Barton and Pacific Manning Company Pty Ltd
[2003] AATA 92
•31 January 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 92
ADMINISTRATIVE APPEALS TRIBUNAL )
)Nos S1999/346 & S2000/483
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL BARTON Applicant
And
PACIFIC MANNING COMPANY PTY LTD
Respondent
DECISION
Tribunal Senior Member J.A. Kiosoglous MBE Date31 January 2003
PlaceAdelaide
Decision The decisions under review are set aside, and the matter is remitted to the respondent for the calculation of the compensation payable to the applicant, in accordance with the following findings:
i) the applicant suffered injury to his lower back in the course of his employment with the respondent, with that injury occurring by 18 November 1998;
ii) the applicant suffered psychiatric injury in the course of his employment with the respondent, with that injury occurring by 18 November 1998;
iii) the applicant’s injuries entirely incapacitated him for work for a 45 week period. The applicant was unable to work in “suitable employment” during that period, and consequently is entitled to compensation at a rate of 75% of his normal weekly earnings prior to the accident for that 45 week period;
iv) the applicant suffered a permanent impairment of 10% under the applicable Guide as a consequence of his compensable lower back injury;
v) the applicant suffered a permanent impairment of 15% under the applicable Guide as a consequence of his compensable psychiatric injury; and
vi) the applicant has suffered non-economic loss as a result of his permanent impairments, giving rise to a combined impairment score of “5” under Table 5 of Part B of the applicable Guide.
The respondent is to pay the costs of the applicant. In the absence of agreement between the parties, costs are to be taxed by the Tribunal.
(signed)
J.A. KIOSOGLOUS(Senior Member)
CATCHWORDS
COMPENSATION – Seafarers’ Compensation – whether lower-back injury and psychiatric injury sustained in course of employment – generalised anxiety disorder – incapacity for work – permanent impairment – non-economic loss
Seafarers Rehabilitation and Compensation Act 1992 ss 3, 8, 9, 13, 23, 26, 31, 32, 39, 41, 42, 62, 63, 78, 93
Seafarers Safety, Rehabilitation and Compensation Authority, “Guide to the Assessment of the Degree of Permanent Impairment”
REASONS FOR DECISION
31 January 2003 Senior Member J.A. Kiosoglous MBE 1. This is an application for review by Mr Michael Barton (the applicant) for review of two reviewable decisions of the respondent dated 6 July 1999 (file S1999/346 – T15/41) and 11 July 2000 (file S2000/483 – T21/53) respectively. The first reviewable decision dated 6 July 1999 (S1999/346) affirmed a determination of the respondent dated 27 January 1999 (T11/33-34) that it was unable to accept the applicant’s claim for ongoing compensation for “occupational stress and lower back pain” pursuant to the Seafarers’ Compensation and Rehabilitation Act 1992 (the Act). The second reviewable decision dated 11 July 2000 (S2000/483) affirmed a determination of the respondent dated 1 June 2000 (T19/50-51) refusing the applicant’s claims for compensation for permanent injury dated 21 December 1999 and 7 January 2000 (T17 and T18).
2. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T30) as well as 27 exhibits, 18 lodged by the applicant (Exhibits A1-A18) and 9 lodged by the respondent (Exhibits R1-R9). Included in these exhibits was a videotape (Exhibit A17) depicting the weather and sea conditions aboard the MV “Pacific Conqueror”, the ship upon which the applicant served. In addition, the Tribunal heard oral evidence from the applicant, who also called Ms Maggie Ellen Armstrong, his partner; Dr Nicholas Ford, psychiatrist; and Mr George Potter, orthopaedic surgeon; to give oral evidence on his behalf. The respondent called Mr Andrew William Vinnicombe, chief engineer aboard the “Pacific Conqueror”; Mr Duncan Brownlie Corbett, master aboard the “Pacific Conqueror”; Mr Malcolm John Hearnden, manager of the respondent; Mr Garry Wayne Steve, mate aboard the “Pacific Conqueror”; Mr Frank G. Bell, orthopaedic surgeon; and Dr Lawrence D. Terace, consultant psychiatrist; to give oral evidence on its behalf. The applicant was represented by Ms Kathleen Chambers and the respondent by Ms Rani Aria-Retnam, both of Counsel.
issues
3. The issues before the Tribunal are, in relation to application S1999/346:
· whether the applicant has suffered and continues to suffer from a compensable psychiatric injury;
· whether the applicant suffered and continues to suffer from a compensable lower back injury;
· whether the applicant has been incapacitated for work as a result of a compensable psychiatric injury and if so, to what extent and for what periods; and
· whether the applicant has been incapacitated for work as a result of a compensable lower back injury and if so, to what extent and for what periods.
4. The issues before this Tribunal are, in relation to application S2000/483:
· whether the applicant has suffered a permanent impairment as a consequence of a compensable lower back injury;
· whether the applicant has suffered a permanent impairment as a consequence of a compensable psychiatric injury; and
· Whether the applicant has suffered non-economic loss as a result of any such permanent impairment.
5. In addition, it is also in contention whether or not the applicant complied with the provisions of the Act in making an application for compensation, and in particular, whether written notice of the injury was given to the employer as soon as practicable after the applicant became aware of the injury so as to comply with section 62 of the Act.
legislation
6. Section 26 of the Act provides for compensation for injury as follows:
“Compensation for injuries
26.(1) If an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for the injury.
…”
7. Section 31 of the Act provides for compensation for injuries resulting in incapacity as follows:
“31 Compensation for injuries resulting in incapacity
31.(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 33, 34, 35, 36 or 37 applies.
(2) Subject to subsection (3) and this Part (other than this section), compensation for the injury is payable to the employee, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount worked out using the formula:
Normal weekly earnings — Earnings in suitable employment
where:
‘Normal weekly earnings’ means the amount of the employee’s normal weekly earnings;
‘Earnings in suitable employment’ means the amount per week (if any) that the employee is able to earn in suitable employment.
(3) If the employee is a seafarer, the compensation payable under subsection (2) is payable for each of the first 45 weeks (whether consecutive or otherwise) after the date on which the seafarer is left on shore at, or returned to, his or her proper return port.
(4) Subject to this Part (other than this section), compensation for the injury is payable to the employee, for each week during which the employee is incapacitated, being a week to which subsection (2) does not apply.
(5) The amount of compensation per week payable under subsection (4) to an employee is:
(a)if the employee is not employed during that week — an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment; or
(b)if the employee is employed for 25% or less of his or her normal weekly hours during that week—an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings; or
(c)if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week—an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings; or
(d)if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week—an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings; or
(e)if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week—an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 95% of his or her normal weekly earnings; or
(f)if the employee is employed for 100% of his or her normal weekly hours during that week—an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings.
(6) If:
(a)compensation is payable under subsection (4) to an employee for a week; and
(b)the employee is employed or engaged during the whole or any part of that week as a seafarer;
subsection (5) applies in relation to the employee as if he or she were covered by paragraph (5) (f).
(7) If an amount of compensation worked out under subsection (5) is more than 150% of the amount called the Average Weekly Ordinary Time Earnings of Fulltime Adults, as published from time to time by the Australian Statistician, the amount so worked out must be reduced by an amount equal to the excess.
(8) If an amount of compensation worked out under paragraph (5) (a) is less than the minimum earnings of the employee, the amount so worked out must be increased by an amount equal to the difference between that amount and the minimum earnings.
(9) For the purposes of subsection (8), the minimum earnings of an employee are taken to be:
(a)$254.46, or, if subsection (10) or (11) applies to the employee, the sum of $254.46 and the amount or amounts required to be added under whichever of those subsections applies; or
(b) an amount equal to 90% of the employee’s normal weekly earnings;
whichever is less.
(10) If there are one or more prescribed persons wholly or mainly dependent on the employee, the amount of $62.99 must be added to the amount of $254.46 specified in paragraph (9) (a).
(11) If there are one or more prescribed children (whether born before, on or after the date of the injury) wholly or mainly dependent on the employee, the amount of $31.50 for each of those children must be added to the amount of $254.46 specified in paragraph (9) (a), but an amount must not be so added for a child in relation to any period before the date of birth of that child.
(12) If a prescribed child is:
(a) a prescribed person in relation to the employee; and
(b)the only prescribed person who is wholly or mainly dependent on the employee;
subsection (11) does not apply to the child.
(13) If 2 or more prescribed children are each:
(a) a prescribed person in relation to the employee; and
(b) wholly or mainly dependent on the employee;
subsection (10) applies to one of those children and subsection (11) applies to the rest.
(14) For the purposes of this section the normal weekly hours of an employee who is not employed on a ship are:
(a)if the award, determination or certified agreement that applies to the employee specifies the normal weekly hours of an employee—those hours; or
(b) in any other case—38 hours.
(15) In this section:
‘proper return port’ has the same meaning as in the Navigation Act.”
8. In determining the amount per week than an employee is able to earn in “suitable employment” for the purposes of section 31, the employer is to have regard to section 32 which states:
“Determination of suitable employment
32. An employer who determines, for the purposes of section 31, the amount per week that an employee is able to earn in suitable employment must have regard to the following:
(a)if the employee is in employment—the amount per week that the employee is earning in that employment;
(b)if, after becoming incapacitated for work, the employee received an offer of suitable employment and did not accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)if, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, did not engage, or continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)if, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee did not fulfil that condition—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(e)if, after becoming incapacitated for work, the employee has not sought suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)if paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in the opinion of the employer, reasonable in all the circumstances;
(g) any other matter that the employer considers relevant.”
