Blackney and Svitzer Offshore Pty Ltd (Compensation)

[2017] AATA 2416

Blackney and Svitzer Offshore Pty Ltd (Compensation) [2017] AATA 2416 (30 November 2017)

Division:GENERAL DIVISION

File Number:           2015/4967

Re:Raymond Blackney

APPLICANT

AndSvitzer Offshore Pty Ltd

RESPONDENT

DECISION

Tribunal:Deputy President Dr Christopher Kendall

Date:30 November 2017

Place:Perth

The decision under review is set aside and remitted for reconsideration with the following recommendations that:

(a)the applicant be referred to a Neurologist or Neurosurgeon for assessment and reporting;

(b)the report prepared by the Neurologist or Neurosurgeon referred to above be provided to Dr Cairns, Consultant Orthopaedic Surgeon, for assessment and reporting;

(c)an Activities of Daily Living Assessment of the applicant be completed by a Perth based medicolegal Occupational Therapist having reviewed the reports referred to at subparagraphs (a) and (b) above; and

(d)until such time as a new determination, based on the report of the Occupational Therapist referred to at subparagraph (c) above, is made, Mr Blackney receive care on the terms of the interim agreement in place for the period 5 March 2015 – 5 April 2015 being the cost of 7 hours per week for home services, consisting of 6 hours allocated to cleaning services and 1 hour to garden maintenance.

....[sgd]................................................................

Deputy President Dr Christopher Kendall

CATCHWORDS

Seafarers − compensation – claim for compensation accepted – reconsideration determination – decision set aside and remitted

LEGISLATION

Seafarers Rehabilitation and Compensation Act 1992 (Cth) – ss 43, 79(6), 92

REASONS FOR DECISION

Deputy President Dr Christopher Kendall

30 November 2017

INTRODUCTION

1. This matter requires the Tribunal to determine whether Raymond Blackney, age 80, is entitled to ongoing compensation payments under s 43 of the Seafarers’ Rehabilitation and Compensation Act 1992 (the “SRC Act”) for injuries to his right and left shoulders sustained at work on 19 January 2008 and, if so, how much he should receive.

2. On 19 January 2008, while working on the tugboat, Skate, Mr Blackney stepped from the vessel to the wharf.  He slipped and fell, jamming his shoulders between the concrete wharf and a steel pile (T5 at 13).  Mr Blackney’s shoulder injuries were subsequently diagnosed as ‘rotator cuff tears of both shoulders’ (T7) (the “accepted injury”).

3. On 25 January 2008, Mr Blackney lodged a claim for compensation under the SRC Act for ‘right + left shoulder tendon tears’ sustained when he fell between the concrete wharf and a steel pile (T5). The Respondent’s insurer, Allianz, accepted liability to pay Mr Blackney compensation for his injury under the SRC Act.

4. In a medical report dated 12 August 2011, Dr Barrie Slinger provided an assessment of Mr Blackney’s household service’s needs.  Dr Slinger noted that Mr Blackney could not undertake normal aspects of general household maintenance and needed ongoing assistance from a cleaner for one hour per week and the assistance of a gardener once every six weeks (T41 at 176).

5. On 3 January 2013, Allianz approved payment for the costs of two hours of cleaning per week and one hour of gardening per fortnight (T46 at 97).

6. On 2 February 2015, Ms Emma Patrick, an Occupational Therapist, attended Mr Blackney’s home to assess his needs.  She subsequently prepared a report (T54) in which she:

   (a)noted that Mr Blackney was receiving assistance with cleaning and gardening once per week and that his neighbour was assisting him with self-care and home management two hours per day; and

   (b)reported that Mr Blackney would benefit from increased services to assist with his self-care and home management, although she did not assess the number of hours of assistance he required.  Ms Patrick also did not specifically assess what assistance Mr Blackney required ‘as a result of the accepted injury’.

