect that, despite subparagraphs (iv) and (v), the claimant may commence a proceeding for an interim determination under section 107 at any time after the claimant has applied to the Authority to have the dispute referred to mediation.

(2) Subsection (1) does not apply where –

(a) the person receiving the compensation returns to work or dies;

(aa) the person receiving the compensation fails to provide to his or her employer a certificate under section 91A within 14 days after being requested to do so in writing by his or her employer;

(b) the medical certificate referred to in section 82 specifies that the person receiving the compensation is fit for work on a particular date, being not longer than 4 weeks after the date of the injury in respect of which the claim was made, and the person fails to return to work on that date or to provide his or her employer on or before that date with another medical certificate as to his or her incapacity for work;

(c) the payments of compensation were obtained by fraud of the person receiving them or by other unlawful means; or

(d) the Court orders the cancellation or reduction of the compensation.

(3) Where compensation is to be cancelled for the reason that the worker to whom it is paid has ceased to be incapacitated for work, the statement under subsection (1) shall be accompanied by the medical certificate of the medical practitioner certifying that the person has ceased to be incapacitated for work.

(4) For the purposes of subsection (1)(b), the reasons set out in the statement referred to in that subsection shall provide sufficient detail to enable the worker to whom the statement is given to understand fully why the amount of compensation is being cancelled or reduced.”

[36] Mr Waters QC, counsel for the appellant, submitted that his Honour, having made a finding of fact based on the evidence that there had not been a return to work (as defined in s 69(2)(a)), need not have gone any further. It is the appellant’s position that the parties were only ever litigating the incapacity which arose as a result of the May 1999 injury and its consequences, in particular, recurrence of pain from the injury that resulted in levels of incapacity.

[37] It is the appellant’s position that there was no fresh injury, or exacerbation of a previous injury, on either 14 March 2002 or 9 May 2003, just a flare-up of the 1999 originating condition resulting in a greater level of incapacity.

[38] Mr Waters QC’s submission is that there was only ever an appeal against the unilateral suspension of the weekly payments without regard to the strictures of s 69 of the Work Health Act.

[39] I agree with the submission made on behalf of the appellant that the onus was upon the employer to establish that it was entitled to avoid the s 69(1) notice provisions by proving a “return to work” as provided in s 69(2)(a) of the Act.

[40] The learned stipendiary magistrate made a formal finding of fact that the appellant did not return to work. His finding was based on evidence that the appellant was limited in her ability to lift. The appellant was working in the paediatric ward where her duties were limited to lifting children as distinct from lifting heavier adults.

[41] It was submitted on behalf of the appellant, that the appellant was still under a return to work program and that until such program was dispensed with, the appellant could not be said to have returned to work.

[42] The appellant complains that the magistrate, having found that the employer had not complied with s 69, that should have been the end of the matter and an award should have been made to the appellant. It is the appellant’s case that the learned stipendiary magistrate should not have considered the employer’s claims about capacity, raised by way of defence. It was argued on behalf of the appellant that there was no basis upon which the magistrate could have assessed the medical and video evidence and come to the findings that he did on the worker’s appeal against cancellation of compensation.

[43] Mr Grant, on behalf of the employer, refers to the worker’s pleading in the statement of claim. He noted that the worker contends the first date from which benefits were not paid pursuant to the Act, is 28 March 2002. It is Mr Grant’s submission, on behalf of the employer, that the worker’s incapacity from 28 March 2002 was always an issue on the pleadings and the way in which the parties conducted the matter in the Work Health Court.

[44] I agree that the way in which the worker pleaded the matter in her statement of claim, the matters that were set out in the respondent’s defence, and the way in which the trial before the Work Health Court was conducted, the worker had expanded the issues beyond a strict appeal against cancellation of compensation pursuant to s 69 Work Health Act.

[45] In Ju Ju Nominees P/L v Carmichael (1999) 9 NTLR 1, the Court of Appeal was considering an employer’s appeal from the decision of a single judge who found that the employer had failed to discharge the onus on it to establish the facts asserted in its s 69 notice. Martin CJ stated at paragraph 15(6) and 16:

“[15] Notwithstanding the various difficulties to which reference has been made, it is established that:

6. If the worker has widened the scope of the issues for trial beyond an appeal under s 69, then the employer is not confined to the grounds stated in the notice, but can raise by way of answer any other ground to resist the claim if it wishes, including as to whether there ever was any injury in the first place, Disability Services v Regan (supra) at 5. In that matter the worker had sought orders for weekly compensation from the date of cessation of payments to date of claim and continuing, and for payments under s 78 for costs of household services. It appears from p5 that it was an issue on the appeal as to whether the learned Magistrate at trial was in error in dismissing the worker's claim. It is not suggested in that judgment that the worker's claim had not been the subject of the trial.

