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MR BARR: Thank you, your Honour. The witness sitting in court is Stephen Pennington. I’d ask that he be affirmed, please.

HIS HONOUR: Yes, stand up, please, Mr Pennington.

STEPHEN ANTHONY PENNINGTON, affirmed:

HIS HONOUR: Yes, Mr Barr.

MR BARR: Your Honour, just before I take any evidence from Mr Pennington, it’s proposed to adduce his evidence based on the contents of a file which he has within the court which has been served as though it were one large medical report on the other side, some four, five weeks ago, whenever it was. It would be convenient for all of us if we have our copies about and what I propose to do is simply hand it to your Honour together with a copy of the witness’s CV. And then your Honour can be in the picture as I take Mr Pennington through his evidence.

HIS HONOUR: Yes, certainly.

MR BARR: Your Honour, there may be some lack of sync in the file but it’s actually reproduced as per the witness’s own file. And your Honour will note that it’s divided up into various sections which I’ll explain to you.

HIS HONOUR: Somebody had better.

MR BARR: Yes. So your Honour should have a coloured print CV with a printed letterhead at least, CV.

HIS HONOUR: Yes.

MR BARR: And then a file that your Honour will note has an information authority on the very outside of it.

HIS HONOUR: Yes.

MR BARR: And then tags indicating correspondence, medical reports and the final tab that I have is one headed ‘referral’.

HIS HONOUR: Yes.

MR BARR: We both have four tabs. Ms Gearin just has medicals in a different order.

HIS HONOUR: In a slightly different order, Ms Gearin, but that's hopefully the same.

MS GEARIN: Thank you, your Honour.

MR BARR: Mr Pennington, you’ve got your file in front of you. I wonder if I could please ask you to state for the court record your full name?---Stephen Anthony Pennington.

And are you an occupational therapist?---Yes.

And do you work for a company called Site Safe NT Pty Ltd?---Yes.

And are you the sole director of that company?---Yes.

Does the company carry on its business from QANTAS House number 16 Bennett Street, Darwin, level 3?---That's correct.

Now, you had dealings with Ms Nasir throughout 2007 and 2008, is that correct?

---That's correct.

Did any other occupational therapist from your company have any dealings with Ms Nasir over that period?---No.

And you were the only person from the firm that dealt with her?---Yep.

Could you please explain to the court as best you can what an occupational therapist does?---Primarily in the context in which the referral basically revolved in maximising someone’s independence and function. So looking at ability rather than disability. And I suppose in this context, going onto work sites predominantly looking at the bio mechanics of what's involved in the tasks that a person would typically do and then looking at if there’s any, obviously weighing that into account, the physical demands of the work environment and then the physical capacity of the worker and making sure there’s a safe match between the two.

And is it part of the role of the occupational therapist to make recommendations as to modification of the work environment?---That's correct.

And is it part of the role of the occupational therapist to teach or recommend new skills to an injured person to adapt to the disability?---That's correct.

Now, you were provided, Mr Pennington, a copy of your CV. Could you – it appears that you graduated in 2000 from the Charles Sturt University. Is that in Albury Wodonga?---That's correct.

Did you do your studies in Albury Wodonga or somewhere else?---I did two years study in Albury Wodonga and then transferred to the University of Queensland for the last two years.

And during your course did you do placements in health institutions of some kind in order to practice or learn your skills?---That's correct.

And how many hours of such placements did you do in the course of your studies?

---By the end of the degree you have to have obtained 1000 hours work experience before you can qualify as an occupational therapist.

And during those 1000 hours are you expected to work under the supervision of somebody?---Yes, that’s correct.

And who did you work under?---So that would be a senior occupational therapist.

And what kind of instructions did you work in to obtain 1000 hours of placement that you required?---Predominantly – my last placement in the fourth year was in the Burns Unit at Royal Brisbane Hospital. I also did placements in community health which was an inpatient hand therapy and also out in the community.

Thank you. After you graduated were you then qualified to work in your own right as an occupational therapist?---That's correct.

And what was your first position?---My first- - -

You can refer to your CV if you need to?---I must admit I've just handed out all the copies of the CV but the first- - -

Would you like a copy back again?---Yeah, that would be great. The first placement I had was with RIS which nowadays is called Konnekt which is a vocational rehabilitation company. I think that was in 2000.

Whereabouts was the RIS practice or – yes, practice where you worked?---That was in Winnellie.

So did you come to the Territory pretty well as soon as you graduated?---Yep, I was working part-time in Brisbane in community health prior to that, working with people with behavioural problems that were under the care of the Queensland government. So I did that for a short period of time and then obtained a fulltime position in Darwin and came to Darwin.

And you say in your CV that you worked for RIS, Total Injury Management from 2000 to 2002. Did you do – what sort of work did you do with RIS?---Basically going onto workplaces looking at – so some prevention work in terms of doing ergonomic assessments and things of that nature. Also doing work with people that had already sustained injuries. Looking at the bio mechanics again of what the task is that the person’s required to do for their employment, working out whether they’ve got a safe capacity in which to do it. And if there is some concern then try and mitigate what those risks are or maybe getting the person to go about doing what they would do differently so it minimises the risk of exacerbation or injury. And, yeah, obviously working with the medical doctors to – they obviously write out a medical certificate indicting what a person’s work hours are then I look at the actual activity side of it. So they give some parameters, usually on the medical certificate in terms of things to – that a person shouldn't do and then it’s basically I go onto the work site and look at the bio mechanics to work out whether they are, in fact, contraindicating the medical certificate or not.

So the starting point would be the restrictions or limitations in the medical certificate?---Yep.

And you then approach the work site assessment with those limitations in mind?

---That's correct.

Was it and is it your practice to examine people referred to you to determine the function?---Yeah, on occasions, yep.

And if you – when you would examine them for such functional capacity, is there a series of tests that would be carried out?---Yeah, there are formal functional capacity assessments that can be done and quite often that’s done at later stages. But obviously through the interview process of talking with the worker, you're obtaining some information about what their functional capacity is and obviously you're looking at what they can do or demonstrate they can do and then trying to look at similar bio mechanics within the work environment to make sure that they're safe.

In the case of Ms Nasir, did you do any functional capacity evaluations or tests?

---No, no formal testing, no.

Is there a reason for that?---Basically you need insurer approval to do so.

All right. And in your CV it refers to work site assessments and developing graded return to work programs. What do you mean by a graded return to work program?

---So ideally in the process of rehabilitation you may start with a limited capacity. Once you’ve got a safe baseline of activity then typically what happens is that you get a gradual increase in activity and function. And then as that occurs, then you try and grade the activities in the workplace so that that gradual increase is appropriate in terms of their medical condition and current rehab status. Effectively a bit like a gym program, you start off with light things and then effectively make them more intense as you go along to hopefully assist in the rehab process.

Your CV indicates that after you had worked for RIS in the capacity that you described, you then worked for the Disability Resource Unit. Is that the Disability Resource Unit of the Northern Territory government?---Yes, that’s correct.

As an occupational therapist?---Yes.

What was your role there?---Assisting – there was a team environment, there was other health professionals as well. Assisting the people in the community that had severe physical injuries, sometimes behavioural injuries as well and looking at how best to accommodate them in the community and looking at community access and home access and those sorts of issues.

And were you required in that capacity to do home assessments?---That's correct.

And you mentioned a team. What other professionals did you work with in the team that you described?---There’s two psychologists, a speech therapist and there were two behaviour management educators.

And you carried out that work during 2002 up to 2003. You then indicate that you became a senior injury management advisor with CGU Insurance. What was your role within that insurer organisation?---Basically to look at the – more so the vocational rehab providers that were providing services to CGU Insurance and looking at minimising service variations so that quality of service was being provided. And obviously helping out in terms of the injury – the claims consultants and educating them in terms of injury processes and return to work processes.

In that position would you have done work such as the conduct of work site assessments and developing return to work programs?---Through organisations, yes. So I would still go out to the work sites and examine the work sites, quite often with a vocational rehab provider and discuss what the likely progression of activity might be, if it still involved communicating with the doctors and then - yeah, so I guess in that advisory capacity, assisting the vocational rehab provider.

Yes. You indicate that you then worked for the Department of Defence in the case management role.

HIS HONOUR: Sorry, Mr Pennington, in that role with CGU would you have anything directly to do with the injured people?---Yes. So you still met with the person on site.

Yes, thank you.

MR BARR: Thank you, your Honour.

You then worked for the Department of Defence in a case management role. What was that position set up for?---Basically that was the very first stages of defence, looking at providing services to injured personnel. So that was one of the pilot projects that was occurring throughout Australia. There was a couple of others as well before Canberra decided on the national thing that they’ve unrolled since then. So case manager but basically the same functions, going to the work site and doing work site assessments, working on what's safe for members to do and then communicating that to their hierarchy so that there’s – you're putting in place return to work programs. Which is effectively – I've got communication tools so that the supervisor knows what they should or shouldn't task the person to do.

When you refer to the expression case management, in your line of work what processes does that include?---Basically ensuring that all parties are heading in the same direction, trying to minimise confusion, trying to educate all parties about the process in terms of starting off small, low intensity and then gradually increasing as medically appropriate. And, yeah, obviously being a support to the injured worker as well.

All right. And does the case management concept include the conduct of work site assessments and the developing of a return to work program?---Yep.

All the duties you have described in your evidence to now are included in the case management?---Yes, it’s a fairly generic sort of term I guess.

That you would use and it means the things we’ve just been talking about?---That's correct.

Did you achieve any accreditation with the COM Care(?), the Commonwealth Government Rehabilitation Agency?---Yeah, correct. So I've got a COM Care provider number, so that involves providing a case management system to the – for the evaluation and other documentation as well in order to get accredited.

Yes. How do you become accredited? Is it done as some sort of examination or test or what documents do you need?---No, it’s usually - suppose it’s like tendering documents to a certain degree. I mean basic information like insurance and it goes through to staff qualifications, capacity in terms of I suppose organisational capacity as well, whether a psychologist is onboard or not, the sort of services that would be provided and how those services would be provided.

And do you have to provide any information about your case management capacity or modelling or anything of that kind?---So, yeah, there’s a diagram that we use to evidence the case management model that we utilise. And that’s submitted to them to their approval.

And do they need to be established that your case management model is acceptable to their criteria?---That's correct.

In 2006 it seems that you established Site Safe NT Pty Ltd. Were you still working for defence at that time?---With the changeover from being a contractor and with the unrolling of the new defence rehab model, you had to become an accredited COM Care provider which I did. And then I suppose rather than being an in-house service I moved to an outhouse service, if you like.

Meaning that you would work for people other than the Department of Defence?

---Yeah, that’s correct. So once I suppose it was a natural progression from being a contractor internally to externally and then also providing services to other companies as well.

And so Site Safe NT had been in business for about a year or so when Ms Nasir was referred to you in early 2007, is that correct?---That's correct.

I wonder if I could ask you to look at your file, please, Mr Pennington. I earlier commented to his Honour that it was divided up into several little sections?---Yep.

Is that how you organised your file?---Yes, that's correct. So correspondence, medical reports and case notes. This has changed a bit. Usually the case notes are on the top.

And so is it the case that within the so called correspondence section you have all your case notes as well as letters, emails and so on that have been written in the course of the chronology of your handling of the matter?---Yes, that’s correct.

Medical includes the medical reports provided to you from time to time, progress medical certificates, reports from other doctors and so on?---Yeah, that’s correct.

And they were kept on hand by you to ensure that anything you were trying to achieve was within the limits or limitations or restrictions dictated by the doctors, is that correct?---Yeah, that’s correct.

In the reports section there appear to be both what you call assessment reports, whether they're initial reports or progress reports. So I’ll actually ask that again. There’s an initial assessment report. If I can refer you to one dated 8 May 2007?

---Yes.

And then there are subsequent progress reports from time to time?---Yes, that’s correct.

And also included within that section are various return to work programs?---Yes, that’s correct.

Devised by you. Thank you. And in the final section, the referral section, that contains information that was provided to you when the worker was first referred to you?---Yes, that's correct.

So that was, if you like, your starting date?---Yes.

It might be convenient if I could take you to your initial assessment report dated 8 May 2007?---Yes.

Your Honour, that is almost at the bottom of the reports tab in the file.

HIS HONOUR: 8 May 2007.

MR BARR: 8 May 2007.

HIS HONOUR: To Kye Brown?

MR BARR: Yes. Mr Pennington, do you have that initial assessment report there?

---Yep.

You indicate there that the worker, Ms Nasir, presented at Site Safe on 3 May 2007 for an initial assessment?---That's correct.

Are you able to indicate how long the initial assessment took in this case?---I don’t know any particular – usually they range somewhere between half an hour to an hour. I don’t remember the exact time, unless I’ve file noted how long Ms Nasir was there for. But off the top of my head – it would have been for at least half an hour.

And so you in preparing your initial assessment report you’ve referred to information obtained by you from Ms Nasir on 3 May?---Yep.

And that is as described in your report itself?---Yes.

At the third page under the heading ‘Current injury status’ you’ve noted the various things including the worker’s physical capacity reported to you on 3 May, is that correct?---That's correct.

And you’ve noted her – I assume that these are standard things you ask, standing, sitting, walking tolerances and stuff?---Yep.

Is there a usual series of questions that- - -?---Yeah, functional informations primarily is what we’re after so that we can then make educated decisions about I suppose the work. So we want to see some sort of correlation between what the person reports in terms of their functional tolerance and again how that transpires to the work environment.

Yes. So you in devising an appropriate job or series of tasks in a job, you would have regard to the stated limitations that the person explains to you, is that correct?

---Yep, so it’s obviously what they report or what's observed and trying to put those two things together.

And you’ve set out there the limitations or capacities, whichever way you look at it, that Ms Nasir has indicated to you on 3 May, is that correct?---Yes, that’s correct.

Over the page, that’s towards the top of page 4, there’s reference there to AROM?

---Yep.

Does that stand for active range of movement?---Yes, it does.

And could you just explain to his Honour how you determined the active range of movement in this case?---So basically asking the worker to demonstrate her active range of movement. So that’s shoulder function that we’re looking at there.

Did you touch Ms Nasir to assist her in this process?---No, it’s all done by another person.

So when you say she demonstrated reduced range of movement in her affected shoulder, is that a reference to her right shoulder?---That's correct.

And if – just so that we know exactly what you're talking about, flexion 40 degrees, if you’d like to stand up to demonstrate this, it would be helpful. Can you just demonstrate what 40 degrees of flexion translates to?---Forward flexion, so obviously that’s 90 degrees, that’s about 45, slightly less.

So slightly less than 45 degrees flexion. Does your Honour want me to put that onto the – I think we understand.

HIS HONOUR: The arm being raised straight.

MR BARR: In front.

HIS HONOUR: In front.

MR BARR: The next one was extension, Mr Pennington?---Yep, so extension is backwards.

So that’s arm by the side held straight but moved backwards?---Yep, that’s correct. And so that’s about 20 percent. So it ranges somewhere between 20 and 30 depending on how flexible the person is but you expect to get about 20. Some people are a bit more flexible than others.

Soldiers who march all the time probably have graded their extension behind?

---Potentially.

MS GEARIN: It depends on the soldier I suppose.

MR BARR: And then we have abduction 30 degrees?---Yep, so again that being 90, half that, about 45 and 30 is about there.

HIS HONOUR: Lifting the arm directly out to the side and - - -?---So 180 is full range of movement.

Mr Pennington is there demonstrating 30 degrees is fist about, not much more than a foot from his head.

MR BARR: Thank you, your Honour.

Now, Mr Pennington, if I could take you to page 5 of your report. This is your initial assessment report. You refer there to a work site assessment being conducted at the Casuarina Senior College. Have you checked your notes in the correspondence section to determine what date that site – work site assessment was actually carried out?---Yeah, that was carried out on 11 May.

MS GEARIN: What year?

MR BARR: Of 2007. So although the initial assessment report is dated 8 May 2007 the work site assessment was actually carried out by you on 11 May?---Yeah. So I suppose hopefully what you can do is part of the initial assessment process is to look at the work site as well. I suppose that initial assessment report is basically looking at the whole situation and forwarding through to the insurer, hopefully a direction in which potentially you might want to proceed in. So seeing the work site. So 8 May refers to the date when I first started the report I guess.

I see?---And probably the invoice date as well. But, yeah, the actual work site assessment was conducted on 11 May, which is what that’s referring to.