9. Section 39 provides for compensation for injuries resulting in permanent impairment as follows:
“Compensation for injuries resulting in permanent impairment
39.(1) If an injury to an employee results in a permanent impairment, compensation is payable to the employee for the injury.
(2) For the purpose of determining whether an impairment is permanent, the employer must have regard to the following matters:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment;
(d)any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is an amount assessed under subsection (4) by the employer, being an amount that his not more than the maximum amount at the date of the assessment.
(4) The amount assessed must be an amount that is the same percentage of the maximum amount as the percentage determined under subsection (5).
(5) The employer under this section must determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment must be expressed as a percentage.
(7) Subject to section 40, where the degree of permanent impairment of the employee, as determined under this section, is less than 10%, an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to an impairment resulting from the loss of, or injury to, a finger or toe.
(9) For the purposes of this section, the maximum amount is $100,778.56.”
10. Section 41 provides for compensation for non-economic loss as follows:
“Compensation for non-economic loss
41.(1) If an injury to an employee results in a permanent impairment and compensation is payable for the injury under section 39, the employer is liable to pay additional compensation in accordance with this section to the employee for any non-economic loss suffered by the employee as a result of the injury or impairment.
(2) The amount of compensation is an amount worked out using the formula:
where:
“Degree of permanent impairment” means the percentage finally determined under section 39 to be the degree of permanent impairment of the employee.
“Degree of non-economic loss” means the percentage determined under the approved Guide, by the employer, to be the degree of non-economic loss suffered by the employee.”
11. Section 23 provides for the indexation of the figures in section 41(2).
12. Section 42 provides for the Seafarers Rehabilitation and Compensation Authority (“the Authority”) to issue a “Guide to the Assessment of the Degree of Permanent Impairment” (“the Guide”), which is to be used in assessing compensation payable for permanent impairment under the Act.
history of the applications
13. On 17 December 1998, the applicant lodged a “WorkCover Notice of Work Related Injury” (T7/24-25) claiming compensation for “industrial stress, back pain and depression” as a result of “working – living on a rig supply vessel”, “constant isolation, confinement and boardom” and “sleep deprivation due to bow thrusters, anchors, a/c breaking down, faulse alarm bell, chipping and hammering”.
14. In response to a letter from the respondent dated 23 December 1998 (T8/30), the applicant further provided an “SRCA claim form” dated 5 January 1999 (T7/26-29), in which he claimed compensation for lost wages resulting from incapacity to work, medical and related expenses and travel expenses attending medical examination/rehabilitation (T7/29) in relation to his stated injuries of “occupational stress and lower back pain” (T7/27). On the form, he stated that his injuries occurred in August 1998 whilst “working normal duties in a confined isolated environment” and “over a continuous period of time doing heavy lifting and living in a confined space”. He further stated that in relation to the location where the injuries happened: “deck, E/R and accommodation, etc”.. He stated that his injuries were caused by “heavy lifting and confinement”. He further stated on the form that he reported the injury to Dr Tan on 30 November 1998, which was also the date of his first medical certificate (T7/28).
15. By letter dated 8 January 1999 (T9/31), the respondent stated that it did not have sufficient information to make a determination and that it needed further information as to the date of the alleged injury, the person to whom the applicant reported the injury and the date the applicant reported the injury. By letter dated 13 January 1999 (T10/32), the applicant stated that he could not give an exact date of his occupational stress because it had been an “ongoing thing for some time” and in relation to the back pain, it had also been a “gradual thing” which he could only “put down to constant bending down and heavy lifting over the last several months”. He further stated:
“It wasn’t till approx. 2 weeks into my leave that these things started to deteriate [sic] rapidly to a condition where I had to seek medical help, so none of the above was reported to a particular person at a specific date, so no log entry was made.”
16. By letter dated 27 January 1999, the respondent stated that it was unable to accept the applicant’s claim for compensation pursuant to the Act due to the following reasons (T11/33):
“1. There was no written notice of injury as required by section 62 of the Act;
2.A written claim in accordance with the form approved by the Act accompanied by appropriate medical certificate was not given to us in accordance with section 63 of the Act;
3.We do not have any conclusive medical evidence relating your alleged injuries to your employment with our company, in this regard, we are making an appointment for you to be reviewed by Doctor Adonis of the West Perth Occupational Medical Clinic and will reconsider your claim on receipt of a medical report following that review;
4.We are making some further enquiries regarding your exact duties on the relevant vessel at the relevant time when you commenced suffering your alleged injuries and we have not finalised those enquiries.”
The letter further informed the applicant that it would pay him sickness benefits pursuant to Clause 27 of the Enterprise Bargaining Agreement in force the time whilst making its further enquiries.
17. By letter dated 10 May 1999, the applicant requested a reconsideration of the respondent’s determination (T13/37-38) in accordance with sub-sections 78(2) and (3) of the Act. As required by sub-sections 78(4) and (5) of the Act, the respondent sought the assistance of Comcare in reconsidering its determination. In its report dated 28 June 1999 (T14/39-40), Comcare gave its opinion that the applicant had not established that he had an injury which was due to his employment and that he was therefore not entitled to compensation under the Act. Comcare stated that it could not be established whether the applicant had suffered a physical injury and that it remained to be proven whether any such injury was due to his employment. Comcare further stated that the applicant was not suffering from any recognisable psychiatric or psychological syndrome.
18. By letter dated 6 July 1999 (T15/41), the respondent informed the applicant that due to the advice given by Comcare to affirm the determination, the respondent’s position with respect to the determination to disallow compensation had not changed.
19. By application dated 24 August 1999, the applicant applied to the Tribunal for review of this reconsideration (T16/42). This application was given the Tribunal file reference S1999/346.
20. By applications dated 21 December 1999 (T17/46-47) and 7 January 2000 (T18/48-49), the applicant made claims for compensation for permanent injury in respect of “lower back pain and occupational stress, anxiety and depression”.
21. By letter dated 1 June 2000 (T19/50-51), the respondent declined both claims for compensation for permanent injury on the basis that:
“1.The medical evidence does not support that your client has suffered a physical injury or disability to his lower back at all or, in the alternative, that gives rise to a permanent injury. We particularly the report of Mr Bell dated 17 March 2000;
2.The medical evidence does not support that your client has suffered a psychological injury related to his employment with our client or that gives rise to a permanent injury. We particularly refer to the report of Dr Terace dated 28 March 2000.”
22. By letter dated 22 June 2000, the applicant requested reconsideration of the respondent’s determination to deny the applicant’s claims for compensation for permanent injury (T20/52).
23. By letter dated 11 July 2000, the respondent affirmed its determination, stating (inter alia)(T21/53):
“Our client obtained a report from Comcare dated 28 June 1999 to assist in its redetermination of your client’s claim for ongoing compensation, a copy of which was provided to you. That report recommended that our client affirm its decision to decline your client’s claim on the basis that the medical evidence did not establish that your client had suffered a physical and/or psychiatric injury at all or that was attributable to his work with our client. Our client has subsequently obtained further medical evidence to support its view.
It follows for the same reason that our client does not agree with that your client has suffered a permanent injury or one related to his employment.”
applicant’s evidence
24. The applicant, who was born on 17 July 1949 in England, emigrated to Australia in 1958 with his family. He is currently 53 years old. He completed Grade 7 primary school in South Australia but he did not undertake any secondary schooling. Due to learning difficulties, he completed primary school at the age of approximately 15 years. Upon completion of his primary schooling he registered with a Shipmaster and commenced seafaring as a deckboy in 1966 when he was 16 years of age. Since then the applicant has remained in employment on various vessels including general cargo ships, ferries, bulk carriers, tankers, tugs and oil rig supply vessels. He worked his way through the ranks to the position of Able Seaman.
25. In his written statement tendered to the Tribunal (Exhibit A7), the applicant stated that his duties as Able Seaman included “general maintenance, painting, chipping, cleaning, greasing, watch-keeping, anchor handling and cargo handling.” The applicant stated that in terms of the time he was required to spend at sea, if he was working on coastal ships, he would generally be at sea for five weeks and then have five weeks on land. When working on overseas ships, he would generally be working four months on the ship and four months on land.
26. The applicant stated in his oral evidence that from 1975 to 1980 he worked on the “Nancy Heath”, a 20,000 tonne oil tanker with 34 crew. The “Nancy Heath” was approximately four times larger than the “Pacific Conqueror” with four separate bars, a gymnasium and lots of room on deck. The applicant stated that there was social activity on board due to the ship’s recreational facilities, and the crew had barbeques and parties. His roster was five weeks on, five weeks off. The applicant then worked from 1983 to 1986 on the “Mobile Flinders”, a 150,000 tonne oil tanker with a crew of 56. This ship traded internationally and thus went overseas and was a huge vessel with a pool, a gymnasium and three separate bars. He stated that on board the ship there were recreation nights, including dart competitions and barbeques. The vessel also called into port once every two weeks for two to three days at a time. His main duties aboard the oil tankers were pumping cargo, watch-keeping and general maintenance. The applicant stated that he stopped working on the “Mobile Flinders” after three years as he felt it was time for a change.
27. The applicant also worked on a vessel called the “Sandra Marie” – a smaller general cargo ship with a 6,000 – 7,000 tonnage capacity. It had two different recreation rooms and lots of recreation periods. He stated that it was only at sea for two to three days at a time and his main duties involved watch-keeping, opening and closing hatches and general maintenance.
28. The applicant stated that he then worked on various other vessels including anchor handling tug supply (AHTS) vessels. The applicant stated that the AHTS vessels tended to pay crew more but were dangerous to work on as there was no railing around the stern, the cargo swung around the crew when the vessel was hit by waves, and the workers were always walking on slippery surfaces. The applicant stated that prior to commencing on the “Pacific Conqueror”, he was only on these other AHTS vessels for short periods of time.