[16] In my opinion, subject to the question of prejudice to the other side, there is no reason why a worker should not be able to clarify a statement of claim and the relief sought so as to make it clear that the worker is limiting the issue to an ‘appeal’ against the employer's decision to cancel or reduce payments under s 69.”

[46] In the appellant’s statement of claim, the appellant does allege in paragraph 9 that throughout the course of undertaking her various rehabilitation plans, and particularly on or about 14 March 2002 and 9 May 2003, the worker suffered recurrences and/or an exacerbation or aggravation of her injuries in the course of her employment and was consequently totally incapacitated for work again on dates specified in the statement of claim from 28 March 2002 and continuously since 21 August 2003.

[47] In the employer’s notice of defence, the employer denied that on or about 14 March 2003 and 9 May 2003, the worker suffered recurrences, exacerbation or aggravation of her injuries or suffered any injury as defined by the Work Health Act. The employer denied that the worker was totally or partially incapacitated for work on the dates as pleaded in the worker’s statement of claim. The employer asserted in its notice of defence, that since 9 May 2003 the worker has been and remains fit to return to her pre-injury employment with the worker.

[48] In his opening address to the learned stipendiary magistrate, Mr Waters QC, stated the worker would assume the responsibility of being dux litus without necessarily assuming the responsibility of establishing the onus of levels of determining capacity. He went on to state: “We will establish the elements of the original injury and we’ll lead from our client her efforts at rehabilitation and where they’ve led her. We’ll lead from her the extent of her current level of capacity”. Further on in his opening address, Mr Waters QC stated:

“We’ll give you some evidence about the status of the return to work programs and we’ll provide evidence that she continues to suffer from problems to her shoulders which will at least render her incapable of returning to her full patient services assistant job, and it seems to be admitted by most of the professionals who have been seeing her over the last three or four years.”

[49] Counsel for the appellant did, in his opening address, refer to s 69 of the Work Health Act and advised the learned stipendiary magistrate he would be required to decide the meaning of “return to work”. Nowhere in his address to the learned stipendiary magistrate, on behalf of the appellant, was it made clear that the only issue the court was required to decide was whether there had been a return to work within the meaning of s 69(2).

[50] The worker then proceeded to call evidence. Oral evidence was given by Ms Sayson, the worker, and her husband Constable Sayson. These witnesses gave evidence concerning the worker’s incapacity after cancellation of benefits. Dr Millons, a specialist surgeon, was also called to give evidence in the worker’s case. Dr Millons gave evidence relating to the appellant’s claim to be incapacitated after cancellation of benefits. The employer called two medical witnesses, Dr Jackson and Professor Burns, who were both cross examined by counsel for the worker on the issue of the worker’s incapacity after compensation was cancelled. The Work Health Court made a determination based on all this evidence and the pleadings.

[51] Rule 8.02(2) of the Work Health Court Rules provides as follows:

“(2) To enable the Court to determine all issues in dispute, a party may plead additional facts or matters to those raised in an application, an appearance or a decision made under section 69, 85 or 86 of the Act.”

[52] Section 116 of the Work Health Act provides that an appeal from the Work Health Court is restricted to a question of law.

[53] The learned stipendiary magistrate made a finding that the cessation of payments under s 69 was not lawful, as at the relevant date on 2 January 2002 the worker had not “returned to work”. The basis for this finding, as set out in paragraph 28 of his Honour’s reasons for decision, was that as at 2 January there “was not a full return to work, for reason of duties being performed only in the paediatric unit, such duties being the subject of commentary set out above”.

[54] The comments relative to this issue are contained in paragraph 24 of his Honour’s decision which reads as follows:

“24. In this Court’s finding the highest the respondent can assert the full time work comprised entailed duties performed by the worker only in the Paediatric ward which involved the lifting and transfer of younger children and the avoidance of similar activities relating to older children. Whilst it is probably a matter dictated by logic, in any event, the Court refers back to the quotation from the draft return to work program, and particularly the sentence ‘this has reduced manual handling demands than the other wards’ and ‘…but avoiding with assisting with transfers of older children’.”

[55] This in turn was based on a finding at paragraph 18 of the reasons for decision which refers to Exhibit A5 – R53 in the draft return to work program period 25 October 2001 to 29 November 2001, which under the heading of “Duties” states as follows:

“Work as supernumerary Patient Services Assistant in paediatric ward. This has reduced manual handling demands than the other wards. Perform hygiene tasks, carbolising beds and pushing of wheelchairs/beds but avoiding assisting with transfers of older children. Duties include dishing out food.”