Now, the work site assessment involved going to the work place where Ms Nasir was working on the three hours a day three days a week arrangement that she was working on at that stage in early 2007?---That's correct.

Did she accompany you on the work site assessment?---She was present at the time, yes.

And where you say there: ‘She reports her job primarily involves administration duties and occasional student counselling’, was that information obtained from her?

---Yes, and also Tara, Ms Nasir’s supervisor.

Tara?---But predominantly from the worker, yes.

You mentioned a person called Tara T-A-R-A. Was that a woman who was supervising the worker at that time?---Yes.

And you then say: ‘The observed activities can be seen below’ and you then have a column below or sorry, table below with two columns and several rows. And you say: ‘Involved. The left column outlines the physical demands of the work task for a typical person. Right column outlines recommendations, restrictions which need to be taken into account for the injured person’. And so the left hand column is the activities that you determined on the day compromise your job?---That's correct.

And the right hand column contains your recommendations as to restrictions, activity or physical restrictions in order that she might do the job safely?---Yep, that’s correct.

Under the – in the row that is the right hand side that’s headed ‘physical restrictions’, you say: ‘Given her medical condition she will need to alternate her posture between sitting and standing every 15 minutes to avoid constant sitting’?---Yep, that’s correct.

You found the spot I’m reading from?---Yep.

You then say: ‘Ms Nasir and her supervisor report this can be easily accommodated in the workplace’?---That's correct.

And is that how you would propose that these kind of restrictions or limitations be dealt with by somebody in a return to work situation?---Yes, that’s correct.

And you would normally inquire as to whether or not the recommendations that you suggest can be incorporated into the person’s role?---Yep, that’s correct.

Over the page at page 6 under the heading ‘workstation set up’ you say: ‘Ms Nasir reports she doesn’t have a permanent workstation. She claims the workstations are shared between staff members’. You then go onto say: ‘She claims new issues or increased symptoms relating to the use of the workstations’. Could I just clarify this, what you actually intended to convey there: ‘She claims’- - -

MS GEARIN: Well, no, I object to that. That’s leading in a most inappropriate way what he intended to convey. He can tell us what it means.

MR BARR: Well, yes. What does it mean or what did you intend to convey by that comment?---Basically with the three days a week she’s reporting to be managing that without any increase in pain. Obliviously looking there, they were hot seating as well, so she didn’t have a permanent workstation. But if and when hours were to increase, given her injury, then obviously it wouldn't be ideal to be hot seating. But given the reduced hours it probably wasn’t a significant issue there. But certainly with any increase in hours then the chances are that we’d have to look at an ergonomically appropriate chair and probably cease the hot seating that’s going on as well, because people tend to play with chairs and throw them out, so.

Thank you. And could you describe – it’s still intended that the court go see it, but can you describe the workplace at Casuarina Secondary College that you visited?

---Yep. It’s a low level building that’s out the front – out the front, near the car park towards the tennis courts. There’s a student – as you walk in the door there’s a student area to the left. That's like an open classroom with desks and chairs that the counsellors would meet with the students. Along the walls there’s pamphlets regarding potential future employment, I guess and information brochures. And then towards the left there’s the staff area where there would have been four or five computers. And there’s also a small offshoot from the staff section. So it’s nearly like an L-shape I guess, the staff area.

Yes. And did you notice any private interview rooms at the time of your assessment?---I don’t know if there was a door actually towards it. With the

L-shape, so there was a staff area and I think off to the side, it might have been a lunchroom or that may have been an interview – there’s certainly a table and chairs there as well. So - I think there might have been a fridge in there as well, so I don’t know if that was the lunch area or not.

Thank you. So the report dated 8 May included a summary of the workplace assessment that you, in fact, carried out on 11 May, is that correct?---Yes, that’s correct.

Now, having carried out that inspection on 11 May and made certain recommendations, did you write a – did you then write a progress report?---The following progress report. Yes. These are basically a month later.

Was it a progress report dated 12 May?---Yes, that’s the one.

And have you had cause to query whether 12 May was actually the correct date?

---Yeah, I looked back at the file notes and the date is 12 June of the progress report, not 12 May.

Because the reporting period stated in the progress report says 8 May to 8 June?

---That's correct.

And in that you set out a summary of the relevant events which had occurred during the period 8 May to 8 June, is that correct?---That's correct.

Including reports made to you by Ms Nasir?---That's correct.

And at the end of the report you have set out an action plan at page 3 of the report. Do you see there the action plan, Mr Pennington?---Yes, I can.

And if you then turn over the page you will see it looks like a faxed copy of what looks like the last page of your report?---Yes.

But with an additional box in it saying approved?---Yes.

What do we interpret from that?---Basically depending on who that report’s going to, so it goes out to a few parties. That approval, not approval, deferral, more information required, refers to the insurer as to whether they want us to proceed with what we’re planning to do. And if they approve that, then we go ahead. That information wouldn't be forwarded, however, to the employer because it’s the insurer that’s approving the service.

So the insurer gets just a slightly different copy of the progress report with a little inserted box at the end for approval if they see fit to approve?---That's right and with costs as well.

Thank you. Now, the next document I wanted to take you to was the document dated 12 May 2007 but described as ‘return to work program number 2’?---Yes.

Again if you would verify the date 12 May in relation to progress – sorry, return to work number 2?---Yes, that’s a typo, it should be 12 June.

And if you could look at return to work program number 2. Mr Pennington, if you look at the body of the return to work program number 2. If you could look at the part of the top headed ‘purpose’. And if I could ask you to look, please, at ‘what purpose number 3’?---Yep.

There’s reference there to: ‘After Ms Nasir returns from holidays incremental increases in activities and/or hours may be undertaken in consultation with Dr Tamayo’. Was this report written in anticipation of Ms Nasir going on holidays?---So, yeah, potentially, yeah. So this is just describing potentially where we might end up. So after the holiday break with the continuation of exercise, potentially she’ll be in a better position to look at increased hours. But obviously it wouldn't be done unless it was done in consultation with her doctor.

Was there any- - -

HIS HONOUR: So these holidays would be the school holidays of four weeks or so?---Yes.

In June or July or whatever they are.

MR BARR: Was there any suggestion that Ms Nasir might, in fact, carry on with her exercise program during the holidays?

MS GEARIN: I object to that, your Honour. This isn't in the reports. I mean I don’t mind my learned friend going through it but – I've relied on what's in these reports here. If there’s other information I should have been provided with it. It’s an enormously- - -

HIS HONOUR: Well, I can’t see that it’s an expert statement, Ms Gearin, in the least, it’s just a historical question of a historical matter that’s either known or not known one way or another to Mr Pennington.

MS GEARIN: Well, there’s certainly no evidence in this expert’s report that he recommended that there be such a program.

HIS HONOUR: Well, I don’t think he’s being asked about a recommendation. I think he’s being asked whether there’s any suggestion or whether it was happening or whether he thought it was happening or something like that. But I can’t see any objection to that as a bare datum. If anything is then – Mr Pennington is asked for anything arising from that well then your objection might have some sort of basis on expertise.

MS GEARIN: Thank you, your Honour.

MR BARR: Mr Pennington, I forget my exact question to you but – I’ll perhaps put it in a different – what was your understanding as to whether or not Ms Nasir would maintain or carry on with her exercise program during the school holidays?---Ms Nasir had – went and seen the physio, she had a hydro program, so that might have been a bit difficult to follow up when she was interstate, but she also had other exercises that the physio had provided in terms of stretching and strengthening that may also have assisted in terms of her rehab that she could have conducted, I guess, interstate, yep.

And when you say interstate, was it your understanding that she was going interstate for those holidays?---Look, I couldn't say exactly but she would go interstate quite a bit to visit family. So, yeah, I’m just presuming there that that’s what was happening at that time. She may not have. I don’t think I had file notes on that.

Well, if I could take you then to the second page of your return to work program number 2. In the schedule it has a start date 11 June 2007 to 29 June 2007. And then days per week and hours, days with hours and then total number of hours. Was that the return to work program that would apply up until the time of her proposed holidays?---Yeah, more than likely, yes.

Thank you. Mr Pennington, if I could take you then to a document described as ‘vocational rehabilitation plan’. Again we’re working through the reports, a section of your document. Do you see a document headed ‘Site Safe NT Vocational Rehabilitation Plan’?---Yes.

There is a date on it under – in the little provided box headed 13 August 2007?

---Sorry, yes, up the top you're talking about. The injury date, the referral date, program start date. Is that what you mean?

No. Are you looking at a document headed ‘vocational rehabilitation plan’ just signed by yourself?---Yep.

There’s one that’s obviously been faxed and has- - -?---Yep. Sorry, I was looking at the faxed document, yeah.

HIS HONOUR: So there’s two copies of the same plan and two copies of the vocational rehabilitation goals.

MS GEARIN: Thank you, your Honour, yes.

MR BARR: If I could ask you – and can you see, Mr Pennington, not in the boxes at the top of the document headed ‘vocational rehabilitation plan’ but towards the bottom there’s a square box that has the heading ‘provider’ on top?---Yes.

And has your signature, is that correct?---Yes, that’s correct.

And it’s dated 13 August 2007. And if I could then get you to look up the page a little bit in the box in the centre of the page headed ‘rehabilitation needs plan’. And in there there’s a reference to ‘ITW goal options agreed to by claimant, employer, treating doctor and provider’?---Yep.

The document there states: ‘Rehabilitation goal is to assist the worker in achieving part-time hours in her pre injury role’?---That's correct.

Now, had that always been the gaol from the time that you had been seeing Ms Nasir?---No, I guess initially it would have – the previous documents or the vocational rehab plans that get forwarded through to the insurer would have had fulltime hours.

Yes?---In the absence – obviously that’s the – unless there’s medical evidence to suggest otherwise then that’s a pretty standard thing to put in a box. Always very hopeful that that may be the case but at that time obviously there was medical information and there was a meeting with DEET as well, I’m pretty sure, where we discussed that the rehab goal was basically to facilitate part-time hours as opposed to fulltime hours.

So if you like, the goals had been decreased somewhat from earlier expectations?

---Yep, to try and reflect the medical information, yep.

And you then, it would appear, faxed that document to various people, including the insurer or at least the insurer?---Yeah, it’s just an insurer document.

I’m sorry, it just went to the insurer?---Yep.

Which then gave you an approval or an acceptance of the plan and your quote for ongoing work in the matter, is that correct?---That's correct.

And you mentioned that the vocational rehabilitation plan document, this one and presumably the others are just an insurer document. What's the purpose of that?

---This document’s really like a procurement document. So it would support the – you usually attach it to a progress report or other reports, basically explaining where things are at in more detail and this is just a brief document that gets forwarded to the insurer that they can put on file that basically saying that, yeah, if they're happy for this to continue down that path. They're usually for a three month period. And then they tick their approval and send it back and that’s basically the purpose of the document.

But at the same time there’s an indication in the document as to what you are now setting the rehabilitation goals at?---That's correct.

Thank you. The next document I wish to take you to is the progress report dated 14 August 2007. That is a document of three pages, am I correct?---Yes.

And accompanying it was a return to work program number 3 also dated 14 August 2007?---Yep. Yes, that’s correct.

And under the heading ‘progress’ on the first page of the progress report you refer to Ms Nasir being due to return to school on 23 July but reporting an increase in symptoms and being unwell preventing her flying until 29 July. And then you then set out there information reported to you by Ms Nasir?---Yes, that’s correct.

Is that information carried across from your notes, if you like, a diary or case notes you made in the correspondence part of your file?---Should be, yes.

I just want to clarify how that information gets in the report. So you maintain, if you like, a diary entry in the correspondence section?---Yep.

And when you write your reports, information obtained and recorded in that way gets transposed into the progress reports?---Yep, that’s correct. Or sometimes I’ll meet with someone and on the day of doing the report. So I’ll actually do the report or I’ll make a phone call to get more updated information. But I’ll usually refer to the meeting at wherever or the phone call certainly and refer to the progress report.

So not every fact in your progress report would necessarily come across from a case note, it could have been information you obtained specifically for the report itself?

---That's correct, yep.

Thank you. If I could take you to the heading ‘symptomology’ on the first page of the progress report dated 14 August 2007. You say there: ‘Ms Nasir reports fluctuating pain in her shoulder and lower back. She reports few pain triggers’. What's the relevance of the pain triggers or the reference – why do you mention pain triggers?

---I guess certainly what you're trying to establish when going onto work sites is to look at barriers to performance and certainly if there’s any pain was it a predominant barrier for Ms Nasir throughout the entire file really. So we’re looking for particular pain triggers within the environment. So if there was something that she was bio mechanically doing in the environment that might be aggravating her symptoms and we’d look at trying to either cease that or get her to go about it a different way so it’s not an aggravating factor. So in the absence of finding any particular pain triggers then it’s just generalised pain. Yeah, but we were constantly trying to find pain triggers to the – to obviously try and eliminate it.

And we’ll see in this and other reports that you're constantly referring to whether or not she’s reporting pain triggers. Is that because you were inquiring for that particular purpose?---Yes.

Now, on the second page of that report there’s reference – under the heading ‘return to work potential’ you say there: ‘Site Safe NT has liaised with Mary Reece of the Casuarina College who feels the return to work placement is creating too much stress for other staff members’. Did you investigate that aspect in any greater detail?---No, there were some issues within the work place but I suppose my interest in the matter was the rehab side of things. So I was really trying to pool all parties to focus on the rehab aspects of what was occurring rather than the industrial relation matters that may or may not have been occurring.

Of course, you had a slightly different perspective to those issues. But it was something that you mentioned in it. Was it something that was a problem that you discussed with the worker?---Yeah, at certain – I mean Mary Reece was pretty keen for Charlene to be provided a placement somewhere else. Certainly there were some specific issues that were raised in terms of her work performance which related to the return to work document. Mary raised some issues with using the work computers for personal things such as banking and EBay which had been reported to her by some of the other staff members. So again my conversation would have been to Charlene around focusing on the return to work program and rehabilitation. And obviously I relayed those issues but like I said, it’s more of an industrial relations matter than a worker’s comp matter.

Yes. But do you recall discussing it with the worker?---Yes, that’s correct.

And making a request of her not to do those things at work?---Yes, and basically to focus on the return to work program and the tasks that are listed there.

Yes. If I could ask you, please, to look at – to go back to the correspondence part of your file, Mr Pennington. At page 6 of 23 of your handwritten notes, sorry, typewritten notes – the page numbers are marked down the bottom of the page. There’s a reference there to a phone conversation between yourself and Mary Reece, 9 November ’07: ‘Charlene isn't bringing her laptop to work and other staff members have indicated she’s using other computers to buy and sell items on EBay and perform personal banking’. It then says: ‘Indicated OT will visit school today and reiterate her work duties’. Who does OT refer to?---That was myself.

So the way in which you refer to yourself throughout this is OT, is that correct?

---Yep.

And can you see any note there of your discussion with the worker about that particular problem?---I’m just looking at the work site visit notes. No, there’s nothing there in the notes there.

What about up in the next note for 9 November ’07? The first one refers to the PC to Mary Reece?---Yep.

And underneath it, 9/11/07 PC to school careers?---Yep.

What does that note indicate to you, PC to school career, not answer, PC to W home, not answer?---That, yeah, I couldn't get hold of her.

And this is on 9 November.

MS GEARIN: Sorry, what does PC stand for?---Phone call.

Phone call, thank you.

MR BARR: And then underneath that it says PC from W, phone call from worker?

---That's correct.

And what did she report to you at that stage?---That she was too tired to attend work after hydro and fatigued. There was a very brief discussion, she’s too tired to discuss with OT, agreed to follow up with worker this PM. So she was quite early on in the piece, Charlene was very fatigued as a result of the medications that she was on.

Yes. In any event she indicated to you on 9 November she was too fatigued to discuss – to have a discussion with you?---Yes, that’s correct.

Are you able to say whether or not you raised with her the topic of her use of computers other than for work?---Yeah, I did do. Because it was – yeah, it was a bit of an awkward conversation and certainly Charlene didn’t appreciate the – what was being suggested at the workplace. So it was discussed.

If I could take you back to your progress report dated 14 August 2007. Now, I asked you earlier if there was a return to work program prepared in conjunction with it?

---Yep.

Do you have return to work program number 3 dated 14 August 2007?---Yes, I do.

And if I could ask you to look at the second page of that return to work program. There’s a small table that sets out the start date, the number of weeks and the days per week, etc. The days per week shown for Wednesday and Friday have some handwritten dates – sorry, times by the side of the typewritten times?---Yep.