29. The applicant commenced employment on the “Pacific Conqueror” on 2 November 1994 when he was 45 years of age. This was an AHTS vessel and was much smaller than the other bulk carrying and cargo vessels the applicant had worked on, being approximately 1,600 tonnes and with a crew of 9. The applicant stated that the “Pacific Conqueror” spent its time in the Timor Sea but that the equatorial waters were not calmer than other waters as they were open to the Indian Ocean and lots of swell came across, creating bigger waves. The applicant stated that there would be a cyclone once every three months during cyclone season. The applicant rated the sea conditions to those of Bass Strait, “quite choppy to fairly rough” and estimated the percentage of rough sea conditions to be 10%-15% of the time.
30. The applicant stated that his position on the “Pacific Conqueror” was as a Merchant Seaman with an Integrated Rating Certificate. The Certificate meant that the applicant was classified as multi-skilled and he could perform both deck and engine room duties. His duties aboard the “Pacific Conqueror” included watch-keeping, general maintenance, painting, chipping, cleaning, greasing, anchor and cargo handling and galley duties. His working arrangement was always five weeks on and five weeks off.
31. The applicant stated that compared with the previous vessels he had worked on, the “Pacific Conqueror” was smaller, noisier and not as clean. He stated that increasingly with the passage of time in performing his duties he began to experience some anxiety, agitation and a feeling of being confined and isolated. The applicant stated that his living quarters, the second mate’s cabin, were located in the front of the vessel and were very small compared with previous accommodation quarters he had stayed in on other vessels. However, he agreed that he had a bed, ensuite, settee, table and wardrobe for his clothes and that there was a porthole which let in natural light. The applicant stated that there was also less room to go for a walk on the decks as the after deck was generally full of cargo. This meant that the applicant was generally confined either to his quarters or the recreational room, which was basically a television room.
32. The applicant agreed that despite the small number of crew there was a mess room with portholes letting in natural light. He stated that he went to the mess room to dine and to watch the occasional video. Every swing, the vessel was provided with a video per day for the whole 35 day swing and if in port, the skipper would also bring on newspapers, magazines and books. The applicant agreed that in the mess room he could associate with the other crew members and have meals and snacks during the day. The applicant stated that he occasionally went ashore but on some swings there would be no port calls at all.. On other occasions, the port calls would only be for six hours. He agreed that once in port, he could go to restaurants and bars with other crew members.
33. In describing his average day aboard the “Pacific Conqueror”, the applicant stated that his shifts lasted for nine days at a time. He stated that his morning shift went from 8:00am to 12:00pm. From 8:00am to 10:30am he would start his watch and would also undertake cleaning and painting. He stated that “painting” was part of the constant maintenance required and was undertaken after rust was chipped from the vessel. From 10:30am to 12:00pm he would chip rust from the vessel. This involved using a pneumatic gun with nails. He stated that these guns were plugged into compressed air outlets and made an enormous amount of noise. He also undertook “greasing” which involved dragging a large drum of grease around the main deck to grease the windlass (a powerful heaving device for pulling anchors and towing) and other main parts.
34. The applicant stated that his next shift was between 8:00pm and 12:00 midnight. In between the morning and evening shifts he had a break period during which time he was supposed to be resting. The applicant stated that it was impossible to sleep as there was too much noise and so he would generally spend the time in his cabin reading magazines on woodwork and learning to play the keyboard. He also spent a considerable period of time just lying on his bed doing nothing. He stated that his cabin was very small, 2.6 metres long by 2 metres wide and his ensuite was 2 feet by 3 feet and consisted of a shower and toilet. The applicant stated that he was six feet tall.
35. The applicant stated that his sleep was regularly interrupted between 12:00 noon and 8:00pm by the noise and heat in his cabin and particularly during “rig calls”, when an oil rig would contact the “Pacific Conqueror” asking for supplies and the “Pacific Conqueror” would respond. The applicant stated that he would sometimes have to work from 6:00pm to 2:00am during a rig call. He stated that there was regularly noise during a rig call from the bowthruster, propellers located directly beneath the accommodation and used to manoeuvre the vessel alongside an oil rig for periods of one hour to several hours. The applicant stated that the anchor chain and winch were also immediately outside his cabin and the noise of the chain reverberated throughout the accommodation when being used or when waves crashed against the anchor during rough seas and bad weather.
36. The applicant stated that the engine was going almost all the time and it was also very hot because the air-conditioning would often break down. The applicant stated that the air-conditioning would break down at least once in a five week swing and whilst usually it broke down for about one to two hours, it once broke down for a period of ten days. He stated that the air-conditioning would always break down when he was sleeping and as soon as it went off he could not breathe as it was very hot and humid. The applicant stated that the hot conditions also aggravated his psoriasis as he had to wear protective clothing and his skin was in contact with grease and dirt. The applicant stated that this psoriasis made him feel self-conscious and embarrassed, especially about sharing accommodation with other crew members.
37. The applicant stated that about twice per swing the general fire alarm would also activate which on every occasion was a false alarm but which again interrupted sleep. The applicant stated that the general alarm was supposed to activate in the presence of smoke or heat. The applicant stated that there were also engine room alarms which were isolated and alerted the crew to malfunctions in the machinery. There were also occasions where the applicant’s sleep was disturbed by other crew members carrying out hammering and chipping. As the vessel was constructed of metal this noise would reverberate through the accommodation quarters. The applicant agreed that all chipping and hammering had to cease after 3:00pm. He stated that in general the guidelines were followed but occasionally someone would continue to chip or hammer outside the designated hours.
38. During his time on the “Pacific Conqueror”, the applicant was also concerned about additional risks to his safety. He stated that the vessel’s main function was to deliver and receive supplies and fuel from rigs situated in the Timor Sea and the North West Shelf seas. Cargo was loaded onto the deck area which was covered with a timber decking except for a bare steel strip which ran from the stern roller into the centre of the ship. The stern end of the deck was an open platform without guard rails. This deck area was slippery, was subject to spills such as salt, oils and grease and was often flooded with water as waves crashed over the stern roller and the applicant was not provided with a safety device or harness but he was required to wear steel-capped boots, overalls, a hard hat, eye protection and a life jacket. The applicant stated that he was afraid of falling overboard. The applicant stated that although attempts were made to clean the deck and mop up the water, when the waves were continuous, this was impossible, and in terms of cleaning off debris, there was never enough time to do it properly.
39. Cargo was transferred by crane between the “Pacific Conqueror” and the oil rig and this resulted in large containers often swinging overhead whilst the applicant and other workers helped to load and unload on deck. The applicant stated that he was often afraid of the possibility of the wires and ropes holding the cargo snapping or breaking whilst overhead.
40. The applicant stated that he developed a fear of accidents and recalled three incidents where he felt that he was in danger. The first incident involved a rig call in bad weather in 1995. The rig needed helicopter fuel and the captain ordered the applicant and two others to hook the crane to the fuel container. A large wave came over the stern and picked the applicant off his feet and slammed him into the cargo. The applicant stated that the deck was left in one metre of water and he had to hang onto the cargo to avoid being washed overboard. The applicant stated that at the time he was working with the mate, who told him to report the incident to the skipper as he had suffered abrasions and bruises. The applicant stated that he did so and then continued with his work. After this incident he became very afraid of working with cargo under the crane near the stern roller of the vessel.
41. The second incident occurred when the applicant was picking up a buoy with a cable attaching it to the vessel. When he bent down to pick up a hammer, the cable snapped and swung around, just missing the applicant’s head. The applicant stated that he believed if it had struck him it would have decapitated him. The applicant stated that this incident made him more aware of working around wires. The applicant stated that he was working with one other person at the time and the incident was witnessed by the skipper who was relieving the mate on the bridge. After the incident, the applicant asked the skipper about it and the skipper had replied that he “did not realise how much power was on the engine” at the time. The applicant stated that since the incident, he started to feel scared during rig shifts, when there were lots of cables and chains swinging around.
42. The applicant stated that a third incident occurred in 1997 in Darwin involving a gangway. One of his fellow crew members was holding the gangway with ropes whilst the applicant stood on it attempting to shackle it into place. The gangway slipped half a metre, causing the applicant’s ribs to hit the railings. As he was due to go on leave the following day, he flew home and saw his doctor, who referred him for a chest x-ray, identifying a fractured rib. The applicant stated that after this incident, he was too afraid to step onto the gangway unless it was totally secured.
43. The applicant stated that he became afraid because of these incidents and was particularly fearful of working with the cargo due to several near misses. He also mentioned being anxious when there were pipes on deck, which moved around a lot until they were secured. The applicant was afraid that if the pipes moved whilst he was securing them he could be crushed.
44. The applicant stated that he began to first experience symptoms of anxiety and feeling confined and closed in about 1996. The applicant stated that these feelings caused him to feel depressed, irritated, frustrated and anxious and these feelings increased with each five week swing. The applicant stated that his feelings of anxiety increased over time and became clear to the people he worked with as a number of comments were made to him about it. The applicant stated that he tried to ignore the comments and persisted with his duties and hoped he was only experiencing a short term problem. In his written statement, the applicant stated (Exhibit A7, page 7-8):
“I did not consult a medical practitioner during this period which is over about 1996 to 1998 because I had hoped that I would recover from these symptoms. I tried to deal with my situation myself the best way I could. I began to have difficulties at home when I returned from swings including arguments and disagreements with my partner. My libido decreased and I became withdrawn. My hands would shake frequently. My symptoms would usually occur particularly close to the time when I was due to go back on board the vessel. These would usually occur close to the time when I was due to go back to work.”