[56] I agree with the submission made by Mr Grant, that this was a graded return to work program and the situation, by the time of the final report on 2 January 2002, had moved on.

[57] This report which is titled “Rehabilitation Closure Report” dated 2 January 2002 is also included in Exhibit A5 and numbered in the right hand top of the page R63 and R62. This report, omitting formal parts, states as follows:

“Ms Sayson was referred to CRS Australia in September 2001 as she had not been at work for the previous twelve months. She had been off work on maternity leave, and in September 2001 requested she return to her original duties. Ms Sayson was reviewed by Dr Robin Jackson on 21 September 2001. He assessed her left shoulder, which was originally injured in a work related incident on 20 May 1999.
Dr Jackson believed Ms Sayson had recovered from her left shoulder injury but that she was badly deconditioned, and to help reduce the risk of reinjuring her left shoulder a graded return to work program was recommended.
Her employer, Alice Springs Hospital, agreed to arrange such a graded return to work program as part of their duty of care to Ms Sayson. CRS Australia developed a graded return to work program covering the period 25 October 2001 to 29 November 2001.
Ms Sayson was also provided with a refresher lifting/transferring education session with PSA ‘Back Carer’ on her return to work.
Ms Sayson successfully followed the graded program and was monitored in her full time original position for a further month. Ms Sayson did have a number of days off work, which in the latter part of the program were related to caring for sick children, rather than because of her injury.
Ms Sayson, (sic) the conclusion of the program was performing the full range of duties of a PSA in the paediatric unit at Alice Springs Hospital. She reported that she had some pain in her shoulder, but ‘didn’t think about it often’. Pain is not preventing her performing any task.
Ms Sayson was advised to maintain her vigilance in caring for her shoulder and to increase her strength through exercise to help prevent a reaggravation.”

[58] Mr Grant submits, under Ground 1 of the appeal and the respondent’s contention number 1 and 2, that the learned stipendiary magistrate committed an error in finding that the worker had not returned to work because the limitation expressed in the report of 23 October 2001 about “avoiding assisting with transfers of older children” was not a limitation referred to in the Rehabilitation Closure Report dated 2 January 2002. I consider the report dated 2 January 2002 is somewhat ambiguous in this regard. On the one hand it states she was “monitored in her full time original position for a month” and then states “at the conclusion of the program was performing the full range of duties as a PSA in the paediatric unit at Alice Springs Hospital”. I consider there was evidence from which the learned stipendiary magistrate could conclude that working in the paediatric unit involved lighter duties, with respect to lifting patients, than Ms Sayson had been performing at the time of her injury on 20 May 1999. I have been referred to the comments of Angel ACJ in Terence Carmichael v Ju Ju Nominees Pty Ltd [1998] unreported judgment delivered on 7 May 1998 on the meaning of the phrase “return to work”:

“The preferable interpretation is that where a worker, who is in receipt of compensation payments, returns to gainful employment the employer is entitled to reduce or cancel those compensation payments, to take account of the worker's renewed income without complying with s 69(1), provided the worker continues to receive such compensation payments, if any, as he remains entitled to under the Act taking account of his return to gainful employment.”

Those comments are in the context of its own facts which are distinguishable from the matter before this Court.

[59] “Return to work” is not a term of art. I agree with Angel ACJ, as reported in Carmichael v Ju Ju Nominees (supra), that it ought to be given its ordinary English meaning according to the language in the context in which it appears. It is a finding dependent on the facts in each case. I have concluded that “return to work” means, in the context of this case, when the worker has resumed performing the work she was engaged in at the time of the injury for the equivalent period of time.

[60] A notice is required under s 69(1) unless one of the requirements of s 69(2) applies. Where payments have been cancelled because the worker has ceased to be incapacitated, s 69(3) makes it clear that not only is notice required, but that the notice shall be accompanied by a medical certificate certifying the worker has ceased to be incapacitated. The requirements of the section make it necessary to define a “return to work” as something other than ceasing to be incapacitated for work.

[61] There is a subtle difference between a “return to work” under s 69(2) and ceasing to be incapacitated which the employer would be required to prove when issuing the required notice under s 69(1) before cancelling the benefits.

[62] The Rehabilitation Closure Report dated 2 January 2002 has within it the ambiguity to which I have already referred. The onus is upon the employer to demonstrate on the balance of probabilities that the worker has “returned to work”. I do not consider the employer has discharged this onus. I note there is no evidence that the contents of this report were ever discussed with or conveyed to the worker. There is no notation that a copy was sent to her as is noted on the earlier Progress Reports.