7. On 27 February 2015, Allianz engaged Silver Chain to undertake Mr Blackney’s home services (T59 at 116), consisting of:

   (a)30 minutes per day for personal care;

   (b)30 minutes per day for support services to include bed making, hanging washing and general tidying up; and

   (c)2 hours per week for shopping and/or attending medical appointments.

8. By email dated 5 March 2015, Allianz confirmed that for the period 5 March 2015 – 5 April 2015 the cost of 7 hours per week for home services would be paid, consisting of 6 hours allocated to cleaning services and 1 hour to garden maintenance (the “interim agreement”) (T57 at 114).

9. On 8 April 2015, Ms Melanie Parker-Doney, Occupational Therapist, visited Mr Blackney for the purpose of assessing his ability and ongoing needs.  She subsequently prepared a report dated 21 April 2015 (T63).  Ms Parker-Doney’s recommendation was that an independent medical assessment be undertaken by an Orthopaedic Surgeon, a driving assessment and an Aged Care Assessment by the Department of Human Services.  Ms Parker-Doney made further recommendations, including:

   (a)the supply of a Clax Trolley;

   (b)the supply of a long hand EasiReacher;

   (c)the supply of a long bathing sponge;

   (d)Care Alert Smart Dialler; and

   (e)if the medical assessment confirms that the deterioration in Mr Blackney’s level of functioning is related to an apparent neurological issue, then:

   (i)weekly service to strip and remake bed, vacuum house, mop, wipe over and clear the bathroom and clean the kitchen – being approximately two hours per week; and

   (ii)a fortnightly service of approximately 1 – 2 hours to assist with gardening.

10. On 8 May 2015, Allianz issued a determination (the “determination”) accepting liability to pay for Mr Blackney’s household expenses, as per Ms Parker-Doney’s report (T66), under s 43 of the SRC Act in relation to the following (T66):

    (a)the supply of a Clax Trolley;

    (b)the supply of a long Handi EasiReacher;

    (c)the supply of a long bathing sponge;

    (d)Care Alert Smart Dialler;

    (e)weekly service to strip and remake your bed, vacuum your house, mop, wipe over and clean the bathroom and clean the kitchen, this service will be approximately two hours per week; and

    (f)a fortnightly service of approximately 1 to 2 hours to assist with gardening.

11. By facsimile dated 8 June 2015, Mr Blackney requested a reconsideration of the determination (T70).  In effect, Mr Blackney felt he was entitled to more assistance as per the interim agreement that was in place between Allianz and Silverchain (detailed above at paragraph 8).  This is discussed further below.

12. A reconsideration of the determination was not made. Pursuant to s 79(6) of the SRC Act, Allianz was deemed to have made a decision disallowing the reconsideration of the determination at the end of the period of 60 days, being on or around 7 August 2015 (the “deemed reviewable decision”).

13. On 21 September 2015, Mr Blackney lodged a review application in the Administrative Appeals Tribunal (the “Tribunal”) (T2) seeking review of the deemed reviewable decision.

    ISSUES

14. It is not in dispute that Mr Blackney continues to suffer from the ongoing effects of the rotator cuff tears to both of his shoulders (being the accepted injury).

15. Broadly, the Tribunal understands Mr Blackney’s position to be that the Respondent is liable to pay for the costs of household services and attendant care services, effectively in the terms of the interim agreement between Allianz and Silverchain (T59 at 116), because he reasonably requires the following services as a result of his accepted injury:

    (a)five hours per week of internal household services (such as cleaning services);

    (b)one hour per week of external household services (such as gardening);

    (c)one hour per day for attendant care (made up of half an hour of personal care and showering assistance and half an hour of support services including bed making, hanging out washing, general tidy up); and

    (d)two hours weekly for attendant care for shopping and medical appointments. 

16. The Respondent, on the other hand, contends that the interim agreement is excessive as Mr Blackney reasonably requires the following household services in respect of his accepted injury:

    (a)two hours per week of internal household services (such as cleaning services); and

    (b)one to two hours per fortnight of external household services (such as gardening).