45. The applicant stated that he had worked as a seafarer since 1966 on many vessels, but the “Pacific Conqueror” caused him to develop problems with anxiety because he felt that he was forever being placed in danger and was constantly getting bumps and bruises. Compared with the other AHTS vessels, the applicant stated that he only spent very short periods of time on these and his work on the “Pacific Conqueror” involved much more anchor handling and cargo work, which placed him in danger.
46. The applicant was referred to the various occasions over the years when he was involved in disciplinary action. The applicant explained that whenever an incident occurred on board a vessel, it would be recorded as a “logging” in the ship’s log book. Such an incident could be related to conduct or to just a change in weather. The applicant stated that in relation to conduct, the crew member had an opportunity to challenge the logging. The applicant stated that in 1975 whilst he was aboard the “Nancy Heath” a logging was made in relation to his conduct. After the applicant made submissions in relation to this, the original outcome – sacking – was reduced to a written warning. The applicant stated that the logging process in that situation was “okay” and he stayed with the “Nancy Heath” for a further five years.
47. The applicant further stated that in 1991, there was an incident aboard the “Sandra Marie” involving the applicant in which it was claimed that the applicant assaulted the chief officer. The applicant stated that the matter was referred to the marine council. The applicant stated that he was aggrieved by these allegations and the Union became involved and as a result he decided to resign in 1993. The applicant agreed that this process was reasonably traumatic for him to go through. The applicant stated that he worked on various other vessels after this time before working on the “Pacific Conqueror” and that therefore the industrial issues in which he had been involved had no bearing on his employment with other vessels.
48. The applicant stated that he had been involved in two disciplinary incidents aboard the “Pacific Conqueror”.. One incident, which he described as being as serious as the incident aboard the “Sandra Marie” involved an altercation with the captain of the ship in relation to an argument with the chief officer and not finishing his watch. He received a formal warning and the incident was referred to the marine council, which stated in its subsequent report that he could be excluded from the maritime industry if he breached the code of conduct again. The second incident involved him being unable to be roused for a watch due to intoxication in September 1997. The applicant explained that he had gone ashore and had had several beers as the weather was hot. When he came back on board the “Pacific Conqueror”, he fell asleep and the captain was unable to wake him for his watch. The applicant stated that he apologised for this incident and was given a written warning. He stated that he felt very embarrassed by the incident and was happy with the way the captain dealt with the situation.
49. In relation to the psychiatric report prepared by Dr Terace, the applicant stated that Dr Terace saw him only once for about 45 minutes and did not appear to be interested in what the applicant had to say about the causes of his problems and only seemed interested in the disciplinary actions. The applicant stated that Dr Terace cut him off and did not ask him about the risks aboard the “Pacific Conqueror”, the heat, accommodation, sleep deprivation, anxiety or his relationship with Ms Armstrong. The applicant stated that he did not see the reports of Drs Tan and Ford in Dr Terace’s possession.
50. The applicant stated that he injured his lower back whilst aboard the “Pacific Conqueror” in August 1998. The applicant gave evidence that he was lifting heavy shackles, which weighed approximately 30 kilograms, from floor level to waist height in order to put them on a rack and felt a dull ache in his lower back as he leaned forward from the waist with his arms outstretched to place the shackles on the rack. The applicant stated that he did not tell anyone about the incident because the dull ache went away almost immediately and he continued with his normal duties of general cleaning and maintenance for the next two hours. During that shift he stated that he did not undertake any heavy duties and did not have to do any stair climbing or painting. The cleaning involved cleaning dirt from the bulkheads with a brush, hose and bucket of water. The applicant stated that after his eight hour break he completed his evening watch on the bridge listening to the two way radio and went to sleep at midnight.
51. The applicant stated that the following morning he was lying down when called to his watch. He got up and twisted around so he was sitting on the side of his bed and he turned as he jumped about 85 centimetres to the floor. The applicant stated that whilst doing this he felt a sharp pain in his spine in the same area as he had experienced the dull ache the day before so he lay down again for about 20 minutes. He stated that when he got up for the second time, the sharp pain had reduced to a dull ache and so he went down to breakfast. The applicant stated that only the watchkeeper was present at breakfast and the applicant did not mention the pain to him as it had gone away.
52. After breakfast the applicant stated that he was on deck and picked up a drum of liquid soap and immediately felt a twinge in his spine. He stated that the pain lasted for about ten minutes before becoming a dull ache, so he did not report it. The applicant stated that he continued with his normal duties including lifting, bending, cleaning and general maintenance, but not chipping or hammering, that day. The applicant stated that he might have been called in to move cargo and that he would have completed his night watch on that day.
53. The applicant stated that he continued working his normal duties although he avoided heavy activity for the rest of his swing. The applicant stated that it was only a short time until his five week break during which time he would be able to rest his back to ensure the problem had gone away. In relation to his five week break and return to work, the applicant stated in relation to his lower back and also mental state (Exhibit A7, pages 9-10):
“16. When I was at home I avoided activities hoping to allow my back to recover. I was still experiencing occasional aches in my lower back region. These symptoms were together with anxiety depression and a fear of going back to the confined spaces of the Pacific Conqueror. These symptoms were the focus of my attention. Also at this time I recall having increasing sleeplessness at night and a lack of appetite. I had noticed that my sleeplessness had increased. I had previously started experiencing that symptom after about two years of working at the Pacific Conqueror but the sleeplessness was increasing at around about September 1998. When I did sleep I was experiencing nightmares about being back on the vessel which actually woke me up. These dreams would occur possibly on average about once a week. I was generally very anxious and experiencing depression. My partner had noticed that towards the end of 1998 I was experiencing very severe symptoms of anxiety, depression and agitation. I told my partner Maggie about the lower back incident. I did not see a doctor as I hoped I would recover.
17. By the time I was to return to the vessel in about October 1998 I was feeling depressed, anxious and had some pain in my lower back but I persisted in trying to perform my duties. I was embarrassed to admit or accept that I was not coping with my employment conditions. I was also concerned about losing my job given my age and my poor education and lack of other experience.
18. I returned to the vessel in October and remained there for the five week period. When attending at the airport to depart for the vessel in October 1998 I recall throwing up. I was afraid and didn’t wish to return to the vessel. I was trembling and felt ill at the prospect of having to return to such confined spaces and the noisiness of the environment.”
54. The applicant stated that every time he picked up something heavy the dull ache would return but because the pain kept coming and going whilst he was working, he thought that it would just go away with time so he did not report it to anyone. The applicant stated that he had numerous other injuries aboard the “Pacific Conqueror” which he also did not report. The applicant stated that he was aware of the requirement to report injuries straight away and he stated that he previously had a cut on his finger that he reported as soon as it became septic. The applicant stated that if he could get on with his normal duties then he would not report an injury.
55. The applicant stated that it was only when he saw an orthopaedic surgeon that he identified the two incidents as causing his disability. The applicant stated that the orthopaedic surgeon’s questioning was more precise, asking about the shackles incident and also what happened the next day.
56. There was some discrepancy as to the date upon which the applicant notified the respondent of his work-related injury. The applicant was referred to his work-related injury claim form dated 17 December 1998 and stated that when he saw Dr Tan on 30 November 1998, he wrote a medical certificate which the applicant then immediately posted to the respondent, followed by another medical certificate a week or two later after another appointment with Dr Tan. He remembered sending in a third medical certificate as well. He recalled that Dr Tan had told him that the certificates had been sent back to him. The applicant stated that he had no knowledge why the first medical certificate dated 30 November 1998 was date stamped as received by the respondent on 21 December 1998.
57. When asked why he did not identify any incident as causing his back pain on his claim form (T7/24-25), the applicant stated that there was not much room on the form to identify any incident and he thought that he had completed the form adequately. When referred to the Seafarers’ Rehabilitation and Compensation form (T7/26-27), the applicant agreed that there was plenty of room on the form to detail the circumstances of the accident but stated that he was under the impression that the respondent did not want the details of particular incidents but just the cause of the injury. The applicant agreed during re-examination that he had had no legal assistance when filling out the claim forms..
58. The applicant stated that by letter dated 8 January 1999, the respondent had asked him why there was no report or entry in the ship’s log about his injuries and that he had replied by letter dated 13 January 1999 (T10/32) that his back pain had been a “gradual thing”.. The applicant agreed that this letter was correct in that the back pain gradually got worse over time.
59. The applicant stated that he had identified specific incidents to Dr Tan which were subsequently not recorded in his medical certificates. The applicant stated that he also told Dr Tan that the pain had gotten worse whilst he was on leave.
60. The applicant stated that his next swing was scheduled for mid-December and someone rang him up to start on a particular day. The applicant stated that he had told them that he was unfit for work and had three medical certificates and had also told Mr Hearnden, the Manager of the respondent. The applicant stated that the person did not say anything and he did not commence on the next swing. At the time he had not sent in a claim form but had sent in the medical certificates and the respondent had sent several letters to him.
61. The applicant stated that he saw Dr Ford, psychiatrist, on referral from Dr Tan. He agreed that when he saw Dr Ford he had provided Dr Ford with the details of his symptoms, including his feelings of confinement, isolation and his sleep deprivation but that Dr Ford did not look at any pictures or plans of the vessel. The applicant stated that he had provided Dr Ford with details about his difficulties with other crew members as well as detailed facts about the vessel, including the location of his living quarters and his general duties and hours worked.