[63] Following the report dated 2 January 2002, the worker was receiving full entitlements and was in full time employment. The Progress Report dated 2 January 2002 does not satisfy the requirements of proof on the balance of probabilities that the worker had “returned to work” because of the reference to lighter duties i.e. working in the paediatric ward as distinct from an adult ward. It may, however, be of assistance in establishing that she is no longer incapacitated. The report indicates that Ms Sayson had successfully followed the return to work program, was performing the full range of duties of a PSA in the paediatric unit and that pain was not preventing her from performing any task. The worker should have been sent a notice of the employer’s intention to cancel the compensation on the basis she had ceased to be incapacitated, accompanied by the required medical certificate, pursuant to the provisions of s 69(1) and (3) prior to the cancellation of payments. This did not occur. I would agree, albeit for different reasons, with the finding of the learned stipendiary magistrate that the employer had not discharged the onus upon it of providing on the balance of probabilities that the worker had “returned to work”.

[64] For reasons that I will detail under the later grounds of appeal, a finding that the worker had not “returned to work” for the purpose of s 69(2) is not significant in the context of the worker’s overall claim. Essentially, the appellant’s case in the Work Health Court was never confined to an appeal under s 69 Work Health Act. The learned stipendiary magistrate was entitled as he did to consider all of the evidence and make findings as to the worker’s capacity or incapacity.

[65] This ground of appeal is dismissed.

Ground 2: That the learned magistrate erred in law in having found the worker at a relevant time incapable of a full time return to work as defined by the Act as a consequence of deconditioning (see paragraph 104 of the judgment), he failed in the teeth of the evidence, to find that the deconditioning arose out of the or as a result of the compensable (admitted) injury.

[66] The learned stipendiary magistrate reviewed the evidence of all the medical experts, including Dr Jackson. I am not able to agree with Mr Waters QC’s submission that the evidence of Dr Jackson helps, not hinders, the appellant’s case. Dr Jackson, who is a consultant orthopaedic surgeon, did give evidence to the effect that the appellant could not return to full time duties until she overcame her “deconditioning”. In paragraph 3, on page 6 of his report dated 1 October 2001, Exhibit R6 before the Work Health Court, Dr Jackson responded to a question posed as follows:

“3. Do you consider that Ms Sayson is currently fit for work? If so, please advise of any restrictions that you would recommend.
In my opinion, she is currently fit for work although she is badly deconditioned. It would be appropriate for her to have some restrictions, at least initially when she returns to the workforce. She is fit for duties that do not impose undue strain on her left arm.
Whether she can return to patient services assistant duties is debatable, she is more suitable for duties as a ward clerk.

4. Do you anticipate that Ms Sayson will be able to return to her full pre-injury duties? If so, when do you anticipate that this will be possible?
I am uncertain as to whether she will ever be able to return to full pre-injury duties. This would only be determined when she commences a graduated return to work program and thereafter checks on her progress.

5. Recommend rehabilitation strategies that will assist in Ms Sayson’s return to full-time duties.
Recommended rehabilitation strategies are that she should be placed on a return to work program. It might be appropriate for her to have some patient services duties to ascertain how she copes with same. If her shoulder continues to be problematic then it would be appropriate that she have a change of direction which would then have to be on a permanent basis.

6. Your recommendation of further treatment.
Ms Sayson does not require further physiotherapy or further medication. Her condition seems somewhat more satisfactory since such treatments were ceased.
An active home exercise program is all that is required.

7. Incapacities reported by Ms Sayson.
Incapacities reported by Ms Sayson are contained in the body of this report although there is little clinical evidence to substantiate same.

8. Your prognosis.
As stated previously, I consider that the prognosis should have been excellent and I would have expected her to make a full recovery. Her protracted symptomatology is somewhat difficult to explain in the circumstances. There is no evidence to suggest that she has sustained anything other than a relatively minor injury and, therefore, protracted disability is difficult to explain.”

[67] In giving oral evidence to the Work Health Court, Dr Jackson was asked what he meant by paragraph 3 (tp 125). He replied:

“What I was stating here is I believe the claimant was fit to commence a graduated return to work program, I believe I actually stated that in the next paragraph. I considered that she had basically de-conditioned, which is just a medical term meaning that the claimant was not in the – does not enjoy a full fitness type situation, muscularly – or musculoskeletal speaking. But she was fit to return to work. I was basically again suggesting that it may be appropriate to give her some restrictions here with the use of the left arm, until such time as she could get her strength back up to normal degrees. This again was just in trying to ensure a satisfactory return to the workforce.