Are you able to say whether or not – do you know what that refers to?---With – I’m pretty sure it was Charlene’s hydro, she was finding it hard to get to work by 10 o'clock. So we decided to delay the start date so that she could turn up on time without having to rush to work.

And was that delayed start incorporated into later return to work programs prepared by you?---Yes, I think it was. Yes, it was.

And what was the complaint that Ms Nasir made that because of her hydrotherapy on those two days a week she wasn’t able to get to school at 10 o'clock?---Yeah, that’s correct and there was also some issues at one stage in terms of the – Ms Nasir’s vehicle. She was using a vehicle that she found difficult to use. So she was using busses at one stage as well. So that was probably a contributing factor.

Did you ever assess that vehicle- - -?---No.

- - -to see what it was she was complaining about?---No.

Do you know what vehicle it was that she was finding it difficult to use?---I got the impression it was a larger vehicle. So, yeah, I believe the vehicle that she was using initially was her son’s vehicle but he needed it back, so she started using her old vehicle which she found difficult to drive.

Now, if I could take you then to the next document which is the return to work program number 5, dated 7 November 2007. Sorry, there’s a return to work program number 4 dated 8 October 2007?---Number 4 was it or 5?

Number 4?---Yes.

If you could look at the second page of number 4, can you see in the days per week where you have incorporated the latest start date to take account of the hydrotherapy difficulty?---Yes.

And likewise that continues into the further reports that we were looking at. Throughout this period up to your return to work program number 5 dated 7 November 2007, you’ve not increased or sort to increase the number of hours per week, is that correct?---That's correct.

And it’s remained at three hours per day three days per week?---That's correct.

If I could then take you to – I’d like you to look in your correspondence section of your notes, please, Mr Pennington. And if I could ask you to look at page 1 of 23 of your typewritten notes?---Yep.

And the particular note for 24 August 2007?---24 was it?

24 August ’07. It says at the top: ‘Phone call to Tara reports nil issues with worker and timesheet is working well’. What's the reference there to timesheet?---Mary, the principal at the time indicated that there was some issues about the – Charlene getting to and from work on time and that sometimes would turn up late and stay longer, so it was a bit hard to manage her hours, so she put in place a timesheet which basically would allow them to have a bit more, I suppose, supervision of what her hours were at work.

Yes. And the next sentence is also relevant: ‘Charlene hasn’t always been on time, however, she has worked the required hours’?---Yep.

So it wasn’t – it was a question of management, as I understand it, is that correct?

---That's correct.

And there’s a reference there on 24 August, you spoke with the worker: ‘Reports she didn’t attend hydro given transport difficulties’. Do you recall what those transport difficulties were?---That was the change in vehicles, so from her using the old vehicle to using the – the impression I've got is a larger vehicle and getting to and from work. So she was using bus by the look of it a that stage as well.

And you note there: ‘Worker reports nil issues with getting to and from work on the bus given direct route. However, bus changes are required to attend hydro’?---Yep.

So did you look at the – firstly, the direct bus route, how the worker would- - -?---Yep, so the number 10, number 10 bus I think it is that goes from the Stuart Highway, Charlene’s located close to the highway, she could catch that and pretty much drop her off at the traffic lights out the front of work. So that’s a fairly direct route, it was quite – there is quite a few buses that go up and down that, so that the access is pretty good. But in terms of getting to the hydro which is in Coconut Grove, it would require her to change buses, so there was a bit more effort required.

How far is that Stuart Park bus stop from Ms Nasir’s house?---Maybe 150 metres.

So getting to and from school was no problem, the substance of her complaint was that she needed to change buses to go to hydrotherapy?---To get to Coconut Grove, to get to the – what they call the Fish Bowl.

And that’s at Coconut Grove, the industrial area of Coconut Grove just off Dickward Drive?---That's correct.

Now, the next note there on that same page, page 1 of 23 is a meeting with DEET at Mitchell Centre where you were told the worker would be detached from her position and you were asked to discuss that with the worker?---Yep.

Note of 28 August. And you then – the words appear: ‘Have indicated appears reasonable giving medical evidence indicates worker will not have the capacity to return to eight hour day’?---That's correct.

Is that your – is that you recording your indication or you recording somebody else’s indication to you?---How do you mean by that?

When you say ‘have indicated’?---Sorry, I've indicated to – I’ll just read the file note. ‘Indicated to DEET’, yes. Yes, so there was a general consensus that the worker would probably not reach the eight hour day and there was medical evidence mounting that suggested that that wouldn't be the case. So the – we’re suggesting that in order to align the vocational rehab job which was at that stage eight hours a day to part-time hours and they suggested that would result in her becoming detached from her position. And given that there was a medical basis to it, they wanted me to discuss that with Charlene, so I guess the rehab goal was aligned with the employment prospect as well.

I understand. That same entry for 28 August says: ‘DEET suggest .5 position will be available at middle school soon which may be more suitable for the worker’?---Yep.

What's a .5 position?---So that’s part-time.

Thank you. And then 31 August you had a meeting with the worker at school. I take it that’s at the Casuarina Secondary College?---Yes.

And you discussed the DEET decision to detach her from her position?---Yep.

And she reported to you she was dissatisfied with the decision and would approach the union for support?---Yep.

You then said: ‘Have indicated little change in the short term. However, employer is actively looking for alternate positions’?---Yep.

Is that something that you said to her?---Yes.

And you raised with her school counsellor at the middle school is an option?---Yep.

And she said words to the effect that she wasn’t in favour of the middle school?

---That's correct.

Did she say why?---No, I don’t recall.

And you then say that you discussed with her TIO decision not to provide assistance re car modifications and purchase costs for an automatic car. However, OT home assessment has been approved?---That's correct.

And who was it intended would carry out the OT home assessment?---That would be myself.

So there was some bad news, if you like, that you conveyed in relation to car modifications?---Yep.

But the OT home assessment is something she had requested herself?---Yep.

Now, if I could ask you to look at your notes for the next page, sorry, on the next page, page 2 of 23. The entry for 13 September 2007: ‘PC from W has requested she would like to reschedule home As’?---Yes, that’s – yep.

MS GEARIN: What is it sorry?

MR BARR: As is assessment?---Assessment, yes.

That’s your shorthand way of writing assessment?---Yep.

And where it says: ‘She would like to reschedule home assessment’, does that indicate that she – you might have already organised a home assessment at or about that time?---Yes, yep.

And then it says: ‘Have suggested Wednesday at 3:30’?---Yep.

Was that – if I ask you to assume that 13 September was a Thursday and Thursday 13 September and it says: ‘Have suggested Wednesday at 3:30’?---Yeah, it would be the following week.

The following week. And then it says: ‘Worker reports she’s still off work and upset about the position to detach her from her position’?---Yes, that’s correct.

Does that indicate whether she agreed to the assessment the following week or disagreed? Is there any significance in you indicating that at that point I time, that she was- - -?---That she was pretty stressed and as a result she wasn’t – she was delaying the home assessment till the time that she was more able to cope with it, I guess.

And you then on 13 September asked her to – about her various physical tolerances?---That's correct.

In the way that you do at various times throughout your case notes?---Yep, that’s correct.

Now, did you – if I could ask you to look at page 3 of your case notes and the note for 24 September: ‘Phone call to (inaudible) reports she is still off work, is still upset about DEET decision’. Is that a reference to the DEET decision to- - -From being detached from that position after she was informed of that and, yeah, there was a period of incapacity at work.

And you say there: ‘TIO has approved home assessment at scheduled time 27 September’. Does that mean that you schedule that time with her on 24 September?---Yes, that’s correct.

And if I could ask you to look at the next couple of lines down, 27 September. Did you attend at her home to carry out the home assessment that she’d requested?

---That's correct.

And you make a note that she didn’t answer the front door, home phone or mobile?

---That's correct.

And then the next day 28 September the worker rang you and told you she’d forgotten about the appointment?---Yes, that’s correct.

And she reported being, as you say, so stressed lately she’s forgetting lots of appointments?---Yep.

And she indicated she was too tired and would like you to delay the home visit to another time?---That's correct.

And as at 28 September she was – it was reported to you that she was on school holidays?---Yep, it was occurring that week.

Did she actually say where she was on 27 September?---No. I wouldn't recall, I haven't written anything in the file note, so.

Thank you. If I could then ask you to look at page 4 of your notes, 4 of 23, entry for 10 October. There’s a reference there to you conducting your worksite visit?---Yep.

And I take it where you indicate the worker reports that the worker is present when you did that worksite visit?---Yes, that’s correct.

And she reported to be happy about car assistance?---That's correct.

So it would appear that something had turned around in that area?---Yep.

And she described to you that she also had her own desk. You indicate there: ‘Have assessed ergonomics’?---Yep.

‘Provided education and handout material’?---Yep.

What does that refer to?---So looking at providing basic education around lower back pain and how it can be aggravated by prolonged sitting and prolonged postures. So basically the more you can alternate between sitting and standing the more – the longer you’d be able to last. I also provided a handout which I think is called back pain, so it can assist in the education process about how best to deal with lower back pain.

Yes. And it says there: ‘Indicated worker requires a footstool and something to raise the height of her laptop’, they were ergonomics issues that you looked at?---Yes, that’s correct.

Because what, her laptop was sitting too low on her worktable?---Yeah, basically. So trying to ensure that there’s neutral alignment of the spine when in a seating posture so that you're not looking down towards the ground but basically looking straight ahead.

And where there’s a reference there to laptop, do you know – was that the worker’s own computer or was it a school computer?---I’m not too sure. I know there was a laptop provided but I would presume it’s probably still the property of the school.

All right. And where you say you provided her on 10 October with a return to work program, are you able to say what return to work program it was?---On the 10^th.

I don’t want to inflict a memory test on you. There’s a return to work program number 4 which was dated 8 October 2007?---Yep, so it would be for that period.

And again return to work program number 4: ‘Maintained her hours at nine hours per week in total’?---Yep, that’s the one.

And the other point you made on 10 October is that she reported that her fluctuating symptoms had been less intense over the past few weeks with changed medications?---Yep.

But you then say: ‘Described nil change in function’?---Yep.

Did her function change significantly during the whole of the time that you were her case manager?---No, not significantly at all. I noted a reduction of pain but not of function.

Thank you. The next item I wanted you to look at, please, is on page 5 of 23 of your notes, the entry at the top of the page for 11 October 2007. You received a phone call from the worker. What did she report to you on that day?---That was a course that she wanted to attend that would require her to be at work for basically the whole day which would contra indicate her current medical capacity. So I provided her some basic advice and I do remember referring her back to the doctor that as long as she alternated between sitting and standing as frequently as she could and she’d had some discussions with the person providing the course as well if she could do some course work at home. So, yeah, her GP was happy for her to attend then I was as well.

And there’s reference there to marketability. Did the worker explain why it was that she wanted to do this particular course?---Yes, it was something that all the counsellors were doing and that with some of the changes that was occurring at that level, that they were all required to update their skills, if you like. So it was fairly imperative that she attend that course to keep her current, I guess, yeah, marketability in the employment sense.

So it was to do with keeping current with her fellow career advisors or counsellors, is that correct?---That's correct.

Mr Pennington, then on 16 October you received a phone call from the worker?

---Yes.

‘Reports the course finished early, she forgot to contact the OT claiming she came home and fell asleep’. Was there some requirement that she contact you?---I was obviously very interested to know how she performed, whether she was at any increase in pain. If that was the case then to potentially look at referral processes if she had have overdone it basically. So, yeah, I guess the arrangement was once you finish the course to give me a bell and let me know how she’d done.

I see. Now, on page 6 of 23 I’d already asked you about the – your note for 9 November, the phone call to Mary Reece: ‘Employer reports Charlene isn't bringing her laptop to work and other staff members have indicated she’s using other computers’, etc, etc. Now, also on 9 November – I didn't ask you this before, there’s a reference to your conducting a worksite visit?---Yep.

You say: ‘Worker reports fluctuating symptoms and poor sleep. Worker reports she to be doubtful of any increase in activity levels as discussed with Dr Chin’. What's the reference to increase in activity levels as discussed with Dr Chin?---So basically the idea was with Dr Chin initially was to look at reducing her pain levels with medication and once establishing as good as possible in that area and we were looking at an increase in activity, obviously within manageable pain levels.

And had you ever actually spoken to Dr Chin?---No, I think I did on one occasion but quite often correspondence is done by paper, by writing. He usually sends a letter after each of his consults.

And at that stage had Dr Chin said anything that you discussed with the worker about increasing her levels beyond three hours a day three days a week?---At that stage – I know he did – I’d have to check the dates but I know he did write correspondence suggesting an increase in work hours would be appropriate.

And the worker reported to you at that stage, that’s 9 November, that she was flying interstate to have her teeth down and will return in a week?---That's correct.

Were there difficulties, from your perspective, in managing this case on account of the worker’s absences from time to time, whether in school holidays or for other purposes?---Yeah, I guess there was some difficulty in – I’m trying to – I mean ideally with any sort of program that you start off gently and you slowly but surely increase the intensity of activities, having breaks in between is not ideal. So, yeah, in terms of continuity there was quite a number of breaks that ordinarily you wouldn't experience.

All right. Mr Pennington, I wonder if I could ask you to find, if you can, an email – it looks like an extract from an email onto which you have attached an email stamp dated 15 October 2007?---Sorry, what was that date again?

The actual – there’s some handwritten material inside the email box which is dated 15 October 2007?---Yep. So it’s five pages back from where we were, yep.

And it has a stamp that indicated that your office has emailed it on 15 October 2007?---Yep.

It’s not clear, Mr Pennington, who you’ve sent that document to. Do you recall who- - -?---That would have been sent to the employer and TIO.

All right. And where you refer to the course today as a one off from 8:30 to 4, is that a reference to the course that you have referred to a short while ago in evidence for her to – that she said she wanted to attend to in connection with her qualifications?

---That's correct.

Now, the second paragraph of that report says: ‘I will fax out another return to work program today with change to times to facilitate hydro on Wednesday and Friday’. What was the issue with hydro on Wednesday and Friday?---Basically getting to school by the 10 o'clock so that we’ve referred to the change in the hours from 10:30 as a start date.

Instead of 10 o'clock?---Instead of 10 o'clock.

All right. Now, Mr Pennington, I wanted to ask you if I could, to look at the next return to work program which you wrote. It’s return to work program number 6 dated 30 January 2008.

HIS HONOUR: I think we’ll have a 10 minute break.

MR BARR: Thank you, your Honour.

HIS HONOUR: This might be as good a time as any. We’ll resume in 10 minutes or so.

ADJOURNED

STEPHEN ANTHONY PENNINGTON:

HIS HONOUR: Yes, Mr Barr.

MR BARR: Thank you, your Honour.

Mr Pennington, if I could take you, please, to page 7 of your case notes for the period starting 23 January 2008?---Yep. What date, sorry? What page is it on?

Page - the entry for 23 January 2009?---Yep, got it.

It appears to describe a phone call to the worker on that date to discuss the return to work program?---Yep.

Is that the program that you were in the process of preparing at that stage?---Yes, that's correct.

And, in fact, by reference to your note for 23 January 2008 it says the developed RTW program number 6?---Yes, that's correct.

So as at 23 January 2008 you were in the process of preparing return to work program number 6?---Yes.

And, indeed, if you look back - I'm not asking you to do that now - there is a return to work program number 6 dated 30 January 2008?---Yep.

It's on 23 January that you discussed the return to work program in preparation and Dr Chin suggested (inaudible) activity: 'The worker reacts negatively to discussions about work hours, suggesting she's not happy about increases.' And then it says: '(inaudible) any discussion with Dr Chin re four hours, three days per week.' Is Danes(?) the right word there?---Denies.

Denies, thank you. And she then said to you, unsure if she's got the ability to attend work next week?---Yeah.

Did she say why she was unsure if she would be able to attend at work the following week?---Unless (inaudible) I wouldn't recall the particular day.

As at 23 January we're still in the school holidays?---Yep. I know there was on returning from school holidays she had an exacerbation while she was down south that was preventing her from flying.

On this occasion or some other occasion?---I haven't file noted in that particular file note so I'd have to read through it.

In any event, you go on to say, 'Have agreed to leave work hours at three hours, three days per week, given W has only just returned to work it may take a month for her work harden condition to increase after holidays'?---That's correct.

And it was on that basis that you left the work hours at the three hours, three days per week; is that correct?---Yes, that's correct.