17. The Respondent contends that the evidence does not establish that Mr Blackney reasonably requires attendant care services in respect of his accepted injury.

18. Accordingly, the issue for the Tribunal to determine is whether Mr Blackney is eligible for compensation under section 43 of the SRC Act. This includes a consideration of:

    (a)what services are reasonably required by Mr Blackney as a result of the accepted injury; and

    (b)if household services and attendant care are required, what should reasonably be paid?

    LEGISLATION

    Household services

19. Section 3 of the SRC Act defines household services as services, in relation to an employee, of a domestic nature (including cooking, house cleaning, laundry and gardening services) required for the proper running and maintenance of the employee’s household.

20. Section 43(1) of the SRC Act provides that if, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains household services that he or she reasonably requires, compensation is payable at the rate of such amount per week as is reasonable in the circumstances.

21. Pursuant to s 43(2)(a) of the SRC Act, the amount of compensation payable per week under s 43(1) of the SRC Act for household services must not be more than $251.94. This amount is indexed periodically in accordance with the Consumer Price Index.  At the date of the determination, 8 May 2015, the statutory weekly maximum for household services was $442.40.  This amount is currently $464.43.

22. In determining whether household services are reasonably required in the circumstances, s 43(3) of the SRC Act provides:

    (3)Without limiting the matters that may be taken into account in determining the household services that are reasonably required in a particular case, the employer must have regard to the following matters:

    (a)the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;

    (b)the number of persons living with the employee as members of his or her household, their ages and their need for household services;

    (c)the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;

    (d)the extent to which the persons referred to in paragraph (b), or any other members of the employee’s family, might reasonably be expected to provide household services for themselves and for the employee after the injury;

    (e)the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).

    Attendant care services

23. Section 3 of the SRC Act defines attendant care services as services, in relation to an employee (other than household services, medical or surgical services or nursing care) required for the essential and regular personal care of the employee.

24. Section 43(4) of the SRC Act provides that if, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains attendant care services that he or she reasonably requires, compensation is payable at the rate of:

    (a)$251.94 per week; or

    (b)an amount per week equal to the amount per week paid or payable by the employee for the services;

    whichever is less.

25. In determining whether attendant care services are reasonably required in the circumstances, ss 43 (5) of the SRC Act provides:

    (5)   Without limiting the matters that may be taken into account in determining the attendant care services that are reasonably required in a particular case, the employer must have regard to the following matters:

    (a)the nature of the employee’s injury and the degree to which that injury impairs the employee’s ability to provide for his or her personal care;

    (b)the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular personal care

    (c)the extent to which it is reasonable to meet any wish by the employee to live outside an institution;

    (d)the extent to which attendant care services are necessary to enable the employee to undertake or continue employment;

    (e)any assessment made in relation to the rehabilitation of the employee;

    (f)the extent to which a relative of the employee might reasonably be expected to provide attendant care services.

26. Pursuant to s 43(4)(a) of the SRC Act, the amount of compensation payable per week under s 43(1) of the SRC Act for attendant services must not be more than $251.94. This amount is indexed periodically in accordance with the Consumer Price Index. As at the date of the determination, 8 May 2015, the statutory weekly maximum for household services was $442.40. This amount is currently $464.43.

    EVIDENCE

27. The matter was heard in Perth on 30 August 2017.  Mr Blackney was self-represented at the hearing.  The Respondent was represented by counsel, Mr Matthew Hawker.  Mr Hawker was instructed by Mr Ashley Burgess of Sparke Helmore Lawyers.  Mr Hawker demonstrated patience and a high level of professionalism in relation to what proved to be a difficult hearing.  Mr Blackney, who was not legally represented, was often frustrated with the hearing process.  Mr Hawker offered considerable assistance and was, in that regard, the model litigant.  Others would do well to emulate this type of advocacy. 