What would be the expected outcome of the return to work program, given that the underlaying injury resolved?---I would expect that she would have been able to achieve full-time, normal duties, as I stated, in due course. I have no evidence to suggest that anything other than that would happen on the basis that I believe the injury itself had recovered. It was only a question of the subsequent muscles regaining normal strength, control, to achieve full-time, normal duties as she had been doing prior to the injury.”

[68] Dr Jackson gave further oral evidence to the effect he could not understand why the worker had not made a rapid recovery from her injury sustained on 20 May 1999. Dr Jackson stated there may have been other factors of which he was not aware; such as how she was getting along with her fellow workers, and other factors totally unrelated to the injury, to explain her continued complaints of symptomatology.

[69] The effect of Dr Jackson’s evidence is that when he examined her on 21 September 2001, the worker had recovered from her injury. Dr Jackson recommended a graduated return to work program because she is “badly deconditioned” a situation that could be remedied by an “active home exercise program”.

[70] The evidence of Dr Jackson, only part of which I have made reference to, and the evidence of the other two doctors, supports the findings made by his Honour and set out at paragraphs 100-106:

“100. No medical specialist is able to find any organic cause for her alleged continuing pain symptomology, which symptomology is not consistently described by her, either to the medical specialist or the Court, and varies from constant and unceasing, unremitting pain to intermittent and decreasing pain, depending upon the question put to her and the whim of the worker.

101. There is no identified medical organic cause found to exist, either for the existence or continuation of such symptoms on and after 14 March 2002, or at all, assuming that indeed they ever existed.

102. All of the medical evidence is to the effect that at worst there is deconditioning of muscles relating to full arm extension and rotation. There is no apparent reason for the continuation or continued existence of any symptoms.

103. It is the unanimous conclusion of all the medical experts that the swelling, which the Court observed existed, was not attributable to any soft tissue injury which may have been sustained on 20 May 1999 but, rather to some posture adopted by the worker, or perhaps to other causes not identified, such as scoliosis. In any event, not to the alleged injury on 20 May 1999 at all.

104. It is this Court’s conclusion that the only residual problems that the worker maybe suffering from, is what the doctors have described as deconditioning, a situation which arises as a consequence of muscles not being used. The only way the incidence of stiffness and pain, which use of the left arm and shoulder may generate, can be overcome is by continued movement, exercise and physiotherapy but, the point is the deconditioning is not an injury within the meaning of the Act, or if it is, it is not an injury which amounts to incapacity, in terms of the Act.

105. The worker has not established the existence of those claims which may have amounted to primary applications arising out of the alleged exacerbation etc on 14 March 2002 and / or 9 May 2003 and having failed to prove on a balance of probabilities any entitlement, both claims are dismissed.

106. Insofar as the negation of any compensable injury on or after 14 March 2002 is concerned and /or alternatively the negation of any such incapacity during such period is concerned, this Court finds that the onus of proving such negation, reposing as it does on the employer, has been discharged and consequently the application by the worker made on 26 March 2004 to the Work Health Court fails.”

[71] I agree with the submission made by Mr Grant for the employer, that the findings of the learned stipendiary magistrate that the worker had not returned to work for the purpose of s 69(2), does not amount to a finding that the worker was incapable of full time “return to work”. Nor does it amount to a finding of incapacity as at 14 March 2002 or at all.

[72] I have set out at paragraph 69 of these reasons for judgment the conclusions of the learned stipendiary magistrate as set out in paragraphs 100-106 inclusive of his reasons for decision.

[73] It was the findings of the learned stipendiary magistrate that the worker had suffered a minor soft tissue injury and recovered by 14 March 2002. He also found that her complaints of restriction were inconsistent with the objective surveillance material. In the course of his reasons for judgment, the learned stipendiary magistrate made numerous findings adverse to the credit of the worker. An example is paragraph 23 where his Honour stated:

“Whilst there are other issues in relation to the worker’s oral evidence, which will be addressed in the decision, in cross examination, the worker, in this Court’s observation, was often non responsive and largely unable to remember many important facts, particularly any matter which may have been destructive of her case. Strangely, she said “I don’t recall going back to full time work”. “I can’t say never but, I can’t remember”. (transcript 41) When faced with the return to work program’s contents, she agreed that she did return to work but, not to her full duties. Belatedly, and unconvincingly, being faced with the comments in the second review of the return to work program on 28 November 2001 set out above, she said “yes I think so”. (transcript 54)”

and at paragraph 38:

“She said that she did lift patients in the paediatric ward during that part of the return to work program when she was assigned PSA duties there. There is some contradictory statement made by her saying “her shoulder was pain free but occasionally stiff” to be juxtaposed with “my shoulder is never pain free”. Her lack of recall was quite astonishing in relation to the entire history following upon the first return to work program, although she conceded that most of the time that she had taken off work in early 2002 had been because of her pregnancy and the difficulties that she had with that event. She had no knowledge or recollection of the term “deconditioned”, apparently a medical term ascribed to the state, as the Court understands it, of the muscles due to their lack of use.”

and at paragraph 67:

“What this Court finds more sinister, however, is the deliberate attempt by the worker to engender an opinion by Dr Millons based on specific inactivity, her total inability to hang out the washing, which this Court finds palpably false. As Dr Millons said, had he been made aware as part of the history that such activities, as are portrayed on Exhibits R3 and R4, were indulged in by the worker contrary to her history given to him, he would question her veracity. So does this Court.”