You may not know the answer to this question or you just may not recall, but was there any discussion between you and the worker as to whether she had maintained her exercise or hydro program or any other physical program during the school holidays?---No, I don't recall.

And again on 23 January 2008 you noted - reported physical tolerances?---Yep, that's correct.

What you describe as typical physical tolerances?---Yeah.

Then on 30 January you make a note (inaudible) return to work program number 6. If I could take you back to return to work program number 6 within your pile of reports?---Yes.

That's a document dated 30 January 2008?---Yep, that's the one.

And the second page of that has a table with two boxes. And at page 2 of that, Mr Pennington, a table of two rows. Can you explain what you've actually done there?

---Well, looking at the file that basically - because Charlene's returned from holidays and it didn't appear that she was in favour of the increased hours as per Dr Chin's correspondence to me that I've requested that she follow up with Dr Chin to discuss a bit more. I've delayed the increase in work hours primarily because it seemed reasonable that if she had a period of time off work and her work conditions and if she hadn't been doing a great deal over the Christmas holidays as most people would be resting over that period, yeah, it seemed reasonable to give her additional weeks in order to re-accommodate her physical capacity to what she was doing before looking at increased hours. And then the second box obviously refers to the four weeks later with the increased hours.

So the projected increase in weekly hours would not cut in until 29 February?

---That's correct.

Now, the next item I wanted to ask you about was your note for 1 February 2008?

---Yep.

'The worker confirmed that she had worked on 30 January', but then recorded, 'unable to attend work suggesting hamstring tightness and leg weakness affecting her ability to walk'?---Yep.

'Unstable on her feet, concerned that legs will give way unexpectedly'?---That's correct.

And she then - she said to you later in the course of that discussion, 'Worker reports R/V'. Is that short for review?---Have indicated new return to work program, RTW, is that it?

The next sentence that W - - -?---'Increased hours as per Dr Chin's suggestion. Workers reports review', yes, 'with Dr Vrodos.'

So R/V means review with Dr Vrodos and she said that after that she'd consider increased hours?---That's correct.

The next attendance was on 4 February where you made a phone call to the worker and she said that her symptoms hadn't changed over the weekend?---Mm.

4 February I'd ask you to assume is a Monday, Mr Pennington?---Yes.

And she said something to the effect that she was unable to wake that morning in time for work given her medication?---Yep.

And she said she was unable to talk to you at that time and asked that you contact her later in the day?---That's correct.

And then there's a second phone call to the worker on 4 February 2008?---Yep.

Where she reported increasing leg weakness which she says she attributed to walking up and down her internal stairs approximately 17 times per day?---Yes.

And she said to you that she was living downstairs due to the inability to walk the stairs?---That's correct.

Did she say to you that she had actually moved downstairs?---Yes, that's correct.

And there's also a note there, 'Reports lower back is primary barrier to function rather than shoulder'?---That's correct.

When you first saw her back in '07, March '07, what was your understanding as to the primary barrier to her return to work?---Ms Nasir has always reported shoulder and lower back pain, but at that time it was predominantly the shoulder pain that was the primary disability.

And so did the primary disability change over time to become the lower back?---Yes, definitely.

And this is an early indication that she regarded that as her primary disability?---Yes.

The next date is on page 8 of 23, 6 February '08?---Yep.

It appears that you have rung her at work?---Yep.

And she complained of fatigue and increased sciatic pain?---That's correct.

And then on 6 February you conducted work site visit?---Yep.

That was to Casuarina Secondary College?---That's correct.

And you say, 'They have provided worker with return to work program'. Is that return to work program number 6 dated 30 January?---Yes, that's the one.

And you say, 'Explained increased hours at the end of the month'?---Yeah.

She said she would follow up with her GP re hours prior to signing?---Yep.

When this says prior to signing, I note from previous return to work programs you asked the worker to sign those programs?---That's correct.

The purpose being what exactly?---I suppose an acknowledgement of receipt of the document and, yeah, I suppose participation as well.

And you make a note there of, 'typical physical tolerances as reported to you on 6 February?---Yeah.

And you made a note, 'Worker reports decreasing function, increasing pain'?---Yep.

Is that decreasing function on account of increasing pain?---Yes.

Thank you. And then you again note, 'A few pain triggers identified.' Was your reference to - is that reference based on your inquiry?---Yes.

Then on 8 February you made a phone call to the worker where she again raised the issue of managing at home, particularly the internal steps?---Mm.

And it mentions there, 'Worker reports need to get in contact with acupuncturist'. Were you aware that she had been referred to an acupuncturist?---Yeah, one of Dr Chin's letters that he forwarded through he made a direct referral to Dr Ng who, I believe, was an acupuncturist.

Dr Ng is spelt N-G?---Yeah, that's correct.

And she mentioned to you having got quotes from a builder for house modifications to enable her to live downstairs?---That's correct.

And you've noted, 'She has requested a further home assessment after receiving further building quotes'?---Yep.

I take it at this stage you still hadn't carried out the home assessment that she'd requested the previous year and for which you'd attended in October the previous year?---No.

If I could then take you to your progress report dated 14 February 2008?---Yep.

If I could you through to the second paragraph under the heading 'Progress' on page 1 of that report?---Yep.

You say, 'Ms Nasir reported several stress (inaudible) in the early part of the semester that resulted in time off work.' You're referring to the semester - the second semester of 2007 there?---That's correct, yeah.

And you list the matters that she had raised as (inaudible) was with you?---Mm.

And you indicate there in the final sentence, 'These issues were resolved in time.' What do you intend - what do you mean by they were resolved in time?---I know there was a number of stresses, one being the car, so the loss of the use of the automatic car which resulted in the use of a bus. The one is that she received a letter indicating that she had to repay monies to TIO for the acceptance of a lower back. So again that stressed her and resulted in incapacity as well. So there was a number of stresses that again disrupted the return to work process and made it difficult to get that continuity that I guess we were ideally trying to achieve. But they basically resolved in time, yeah, so they were sorted out.

Mr Pennington, throughout you have accepted all her complaints as to matters that were stressing her; is that correct?---That's correct.

And matters - you've accepted her state of physical activity limitations?---That's correct.

And you've attempted to build a return to work program around her state of deficiencies?---Yeah, that's correct.

If I could then take you to page 9 of your notes, a note for 20 February 2008?---The 20, what was it, sorry?

20/2/08?---Yep.

The first one is, 'Phone call to worker have indicated TIO has not approved a second home assessment, hence appointment at 9 am is cancelled.' What do you mean by the second home assessment?---So initially it was approved in the latter part of the previous year and obviously it was delayed due to the circumstances that Ms Nasir was under at that time and it wasn't until later in the next year that it was requested again basically from Ms Nasir to follow up with the insurer for approval for the home assessment. And, yeah, so I guess that's what I'm referring to the second attempt to perform the assessment.

Now, at this stage the home assessment was specifically to enable an assessment to be made as to whether she should - - -

MS GEARIN: Well, I object to the form of that question.

MR BARR: All right, I'll ask it again.

Mr Pennington, were there any issues now raised in relation to the home assessment that hadn't been issues raised back in October the previous year?---Any additional issues, you mean?

Yes. So, for example, you've told us in your evidence that the worker was now - - -

MS GEARIN: Please don't lead.

MR BARR: Your Honour, I understood that one is entitled to lead on evidence already given by the witness so I'm happy to lead on those matters. My learned friend should know that.

Mr Pennington, you mentioned that there were - - -

HIS HONOUR: Mr Pennington, I think your own question was a good one. Yes, any additional matters in 2008 that weren't there for the home assessment in 2007?

---Yep. So it's the same issues that were present, yes.

MR BARR: Right.

In any event, you told her that the appointment was cancelled and you note there, 'Worker reports to be upset by the decision. She's incapable of going to work.' Was that - was the incapability or incapacity of going to work on account of her upset?

---Yeah, yes.

So what did she actually say; do you recall her words?---That she's obviously upset by the decision. I haven't file noted that she was - I've said that she's upset by it, but I don't know if she was - there's been quite a few phone calls where she's broken into tears and quite stressed by events and decisions in particular, so given that she wasn't able to attend her work.

And did she ask you to contact the school to explain those matters?---Yes.

And did you do so?---Yes.

Then on 20 February the worker rang you to complain about rails not being provided in her home?---That's correct.

And she then repeated that she was too upset to attend work?---Yep.

And she complained about something the faculty head hadn't done?---Yeah, I think she's referring to Mary Reece.

And she then said something to you about the return to work is demeaning. Did she say what it was about it that was demeaning?---No.

And did she complain about having to sign a timesheet at the principal's office?

---That's correct.

And you referred the worker to the principal to try and resolve those issues; is that correct?---Yes.

And the worker - the worker reports she wants nothing to do with the school or the principal?---That's correct.

If I could ask you to go to page 10 of your notes at the top entry for 26 February. You note there, 'Phone call to worker, have indicated RTW program deals with increased hours as per Dr Chin's recommendations.' Is that a reference back to the return to work program number 6?---Yes.

If I could just - and you told the worker that that had been sent to her GP for review?

---Yes, that’s correct.

And then on 29 February 2008 you once more spoke with the worker to discuss that return to work program?---Yep.

Again you assume it's the program number 6?---Yeah.

And the worker requested you to do something to fax to school for her review?

---That's correct.

And she asked to see the return to work program?---Yeah.

And she then - you then note, 'Worker reports to have not discussed any increased work hours with Dr Chin'?---That's correct.

And you then say, 'Reports nil intentions to work additional hours without discussing with Dr Chin'?---That's correct.

And then on 3 March at the bottom of page 10 you received a phone call from the worker?---Mm.

In which she indicated that she was stressed?---Yep.

Could you just read that note to yourself and then I'll ask you some questions about it?---Okay, yep.

Did the worker say that she was unable to attend to work?---Yes.

And her reason given to you was what exactly?---That she was stressed about the increase in hours or additional work hours.

And did you explain to her what those additional hours - why those additional hours had been included?---Yes, at the request of Dr Chin.

And what was her response to that?---That she was unhappy about the increases and that she'd contact Dr Chin directly to discuss.

And so you left it to the worker to contact Dr Chin to discuss why he - the basis for his recommendations and so on?---That's correct, yeah.

You had already at that stage faxed a copy of the return to work program to Dr Tamayo?---Yes, I had, yep.

And can you see a fax sheet on file with your fax dated 26 February '08 in a letter to Dr Tamayo?---That's correct.

If I could then ask you to look at page 11 of your notes?---Yep.

In particular the note for 10 March 2008, the worker told you she wasn't feeling well on account of her stress?---That's correct.

Did she indicate any other reasons as to why she wasn't feeling well on 10 March other than stress?---No.

And if I could through to the end of the note you say, 'Have extended offer to discuss content of report with worker if presenting at site safe'?---Yep.

What was that in connection with?---So she was provided some advice from NT Work Safe that she could obtain reports from - progress reports that she'd received from the previous provider and that I basically indicated that I couldn't fax her the - or provide or send out the copies of those things. She could look at what information we had on file but I'd basically have to check with the insurers to what information they wanted to release.

So you indicated you'd be happy to discuss that with her at your office?---Yeah.

Did she ever come in to see those reports?---No.

The next entry is for 14 March. You conducted a work site visit at CSC?---Mm.

And I take it from your reference to the worker that she was present that day?---Yes.

And at that stage she told you that she hadn't increased her work hours and was continuing with three hours, three days?---Yeah, that's correct.

If I could just go back. It was expected that she would start the increased hours at the end of February; is that correct?---That's correct.

And she reported to you increased fatigue or drowsiness due to her medication on 14 March and it then says, 'Reports infrequent attendance at hydrotherapy'. Did you raise attendance at hydrotherapy with her or was that something that she raised with you?---It's probably - it could be vice versa. It was, I suppose, covering what had happened since I spoke with her last in terms of, yeah, attendance and I suppose was she getting any benefits from it. Certainly Charlene indicated for when attending that she did get benefit from it.

What is it - I'm not familiar with the actual hydrotherapy program in this case. But why is hydrotherapy considered suitable for people such as Ms Nasir at this time?---I guess it's light resistance in the water and quite often people are going through a range of movement, so it's not quite like a gym program, you're getting some resistance from it, which is good, increase - obviously the more you move the better and a slight decrease in gravity in the water as well, I guess, so it's probably - you look at a hydro program before looking at a gym program, so it's a bit of, yeah, a stepping stone, if you like.

And at the bottom of page 11 there's a reference there to you having developed return to work program number 7?---Yep.

And return to work program number 7, if I could remind you, was dated 26 March 2008?---Yep.

And that program provided for the increased hours from 26 March to 23 April. When I say increased hours, four hours a day, three days a week?---That's correct.

Can I just ask you this. Your idea was to increase the hours to a total of 12 hours a week by having increasing them - still retaining the same number of days, that's three days, but increasing the hours each day from three to four. Did it occur to you to do it another way and have four days with three hours, so retain the number of hours per day but introduce another day?---I guess ideally you want to try and have a rest day in between so that it allows for recovery. So, yeah, typically what you find is as you're increasing hours that rest day is still fairly important in terms of managing fatigue.

Yes. And so that's why you retained the same days but with Tuesdays and Thursdays off?---That's correct.

Then on 28 March if I could take you to page 12 of your notes?---Yep.

You visited her at school and you observed her assisting students. When you say assisting students, where was she and what was she doing, do you recall?---It would've been in the front area where the kids come in where the desks and chairs are located and where the education material on the walls is. That's where all the liaison with the school kids occurred.

And did you wait while she did those tasks?---Yeah, yep.

And you then discussed with her the new return to work program which was program number 7?---That's correct.

And she indicated something to you about the fact that she hadn't undertaken increased hours to that time?---Yeah, she hadn't felt well enough to do the increased hours.

Did she say anything specifically about what kind of feeling of unwell she had at that stage?---No, but I know the fatigue was a predominant factor throughout the claim.

And so you assumed that she was concerned about fatigue in that context?

---Fatigue and pain were the primary barriers to her, yeah.

Thank you. And you provided the new return to work program but she wouldn't sign it?---That's correct.

But kept a copy?---Yep.

Then on 18 April there's a note, '18 April, phone call to worker, left message on home phone requesting she contact you'. Did she contact you in response to that?

---No, it doesn't look like it.

And then on 29 April there's a note that you phone call to worker; you rang the worker?---Yep.

'Discussed attendance at a training course in Darwin CBD.' Had you received some information about her intended or wish to participate in a training course of some kind?---That might've been the first time that we discussed it.

And so did you then go through the details of the course with her?---Yes, obviously what was required in terms of hours and environment and very similar to the previous course that she attended.

I'd invite you just to read the note to yourself, but I wanted to ask you whether this is a training course that she had already done or was it one that she was intending to do at some future time?---This is one that's already previously done.

If I could then ask you perhaps to go to your progress report dated 30 April 2008?

---The progress report dated 30 April.

30 April 2008?---Yep, I've got it.

Page 1 under the heading 'Progress' in April. In April you say, 'Ms Nasir attended a two day work seminar which required all day attendance. She described attending from 10 am to 3 pm both days, suggesting she was given permission from the workshop facilitator to do readings at home', et cetera, et cetera. Does that refresh your memory as to what you discussed with the worker on 29 April?---Yep, that's correct.

And is it possible then that you rang the worker on 29 April in order to get information to write your progress report dated 30 April?---That's correct, yep.

And again on 29 April you note that the worker described the need to live permanently downstairs to accommodate her injury. Did she say to you why she wasn't living downstairs - sorry - did she say that she was living downstairs at this stage?---No, she described - I got the impression that she was still living upstairs because the modifications hadn't occurred.

I see?---But, yeah, describes the need the live downstairs to avoid the stair climbing.

Yes. And she did say to you on 29 April that she's more open to attempting increased hours?---That's correct.

Did she say whether or not she had discussed the issue with Dr Chin as she had said she would do on 3 March?---No, I'm not too sure. Yeah, I don't think so. I don't know.

But she reported continuation of hamstring and knee pain on 29 April?---That's correct.

Then you note on 7 May where you rang the worker?---Yep.

And at that stage she reported having had knee surgery with Dr Shannon?

---Yep.

And she told you she'd been certified unfit for two weeks?---Yep.

So by this stage we've got to return to program number 7 dated 26 March which was intended to work its way through to 23 April. Is that right, Mr Pennington?---Yes.

Then if you could please look at page 13 of your notes. On 8 May you again asked her about her typical physical tolerances?---Mm.