28. Mr Blackney provided the Tribunal with a considerable amount of documentation and evidence.  The Tribunal thanks Mr Blackney for his efforts in providing the Tribunal with the information he felt was necessary for it to have in order to properly execute its merit review function.  The Tribunal also acknowledges the considerable assistance of the Perth registry staff in assisting Mr Blackney with the preparation of the extensive documentation presented at this hearing. 

29. Much of what Mr Blackney provided to the Tribunal was ultimately not legally relevant and ultimately not tendered as an exhibit at the hearing of this matter.  Accordingly, the Tribunal only received, inter alia, the following evidence:

    (a)Mr Blackney’s submission in reply to the Respondent’s Statement of Facts, Issues and Contentions, filed 1 June 2017 (A1);

    (b)Mr Blackney’s witness statement dated 9 August 2017 (A2);

    (c)letter from Mr Blackney to Mr Ashley Burgess filed 9 August 2017 (A3);

    (d)letter of support from Ms Barbara Morphet dated 1 April 2011 (A4);

    (e)letter of support from Brian Carthew dated 16 June 2017 (A5);

    (f)letter of support from Warren Malpas dated 26 June 2017 (A6);

    (g)AMSA medical inspection report dated 18 August 2007 (A7);

    (h)report of Dr Maya Benoy Kaitharath dated 12 September 2014 (A8);

    (i)letter from Kym Chandler (Insight Physiotherapy) dated 2 November 2011 (A9);

    (j)letter from Dr Karen Hill (Sonic Health Plus) dated 2 November 2015 (A10);

    (k)report of Chris Carter (Safety Bay Chiropractic Clinic) dated 25 November 2015 (A11);

    (l)letter from Chris Armstrong dated 17 January 2017 (A12);

    (m)letter from Chris Armstrong dated 26 June 2017 (A13);

    (n)ACAT aged care support plan dated 21 September 2016 (A14);

    (o)Silver Chain invoices and covering letter from Lauren Burroughs dated 18 August 2016 (A15);

    (p)Silver Chain integrated wellness assessment dated 2 March 2015 (A16);

    (q)Silver Chain risk reduction action plan, undated (A17);

    (r)Statutory Declarations of Warren Peter Malpas (declared 15 June 2017) and Christine Pamela Clark (declared 1 July 2015) (A18);

    (s)the Respondent’s Statement of Facts, Issues and Contentions dated 21 April 2014 (R1);

    (t)report of Dr Anthony Cairns, Consultant Orthopaedic Surgeon, dated 3 October 2016 (R2);

    (u)briefing letter from Sparke Helmore Lawyers to Melanie Parker-Doney dated 12 July 2017 (R3);

    (v)supplementary report of Melanie Parker-Doney dated 21 July 2017 (R4);

    (w)bundle of invoice documents from Allianz Australia Insurance Limited filed 9 June 2017 (R5);

    (x)a 211 page set of T- Documents (T1-T81) filed 10 November 2015 (R6); and

    (y)15 colour photographs extracted from T63 (report of Melanie Parker-Doney dated 21 April 2015) (R7).

30. At the hearing, the Tribunal heard oral evidence via telephone from Ms Helen Brooks, Registered Nurse.  Ms Parker-Doney, Occupational Therapist, appeared in person as did Dr Cairns.  Mr Blackney also gave oral evidence. 

31. The Tribunal sought written closing submissions from both parties and notes the responses received from both parties as follows:

    (a)the Respondent’s closing submissions dated 5 September 2017; and

    (b)Mr Blackney’s reply to the Respondent’s closing submissions received 9 October 2017.

32. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided ample opportunity to address that evidence, either orally or in writing.  Relevant aspects of the evidence and material before the Tribunal are referred to below.

    Witness Statement of Mr Blackney dated 9 August 2017 (A2)

33. Much of Mr Blackney’s evidence was contained in a detailed Witness Statement.  As it relates to the incident that caused his accepted injuries and subsequent medical treatment, his witness statement relevantly provides:

    I had my workplace accident at Exmouth Marina 19-01-08, during a delivery voyage of the “Stirling Skate” from Dampier to Fremantle on behalf of Svitzer Offshore Pty Ltd.