62. The applicant stated that he did not mention any of the incidents to the other crew members aboard the “Pacific Conqueror”.. The applicant agreed that generally the same people were on each swing although there were quite a few changes in the crew during the four years that the applicant worked on the “Pacific Conqueror”. The applicant agreed that there were changes in the seafaring industry in 1998 in that prior to this time, a seafarer was industry-employed but after 1998 a seafarer was company-employed. The applicant stated that such changes had no impact upon his employment with the “Pacific Conqueror”.. The applicant gave the opinion that crew changes were not due to the industry changing that rather people tended to stay in the maritime industry because of its good wages but moved from ship to ship depending upon their work preferences.
63. The applicant denied that he ceased work on the “Pacific Conqueror” because he did not want to work on AHTS vessels any more. He denied leaving the “Pacific Conqueror” because it was “no fun being at sea” and because he “could not go ashore any more like he used to”.. The applicant stated that he could not cope with working on the vessel any more. The applicant stated that he last worked aboard the “Pacific Conqueror” in October/November 1998 and on the day he left he recalled saying goodbye to a number of workmates and telling them he was unable to cope with his work any longer and would not be returning.
64. In relation to the current state of his lower back, the applicant stated in his written statement (Exhibit A7, page 14):
“25. I have experienced ongoing pain and discomfort in my lower back which is constantly present in the form of a dull ache in the centre of my lower back which is aggravated by physical activities such as bending, lifting, twisting including working in the garden, sitting for long periods and being involved in any jarring movements. I took medication for my lower back injury. I took anti-inflammatory medication for my lower back and have had physiotherapy and chiropractic treatment. I have also had acupuncture. I have also had hydrotherapy and palaetish treatment. None of these forms of treatment have improved my symptoms. I have been managing my symptoms over the last few years by avoiding activities which I know will produce increased pain and discomfort. I have consulted specialist orthopaedic surgeons and I understand that I have an ongoing disability in my lower back.
26. I have constant pain and discomfort affecting my lower back made worse by various physical activities.”
65. In relation to the current state of his psychological condition, the applicant stated (Exhibit A7, pages 15-17):
“27. … Dr Ford has prescribed medication for me and I have been taking antidepressant medication daily since 1999. Initially Dr Ford prescribed Effexor medication which I took 70 milligrams per day. I had previously been on Cipramil prescribed by Dr Chester. The amount of medication I was taking was reduced to 35 milligrams after about a year of first consulting Dr Ford but I began to experience increased symptoms of anxiety and depression and the dosage of my medication was increased. I have taken and continue to take one 70 milligram tablet of Effexor at night time per day.
28. I feel that the medication has assisted in relieving some of the intensity of my symptoms but I still experience anxiety, depression and sleeplessness. In addition to this treatment of me Dr Ford also referred me to a psychologist, Luciano Guglielmin who I saw on a regular basis for treatment. I consulted Mr Guglielmin initially weekly and then fortnightly and eventually monthly, six weekly and then bi-monthly and this was until about the end of 2000.
…
37. … For a significant period of time particularly initially after November 1998 and then again when I was taking 35 milligram medication I was anxious and afraid and depressed and had little enthusiasm for social or recreational activities. Lately with the assistance of my medication I have been more interested in going out. My personal life has been significantly adversely affected by my condition. I had difficulties with my personal relationships with my partner because I was experiencing anxiety, irritability, frustration, anger, depression and a loss of libido but with the assistance of the psychiatrist and psychologist my relationship has been stable for some time. I still continue to experience trembling of my hands which tends to happen at random and with no particular cause that I am aware of but this has only occurred since about 1996.”
66. The applicant stated that he has not obtained any other employment since he last worked on the “Pacific Conqueror” in 1998. The applicant stated that he has been in receipt of sickness benefits from Centrelink until six to seven months ago when his doctor, Dr Pye, declared him “fit for light duties”, meaning unable to lift more than 10 kilograms. Since then the applicant has been surviving financially on Centrelink Newstart Allowance benefits. The applicant stated that in the year 2000 he undertook a full-time sound engineering course to try and obtain some skills in another field. He had some work experience in theatre production work in his partner’s theatre production where he sat at the sound mixing console and “turned the faders up and down” and also with the Noel Coward Society in the Arts Theatre at Angas Street, where on one occasion he put radio microphones onto the actors’ clothes. The applicant stated that he has been unable to obtain any remuneration from sound engineering work. The applicant stated that he has just completed another course in video production. The applicant stated that his interest in sound engineering stemmed from playing the keyboard and he can play the keyboard and piano reasonably well. He stated that learning a piece of music takes him a long time because he cannot sight-read and must read and memorise the music.
67. The applicant agreed that he would be happy to work as a sound engineer. He described the duties of a sound engineer to be operating the recording studio console, altering the volume of different tracks with the equipment, overlaying other musical equipment. The applicant stated that the work requires skill relating to music and in particular frequency ranges. The applicant told the Tribunal that whilst undertaking his course he attended lectures, took notes, read handouts, read one or two books and sat for an examination. The applicant stated that he did not know if he passed the examination as the college was withholding his results until he finished paying off his course fees. The applicant agreed that therefore he could operate technical equipment if given the opportunity to learn about it.
68. The applicant also agreed that he could undertake clerical duties and if trained, he could undertake work as a ship’s clerk or a clerk in a shipping firm or agency. The applicant stated that he has not looked for clerical work as he is not trained. The applicant stated that since he was declared fit for light duties, he has also unsuccessfully applied for work as a food and beverage attendant and as a machine operator. He stated that he was told that they needed people with experience.
69. In terms of the range of clerical duties, the applicant stated that he was not sure if he would be able to undertake filing duties or arrange conferences. He agreed that he could answer telephones, organise mail coming in and distribute it to personnel and undertake photocopying tasks. The applicant was not sure if he would be able to work as a sales assistant selling goods for use on ships but agreed that he could sell musical equipment. The applicant also agreed that he could undertake work in a courier’s office, picking up items, finding the correct address and delivering items. The applicant qualified this by stating that he had trouble reading maps. The applicant further agreed that he could work as a travel or accommodation adviser, ringing up airlines for tickets for personnel to fly out to vessels to resume duty or arranging for hotel accommodation.
70. The applicant agreed that at least at the time he saw Dr Terace in March 2000 he was feeling a lot better but still did not have the confidence to obtain employment. The applicant stated that at the time he saw Dr Terace, he might have been physically feeling 9/10 but psychologically he was not. The applicant stated that as at the time he saw Dr Terace he was undertaking courses and had tried to obtain work as a food and drink attendant and machine operator.
71. The applicant stated that whilst assisting with his partner’s theatre group he also assisted in catering, serving cups of tea and cake about one year ago. He stated that he was given a budget of $100 and he went to the supermarket to buy provisions. The applicant stated that he took a calculator along and added up each item and afterwards he took the provisions home and prepared them before delivering them to the theatre group. However, the applicant stated that he could not work in a coffee shop as he has had panic attacks before whilst handling money as he becomes confused when adding and subtracting. The applicant stated that he currently does have a bank account and he just files away his bank statements. He agreed that he pays his bills at the GPO without having panic attacks.
ms maggie ellen armstrong
72. Ms Maggie Ellen Armstrong is the applicant’s defacto partner. She has known the applicant since approximately 1976 and they began a relationship in 1988. She has been co-habiting with the applicant continuously since 1990. At the hearing, Ms Armstrong affirmed that her written statement (Exhibit A8) was true and accurate and that she intended for it to form the basis of her evidence.
73. In her written statement, Ms Armstrong stated that for the last three years she has held the position of general manager of a theatre company called “Vitalstatistix”. Prior to that she was the direct marketing manager of the Festival Centre for a period of 13 years.
74. In describing the applicant’s personality and behaviour prior to commencing on the “Pacific Conqueror”, Ms Armstrong stated in her written statement (Exhibit A8, page 2):
“6. … In the initial period of our co-habitation from about 1990 until about 1995 or 1996 when I recall first observing a significant change in his personality, I would describe Michael as a quiet man who enjoyed playing music. I would describe him as a happy person who enjoyed his home life and socialising with mostly my work colleagues and friends. He did not have many friends himself. Michael’s main activities at home were his music and I recall he started to learn to play the key-board and became involved in woodwork and made a number of articles at home during the period from about 1990 up until about 1995 or 1996.”
75. In terms of the applicant’s behaviour and personality since commencing on the “Pacific Conqueror”, Ms Armstrong made the following comments in her written statement (Exhibit A8):
“7. We enjoyed a good relationship in all respects until about 1995 or 1996 when I first recall observing some changes in his personality. I am aware that Michael commenced work as an Able Seaman on The Pacific Conqueror in about the mid 1990’s. I do recall that the changes I observed in him occurred after his started work on The Pacific Conqueror. The first main change that I noticed in about 1995 was that his libido had decreased quite substantially and quite rapidly to the point where I raised it as an issue. At the same time I recall that his psoriasis which he suffered from had also begun to occur more frequently and with more intensity. I also recall at about this time whilst he has always been a fairly quiet person he was never difficult to talk to or for me to communicate with but I started having difficulties in communicating with him as he tended to become withdrawn. By this stage I had formed the view that clearly there was something wrong with Michael but had tried to talk to him about it on a number of occasions but he simply wouldn’t communicate about what difficulties he was experiencing at the time.
8. I am aware that he would work four to five weeks away at sea in what is known as a swing. During the course of 1995 or 1996, I observed that when the time approached for him to return to sea, he became more withdrawn and agitated and appeared to me to be irritable and his sleeping pattern was also by this stage becoming affected. His sleeping pattern became fitful on a regular basis particularly as the time approached for him to leave to go back to the vessel. I also noticed that his hands would tremor which over the course of the period 1995/1996 soon seemed to became a fairly permanent aspect of his presentation..