And she reported to you on that date on 19 May?---Yep.

You note a phone call from the worker where she reported having attended work the previous Friday but having experienced increased knee pain and swelling?---That's correct.

Did you inquire or did she tell you what, if anything, caused the increased knee pain and swelling?---I presume that was a result of the post-surgically that maybe did increase standing associated with work and resulted in some increased swelling and pain.

So there was some connection in your mind between her being at work and having the increased knee pain?---Yeah.

HIS HONOUR: Sorry, excuse me, Mr Barr.

Mr Pennington, in that entry of 8 May and in one or two of the progress reports as well you've used in relation to Ms Nasir as sitting 10 to 15 minutes before need to adjust posture?---Yep.

What does to adjust posture mean?---So you can have micro adjustments of posture. So you might do it in your chair or alternatively actually get up out of the chair and so typically asking someone what their sitting tolerance is before they feel like they have to move to alleviate pain or alternatively get up and walk around to alleviate it or lie down or whatever the case may be.

Yes, thank you.

MR BARR: Thank you, your Honour.

So, Mr Pennington, adjust posture includes many means of adjusting posture from standing to wriggling to - - -?---Yep.

- - - changing foot position?---I guess, in effect, you're taking potentially some of the strain off the joints in the back through movement.

Yes. Then at page 14 you record events that happened in June of 2008?---Sorry, what page?

Page 14 and the first entry on the page is for 10 June. She reported to you that Dr Tamayo had certified her unfit since Dr Shannon's certificate expired?

---That's correct.

And she reported ongoing - this is on 10 June - ongoing lower back pain relating to her effected gait?---Yep.

Unable to attend physio or hydro?---That’s correct.

Again she reported the need for rails in her house. What rails did you understand she was asking for at that stage?---Would've been in the bathroom, I presume, and probably at the toilet and also shower to assist with stability.

Is it part of your role as an occupational therapist to obtain costings on those kind of modifications?---Yeah, yep.

Are you able to give us an indication as to the cost of fitting rails in a bathroom for a shower, toilet and so on?

MS GEARIN: I object to this, your Honour. How is it possibly relevant to any matter on the pleas.

HIS HONOUR: How is it, Mr Barr?

MR BARR: Well, it is relevant, your Honour. I'll undertake to make it relevant at some stage. Look, it's a very simple question. If the witness can give us an approximate idea at least.

MS GEARIN: No, your Honour. Look, I'll press my objection. The issues in this case are clearly defined on the pleadings. This is a court of strict pleading. The cost of handrails or other modifications to this woman's house are not an issue that your Honour has to determine.

HIS HONOUR: In that case, Mr Paddington, perhaps if you'd answer the question. And I'll receive that answer on the voir dire, Mr Batt, at the point where you reckon you've established the relevance and if you could remind me of that, otherwise I will disregard the answer.

MS GEARIN: Thank you.

MR BARR: Thank you, your Honour.

Mr Pennington, safety rails for a bathroom and toilet and shower, what's the approximate cost?---They're usually a couple of hundred dollars depending on the location and whether you need any sort of - the rails that have got bent shapes in them, for example, or the length, but it's not a massively expensive exercise, I guess.

And would they normally be fitted as a DIY thing or would you need a builder to do it?---Usually you get a builder to do it, so one of the local suppliers that we use is Keep Moving. They've actually got a builder. So we'd go to them and ask them for a quote for the rails and fittings and you'd either mark the walls for the builder for where to put them or schedule another time to go and visit the house with the builder and they'd use - if you're unsure of where the studs are so that we could work out where best to put the rails.

Because they need to be attached to something reasonably secure?---Yeah, yeah.

We're talking about some hundreds of dollars; is that right?---Yeah, usually it would be a number because you're putting in more than one rail. But, yeah, it'd be - three or four rails might be $400, $500, something like that and then plus your fitting costs depending on your builder and things like that. So it'd be under $1000, I guess, usually.

And the $1000 that you mention includes the purchase of the rails and the cost of labour to fit them expertly?---Usually, yeah.

Thank you. Yes, on 1 July 2008, Mr Pennington, it appears you've made telephone contact with the worker?---Yes.

And perhaps if I take you back to 27 June 2008, 'Phone call to worker, reports nil working capacity and continuation of the knee and lower back pain.' You say there, 'Have indicated limited role of OT given her current incapacity'. What do you mean by that particular statement?---I guess given her total unfit capacity then obviously there's very limited need in terms of ongoing work site monitoring or assessment to ensure her safety at work, but she's not at work and obviously with the knee surgery and the insurer not looking at covering the costs associated with that, then, yeah, services provided would be fairly limited.

So that's why you say that your role is really limited at that stage?---Yeah.

If I could then take you to the 1 July note. Did the worker indicate to you on that day that she was living downstairs?---Yes.

The reason being that she was unable to walk up her internal stairs; is that correct?

---That's correct.

And it looks like 9/07/2008 but it comes under your note for 9 July, you received a phone call from the worker?---Yep.

You say in your note, 'Worker reports to have re-located to Adelaide for school holidays'?---That's correct.

To your understanding correctly that she was ringing you from Adelaide?---Yes, yep.

There were - she reports issues with her pay being incorrect?---That's correct.

And you then say, 'Decreasing function and increasing symptomology '?---That's correct.

Did she describe what symptoms she was having at that stage, do you recall?---I would assume - I mean predominantly it has been her lower back that's been of the greatest concern, so, yeah, I'm referring to the back there, I guess.

And you then say, 'Worker reports leaving Darwin due to increasing difficulties at home, hence she now requires framing systems at Adelaide'?---That's correct.

That was the explanation she gave you for having left Darwin?---That's correct.

And she then described that Dr Chin had suggested continuation of hydrotherapy and medications?---That's correct.

Did she say whether she was having hydrotherapy in Adelaide?---No, I don't recall. I don't think that was the case.

Mr Pennington, just to clarify this, did you write a progress report on 25 June 2008?

---Yes, I did.

And at the end of that progress report at page 4 of 4 have you set out an action plan for your ongoing involvement?---Yes, I have.

Mr Pennington, I wonder if I could you if you could please find an e-mail dated Tuesday 22 July on your file?---What year?

2008, I'm sorry?---The date again, sorry?

22 July 2008?---Yes.

You indicate there that you received a phone call the previous day from Ms Nasir that she reported an inability to walk due to the lower back and strained Achilles?

---That's correct.

As a result she was unable to catch a taxi to the airport and return to Darwin?

---That's correct.

So that was the explanation she gave you presumably on 21 July 2008 as to why she had been unable to rejoin her flight back to Darwin?---That's correct.

And, in fact, was she due to re-commence school at or about that time?---It would've been, yeah, close to that time, yeah.

If I could then ask you to look at your case notes at page 15 of 23?---15?

Page 15 of 23, yes?---Yep.

It says there, 'OT PC to W on mobile 13 August 2008.' Do you know where she was as at that date?---I presume in Darwin because she's recently been reviewed by Dr Tamayo.

So that indicates to you that she was by this stage back in Darwin, thank you. And at the end of it you say you've encouraged her to seek an early review with Dr Chin given her increased symptoms?---That's correct.

Then on 18 August 2008 the worker rang you to report that her symptoms haven't decreased since arriving in Darwin, unable to attend the work place as previously thought?---Yeah.

So it appears that as at 18 August she still hasn't returned to her return to work program at school?---That's correct.

Then if I could ask you to look at page 16 of your case notes, please. 25 August 2008 you received a phone call from the worker?---25th did you say?

Yes, at the top of the page?---Yeah, sorry, I've got it.

She said to you that she was unable to return to work given her lower back pain?

---Yep.

And that she would be seeing Dr Ng, her acupuncturist, shortly?---Mm.

On other matters that she relayed to you, on 1 September she rang you to let you know that she was having increasing or continuing lower back pain, disrupting her normal sleep patterns?---That's correct.

And said she was only sleeping one to two hours per night?---That's correct.

And then it seems as though you didn't have any further contact with the worker from that time in September until then later in October?---That's correct.

Had the return to work program been suspended?---At that stage it was still thought that Charlene was certified totally unfit and, therefore, yeah, the return to work program wasn't necessary.

And so from your attendance on the - telephone attendance upon Mrs Nasir on 1 September you then didn't have any contact with her direct until a much later stage?

---That's correct.

And her return to work program was just not happening at that time?---No, she was certified unfit.

If I could then please ask you to look at page 17 of your notes. In late October or in November of 2008 - sorry - at the bottom of page 16 of your notes there's reference there to having met with - OT met with Dot at DEET from HR. That's a reference to yourself meeting with a woman named Dot?---That's correct.

Was her name Dot Conly?---That's correct.

C-O-N-L-Y. DEET is Department of Education, Employment and Training. And you say, 'have provided overdue worker's rehabilitation to date, difficulty establishing her current medical status. It says there, 'Dot provided overview of new employment at Harbour View Plaza', and you were asked to assess the suitability. So that was on 3 October. Did you then start making inquiries and doing some investigation of a possible new work place and job for the worker at Harbour View Plaza?---Yes, I did.

And then on 3 November 2008?---Yep.

Did you speak with a person named Sue at Harbour View Plaza?---Yes, I did.

And you were told that the work place was currently having repairs, some difficulties in identifying a particular space for the worker?---That's correct.

Did you then attend at the Harbour View Plaza building to do a work site assessment?---Yes, I did.

And it was later in the day on 3 November?---That's correct.

And you had a meeting with Sue which you described. She provided an overview of the work space and singled out where the worker would sit?---That's correct.

Were you actually shown a bench or an office or can you just explain what you were shown at that stage?---Basically there was - there was a petitioned office environment with lots of desks and chairs and I was pointed out a particular area that had spare - it had some boxes and different things on the - there was a bit of clutter around that. It was just an unused desk space and that was the proposed where Charlene would sit.

And you make a note there, 'Nil potential environment hazards identified'. That was in terms of hazards - things that might prove of a hazard to Ms Nasir; is that correct?

---That's correct.

And you recommended a modification. Can you just describe the modification that you did suggest?---So basically that an appropriate ergonomic chair be utilised given the potential that her hours may increase and obviously the work area would have to - the clutter that was presently there would have to be cleaned up, but it wasn't anything that couldn't be dealt with fairly easily.

And did you suggest that it would be appropriate for an OT to then visit the site to make sure the worker was correctly seated and that the workplace was appropriate?---Yep.

There was a discussion of car parking?---Mm.

You raised a concern that the worker may have to walk up to 500 metres?---Yep, so that would obviously contra indicate her current reports in terms of her walking ability and on a regular basis and I know some of the ground is slightly uneven, so, yeah, there was efforts made to try and find car parking within the actual building.

Yes. And so at that stage it was left off on the basis that you had identified a difficulty with accessing the building from available parking and uneven ground. And the other modification you earlier referred to which was the chair and the need to ensure the chair and desk were properly positioned for Ms Nasir. The next indication in your note there is that you rang the worker on 11 November 2008, OTPC to W?

---Yep.

And you told her what you were doing in terms of assessing the new environment?

---Yeah, that's correct.

And you say, 'Worker reports discontent, became upset.' Did she express to you why she was upset?---Because she hasn't received written confirmation of the move from the agency, so from the actual - from DEET. And, yeah, I know she was unhappy about the move as well, that she preferred to stay where she was.

Where she wasn't - was she attended back there by this stage at Casuarina Secondary College or don't you know?---No, I don't think she was at that stage.

In any event, you hadn't drawn a specific return to work program as at November 2008?---No.

To set out dates, times, limitations, et cetera, for the worker's participation at CSC?

---No.

So she might have been going there but there was no specific plan of yours under which she was working?---No. Later that year the file was nearly put on hold to a certain degree at one stage because they thought there was going to be a legal settlement of some sort and, yeah, I really lost contact with the worker around that time.

In any event, on 11 November you encouraged the worker to contact Tracey McIntyre at DCIS or Dot from the agency?---Yeah.

Could you just explain how those two things work? DCIS is Corporate and Information Services, isn't it?---Yeah. So that's Workplace Injury Solutions and they look after all the claims for NT government for all the different areas. And then you've got DEET that obviously there's a small pocket of - probably a handful of people there that look after specifically worker's comp issues for people within that department. So between the department and the Workplace Injury Solutions you've usually got a rep from each of those involved, yeah.

And so the reference to the agency is, in fact, the Department of - DEET, the Department of Education?---Yeah, DEET, yeah.

The if I could ask you to look at your notes at page 18 of 23.

HIS HONOUR: Mr Barr, the copy of the stuff I got had two pages 17. There doesn't seem to be any reason for it. Anybody else in the same boat or is anyone missing a page.

MS GEARIN: I've got two pages of 23. I think it's just a photocopying issue. Thank you, your Honour.

HIS HONOUR: Yes, it happens.

MR BARR: I'm happy that that be destroyed, your Honour. Does your Honour have page 18?

HIS HONOUR: Yes, I do.

MR BARR: At page 18, Mr Pennington, there's a reference to your e-mail at the top?---Yeah.

On 14 November you say a phone call to Tracey at DCIS, Tracy McIntyre, I assume?---Mm.

Have indicated issues with car space. You're indicating to her the difficulty that you had identified?---Yep.

But otherwise the work space appeared appropriate?---That's correct.

You say, 'Given her symptoms and demonstrated functional capacity'?---Yeah, so it was very similar to the - physically anyway to the previous return to work.

I see, yes. You then on 24 November made another call to DCIS. Tracey indicated that HR was still confirming the car space. So the car space issue hadn't been resolved at this stage?---That's correct.

And you - it says there, 'OT has reiterated workplace will need to be free from clutter'?---Mm.

That was the clutter that you referred to earlier?---Yep.

That's your discussion with Tracey on the 24th. There's then a note on 2 December 2008, 'OTPC to Leslie indicating concern regarding limited work space given ongoing changes.' Were the modifications still ongoing at this stage?---Yeah, there was still some to'ing and fro'ing in terms of where people would fit and I know they still had renovations being done so there was some again question about, yeah, whether they had room.

So there was an office re-fit still happening?---Yeah.

Basically your role at this stage was, you've done your assessment and that's sent up to the department to co-ordinate exactly what happens?---Yeah.

If I could ask you to look at your incoming e-mail of Tuesday 11 November?---Yep.

That was an e-mail to you from Dot Conly authorising you to contact Charlene (inaudible) the offer of work at Harbour View (inaudible)?---Mm.

And it was on that basis that you discuss the program with Ms Nasir on 11 November; is that correct?---Yeah.

If I could then ask you to look at page 19 of your notes on 10 December. There's an occupational - OTPC to Liz at Workplace Injury Solutions. If I could just confirm that's a division within DCIS, is that right, Workplace Injury Solutions?---Yes, that's correct.

And you informed her what was happening and the difficulty identifying the work space?---Yeah.

And then a second phone call on 10 December you speak to Sue at Harbour View Plaza and you were giving an indication that school wouldn't resume till 27 January and it was unlikely that the worker would need to return to work prior to that time?

---Mm.

And she indicated that a room be located closer to the time of school

re-commencing?---Yep.

And were you - did you understand that you had to do anything further over the period of the school holidays in terms of setting up this proposed new position for the worker?---No.

Then on 15 December there's a note that you spoke to the worker?---Yep.

And it appears you again discussed the reason that she was no longer to be at Casuarina Senior College?---Mm.

And again you encouraged her to contact Tracey McIntyre at DCIS or Dot from the agency to confirm further details as to the job description?---Yep, that's correct.

Then on 15 December you obtained information as to the duties of the proposed job?---Mm.

And you spoke to Sue Burgess about that; is that correct?---Yeah, that's correct.

And you've set out in your note for 15 December the information that she'd given to you about the role that Ms Nasir would be performing in that particular job?---Yeah.

And on 16 December you again spoke to Sue Burgess and she told you that the worker would be responsible for the return to school program?---Yep.

And that she should contact Leslie or Sally to discuss more specific details of the tasks. Then on 16 December you rang the worker. I'm looking at page 20 of your notes at the top?---Yep.

You say there, 'Worker reports to have knowledge of return to school program, but she described dissatisfaction about changing work environment and lack of communication'?---Yep.

Did she say - did she raise any specific objections to the new work environment at Harbour View Plaza?---I thought it really had more to do with the lack of communication from the agency that she hadn't received in writing as she previously wanted.

So there was no specific issue about the new work environment, it was the change without sufficient notice. Is that your understanding?---Yep, yep.