    At the request of the Master I was going ashore on ships business.  We had no gangway on board and access to the marina wharf was difficult, I had negotiated the steel fender system, when I put my foot on a rubber spreader between the concrete wharf and steel fender system, my foot slipped and I landed on my stomach on the spreader with my shoulders jammed between a steel pile and the concrete wharf.

    …

    I continued ashore on the ships business and returned on board and assisted the engineer to complete refuelling, we continued the voyage to Fremantle.

    We arrived at Svitzer Base Fremantle at approximately 0030 hrs 24-01-08 and were met by the designated person ashore. Fremantle Hospital is approximately 1km from the Svitzer Base.

    …

    Between 24-01-08 – 12-02-08 I had numerous xrays, ultrasounds, MRI on my shoulders….

    …

    I had the first operation on my left shoulder 13-02-08.

    The only medical treatment I had till that time 26 days, panadol, DencoRub, my right arm in a sling.

34. As it relates to the care needs he has as a result of his accepted injuries, Mr Blackney’s witness statement further relevantly provides:

    Because of the condition of my left shoulder and my right arm in a sling they asked Allianz Insurance to provide me with a house cleaner and gardener.  This happened.

    Housecleaner 2 hrs week, gardener 1 hr per fortnight.

    …

    I decided to transfer to Carnarvon where I had a good social circle of friends.  This transfer was completed in December 2012.

    All went well in Carnarvon, very active pensioners group, Old Bastards club, lots of fresh seafood and fresh fruit and vegetables from the plantations.  Very good hospital and medical centre.  My health was good.  I had learnt to control my shoulder pain and my chronic diaorreah [sic].

    In early July 2014 I started having more pain in my left shoulder than normal.  Also left upper arm.  On Wednesday 9^th July I told my case offer … about this and told him I would be seeing my local Dr regards same.  My left hand had started to claw up and I had lost feeling in my fingertips.

    My neighbour … noticed I was having trouble getting stores from my vehicle in the carpark to my unit.  Also putting out the wheelie bin.  She started to assist me.

    …

    During this period my shoulder and upper arm pain got worse and my left hand had completely clawed up. 

    I had very little use of my left arm, my neighbour, Christine Clark had virtually become a voluntary carer.

    Even though I had my cleaner and gardener 2½ hrs a week, Christine was doing everything else. 

    …

    Mention of neurological problems ? re arm-hand.

    Had ultrasound on wrist, no carpel tunnel damage.

    Friday 26^th November Dr Krezevic Murdoch, nerve conduction studies, Allianz flew Christine Clark to Perth. Drive home with me codriver – carer.

    Now that shoulder and arm confirmed rupture of supraspinatus tendon due to failure of a Dr Colvin operation and now a workers compensation matter Christine Clarke did not want to be my unpaid carer any longer.  She wrote a letter to that effect and I sent a copy to Andrew Alchin Allianz Australia.

    I discussed this matter with my Counsellor.  She advised me to get in touch with ACAT Geraldton.

    I got in touch with ACAT Geraldton.  So close to Xmas no one was available to do an ACAT Assessment, there would be no ACAT Assessors in Carnarvon before late February – March 2015.

    Christine Clark was still my voluntary carer.

    …

    Emma Patrick OT Carnarvon Hospital carried out her assessment and wrote her report 02-02-015.  Helen Brooks RN Silverchain Carnarvon carried out her assessment and wrote her report 02-03-015.  My Silverchain personal care program started 03-03-015.  Andrew Alchin had signed a payment for services agreement with Silverchain 27-02-015 specifying the hours he required for my personal care program.  Reddy Nallapapagarii, Senior Case Manager, Allianz Australia approved Sue Knapton cleaning to carry out 7 hrs cleaning per week Monday to Friday, to include 1 hr gardening and 2 hrs cleaning per week already in place.