[74] In a number of other findings, the learned stipendiary magistrate found the worker to be lacking in credibility.

[75] The learned stipendiary magistrate reviewed the evidence given by the three doctors including Dr Jackson who was called by the employer. With reference to the evidence of Dr Jackson, his Honour made a number of findings including those set out at paragraphs 72 and 73 of his reasons for decision:

“72. He noted that whilst the situation, which was then current, was related to 20 May 1999 injury, he said ‘Please note that Ms Sayson has a full range of what appears to be pain-free shoulder at this stage’. He certified her as fit for work, although, she ‘is badly deconditioned’. Apparently that is a medical description to be applied to a situation where there has been little or no use of musculature relating, in this case, to her left arm and shoulder. He concluded that a return to a PSA position was debatable and assessed her as more suitable for duties of a ward clerk. He concluded that ‘there is little evidence to substantiate (…incapacities reported by Ms Sayson), his guarded conclusion in relation to prognosis was that ‘her protracted symptomology is somewhat difficult to explain in the circumstances. There is no evidence to suggest that she has sustained anything other than a relatively minor injury and, therefore protracted disability is difficult to explain’.

73. When called to give evidence, he said that he would expect the injury, if it occurred, to have resulted in complete recovery in a matter of weeks, or in the event of a serious injury (which this of course is not so diagnosed by him as being such) within two months (transcript 123), and that whilst there were always to be exceptions to the rule, normally six months was enough for a full return to the pre-injury work duties (transcript 123 and 124). He reiterated she was vague in answers to questions (transcript 124), the Court felt this was critical of her and her tiredness would be what one would expect as a consequence of her deconditioning, although there was no muscle wasting (transcript 125). He said the full range of pain free shoulder movement was indicative of resolution of the injury (transcript 125). He said that the injury itself had recovered, and that what he had advocated was a ward clerk’s duties at that time (transcript 126), because they were less physically demanding, with a gradual introduction into, and ultimately, a progression to doing, the full duties of a PSA. He suggested that factors which may be influencing the symptoms could be social or financial, and if so they were totally unrelated to any injury as such and one could not exclude taking into account (transcript 126) ‘secondary gain’.”

[76] Dr Millons, who is a specialist surgeon, gave evidence that when he saw the worker in April 2004 and October 2005 she had a full range of movements in the neck and below the shoulder. Under cross examination, Dr Millons gave evidence the appearance of Ms Sayson’s neck was not totally normal. He agreed that it would be most unusual to have a soft tissue injury some six and a half years after the cause of that injury. He further stated that the swelling that Ms Sayson had to the left side of her neck was not consistent with a soft tissue injury. He said it was consistent with a posture abnormality in the neck. Dr Millons gave evidence the appellant had some aching in the shoulder because she had not fully used the shoulder for an extended period of time.

[77] Dr Burns who is a consultant neurologist gave evidence. He had prepared a report dated 29 July 2005, Exhibit R8, before the Work Health Court. Professor Burns examined Ms Sayson on 25 July 2005. Professor Burns gave evidence that the result of that physical examination was that he could find no abnormality. He stated he was not able to come up with a plausible explanation for her continuing symptoms (tp 137). He could not find anything which could suggest any type of damage that might have occurred in May 2003. He could not identify any particular process that might have linked what the worker complained of in May 2003 to the initial injury in May 1999. Professor Burns gave evidence that the symptoms the worker described were not consistent with any condition that he could recognise. He stated he could not identify any cause for her alleged injury. His evidence is that there was no basis on which he could say Ms Sayson was unfit to return to work.

[78] There was evidence to support the findings made by the learned stipendiary magistrate. The appellant has not demonstrated there was any error of law. This ground of appeal is dismissed.

Ground 3: That the learned magistrate erred in law in treating the worker’s history of post 2002 recurrences of incapacity as if there was a primary claim for compensation rather than a s 69 appeal made by the worker or as if the Court was considering an employer’s s 104 claim or a counter claim when none was made or before the Court (see paragraph 105 of the judgment).