Then on 22 December you spoke to the worker again - sorry - on 19 December you spoke to the worker who said she would be re-locating interstate for the school holidays?---Yep.

And then on 22 December again you - on this occasion you rang the worker and she said something about the new return to work program to the effect that she was coming to terms with it?---That's correct.

The worker indicated she was going to focus on her holidays, like relaxing, doesn't want to think about the new return to work until closer to the time next year?---Yep.

Then your note says - the notes stop, in effect, until 19 January 2009 and at that stage you say, 'OT has developed return to work program. Please see attached.' If I could then take you to a return to work program said to be number 1 dated 19 January 2009?---Yep.

Was that the return to work program that you devised to deal with the worker's return to work in the position at Harbour View Plaza?---That's right.

And you've described her work task as administration duties?---Yep.

And you've set out on the left-hand column of the table at the bottom of page 1 the activity demands of the new position?---That's correct.

You've also set out medical restrictions on the next page. And in your (inaudible) you've set out activity restrictions which included alternating posture between sitting and standing as required?---That's correct.

It's very much up to the individual to determine?---Yeah, so if a person feels an increase in pain then, yeah, obviously move.

So you prepared the return to work program number 1 dated 19 January on the basis of your inspection of the Harbour View Plaza?---That's correct.

And the knowledge that you had obtained from Sue Burgess and others as to the return to school program?---Yep.

And then on 20 January 2009 there's a note that you made a phone call to the worker who reported continuing pain and fatigue issues?---Mm.

And she indicated in relation to the pending return to work that she still wasn't happy about the change?---Yeah.

And she's still unhappy that the agency hasn't given her anything in writing?---That's correct.

Then on 23 January 2009 you spoke to the worker again?---Mm.

And at that stage she reported ongoing health issues and mentioned blood sugar levels and high blood pressure?---That's correct.

And said she was unable to attend work and that she had a medical certificate?

---That's correct.

You sent an e-mail to Tracey dated Tuesday 20 January 2009?---Yep.

Having looked at that e-mail, is it possible that the worker had reported high blood sugar levels when you spoke to her on 20 January?---Yes, yep.

Did you have any further involvement in any return to work of Ms Nasir in the Harbour View Plaza building?---No. There was a request for a further return to work program after the initial one because under the assumption that a return to work might be more imminent than what it was earlier in the year, which was return to work program - it's just been - 20 April. But other than that I haven't had any dealings at all.

So you did a return to work program number 1, also called number 1, dated 20 April?---Yes, basically the same one. It just appeared at that time that it might've been more relevant in terms of start date, that's all.

And so that was the same program but with a different start date?---Yeah, yeah, basically.

I take it that the return to work programs, both numbered 1 but dated respectively 19 January 2009 and 20 April 2009, were not, to your knowledge, implemented?---No.

And if I could refer you to your case notes at page 21?---Yep.

You'll see there an entry for 28 January 2009, OTPC to W indicates ongoing (inaudible) health issues?---What was the date of that, sorry?

28 January 2009. It's the second entry from the top of page 21?---Yes, yep.

And you discussed with her the return to work at Harbour View Plaza again?---Yep.

Then on 24 February 2009 on the same page you made a phone call to the worker?

---Yep.

To set up a meeting to discuss the transfer to Harbour View Plaza?---Mm.

And to schedule that meeting for Tuesday 3 March?---Yep.

She asked you to meet with her at the Coffee Club?---Yep.

The Coffee Club is a little café downstairs at Harbour View Plaza?---No, at the bottom of - that would've been a meeting at DEET with Dot.

So where is the Coffee Club there?---That's at the bottom of the Mitchell Centre just before you go into the lifts there.

So she wanted a meeting with you at the ground level of the Mitchell Centre?

---Yeah, we were just going to meet there prior to going up.

Yes. And then on 2 March 2009, the day before the proposed meeting, you rang the worker?---Yep.

And she indicated that she was unwell in relation to diabetes and blood pressure?

---That's correct.

And asked that the scheduled meeting be postponed?---That's correct.

And indicated she was agreeable to meet in a week's time?---That's correct.

If I could then ask you to look at page 22 of your notes. Phone call to the worker for a conference scheduled for Tuesday 10 March. I'm looking at the entry for 9 March?---Yep.

And you note, 'The worker reports she's still feeling unwell, has a medical review for the 10th, requested the meeting be delayed further'?---Yep.

And it would appear that was your last contact with the worker in relation to this?

---Yep, that's correct.

Your Honour, there's no further evidence in chief.

HIS HONOUR: Couldn't have been timed better, Mr Barr, it's exactly 1 o'clock.

MR MOFALESI: I do tender the whole file. I realise that there are some difficulties with the medical reports that are contained within it, i.e. the reports of other people, and they can be received in the same way that medical reports provided to the expert doctors can be received. But it's either a combination of expert report or business record as to ongoing discussions and so on with the worker.

MS GEARIN: I don't object to the tender.

HIS HONOUR: Okay. Then the entirety of that file can become exhibit 23.

EXHIBIT 23 File.

HIS HONOUR: As far as I've seen, I don't imagine the original is any more legible than the copy I've got. There's a couple of much copied items that I've seen in passing, but they don't seem to matter.

MS GEARIN: There is just one matter in relation to the tender. There's a whole lot of handwritten notes in there. I'm assuming that those handwritten notes have been typed and constitute the various notes that you've gone through.

MR BARR: No.

HIS HONOUR: I don't know about that, Ms Gearin. Those were the ones I was looking at in particular, but they seem amazingly legible.

MS GEARIN: No, no, there's - I'll just go to the bit that concerns me, your Honour.

MR BARR: Your Honour - - -

MS GEARIN: I actually couldn't read them. That was my problem.

HIS HONOUR: Ms Gearin, I'll leave that till 2 o'clock.

MS GEARIN: Thank you, your Honour.

HIS HONOUR: The tender can remain in suspense till then.

MS GEARIN: Thank you, your Honour.

ADJOURNED

STEPHEN ANTHONY PENNINGTON:

HIS HONOUR: Yes, Ms Gearin.

MS GEARIN: Okay.

Now, Mr Pennington - - -

HIS HONOUR: Sorry, Ms Gearin. Before you begin your questions, are there any issues with the tender of the bundle?

MS GEARIN: Just in relation to the handwritten notes, if we could just put them to one side. I won't ask your Honour to take them out right now. But just to leave those to one side because I want to have the opportunity to - I was under the misapprehension that they, in fact, had been typed up so I just need to look at them. There may well not be an issue. But just at this stage, if we could just leave those handwritten notes out at this stage of the tender.

HIS HONOUR: Well, I'll just have the bundle marked for identification.

MS GEARIN: I'm happy if you want to look at it.

HIS HONOUR: Well, I've done that already.

MS GEARIN: Okay. Thank you.

HIS HONOUR: MFI 23, yes.

MFI 23 Bundle.

HIS HONOUR: Yes, Ms Gearin.

MS GEARIN: Thank you.

Mr Pennington, an occupational therapist is somebody who now manages all of the treaters. Is that right? And pulls together the management of somebody's condition in a holistic way. Is that right?---I wouldn't - certainly, you liaise with all parties and you hopefully are making sure everyone's moving in the same direction.

Yes?---I wouldn't say I'd manage them. I think probably something like the doctors and the colleagues might be offended at the thought of being managed, but, yes, certainly trying to get everyone to work together.

You get everybody to work together. You're the central repository of all of the medical information? That's the purpose of it, isn't it?---Can we - - -

Was that what you understood the purpose was here?---Yes. Certainly to work with all parties in ensuring that there was a durable and safe return to work program.

And when you were talking about all parties, we're talking about all the medical practitioners?---That's correct.

Yes. Now, you received your instructions. It's in my documents under referral. Please refer to (inaudible) as a fax from the TIO, 'Good morning, Stephen'?

---Yep.

This is dated 23 April 2007?---Yep.

'As discussed, please find attached a referral to rehabilitation provided for Charlene?---That's correct.

And then attached to that is a fax document on TIO letterhead 'Referral to service provider'. It doesn't have a date on it but it came on 23 April 2007. Is that right?

---Yes. That's correct.

Now, in that you were told what the reason for the referral was? Is that right?

---That's correct.

Mm mm. 'To liaise with all parties' and then they've identified Dr Tamayo. Now, Dr Tamayo was the general practitioner, is that right?---Yep. That's correct.

And a Dr Chin is a pain specialist. Is that right? At Royal Darwin Hospital?---Yep. Rehabilitation specialist.

Yes. Dr Sharland, orthopaedic surgeon?---Yep.

Physiotherapist, Brione Moore?---Yep.

Employer and TIO?---That's correct.

Now, did you consider it a disadvantage to be bought in so late after the initial injury?---Certainly, yeah. That would make things - I mean, obviously, quite a lot of stuff's gone under the bridge by that stage and certainly, trying to build rapport

after - yeah - who knows what else has gone on too can sometimes be a bit difficult, but, yeah, so it's not ideal.

So better outcomes are achieved by the early intervention of an occupational therapist?---Yes.

And somebody managing all of these things. Is that right?---Yeah, that's correct.

Yes. Now, when you were first involved, there was no acceptance of her back injury. Is that right?---Yep, that's correct.

And you were advised of that?---Yep.

And you were asked to almost do the impossible which was to return her to work without taking account of her back injury. Is that right?---That's correct.

So now I think you were also advised, if we go to page 2 there, that Ms Nasir, the second sentence there 'also receives treatment from Dr Jan Isherwood-Hicks'. Yeah. That's correct.

So did that alert you to the fact that there were psychological and psychiatric issues involved here?---Yep. Certainly things that would - a specialist person been involved in order to try and help manage, that there were extenuating circumstances. Yeah, definitely.

Sorry. I don't know you mean by extenuating circumstances?---Well, certainly I mean whether she had a diagnosed illness of whether it was a stress-related thing, certainly a psychologist would be utilised at that stage, in any event, so, yeah, that did flag to me that there were extenuating circumstances or psycho-social issues perhaps.

Psychological issues?---Yep. Even - - -

Would be a better way to describe it, wouldn't it? That's why a psychologist was involved?---Yep, yep.

You know Dr Jan Isherwood-Hicks?---Yes, I do. Yeah.

She's a forensic psychologist?---I believe so, yeah.

Yes. Now, were you ever provided with any of her reports about what Ms Nasir's psychological state was?---I don't think I have, no.

I couldn't see it there. I just wondered if there was any reason why you hadn't either been provided with any or sought to explore that aspect of her return to work?---No, I haven't received any correspondence there.

You didn't seek any either?---No, I don't know that I have.

Was that because you were limited in terms of what you were able to do by the person who had given you the referral?---It could be the case, yeah.

Well, it was the case, wasn't it?---Yeah.

So initially, if I can go to page 2 of the TIO document, your initial date of referral, TIO was concerned that Mr(sic) Nasir is still only certified fit to work 9 hours per week and is now more than three years since her date of injury. It was, in fact, almost four years, wasn't it? She was injured in - on 7 August 2003?---Yeah.

So it was four years?---Yeah.

That's a significant time, isn't it?---Yep.

After injury?---Yep.

And that's because people develop all kinds of habits. Is that right?---Yes. People develop habits, yes.

Right. Well, the injuries that Mrs Nasir had in 2007 is that she had a significant left shoulder problem?---Yep.

She had broken a scaphoid bone in her right wrist. Were you aware of that?---Yep.

She had major surgery on her lumbar spine?---Yep.

And she had problems with her knee. You were aware of all those things, weren't you?---Yep.

And she also had psychological issues?---Yep. She was seeing a psychologist. Yep.

So you didn't know at that stage - sorry - when you received this referral, they were the things that you turned your mind to in terms of how to manage this particular person to try and get some outcome for her?---Yep.

Is that right?---Yep.

Both physically and psychologically?---Yep.

But you would agree that the physical injuries of which you were aware were significant injuries, weren't they?---They were significant, yes.

And really the best you were going to hope for was that you would maintain what she had?---I wouldn't say that was the best. I mean ideally we look to try and maximise someone's work potential so at that stage I wouldn't have known exactly what that was and certainly she was in receipt of several treatments and you would hope that those have got some sort of measurable benefit for taking place which - - -

But they hadn't done anything for four years, had they?---Mm, yep.

So your chances were slim, were they not?---Yes, definitely. Yep.

And as it turned out, you weren't actually able to do anything other than hold the line, were you?---No. That would be the end result just looking to date, yes.

Yes. That's right. Despite all of your best efforts. I mean I'm not being critical of you?---Yep.

But the nature of the physical injuries that she had were such that it was very difficult?---Yep.

To find a workplace where she could function?---Mm mm.

Is that right?---Yep. And I guess I'm very much bound by the medical evidence that suggests where her capacity is so, yeah, it's not really up to me to decide what her working hours or capacity is but certainly to work with what the medicos have decided is appropriate.

Yes. But you're not just a post office box, are you? You actually do an analysis and then you try and provide a situation in a workplace where somebody can go and achieve some capacity. Is that right?---Yeah. Looking to maximise performance and independence, yep.

Now, it was always your understanding, was it not, that the purpose of this was to find a - to work on a return to work program?---Yep.

There was never a question that she could work full-time, was there?---I know initially there might have been some hope of that but certainly medical evidence throughout the - I mean, came to the fore that obviously that was not going to be the case and eventually the rehab goal changed to part-time hours.

Yes. Now, within that return to work - sorry, I'll start again. That was just in relation to the physical issues, wasn't it?---Yep. That's correct.

Because you never really were advised of anything in relation to any psychiatric issues?---No.

And so when you attended at the Casuarina Careers Centre and you observed Mrs Nasir there, she was doing a fill-in job, wasn't she?---Yeah, I believe so because a full-time role involved school-based duties, yes.

But I mean were you aware that - I mean she was able to do what she was - what her capacity was on a particular day with those three hours, wasn't - that's right, isn't it?---She was able to? Sorry?

To do what - she had good days and bad days?---Yes. Definitely.

Anybody with these kind of injuries is going to have good days and bad days?---Yep.

On some days she may be able to function better than other day?---Yep.

So there was no requirement, for example, in terms of assessment of what her - how well she did the job at Casuarina, was there? There was never any assessment of that that you knew about?---No, no.

No. So it was really she just went there, bundey-ed on, did what she felt was within her capacity that day and then left after the three hours?---That's correct.

That's what you understood?---Yep.

Is that right?---Yep.

There was never any quality control in terms of how she was managing the people she was seeing?---No. I don't know if there are any key performance indicators or anything like that that the school was using in relation to that role. So, no, I didn't - I wasn't aware - - -

Well, I ask you to assume that there weren't?---Yep.

Right? So we don't really know what - whether the advice she was giving was appropriate?---(No audible response.)

You never did any analysis of anything like that, did you?---No.

So it was really, the purpose was to give her an aim in life, wasn't it?---Yep. Some meaningful work.

Something to get out bed for in the morning?---Yep. Exactly.

And I think she went - there were a number of issues about the hydrotherapy and I think that was about the fact that after she'd been there for the three hours, she then attended at the hydrotherapy. Is that your understanding of what eventuated?---I think she was going to hydrotherapy in the morning to get to - and then would come to work. Yeah, I think at one stage, yes, she was going afterwards and I think she probably changed that in an effort to get to hydro.

Can I just indicate - I'll just ask you to assume both ways?---Yep.

If she goes to the hydrotherapy before she goes to work?---Yep.

Now, you told his Honour earlier about the hydrotherapy being, you know, movement in water and, therefore, that was something that assisted her?---Yep.

In the relief of pain?---(No audible response.)

Or just mobility?---Well, I think it would probably do both, yeah. It would be obviously the - I know that she certainly expressed feeling better after hydrotherapy so I would say - I'd take that as in pain as well, yes.

And because the water's warm, isn't it?---Mm.

And if you've got the sort of problems that this woman had with her shoulder and her back and her knee, hydrotherapy can actually make you feel quite good. Is that your experience as a - - -?---Yep, yep. A lot of people do enjoy hydrotherapy quite a lot.

Well, it makes them feel better?---Yeah.

All right. Now, in terms of her medication, you were initially concerned, I think, about her concentration and her memory. Is that right?---Yep.

They were issues that you noticed just on interview with her. Is that right?---I'd have to check the - are you referring to a particular point in time?