9. Prior to 1995 or 1996, Michael had no impairment with respect to his libido. He did not appear to have any sleeping difficulties. His psoriasis was under control and his hands did not tremor. He was also easier to communicate with. In the period from 1995/1996 until he left The Pacific Conqueror in 1998 these symptoms were frequent and increased in severity particularly leading up to the dates of his departure for the vessel. I would also notice during this period that he was still anxious and withdrawn and generally seemed down when he returned form the vessel but over a period of about a week or so following his return his symptoms would tend to decrease for a short period of time and then flare up again in approximately the week leading up to his departure. However, as time passed and his symptoms increased, there appeared to be no relief from the symptoms between swings and I observed him to have these difficulties during the entire period of his leave between swings.
10. I recall on a couple of occasions during the period 1995 or 1996 to when he last worked on The Pacific Conqueror that I commented to him that he should seek some psychological assistance. He would simply say that he couldn’t cope with this particularly work that he was doing. He would be no more descriptive about his situation. Also during this period between 1995 or 1996 and when he lasted worked on The Pacific Conqueror he gradually lost the motivation and enthusiasm for participating in activities that we had undertaken before, such as going for walks, going to the beach, coming out with my friends and planning activities together. I am aware that Michael has sustained an injury to his back in an incident involving a bunk as I recall and that he has had ongoing problems with his lower back. From my point of view his psychological injuries are more severe and I have paid more attention to those issues. However I have observed him at home doing less woodwork and having to stand and take breaks and stretch and he has asked me to massage his back and complained of pain in his lower back for some time.
11. Michael used to assist me with the heavier lifting around the garden at home where I have chickens and I am required to move things such as bags of wheat and he has not assisted with that activity for a number of years now and he has indicated to me that this is because of the pain he experiences in his lower back when trying to lift. I have massaged his back on a number of occasions and have seen him grimace and a pained expression on his face when he gets up after having been seated for a lengthy period of time.
12. I recall the last occasion when Michael was to go to The Pacific Conqueror. When I was driving Michael to the airport towards the end of 1998 he started crying and trembling and was very distressed about having to go back to work. This was the first time that I had seen this sort of reaction and seen him in this state. He was very distressed and kept repeating “I can’t go”.. I was very concerned for his wellbeing at this stage. He didn’t explain why it was that he couldn’t go. He had complained to me of the confined spaces on The Pacific Conqueror, the noise and his inability to sleep on a number of occasions. When Michael returned from The Pacific Conqueror on leave following the last occasion that he was on the vessel, I pushed him to get some medical assistance. I considered that he might have had a breakdown and I was very concerned for his health and well-being. He appeared not to be able to concentrate and think clearly and his psoriasis had flared up, he was trembling severely and he appeared to be very withdrawn and downcast. I had to push Michael on this occasion because I was very concerned for his health. I would describe him as a proud person who would tend to suffer in silence rather than get some assistance. I am aware then that finally by about the end of 1998, he consulted a medical practitioner and has not returned to work since. I am also aware that he has consulted doctors for his back and a psychiatrist and psychologist and has continued to take medication on a daily basis which I observe.
13. His personality has changed.
14. For most periods since late 1998, Michael has been on medication and this has assisted him in presenting more calmly although he still continues to have fitful sleeps and virtually no libido and tremors. However, there have been some periods when he has not been on any medication and during those periods he returns quickly to a very distressed state on a daily basis..
15. Michael’s personality has certainly changed. Without his medication I recall an example on one occasion when friends came to visit that during the course of the evening he was irritable, agitated and very edgy. With his medication he seems to be able to function a little better. Generally I would say that Michael is not the same person that he was prior to working on The Pacific Conqueror. His personality is different in the ways I have described above.”
dr nicholas ford, psychiatrist
76. Dr Nicholas Ford, psychiatrist, has seen the applicant on numerous occasions and prepared five reports in relation to the applicant, dated 30 August 1999 (T27), 9 December 1999 (T26), 18 May 2000 (T25), 21 June 2001 (T24) and 28 August 2001 (T23).
77. In his oral evidence, Dr Ford stated that his opinion as to the applicant’s condition remains the same as in his reports. Dr Ford stated that his diagnosis of the applicant was of having generalised anxiety disorder. He explained that people with this disorder live in a state of constant anxiety which is pervasive and continuous. He contrasted this disorder with panic disorder, where a person has discreet episodes of increased anxiety and experiences physical symptoms such that the person thinks they are going to die. Dr Ford stated that often patients have panic disorder with generalised anxiety disorder but in the applicant’s case he did not have panic attacks of that intensity but rather just had the constant anxiety. Dr Ford stated that generalised anxiety disorder is very common in high risk occupations, such as fire-fighting and police work.
78. Dr Ford stated that the applicant’s current treatment regime involved taking 112.5 milligrams of Venlafaxine per day. His dosage was increased in December 2001. Dr Ford anticipates seeing the applicant in the next two to three weeks about his Tribunal case and then in several months’ time and then again in another two years. Dr Ford stated that when he saw the applicant on the Friday before the Tribunal hearing began, the applicant was extremely nervous but the applicant had improved on medication despite the pending litigation.
79. Dr Ford stated that seafaring is a high risk occupation as far as psychiatric problems are concerned but that very little has been written about it. He stated that there is only medical literature from Poland relating to fishermen. He stated that alcohol and drug abuse is common and that seafarers experience mixed anxiety and depressive conditions. Dr Ford stated that the Polish data revealed that behaviour disturbances among fishermen decreased with age but neurotic, depressive and anxiety conditions tended to increase with age. Dr Ford stated that only one publication looked into the specific stressors causing these problems and found the most significant to be noise, climatic differences and difficulties getting on with other people. He stated that it appeared that the seafarers’ tolerance to stress decreased over time.
80. Dr Ford told the Tribunal that he has been a major in the Army reserve for the past two years and has been studying conditions such as post-traumatic stress disorder. He stated that he has looked at the situations of police officers, ASIO officers, firefighters and army personnel as well as officers posted abroad. He stated that whether they developed psychiatric symptoms depended upon where they were located, the level of isolation they experienced and the types of traumatic incidents they encountered. Dr Ford stated that he did not have any personal experience with merchant seamen but had seen a number of fishermen in the south east of South Australia. Dr Ford agreed that his knowledge of the activities of merchant seamen was vicarious in the sense that he gained the knowledge through reading, discussing seafaring life with several family members in the Navy and through the applicant. Dr Ford stated that he did not know if the activities differed from vessel to vessel and that was why he researched the available literature.
81. Dr Ford gave evidence that the applicant told him that his difficulties were present in August 1998 but he had had problems for quite some time. Dr Ford stated that the applicant’s partner, Ms Armstrong, had told him that the applicant has been exhibiting behavioural problems for the past five years, with an increase in the last three years (from 1994-1999). Dr Ford stated that when at his suggestion the applicant’s medication was decreased, the applicant promptly relapsed, which to Dr Ford suggested a recalcitrance in relation to his condition.
82. Dr Ford stated that during the course of his consultations with the applicant he referred him to a clinical psychologist, Mr Luciano Guglielmin, who assisted the applicant with psychotherapy in conjunction with his medication. Dr Ford stated that psychologists are generally cheaper to visit and have more time for discussion and to teach anxiety management strategies. Dr Ford stated that the feedback he had received from Mr Guglielmin was that he had been meeting monthly with the applicant and that he thought the applicant was getting better and stabilising until he stopped taking his medication.
83. Dr Ford stated that patients in general are more truthful with their treating specialist and as patients become more comfortable with a specialist, they reveal more and patterns they have missed may emerge. Dr Ford gave the opinion that it would be difficult to prepare a medico-legal report after only one interview with a patient.
84. Dr Ford stated that in the applicant’s case, the information that he had before him was the history given by the applicant and his partner, and reports from the psychologist, orthopaedic surgeon and Dr Terace. Dr Ford stated that he used these reports to cross-check the history given to him. Dr Ford was of the opinion that the applicant was a reliable historian. Dr Ford stated that his discussions with Ms Armstrong confirmed the diagnosis, corroborated the history and offered another person’s point of view.
85. Dr Ford stated that the applicant told him at the first interview about the three or four disciplinary incidents in which he had been involved. When referred to the disciplinary action aboard the “Sandra Marie” in 1993, Dr Ford stated that the applicant had told him that at the time he had felt threatened and resentful and he was particularly upset about the way that it concluded. Dr Ford gave the opinion that he thought the applicant’s anxiety started on the “Sandra Marie” and increased over time. Dr Ford further gave the opinion that the situation aboard the “Pacific Conqueror” may have exacerbated a pre-existing condition and that perhaps in another situation, the condition may not have developed.
86. Dr Ford stated that the applicant had told him about the disciplinary action aboard the “Pacific Conqueror” in 1997 regarding the alcohol incident and that the applicant had told him he was satisfied with this outcome. Dr Ford stated that based on the history provided by the applicant’s partner, the applicant would have been having difficulties with anxiety at the time this occurred.