[79] The worker’s incapacity after 28 March 2002 was put in issue by the worker in her pleadings and the way in which her case was presented in the Work Health Court.

[80] The learned stipendiary magistrate was duty bound as he did to consider these claims and rule upon them. He gave detailed reasons for his decision. He dealt with the respective onus cast upon the worker and the employer and stated at paragraphs 89, 90, 91 and 106 as follows:

“89. The Court finds that the onus of establishing the advent of the alleged recurrences, exacerbation or aggravation rests upon the worker as does the task of proving that the worker was totally incapacitated on the date specified and continuously since 21 August 2003. It is trite that the onus to be discharged by the worker is to establish these matters on a balance of probabilities.

90. Conversely, in respect of the issue of establishing that the worker did not suffer from any injury within the meaning of the Act after 14 March 2002, or alternatively that any injury from which she did suffer, did not incapacitate her within the meaning of the Act, the onus to be discharged by the employer is on a balance of probabilities.

91. Examining the medical evidence, which has already been traversed, the Court finds firstly, that if any injury at all was suffered on 20 May 1999, which is certainly not without some doubt, she suffered a soft tissue injury, either musculo-skeletol or musculo ligamentous, in any event, a minor injury. Secondly, that as at 26 October 1999, but certainly by 14 March 2002, the worker had a full range of movement in the left shoulder, muscle power and sensation having returned to normal. Insofar as that injury may have been an injury as defined in the Act, it is this Court’s observation, that because payments were made, a graduated return to work program engaged, and a claim accepted under the Act, they do not prove, either, that there was a compensable injury under the Act, which occurred on 20 May 1999, as alleged, or that if there was, the worker was thereby incapacitated.

…..
106. Insofar as the negation of any compensable injury on or after 14 March 2002 is concerned and/or alternatively the negation of any such incapacity during such period is concerned, this Court finds that the onus of proving such negation, reposing as it does on the employer, has been discharged and consequently the application by the worker made on 26 March 2004 to the Work Health Court fails.”

[81] The appellant has not demonstrated an error of law. Accordingly, this ground of appeal must fail.

Ground 4: That the learned magistrate erred in law in applying the onus of ‘beyond reasonable doubt’ to the employer (see paragraph 14(c) of the judgment), in circumstances where the employer did nothing but deny liability and in finding the onus of ‘establishing the advent of the alleged recurrences, exacerbation or aggravation’ of injury from 14 March 2002 ‘rests upon the worker’ (see paragraph 89 of the judgment), where the worker did nothing but assert her continuing (proven) incapacity for work (she was at all relevant times participating in a return to work program) and in finding that ‘the worker bears the onus of establishing that, since 14 March 2002 she has suffered incapacity and consequent economical loss referable to an injury arising out of, or, in the course of her employment’. (see paragraph 30 of the judgment).

[82] In paragraph 14(c) of the reasons for decision, the learned stipendiary magistrate stated:

“14. Distilling what is put in issue on the pleadings and/or what emerged as being in issue during the course of the trial, the Court perceives and finds that it must decide the following:-
c. If the Court finds the worker did not ‘return to work’ within the meaning of the Act, has the employer discharged the accepted onus of proving beyond reasonable doubt ‘that the worker was not entitled to benefits’ under the Act from 28 March 2002. That is to say, that the worker did not suffer from any ‘injury’ within the meaning of the Act after 28 March 2002, or, in the alternative, ‘that any injury from which he (sic) did suffer’, did not incapacitate her within the meaning of the Act’ (paragraph 83 of the employer’s submissions) (‘The incapacity after 28 March 2002’).”

[83] I agree that applying “the onus of beyond reasonable doubt” to the employer was an error. Having read the whole of the reasons for decision, I have concluded that this was either in the nature of a typographical error or an oversight in the editing of the judgment. It placed too high an onus upon the employer and does not, in any event, assist the worker. It is clear on a reading of the whole judgment, that his Honour was well aware that the respective onus upon the worker and the employer was on the balance of probabilities.

[84] In paragraph 30 of his reasons for decision, the learned stipendiary magistrate stated:

“30. Although, vexed with issues of onus when contrasted with the succeeding and last issue for determination by the Court, the Court finds it is correctly submitted on behalf of the employer, that in respect of claims arising out of the alleged injuries on 14 March 2002 and 9 May 2003, the worker bears the onus of establishing that, since the 14 March 2002 she has suffered incapacity and consequent economical loss referrable to an injury arising out of, or, in the course of her employment.”