No, no. I'm just asking you generally?---Yeah, look - in the notes, certainly she would comment at times that she would forget things like appointments and things like that because her short-term memory and I guess I used to indicate to her that that could also be a sign of stress as well. The more stressed you become, then obviously you can become a little bit more forgetful in terms of missing things, but, yes.

Now, she's not a young woman?---No.

And you would - she was very concerned about what was going to happen to her, wasn't she?---Yep.

Because she was significantly physically incapacitated?---Yep.

And the sorts of things that distressed her that you've made note of are the fact that she lost her substantive position?---Yep.

And that would mean that she was never going to get it back, wouldn't it, realistically?---Yep.

Now, in terms of the second job in here at Harbour View Plaza, I couldn't find anywhere in these notes where there was a job description?---That's correct.

Never a job description?---No. I did make a phone call to Sue when it was raised that Charlene wanted some more information. She had obviously asked me that directly and I said 'Yep', so I contacted Sue and Sue provided details of two people. I can't think of the names at the moment, Sally being one of them, to - with phone contact details so Charlene could find out more about the actual job description as such. Because, yeah, I didn't have any of that information.

So you weren't able to assess with the medical practitioners what her capacity to do that job was, were you?---Physically - - -

Yes?---I was looking at - yes, I think I was in a position to be able to assess her - what, by mechanically speaking, what she was able to - what was requested of her in that placement.

Well, can you show me where there is a letter from the employer identifying what the job description is, please?---I suppose a job description that you've found - - -

No, no. I don't want you to suppose anything.

HIS HONOUR: The answer - he can't, Ms Gearin, but it can't detract from his previous answer.

MS GEARIN: I'll ask the question another way. Was there ever a job description that was provided to you of what this - what she was required to do at Harbour View Plaza?---No written job description, no.

So when you do your return to work reports, return to work programs, if I can just take you to those. I think this job only arose towards the end of 2008. Is that right?

---Yes. That's be the two progress - sorry, return to work programs. One of 20 April and the other one being 19 January.

Yes. Now, if we can start with 19 January, can you show me there other than the general phrase 'administration duties', any other job description?---No. There isn't.

And if we look at 20 April 2009.

Those are the two documents first under - behind reports, your Honour. You'll see there's the two there.

HIS HONOUR: Yes. I've seen that, Ms Gearin. (inaudible) something else.

MS GEARIN: Thank your Honour.

'Administration duties'. Now, that's a very general phrase, isn't it?---Yes, it is.

It can mean - so that's all you knew?---Yep.

And so it was not unreasonable for Mrs Nasir to be seeking more information about the actual physical requirements of the job?---Certainly, I'd assess the physical side of it so I could obviously look and tell her about what it physically may involve but in terms of the job description as such and what the intricate work functions may be and who she contacts and all that sort of stuff, I had no idea.

So when you've got activity demands underneath the work task, where did you get that information from?---Through talking to Sue at the workplace and she indicated what the physical requirements of the position might involve which is predominantly office-based duties, which is predominantly constant sitting.

Which would involve constant sitting?---Yep.

All right. Occasional walking?---Yep.

Occasional standing?---Yep.

Occasional phone use?---Yep.

And frequent computer use?---That's correct.

Now, that could mean two hours without a break on a computer, couldn't it?---It could mean that which is, I guess, why the activity restriction is to alternate between sitting and standing as required to try and prevent that.

So it was a special job that was designed to try and fit in with Mrs Nasir's restrictions, incapacities. Is that what you understood?---Yep.

It wasn't a job that was available to just anybody. It was a special job that was being created for her?---I don't know if it had been created for her or not but certainly it's something that the department had raised that that would be suitable for her to do. I don't know if it was a pre-existing job already, when you say 'created'. It may or may not have been. I wasn't - don't know.

Well, none of know, do we, because it's only just described as 'administration duties' and that could mean a whole lot of things, couldn't it?---Under that proviso that those activity demands, yeah. I mean that's basically administrative duties.

And you don't know what - and you haven't factored in in any way what her psychiatric or psychological issues were because you'd not been provided with any of that information?---No. I hadn't been provided with that information.

HIS HONOUR: Ms Gearin, the only job description I've read yet in this case is exhibit 20 and I can't imagine that any occupational therapist or Mr Pennington would make anything of it. It's waffle. It doesn't give any idea of any physical requirement or anything. 'Oversee the day to day administration of faculty to optimise the learning outcome for students'. What does that mean in terms of any physical activity.

MS GEARIN: Well, my client will be able to tell you about that, your Honour.

HIS HONOUR: She may but I mean if you're talking about a position she hasn't filled and it's expressed in the same waffling terms as exhibit 20, then how's it going to be of any use to an occupational therapist.

It just seems to me a whole line of questioning - if this is what a job description is, if this is typical of job descriptions, the only one I've seen and I don't read them as a matter of habit, what use is the line of questioning talking about some sort of repeated job description when it contains things like 'ensure the welfare and security of students (inaudible) faculty areas'. What does that mean?

MS GEARIN: Well, what it means, your Honour - - -

HIS HONOUR: Does it mean watch a video screen? Does it mean go out there with a can of CS gas(?)? You're talking about some exhaustive list of the physical duties associated with the position. The job description that's before me, the only one, doesn't have it.

MS GEARIN: So was it your understanding that she would be able to sit and stand as she needed to?---Yes.

Was it your understanding that she would - what other restrictions were there that you've identified there that you had placed on that job?---Going on the medical restrictions that the doctor had identified, avoid prolonged sitting, sorry - standing, sitting, walking, avoid lifting anything over two kilos, avoid repetitive bending, lifting. So I guess my involvement is to go and, with those restrictions in mind, look at the work environment and make sure that we weren't going to contra-indicate the medical certificate or what the doctor's recommending that the worker should or shouldn't do.

Okay. Can you identify what the medical restrictions were as at September 2008, please?---Let me see what we have. Look for a medical certificate, yep, of 2008.

Yes?---Any one in particular or - - -

Well, I think your - we had a number, didn't we? We had some from the general practitioner?---Yep.

If I can take you to - it's a bit hard. There's a workers compensation certificate which is for the period 1 September until 14 September 2009 that she was totally unfit for work. Sorry, it's 14 September 2008. Unfortunately there's a number so I can't tell you how far in it is but I think they're in (inaudible). It's got 'Attention Glen Dixon' on the top of it, if that helps you?---Mm mm. Yeah, that's good. And then a phone number and then an open bracket 'W/H leave'?---From - this is - a leave medical certificate at the top?

It's got 'W/H leave' on the top but there's a medical certificate and it's got an X under 'unfit' and then an arrow and an asterisk. Might I approach, your Honour?

HIS HONOUR: Yes. Certainly, Ms Gearin.

MS GEARIN: Just so we can get out documents sorted. This is the one I'm referring to here (inaudible).

That's the one?---Yep, yep.

That I was referring to. Okay?---Okay. Yep. Sorry.

Does your Honour have it?

HIS HONOUR: Which one is it, please, Ms Gearin?

MS GEARIN: It's the one that's got RAH. It's probably 'after hours Glen Dixon'. And then it's got a telephone number 8927 2421. And the date on it, your Honour, halfway down, you've got that 'totally unfit for work'.

Is that your understand that's what the situation was then?---Yep.

And if we go back to the one before that which is from 25 August until 29 August. That also is 'totally unfit for work'. Is that right?---Yep. That's correct.

And then the one before that is 'totally unfit for work' again?---That's correct.

Yes. And then if you go to the one before that, 'totally unfit for work' again. I'm not sure if that's a copy or not. That's 11 August to 15 August 2008?---Yep. Got that one.

Okay. And then the one before that has some restrictions. Is that right? That's the one dated 23 June 2008, down the bottom?---I've got a date there. The doctor signed it on the 11th.

The doctor signed it on that date?---On 11 August, yep.

Right. If you can go the one, go back a few until we get to 23 June 2008?---Signed by the doctor?

Signed by the doctor?---Yep, 23 June. Got it.

Okay. So as at June, there were certain medical restrictions?---Yep.

And they're identified in that certificate, are they?---Yes, they are.

'No lifting anything heaving than two kilos'?---Yep.

'Fit to return to work for restricted hours. Three hours per day, three days per week'?---Yep.

Then it's got the specifics of the limitations?---Yep.

And so they were the limitations that you were working with. Is that right, in terms of the physical limitations?---Yeah. Her physical limitations hadn't really changed over a long period of time so, yeah, I referred back to that one.

Right. And so when you were looking at this job at the Harbour View Plaza, and you talk about the restrictions that you were talking about, they are generally the restrictions that you understood that she had all the time?---Yep. That's correct.

And that was based on the medical certificates that were provided by her general practitioner?---Yep.

And I think you had some other medical certificates - sorry, medical reports that were provided to you. One was from - this is with the documentation that you received. It's under 'referral'?---Yep.

Okay. And that's got the referral document that I referred to. It's got some advanced personal management assessment?---Yep.

And that's all about - the first one is dated 9 October 2006?---Yep. The home assessment one.

Yes. And that was a home assessment?---Yep.

Right? And it was your understanding that there had been various assistance provided to her at home as a result of those A & P reports?---Yep.

And you relied on them?---(No audible response.)

And then there's her claim form itself?---Yep.

And then there are various medical certificates that I - or there's certainly one there dated 29 March 2007?---Mm mm.

Which again identifies with the little Xs on the side what the restrictions are?---Yep.

And then on 30 March, there's Dr Sharland's report of 30 March 2007?---Yes.

Is that right?---(No audible response.)

And on page 2 of that, Dr Sharland - sorry, that's Dr Chin. Sorry?---It looks like - - -

There's to Dr Sharland from Dr Chin?---Yep.

And on page 2 of that, 'She now reports a constant lower back pain which is worse with standing, sitting with her legs extended, certain chairs and prolonged walking'?

---Mm mm.

'She has difficulty bending and can't kneel. The pain is helped with lying supine. Panadeine Forte and hydrotherapy'?---Yep.

'She has intermittent numbness in the legs. Her bowel and bladder functions are fine. Sleep is disturbed'. And then he goes on to say 'She has chronic low back pain and intermittent right shoulder pain' and he'd identified 'There is some emotional and psychological disturbance. She has limited pain management strategy' and he then put her onto the Norspan?---Mm mm.

And the tens(?) machine and had recommended some acupuncture. Now, I think you gave my learned friend in answer to one of the questions that you'd given her some strategies in relation to her back pain. Was it your understanding that that not occurred before?---I don't know that - you would hope it's happened before but, yeah, I don't know - I don't have any specific evidence that it had happened, I guess.

Well, she didn't say to you 'Well, I know about that', did she?---No.

And you gave her those strategies because you felt that she needed to know about them?---Yeah, definitely. And some of those things are helpful for some people and not others but, yeah.

And, of course, with somebody with her condition, it requires constant monitoring, doesn't it?---Yeah.

Because it varies from day to day?---It can do, yeah.

Well, it did to her, didn't it? That was your observation, wasn't it?---Certainly she had fluctuating pain over a long period of time but I guess there's a pattern of pain, I guess, there that didn't change in terms of that non-specific pain that was - that there were no particular pain triggers but, yeah, it was just a constant pain in her lower back.

Of course, she was on a significant amount of medication, wasn't she?---Yep.

And so it's not unusual not to have a trigger because she's having a transdermal narcotic. That's what the Norspan is, isn't it?---Yeah, yep, yep.

And she was on 20 milligrams of that and so every hour she was getting 20 micrograms. Is that right?---I believe that's how it works, yep.

And she was also on Panadeine Forte?---Yep.

And a whole lot of other medications?---Yep.

But you didn't assess that aspect, did you?---I knew that she was on those types of medications but no, it's not really my role to assess whether it's a right dosage or whether she should be on a different type of medication so I didn't assess it in that regard.

Well, you didn't assess it at all, did you?---Certainly I knew that she was on that medication and, yeah, it was having - I mean I know that she was working with Dr Chin about a number of different sorts of medications that changed over a period of time in order to try and dampen some of the pain that she was experiencing. So I was abreast with, I guess, what attempts were being made to try and manage her pain via analgesic medication.

But you made no assessment - - -

HIS HONOUR: Excuse me, Ms Gearin.

Mr Pennington, I think Ms Gearin was suggesting to you earlier - I don't know whether the question was answered or that - that there might be some relation, negative or positive between, on the one hand a significant amount of analgesic mediation and on the other hand, a lack of reporting of any particular train of pain triggering?---Triggers, yep.

Is there some connection?---I would think if you did something bi-mechanically, that you could still aggravate and feel pain unless you were bombed out completely to the point where you were unconscious nearly but I would think that the medical being prescribed wasn't - I mean, ideally you don't - I'm not a doctor but I'm sure you don't want to prescribe medication to that effect because your quality of life really isn't there. So I mean there is still that component of - otherwise you could bi-mechanically do whatever but obviously you can't because you've still got some dysfunction there and even if you are on that medication so you're ideally still looking for pain triggers.

Thank you.

MS GEARIN: Now, did you ergonomically assess what her work situation at Casuarina?---Yes.

And did you make any recommendations?---Only initially that on the three hours that she said she was coping fine with the chair that she was with. I did note that they were hot-seating at the time which wasn't a good practice.

Sorry. Why wasn't that a good practice?---Primarily that if you do set someone up with a chair to a desk, for example, and the next person that comes along is taller and not the same height, then they'll probably make some adjustments so in hot seating, then, yeah. It's not ideal because it's bound to be that the chair is going to change and, yeah, depending on, I suppose, work intensity, someone may or may not realise it's been changed or had the time to change it. So it ideal obviously that you set a person up and it remains that way rather than lots of different people jumping in and out of chairs.

And so what should have been happening was that when she moved around, she took her own chair with her. Is that right?---Yeah, effectively. And I guess, depending on long you're going to sit in a chair for, if she's going to sit with students for lengthy periods of time then definitely, yes. If she's only going to sit for momentarily, then probably she's fine in a fairly standard chair. But if you're going to do computer-based work, then certainly you're going to be there for some time so obviously a good chair, it would be recommended. I do note though at the assessment at the school, she indicated that there was no pain triggers associated with using the chair and I did flag that well, that might be the case now but I would expect that with increased hours, that that probably would become problematic.

Right. And when you observed her, how long did you observe her to be sitting when she was out there, when you went out there for your 40 minutes of observation of her at her workplace?---How long would she be sitting for?

Yes. I noticed here that you put - - - ?---Probably most of it.

- - - a time period of 40 minutes. Does that include your travelling time?---No, I usually put travel time on top of that so there's two charges there.

So you were actually there and observing her for 40 minutes?---Yep.

Do you now have a recollection of what you observed?---On which particular day? I go out there quite a bit.

Well, the day you went out there to observe her?---I go out to the worksite - I would have been out there a dozen times to observe her so, yep.

All right then. So you got a good picture then, did you?---Yep.

Did you sit and see her interacting with students or did you observe from a distance?---Yes, I know what you're talking about now. Yep, that occasion. Yep, when she was - when I observed her with the students?

Yes?---Yep. Sorry. Yes, I sat down to do that. And, yes, she was seated.

For the whole of the period?---Well, for probably five minutes before she broke with the student and then we would have gone into the adjacent room which is the staff-room which is where we usually meet to talk about obviously how she was coping and whether there'd been any significant changes at all.

And so - - -?---So we moved around.

So the purpose of her attending at a workplace, what I'm going to suggest to you, is that that is - the purpose of that is to give her a purpose in life, that she can't actually perform a functioning job, can she?---Well, she was performing in that role.

For three hours a day?---Yep.

Well, you don't know what she was doing, do you?---No.

You know what she was ergonomically doing. You know she was sitting and standing and moving around?---Yep.

But you have no idea whether she could actually - what her intellectual capacity was for performance of the job, did you?---No, I didn't inquire as to her performance in the role, no.

No. And as far as you know, nobody did, did they?---I don't usually inquire into the performance - - -

No, no. That's not my question. My question is you were not advised that anybody said 'Charlene's doing a great job with the students' or 'Charlene's - we're getting a lot of complaints because Charlene's not giving people the right information?' You have no knowledge about that, do you?---No.

So you were only concerned with the ergonomics of what she was required to do within the medical restrictions of what you had identified? And by the time you left this case in April of 2009, it was your understanding that she was only capable of the sort of return to work program that you, in fact, had designed for her?---That last one, yeah. That she would probably - I mean, going on from the history of the whole case, that - yeah, unless something significantly had changed, then that would probably be the case, yep.