87. In considering the factors which contributed to the applicant’s condition aboard the “Pacific Conqueror”, Dr Ford referred to the noise, sleep deprivation and heat and the traumatic incidents the applicant experienced, such as the time he was nearly washed overboard, nearly having his head taken off by a cable and having cargo swinging above him. In addition although the applicant had stated that he got on well with the officers this was belied by conflict with them. Dr Ford stated that the applicant’s partner had told him that the applicant was a “blocker”, meaning he is disinclined to acknowledge his anxiety symptoms to others. Dr Ford stated that the applicant’s feelings of anxiety led to increased sensitivity to noise, problems sleeping and difficulty getting on with others. He stated that the applicant had told him that he also had nightmares about being on the boat and being unable to sleep due to noise. He further stated that because of his anxiety condition, the applicant could have become hyper-responsive to noise and displayed a startle response even though the noise on board the “Pacific Conqueror” was no louder than aboard any other vessel. Dr Ford stated that alternatively, the applicant may not have been able to sleep because of his anxiety and was blaming inability to sleep on noise. Dr Ford stated that it was difficult to discriminate between noise and a person’s perception of noise. Dr Ford stated in relation to the noise from crew members undertaking hammering and chipping work that the applicant had told him that the restrictions on the hours in which one could carry out this type of work were not complied with.
88. In relation to the hours in which the applicant worked on the “Pacific Conqueror”, Dr Ford stated that the applicant had told him that he worked four hours on, eight hours off and then four hours on, but when there was a rig call, he would work eight hours instead of four. Dr Ford agreed that the applicant had periods of eight hours off to sleep and rest but stated that the applicant had told him that he could not sleep due to noise, heat and anxiety. Dr Ford agreed that the applicant had the second mate’s cabin with an ensuite and that on board the “Pacific Conqueror” there was also a mess room with windows to let in natural light, a video, dining room and library and that the applicant had ample opportunity to stay in the mess room or walk around the deck.
89. In relation to the heat, Dr Ford stated that the applicant had told him that the air-conditioning would break down regularly and although it was repaired within hours, the applicant could not by that stage go back to sleep. In addition, Dr Ford stated that it was the applicant’s perception that the heat was difficult to tolerate.
90. Dr Ford stated that he was not surprised that the applicant never mentioned being anxious to his employer. He stated that the applicant is a “blocker” and therefore would not acknowledge his anxiety symptoms but rather would become irritable and would withdraw into himself. Dr Ford gave the opinion that it was common in the type of environment the applicant was in that one would not tell one’s workmates about a problem. Dr Ford observed in addition that it did not appear that the applicant had formed any close friendships whilst at sea. Dr Ford stated that there was evidence in the disciplinary incidents in which the applicant was involved suggesting a person experiencing difficulties, eg, becoming involved in a fracas with the chief officer and being too drunk to do one’s shift. Dr Ford stated that he was not aware of the intoxication incident at the time of receiving his first history from the applicant but he was aware of the other incidents. He stated that he did not know if the applicant told him about the intoxication incident or if he read about it in Dr Terace’s report but the incident was of concern to Dr Ford. Dr Ford gave the opinion that it is possible that the various disciplinary incidents, including the one on board the “Sandra Marie”, could have caused the applicant’s generalised anxiety disorder but stated that on the other hand the symptoms of the applicant’s generalised anxiety disorder may have caused the intoxication incident aboard the “Pacific Conqueror”.
199. Ms Aria-Retnam submitted that according to the applicant, with regards to his continuing to complete his August swing, he told his surgeon that in continuing to work he avoided the heavier duties. She submitted that despite this the applicant did not report any injury although he knew that he was required to do so and that there are stringent requirements before one is able to go on board the vessel. She further submitted that to be eligible for employment the applicant had to pass a medical certification and AMPSA test. She stated that if he was unable to carry out his normal duties, he could be endangering the lives of his fellow employees.
200. Ms Aria-Retnam submitted that the applicant saw his general practitioner on 30 November 1998. As previously stated, the applicant did not report the incident then. However, he did at a later time send in medical certificates and a Workcover form to the respondent which had upon them a date stamp of 21 December 1998. Upon receipt of these the respondent forwarded to the applicant an SRCA form for completion and which the applicant returned to the respondent on or about 7 January 1999. In so returning the SRCA form the applicant did not provide any medical certificates, resulting in the respondent requesting more details from the applicant. In fact it was submitted that the applicant never made an SRCA claim which was supported by medical certificates.
201. Ms Aria-Retnam submitted that in the course of the hearing, the applicant’s counsel, Ms Chambers, questioned the attitude of the respondent and its not writing to the applicant’s general practitioner. She further submitted that it was not until after receiving the applicant’s letter dated 13 January 1999 (T10), wherein he referred to being unable to give an exact date for his occupational stress and which he claimed was of gradual onset, that the respondent declined the claim.
202. In so far as the evidence of the applicant’s doctors is concerned and in particular that of Mr G. Potter, orthopaedic surgeon, and Dr N. Ford, psychiatrist, it was submitted that as they are the applicant’s treating practitioners then their evidence would support him. She submitted that neither have ever been on an AHTS vessel and that they are wholly reliant on the history given them by the applicant. It was further submitted that both Mr Potter and Dr Ford were not given the whole history and that important details were not given.
203. Ms Aria-Retnam submitted that on the evidence given by Dr Ford, he is very interested in post-traumatic syndrome and he also gave the Tribunal “some fairly horrific incidences of trauma.” She submitted that the Tribunal needed to give more care and to consider the evidence of Dr Terace, who was well aware of post-traumatic incidences and questioned the applicant very carefully.
204. In concluding, Ms Aria-Retnam submitted that the applicant failed to comply with the SRCA, did not suffer a back injury and certainly not one of a lasting nature. She submitted that he may have suffered some general anxiety when returning to the vessel at the beginning of the swing but such in her view passed quickly. She also submitted that the applicant has not suffered any permanent psychiatric disability..
205. Ms Aria-Retnam questioned why the applicant did not resign if he in fact was finding it hard in employment on the vessel. She submitted that on the evidence it was clear that the applicant had worked on AHTS vessels since the mid-1980s and that he described the vessels as being virtually identical. She questioned what it was about the Pacific Conqueror that he did not like and that in any event he was industry employed. She submitted that at no time did he return to the roster for employment on another vessel, nor did he ask the respondent for a transfer to another vessel. She also submitted that the applicant, having ceased to work with the respondent, did not return to any form of remunerative employment because he did not want to do so.
Discussion and Findings
206. The Tribunal in arriving at its decision has taken the evidence as a whole into account including all of the medical evidence and the submissions of Counsel. In considering whether an injury arose out of or in the course of employment, regard must be had to section 9 of the Act, which provides:
“Injury arising out of, or in the course of, employment
9.(1) This section does not limit the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment.
(2) An injury is also to be treated as having so arisen, for the purposes of this Act, if it happened:
…
(b)if the employee is a seafarer:
(i)while the employee was on board the prescribed ship on which he or she was employed or engaged; or
(ii)while the employee was temporarily absent from that ship during an ordinary recess in that employment and not at his or her place of residence;
….”
207. Section 3 of the Act provides the definition of “injury” as follows:
““injury” means:
(a)a disease; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include anything suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;”
208. The applicant as set out in the evidence hereto suffered on his evidence several injuries. The issues are those as set out in paragraph 3. However, before considering these it was also contended that the Tribunal determine whether or not the applicant complied with the provisions of the Act in making an application for compensation and, in particular, whether written notice of the injury was given to the employer as soon as practicable after the applicant became aware of the injury so as to comply with section 62 of the Act. The Tribunal now turns to consider this.
209. The Tribunal is satisfied that the applicant was not consistent in his approach to the respondent concerning his various conditions. His reporting of incidents as they occurred seems to be less than accurate. The Tribunal is satisfied that such was not deliberate nor with intent but rather within the character of the applicant who did not comply with the requirement of written notice. The Tribunal is satisfied that he erred by either informing his seniors verbally or by bringing it to the respondent’s attention through medical certificates after having been examined by a doctor. The Tribunal is satisfied on the evidence before it that the applicant, however, did not comply with the written requirement. Notwithstanding this, subsection 62(1)(a) refers to such notice being given as soon as practicable after the employee becomes aware of the injury. On the evidence before the Tribunal the explanation given by the applicant is feasible and acceptable. The attendance by the applicant for medical treatment and the ultimate notice and claim (T7/24-29) for back injury and anxiety (S1999/346) occurred in the view of the Tribunal within a time span that can be said to be “as soon as practicable”.. The Tribunal is satisfied that such is the case and hence appropriate notice was given.
210. Similarly, the Tribunal is of the view that the claims for permanent injury in respect of lower back pain and occupational stress, anxiety and depression were appropriately made.
211. The Tribunal is satisfied that Ms Maggie Armstrong was a credible witness who referred to the applicant’s personality and behaviour prior to and since his commencement of employment on the “Pacific Conqueror”. She stated that his personality has changed and explained the changes. The Tribunal notes the evidence of Ms Armstrong which apart from explaining the applicant’s personality offers no other assistance.
212. The Tribunal takes into account the evidence of the applicant as well as the evidence of the lay witnesses. In so doing the Tribunal is satisfied and accepts the evidence of the applicant concerning the working conditions on board the “Pacific Conqueror”, the injuries described by him and the effect of such upon him. The Tribunal is satisfied and finds that the confinement of working and social areas, the type of work undertaken and the working conditions all contributed to his injuries in the course of his employment. However, in so finding the Tribunal also takes into account the medical evidence before it.
213. Dr A. Tan, occupational physician, first saw the applicant on 30 November 1998 being approximately within three months of the time when the applicant first stated he suffered pain to his back. He thereafter saw the applicant at regular intervals complaining of stress, anxiety and depression and lower back pains. Dr Tan had prepared three reports (Exhibits A13, A14 and A15). He stated therein that the conditions in which the applicant worked were unreasonable and have led to his present psychological state. He further stated as to the lower back pains that these were due to the heavy physical demands in the job, such as heavy lifting and working in confined spaces.