[85] The criticisms of this paragraph of the decision have essentially been dealt with under other grounds. There was evidence to support the finding made by the learned stipendiary magistrate that the worker did not suffer any incapacity after 14 March 2002. The evidence upon which the learned stipendiary magistrate relied is all one way. There is evidence that the worker did not suffer any incapacity attributable to her injury on 20 May 1999 after 14 March 2002. The appellant has not demonstrated error on the part of the magistrate.

[86] This ground of appeal is dismissed.

Ground 5: The learned magistrate erred in law in that his factual findings:

(i) that ‘It is the unanimous conclusion of all the medical experts that the swelling … was not attributable to any soft tissue injury which may have been sustained on 20 May 1999 …’ (paragraph 103 of judgment).

(ii) that ‘There is no identified medical organic cause found to exist, either for the existence or continuation of such symptoms on and after 14 March 2002 …’ (paragraph 101 of judgment).

were made in the absence of any accepted evidence to that effect or at all and in finding that such evidence was necessary to establish the appellant’s case.

[87] The relevant authorities stating the principles to be applied in an appeal from the Work Health Court are summarised by Mildren J in Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32 at 37. This approach has been adopted by the Court of Appeal in Wilson v Lowery (1993) 4 NTLR 79 at 84-85. It is not for the Court of Appeal to enter into the fact finding process undertaken by the Work Health Court unless there is no evidence to support the findings of fact. Section 116 of the Work Health Act restricts an appeal to the Supreme Court to a question of law.

[88] The medical evidence was given by Dr Millons who was called for the worker and Professor Burns and Dr Jackson who were called for the employer.

[89] Dr Millons prepared a report dated 10 March 2005, Exhibit A11 in the Work Health Court. In this report he details the history given to him by Ms Sayson, the results of the examination he conducted, a review of the file and x-rays, and concludes by stating his opinion. There is no conclusion that the worker was suffering an injury. At page 6 of his report, Dr Millons, who is a general surgeon, states:

“What one is left with is a lady whose head seems to be tilted to and taken out to the right with a soft tissue swelling in the left side of her neck, the nature of which is not clear. I just wonder whether swelling may relate to the tilting of the head and neck.”

[90] The total effect of the oral evidence given to the Work Health Court by Dr Millons was that there was nothing much wrong with the worker. He described her symptoms as vague and not correlating with any soft tissue injury. He found it to be highly improbable that she would have a soft tissue injury subsisting some six and a half years after the alleged injury. He referred to her having a full range of movement in the shoulder and no painful arc as the arm was raised and lowered. He considered the ache about which she complained was attributable to the fact she did not fully use her arm.

[91] Professor Burns is a specialist neurologist. He prepared a report dated 27 July 2004 which became Exhibit R7 in the Work Health Court. Professor Burns stated he could not give a diagnosis with respect to the original injury suffered by the worker in May 1999. He stated he did not think there was a significant injury in May 2003. He could not explain the pain Ms Sayson stated she had, either from the nature of the symptoms she described or from a neurological examination. In his oral evidence to the Court, Professor Burns stated his examination of the possible causes of the worker’s pain was not strictly limited to neurological matters. He gave evidence to the effect that there was nothing wrong with the worker. He stated the lump on her neck was not related to her injury in May 1999.

[92] A further report prepared by Professor Burns dated 29 July 2005, Exhibit R8 before the Work Health Court, has been referred to under Ground 2 of this appeal.

[93] Dr Jackson is a specialist surgeon. He gave evidence that he examined the worker in 1999. He could not identify any swelling, muscle wasting or deformity around the worker’s left shoulder. He diagnosed her as having a soft tissue injury, musculo-ligamentous in type. He considered her prognosis was excellent, that her residual symptomatology should settle and the injury would not impact on her future capacity to work. When he examined her again in September 2001, he reported that he could not identify any obvious swelling muscle wasting or deformity in the left shoulder. He noted the worker displayed a full range of shoulder movement without pain. His view being that Ms Sayson had sustained a simple soft tissue injury or minor brachial plexus lesion from which she had recovered.

[94] In his evidence to the Court, Dr Jackson expressed the opinion that the difficulty in explaining the worker’s symptoms led to the conclusion that there was some financial, social, industrial or other reason for her presentation.

[95] On all of the medical evidence there was support for the magistrate’s factual findings that are the subject of Appeal Ground 5. His conclusions do not demonstrate an error of law. This ground of appeal is dismissed.

[96] With respect to the notice of contention I have found:

(1) There was evidence to support the findings of the magistrate that the worker was not undertaking full duties as at 2 January 2002.

(2) The learned stipendiary magistrate did not misdirect himself as to the meaning of the words “return to work” in s 69(2) of the Work Health Act.

[97] The order of the Court is as follows:

1. The appeal is dismissed.

2. The parties have liberty to apply on the question of costs.

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