A PERSON UNKNOWN: (inaudible)

If I can just go to that, that was on the basis that she was still limited to three hours a day, three days a week. Is that right?---The return to work program that I did?

Yeah?---Yeah, yep.

I think your Honour can refer (inaudible).

THE WITNESS: I think so, yep.

HIS HONOUR: Sorry, Ms Gearin. Are you going to ask anything about this handwriting that you're concerned about?

MS GEARIN: No, your Honour. Whatever it is, I can't read it.

HIS HONOUR: Let me find it.

MS GEARIN: Can I just indicate that in any of your notes, what you've done is you've pulled that and they comprised the reports that you've prepared?---Yep.

And the return to work programs that you've designed?---Yep. That's correct.

Is that right?---Yep.

HIS HONOUR: Yes, Mr Barr. Anything arising?

Yes. In re-examination, your Honour, I know my friend doesn't require the witness to translate any of his notes so I just wanted to give him the opportunity to do that if there is some matter that she wanted translated. No?

MS GEARIN: No. I've just indicated that there was nothing - the witness indicated to me that there was nothing in the notes which he hadn't used - which was inconsistent with his reports and his return to work programs. So they're enough for me. I don't need to read them all.

MR BARR: Mr Pennington, when you answered the last question about as far as you were aware, the worker's limitation still remained at three hours a day, three days a week at the end of the program, was it you who had anything to do with setting those actual hours?---Are you talking about the return to work program - sorry - - -

Well, at the school, at the school. Did you have any role in setting the number of hours and the number of days that she worked?---No. That's the GP's role, not mine.

You were asked about whether you knew whether or not Ms Nasir had the intellectual capacity to do the careers advising job three hours a day, three days a week. Did she ever complain to you to the effect that she didn't have the intellectual capacity to do that job?---No. She - no.

And, indeed, I think you said that she said that she liked the job? Is that right?

---Yep.

The only other question I wanted to ask you is this: it was suggested to you that at the outset, you were implementing a return to work program which, if you like, didn't acknowledge the back injury because it wasn't an accepted injury. Do you recall some questions along that line at the start of your evidence?---(No audible response).

What I wanted to ask you is this: to what extent, if any, did you take into account the worker's complaints of back pain in devising the return to work programs which you devised for her?---Well, obviously, I mean, although an insurer has - that's the difficulty, I guess, with insurers that they're only responsible for certain body parts, if you like. But certainly, I mean, regardless of whether it's covered with the compensable injury or not, you're not going to put someone in a circumstance where they're going to injure themselves so you have to take that stuff into account.

Yes. And so is it the case that you took into account all of those stated disabilities or limitations as explained to you?---Yes. That's correct.

Thank you.

No further questions, your Honour.

HIS HONOUR: Yes. Thanks a lot, Mr Pennington. That's the end of your evidence. It's been a while but thanks for your assistance so you're free to go?---Thank you.

WITNESS WITHDREW

MR BARR: Your Honour, the next witness proposed to be called is Mr Willoughby.

HIS HONOUR: And just before you do, Ms Gearin, I propose then just to turn that into exhibit 23.

HIS HONOUR: Yes, Mr Barr?

MR BARR: Thank you, your Honour. Mr Willoughby has attended.

GRAHAM WAYNE WILLOUGHBY, sworn:

HIS HONOUR: Yes, Mr Barr?

MR BARR: Mr Willoughby, is your name Graham Wayne Willoughby?---Yes.

Graham spelled G-r-a-h-a-m?---Yes.

Are you the managing director of Willoughby & Associates?---I am.

Are you a licensed commercial investigator?---Yes, I am.

Do you work for Willoughby & Associates, a firm at 3 Gardner Street, Darwin?---I do.

Did you receive instructions in relation to conducting of surveillance on Ms Nasir on 16 August last year?---Yes, I did.

How did you receive those instructions?---Via telephone, mobile.

Who actually gave you the instructions?---Chris Osborne from Hunt & Hunt.

Thank you. Did you yourself then - were you personally then involved in carrying out surveillance activities?---Yes, I was, over several days.

On what days did you carry out surveillance yourself?---On Saturday 16 August 2008 and Sunday 17 August 2008.

On those days when you carried out surveillance activities did you make notes?

---I did.

Did you take some film?---I did.

At the end of the period did you, using your notes, dictate a report of your surveillance over the two day period?---I did.

Thank you. I'll come back to that report in a moment. In relation to the video did you take video film during those two days?---Only on Saturday 16 August.

On Saturday the 16h?---Yes.

Did your film include someone other than Ms Nasir?---Yes, it did.

Were you able to identify Ms Nasir in the early period, that is on Saturday the 16th, in the course of your surveillance?---No.

When did you, if you like, have Ms Nasir positively identified to you?---On or about Wednesday, 20 August 2008.

Is it the case then that the video you took included Ms Nasir and somebody
else?---Briefly Ms Nasir.

Yes, but predominantly someone else, is there?---Correct.

But the report that you wrote, does that, in fact, concern itself with Ms Nasir or with the other person?---Predominantly Ms Nasir.

Right, and so does the report that you prepared accurately record the surveillance carried out on Ms Nasir herself?---Yes, it does.

I wonder if I could show you a list of employees? Mr Willoughby, I'm just showing you a document headed 'Surveillance Report' and asking you just to confine your attention to the entries for Saturday 16 and Sunday 17?---Yes.

Which take you to the bottom - I'm showing you three pages and really effectively the three pages down to the very bottom of the third page, is that a typed up report of the surveillance that you carried out on Saturday 16 and Sunday 17?---Yes, it is.

And is that the document that accurately records the observations that you
made?---Yes, it does.

Thank you. I tender that, your Honour.

MS GEARIN: No objection.

HIS HONOUR: Yes, thank you, exhibit 24 it will be.

EXHIBIT 24 Surveillance Report.

MR BARR: Mr Willougby, in relation to the video that you filmed, what sort of camera did you have?---I used a Sony 8 mil video camera.

Does that take small video tapes?---It takes these types of cartridges.

And you're just holding up a cartridge in front of you; are you able to identify that relevant to this case?---Yes, it is, it's the tape that I took in relation to this matter.

Where you made a video tape, is the existence or the fact of your taking the tape reflected in your surveillance report exhibit 24?---Yes, it is.

Is it indicated by reference to the insertion in capitals of the word 'Video' underlined?

---Correct.

Thank you. What happened to the disc in front of you after you had made it in terms of - - -?---The tape?

Subsequently returning to your office and processing it in some way? Can you explain what's happened there?---Upon my conclusion of my involvement as far as surveillance went it was hand delivered to Ms Jodie Horstal.

And left with her, is that right?---Yes, correct.

When was it that you realised that perhaps a significant part of that tape wasn't actually film of the worker, Ms Nasir?---After I was later shown a photograph on or about Wednesday, 20 August 2008.

Did you give Jodie Horstal any instructions in relation to copying the content of that video?---I advised Jodie that predominantly the older person in the video was not Ms Nasir.

All right. And did you give her any specific instructions as to whether she should run all parts of the film on to the Willoughby hard drive?---No, I advised Ms Horstal, because of the fact that the other person was not the claimant and was not of interest in this particular matter that she was to delete most of that video.

All right, so if I could ask you this, the entire video is retained on the tape in front of you, is that right?---Correct.

The only part where the deletion has occurred is in relation to the Willoughby DVDs that were manufactured?---That's right.

Good. It also would follow, I see, Mr Willoughby that the minutes of film for
16 August 2008 shown on the Willoughby DVD will be less than the minutes of film shown on that particular cartridge?---Yes, yes, it is.

Okay, thank you. Your Honour, I tender the video that is referred to in the exhibit E24, Surveillance Report.

HIS HONOUR: That is the tape that is before the witness?

MS GEARIN: The tape, the tape.

MR BARR: The tape itself, I'm sorry, your Honour.

MS GEARIN: Yes, yes.

HIS HONOUR: Yes.

MS GEARIN: No objection to the tape, your Honour, thank you.

HIS HONOUR: Yes, exhibit 25.

EXHIBIT 25 Surveillance tape.

HIS HONOUR: And Mr Willoughby, what sort of machine does that tape play
on?---You play it – well, it's taken with an 8 mil Sony camera, sir, and - - -

It would play on that camera?---No. I could bring another camera in without - without problems.

I see, yes.

MR BARR: They can also be placed inside an ordinary - - -?---VHS cassette?

VHS cassette, can they?---Correct.

That will then enable them to be played on a VHS player?---Yes, it would.

But you need, if you like, the larger container to house it so it can be played on a VHS, is that - - -?---That's correct, that's the adapter.

You don't have any of those, do you?---Not currently, but I could quickly access one.

It just occurs to me rather than bringing in a camera if it could be played on a VHS player, which I assume the court does have?

HIS HONOUR: We've got a lot of players, whether they still work, I'm not sure,
Mr Barr.

MR BARR: Many players here at the Magistrates Court.

HIS HONOUR: The last time anyone explained to me the workings of them though they were driven by things like rubber belts which perished over time, so I don't know whether the last generation were required (inaudible).

MR BARR: Mr Willoughby, that's your evidence in relation to your own involvement; were you also involved in preparing a report to Hunt & Hunt dated 31 October 2008?---I was one of the people involved in the preparation of that report.

Are you able to just summarise to the court - - -

MS GEARIN: What was the date, sorry?

MR BARR: Thirty one October, 2008. That report contained, if you like, a covering letter from yourself, did it not?---It did.

A summary of general enquiries that you'd carried out?---Yes, it does.

And it then contained a significant component described as 'Surveillance Report"; are you familiar with the surveillance report component?---I am, yes.

It seems to be numbered - or from pages front page through to page 78?---I don't have a copy in front of me but, yes, that would be correct.

I can show you the copy that we've all got; would you like to have a look at
that?---Yes. Yes, that's correct.

And if you look at page 78, Mr Willoughby, there's a signature there?---Yes.

Do you recognise that signature?---That's not my signature.

Do you recognise it, though?---It's one of the ladies' in the office; I believe it's Julie Leviston's.

All right, and is she a person who assists you or works for you in preparing these kind of reports?---She does, she types them.

Now, in terms of the way in which this large surveillance report has been put together, how is that done in terms of information received from the various operators and so on?---The operators themselves who investigate the matter, each operator submits their own handwritten notes and their report to Julie Leviston and she then prepares that report on the basis of what they've provided and then the report, in that form, comes to me and it's then that I make sure that it is correct in relation to punctuation and the way it looks and presents to the client, and I also do the summary to just summarise the events of that total report for the client, which is the front summary.

Right, but we're not actually looking at the front summary now, we're just looking at the surveillance report itself?---Yes.

Have you edited that document from the - - -?---I have, yes.

In terms of the editing what editing have you done? You mentioned style type matters, what else have you edited?---The relevant material, such as if a person is following a person down a street the streets may not be depicted in the report, that may be taken out; a person may leave an address and that's mentioned and that person may arrive at another location. The actual facts themselves remain the same.

All right; so you've checked it for its content?---I have.

And you've checked it for style and grammar and so on?---Yes.

Have you inserted underlining for emphasis?---Yes, I do, I highlight that.

Have you from time to time injected, if you like, a GW comment in relation to the material that's the subject of the report?---I have.

In that case is it marked as a GW comment?---It is.

Thank you. Your Honour, I want to tender this report; I need to explain why and I also need to explain that not all of the component parts yet have been proven to make up this report, there's still one operator, Mr Gillanders who's material relates to Wednesday the 20th, Thursday the 21st and Friday the 22nd. All of the other contributors of the gross material to this report have given evidence.

The reason for tendering the report in this form is that this is the form that was provided to the doctors, they haven't actually seen the individual component parts as proven, and so to that extent I simply want to prove the way in which this report has been compiled from the, if you like, the gross sources. And as I indicated at an earlier stage there may be some relatively minor discrepancies between the two but at least your Honour is in a position to compare them, given the proof on the component parts if there's an issue on some particular point.

HIS HONOUR: So, Mr Barr, is this another copy of what was included in the McLaren bundle?

MR BARR: Yes, it is, your Honour, yes.

HIS HONOUR: Is there any real point in my having another copy of it, proved separately as it were?

MR BARR: Probably not except to explain to your Honour the way in which - it's possible for my learned friend and I to go through it and confirm they're identical; I assume that they are. I've got the McLaren bundle here, I'll just - - -

HIS HONOUR: Part of the McLaren bundle was a letter from Hunt & Hunt to
Dr McLaren from Ms Osborne dated 23 June, and attached to that was about a centimetre or so of Willoughby material.

MR BARR: Yes, and I think the difference is that Dr McLaren may have got just a little bit more, including a summary that accompanied Mr Willoughby's covering letter, whereas this also was provided to Dr McLaren, this surveillance report.

HIS HONOUR: Yes.

MR BARR: And I'm just checking it now; it is the 78 pages and it is signed by
Mr Willoughby – or, sorry, by the identified person, Julie Leviston, at page 78. And he was also provided with the video précis tape as 1 to 19. So it looks as though all this has already been provided to Dr McLaren. Perhaps if I show him the McLaren bundle then ask him to identify there the separate document being proven or being entered into evidence.

HIS HONOUR: Yes, you're happy with that, Ms Gearin, that it only be - - -

MS GEARIN: I don't object to this witness identifying it as the same, I mean there's no issue. I certainly object to this going in as evidence of anything, it's secondary material, but it is already in in that it was provided to Dr McLaren. It stands or falls on the primary evidence - - -

HIS HONOUR: Yes.

MS GEARIN: - - - that is provided either by video or by the individual operators.

HIS HONOUR: By the oral witnesses, yes.

MS GEARIN: So that's my view about it, your Honour. This witness identifying that it's the same as what was sent to Dr McLaren doesn't take the matter any further.

HIS HONOUR: No, I think Mr Barr's just, out of a sense of caution, making sure that this is putting to Mr Willoughby, rather than putting to counsel, the same as the one that Mr Willoughby has just recognised.

MS GEARIN: I don't think it makes any difference, your Honour, quite frankly.

HIS HONOUR: Well, I'll have him have a look at it anyhow.

MS GEARIN: If he can read 78 pages in a minute and a half, not a problem.

HIS HONOUR: Mr Willoughby, if you could just have a look at this slab of this particular thing under a clip here, starting 'Surveillance Report' here and
finishing - - -?---And compare the two?

HIS HONOUR: Yes?---This will take some time, sir.

MS GEARIN: Exactly.

HIS HONOUR: I'm not asking you to do it page by page, but if you just look at it sufficiently to satisfy yourself that it seems to be - - -

MR BARR: Perhaps if you start at page 78 and move backwards?

HIS HONOUR: Yes.

MS GEARIN: Can I just indicate that a better way might be Ms Osborne to swear an affidavit that it's the same, and then I won't have a problem with it. That might be - asking this poor witness to go through and identify it - - -

HIS HONOUR: She hasn't seen – well, she may not have seen the one that
Mr Willoughby has looked at already in his evidence, but I would have thought that looking at the first and last pages - - -

MS GEARIN: Well, it was provided to her.

HIS HONOUR: - - - would be just about enough to - - -?---Okay. Well, it certainly appears to be the same document, a copy thereof.

HIS HONOUR: Yes, okay. On that basis, Mr Barr, I can't see that it's worth having any argument over a separate tender of a document which - - -

MR BARR: No, I agree.

HIS HONOUR: - - - the contents of which are of a secondary importance as an influence on Dr McLaren and anyone else who's looked at them rather than evidence in their own right.

MR BARR: I accept that, your Honour.

HIS HONOUR: Yes.

MR BARR: Thank you, Mr Willoughby. Now, sir, I'll just - just note the witness was shown exhibit 13 and (inaudible).

Mr Willoughby, in this matter I take it that you didn't do any surveillance at the casino, the Sky City Casino?---No, I did not.

In March this year did you receive a letter from solicitors acting for the casino,
Ward Keller?---I did.

As a result of that letter did you attend at the casino with somebody?---I did, with Jodie Horstal.

What was the purpose of you attending?---To find out exactly where these signs were exhibited and located in relation to that letter.

Did you find signs at the casino?---I did.

Were they signs that you had actually seen before?---I would have seen them, but not read them.

Was there a particular sign at the entrance to the casino?---It's a very large sign.

Yes?---And it's a silver background with blue writing.

Right. And does it deal with things other than filming?---Yes, it does.

Does it deal with filming?---It does.

What sort of things does it deal with?---It deals with behaviour, dress standards, camera devices in the gaming areas and just a range of behavioural type things.