214. Mr George Potter and Mr Frank Bell, both orthopaedic surgeons, gave evidence. Mr Potter had one consultation with the applicant. In his oral evidence he stated that the applicant’s history and localised tenderness suggested that he had sustained an “ill defined non specific low back injury with the most likely cause of this being a facet joint injury”. He stated that a radiologist’s report indicated that the applicant had slight degenerative changes in the applicant’s spine. During his oral evidence after taking into account further information put to him he changed his diagnosis to “facet joint pain” rather than “facet joint injury”.. Notwithstanding this Mr Potter gave the opinion that despite this change in diagnosis, he was still of the view that the applicant was left with a permanent disability as the surface of the joint cannot repair itself. He further stated that in a person aged 50 years undertaking heavy manual work it would be unusual not to have a history without any back pain.
215. Mr Bell, like Mr Potter, saw the applicant on one occasion. In his evidence he stated that the applicant’s back condition was not caused by his employment and that he did not find that the applicant had suffered a significant facet joint injury and that the range of movement was more consistent with “facet joint pain”.. He was of the view that the applicant was experiencing back-ache as a result of his depressed mental stated. He further stated that this was common. Mr Bell also stated that the only other possible clinical basis for the back pain would be the applicant’s psoriasis which he stated can cause degenerative change.
216. The Tribunal in considering the evidence of both Mr Potter and Mr Bell prefers that of Mr Potter. Both concluded that the applicant experienced facet joint pain. Mr Bell dismissed this lightly whereas Mr Potter gave the view that notwithstanding this condition the applicant was left with a permanent disability on the basis that the surface of the joint cannot repair itself. The Tribunal finds this to be the more plausible explanation.
217. Dr Nicholas Ford, psychiatrist, gave evidence that he has seen the applicant on numerous occasions and also prepared five reports. His diagnosis of the applicant was of his having generalised anxiety disorder. He stated that seafaring is a high risk occupation as far as psychiatric problems are concerned and that seafarers experience mixed anxiety and depressive conditions and that their tolerance to stress decreases over time.
218. Dr Ford gave the opinion that he thought that the applicant’s anxiety started on the “Sandra Marie” and increased over time. He further stated that the situation aboard the “Pacific Conqueror” may have exacerbated a pre-existing condition and that perhaps in another situation the condition may not have developed. He also in considering the factors which contributed to the applicant’s condition aboard the “Pacific Conqueror” referred to the noise, sleep deprivation and heat and the traumatic incidents the applicant experienced. He stated that these included the time he was nearly washed overboard, nearly having his head taken off by a cable and having cargo swinging above him. He stated that the applicant’s feelings of anxiety led to increased sensitivity to noise, problems sleeping and difficulty getting on with others. Dr Ford stated that because of his anxiety condition, the applicant could have become hyper-sensitive to noise and displayed a startle response even though the noise on the “Pacific Conqueror” was no louder than aboard any other vessel.
219. Dr Ford stated that he was not surprised that the applicant made no mention of being anxious to his employer.. He further stated that he applicant was such that he would not acknowledge his anxiety symptoms but rather would become irritable and would withdraw into himself. In relation to permanent impairment, Dr Ford stated that in line with the Guide, he assessed the applicant as having a level of 20% disability relating to his anxiety disorder. The Tribunal in taking the evidence of Dr Ford as a whole into account, including his comments concerning discipline, is satisfied this is the case and so finds.
220. Dr Lawrence Terace, psychiatrist, saw the applicant only on one occasion. He stated that the interview did not show the applicant to be acutely or profoundly disturbed about issues such as to cause a psychiatric condition. In his oral evidence Dr Terace had the temerity to state that in diagnosing he is in a better position than a treating psychiatrist because his lack of predisposition increased the validity of the report in the sense that such would not be clouded. The Tribunal does not accept such a claim and rejects in outright. By making such statement Dr Terace has not shown an open mind in reaching his conclusion but rather a biased attitude. He in fact considered himself to be in as good a position in relation to diagnosis and causation as the treating psychiatrist, Dr Ford. He also stated that he had considered things such as working in rough seas as a significant stressor but had found no causal link and gave the opinion that most of the time significant stressors do not lead to the development of a psychiatric disorder.
221. The Tribunal in considering the evidence of the two psychiatrists has no hesitation, whatsoever, in preferring the evidence of Dr Ford to that of Dr Terace. It found Dr Ford to be more in tune with the circumstances and as the treating psychiatrist, more understanding of the applicant’s condition and in his diagnosis.
222. The Tribunal finds on the medical evidence that the applicant’s condition as previously set out is an injury. It is further satisfied and finds that the applicant suffers from several injuries within the meaning of section 3 of the Act, namely, lower back pain and occupational stress, depression and anxiety.
223. The Tribunal is satisfied and accepts the facts as presented to it and in particular as outlined by the applicant. As previously stated when considering the medical evidence as a whole the Tribunal is quite clear in its preference of the opinions of Mr Potter and Dr Ford.
224. The applicant was unable to identify precise dates when his injuries occurred, saying they developed gradually. The Tribunal is satisfied that the injuries were sustained by the end of the applicant’s last swing on the “Pacific Conqueror”, that is, by 18 November 1998, and that that is the most appropriate date of commencement for any liability on the part of the respondent.
225. The Tribunal is satisfied that the accepted injuries resulted in the applicant being incapacitated for work pursuant to section 31 of the Act. Section 8 of the Act states that such incapacity may be such as prevents a person from engaging in any work, or such as prevents a person working at the same level they worked at prior to sustaining the injury. In this case, the applicant has not worked since November 1998. On the evidence of Dr Ford, the applicant was and will indefinitely remain unable to work in a marine environment. In the interim the applicant has sought rehabilitative treatment, has attempted to retrain and has applied for work in areas outside that in which he previously worked. Furthermore, in his report dated 18 August 2001 (T23/61), Dr Ford stated that the applicant was “able to function in study but not to work.” Hence the Tribunal is satisfied that pursuant to section 31, with reference to section 32, the applicant has been unable to earn any income in “suitable employment” to the date of the hearing. The precise date of commencement is here not relevant, nor is it relevant whether in the future the applicant may obtain employment in another field. Section 31 allows for compensation to be paid for the first 45 weeks in which a compensable injury prevents a person from working. At the date of the hearing of this matter, that 45 week period had well elapsed. Pursuant to section 31(5)(a), the applicant, being unemployed since his injury, is entitled to compensation at a rate of 75% of his normal weekly earnings prior to the accident for a 45 week period, with “normal weekly earnings” bearing the meaning it is given in section 13 of the Act.
226. Accepting the evidence of Dr Ford and Mr Potter, The Tribunal is further satisfied that as a consequence of both his lower back injury and his psychiatric injury, the applicant has suffered permanent impairments under section 39 of the Act. The Tribunal accepts the evidence of Dr Ford that the applicant’s generalised anxiety disorder has caused a permanent impairment of 15% under the Guide issued by the Authority. The Tribunal accepts the evidence of Dr Potter (T22/58) that the applicant’s back injury has caused a permanent impairment of 10% under that Guide.
227. The applicant sought non-economic loss pursuant to section 41 of the Act on the basis of the assessment of Dr Potter. Counsel for the applicant submitted that this evidence established an impairment assessment of 5 under Part B of the Guide. In his report dated 24 April 2001 (T22/58) Dr Potter assessed the elements of the applicant’s non-economic loss. His assessments were:
·Pain: 1 or 2
·Suffering: 2
·Mobility: 2
·Social Relationships: 1
·Recreation and leisure activities: 2
On the evidence of the applicant, the Tribunal finds that the pain score is more appropriately assessed as “2”, as the Tribunal is satisfied that the applicant’s pain does not fit the criterion “can be ignored with activity commences”, which a pain rating of “1” would require (see Table 1 of the Guide). Moreover, the Tribunal is satisfied that the applicant fits the description necessary for a pain score of “2”. Applying these scores under Table 5 of the Authority guidelines gives an overall score of “5”.
228. Having made these findings, the Tribunal remits the matter to the respondent to calculate the amount of compensation payable.
Decision
229. For the foregoing reasons, the decisions under review are set aside, and the matter is remitted to the respondent for the calculation of the compensation payable to the applicant, in accordance with the following findings:
i)the applicant suffered injury to his lower back in the course of his employment with the respondent, with that injury occurring by 18 November 1998;
ii)the applicant suffered psychiatric injury in the course of his employment with the respondent, with that injury occurring by 18 November 1998;
iii)the applicant’s injuries entirely incapacitated him for work for a 45 week period under section 31 of the Act. The applicant was unable to work in “suitable employment” during that period, and consequently is entitled to compensation at a rate of 75% of his normal weekly earnings prior to the accident for that 45 week period;
iv)the applicant suffered a permanent impairment of 10% under the Guide as a consequence of his compensable lower back injury;
v)the applicant suffered a permanent impairment of 15% under the Guide as a consequence of his compensable psychiatric injury; and
vi)the applicant has suffered non-economic loss as a result of his permanent impairments, giving rise to a combined impairment score of “5” under Table 5 of Part B of the Guide.
Costs
230. Pursuant to section 92 of the Act, the respondent is to pay the costs of the applicant. In the absence of agreement between the parties, costs are to be taxed by the Tribunal.
I certify that the 230 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed: (signed)
John Howell, AssociateDates of Hearing 15, 17 & 18 April 2002
Date of Decision 31 January 2003
Counsel for the Applicant Ms K. Chambers
Solicitor for the Applicant Moody Rossi & Co
Counsel for the Respondent Ms R. Aria-Retnam
Solicitor for the Respondent Jackson McDonald Barristers & Solicitors
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