    …

    On Monday 16^th March I received a phone call from Andrew Alchin Senior Case Manager Allianz Australia.  He was sending someone to Carnarvon to carry out an “Activities of Daily Living Assessment”? [sic]

    …

    I received a letter dated 23 March 015 from Ms Melanie Parker Doney, MP Safety Management advising me she would be in Carnarvon on 8^th April to carry out an “Activities of Daily Living Assessment”. 

    ...

    Ms Parker Doney arrived at my unit at approximately 0920 Wednesday 8^th April 2014.

    Statutory Declarations of Christine Pamela Clark declared 1 July 2015 (A18)

1. Ms Clark is Mr Blackney’s neighbour and previously assisted him with his day to day care needs.  In her statutory declaration she stated as follows:

   I am writing to inform you that because Ray has very limited use of his right arm and extremely limited use of his left arm and hand, I have been assisting Ray with his daily living skill and person hygiene, which consists of:

   1.    helping dry and dress him

   2.    cutting his meals + prepping them

   3.    hanging washing on line… making his bed

   4.    driving to Dr app + shopping with that entails

   5.    Allianz insurance flew me to Perth (1,000kms away) and reimbursed Ray for my accommodation + food expenses as Driver + escort … Ray seeing specialist for shoulder assessment, in other words I have been caring for Ray for some time now, and would like you to know I’m a 57yr disabled person as well.

   MEDICAL EVIDENCE

   Report of Dr David Colvin dated 31 October 2014 (T50)

2. On 31 October 2014, Mr Blackney was reviewed by Dr Colvin after Allianz referred Mr Blackney for a current medical report. This report reads as follows:

   My involvement in Ray’s care is entirely in relation to his shoulders. As you will see from my correspondence I believe that he has neurologic problems involving the arms and that these have been present for some years. I am certain that they do not relate to his shoulder problems. They are an independent issue that require investigation under the care of a neurologist or neurosurgeon. As I understand it Mr Blackney’s workers compensation claim does not include an injury to his neck and therefore I have informed him that I believe he will need to seek treatment for his nerve symptoms through the public hospital system.

   Report of Dr David Colvin, Orthopaedic Surgeon, dated 31 October 2014 (T49)

3. On 31 October 2014, Dr Colvin wrote to Dr Kornelis Bakker, Mr Blackney’s treating General Practitioner, providing him with a report in relation to Mr Blackney’s shoulder injuries. This report reads as follows:

   I understand that you are looking after Ray now. I have been involved in the treatment of Ray’s shoulder problems going back to 2008. He had a workers’ compensation claim in relation to rotator cuff tears in both shoulders. I have not seen Ray for several years now but he has returned with an aggravation of his left shoulder.

   Ray’s original left shoulder rotator cuff repair was done in February 2008. He had a very extensive retracted tear of the supraspinatus which was repairable. Unfortunately Ray was admitted to intensive care in the recovery period for an unrelated condition but during his care it is likely that his rotator cuff repair was retorn. He eventually went back to surgery in May of 2009 and had a revision repair. However by this stage the tendon had retracted substantially and a complete repair was not possible.

   Ray now presents with a chronic retracted left shoulder rotator cuff tear. It is difficult to say when the repair failed but it may never have healed adequately.

   The situation is complicated by the fact that Ray has some chronic neurologic symptoms in his left arm. I have records going back to 2011 recommending that he see a neurosurgeon for assessment of his cervical spine and possibly nerve conduction studies. He is now reporting numbness in his fingers and this is an unrelated but urgent issue for Ray. I do not believe that it is relevant to his workers compensation claim and he will need to seek investigation and treatment through the public system.           

   …

   Report of Ms Melanie Parker-Doney, Occupational Therapist, dated 21 April 2015 (T63)

4. As referred to in paragraph 9 above, Ms Parker-Doney completed a home visit to assess Mr Blackney on 8 April 2015.  She subsequently prepared a report which relevantly reads as follows:

   3.        Current report Symptoms

   Mr Blackney reports that he is independent in driving. He reports that he experienced further injury to his left shoulder in August 2014. He understands that his supraspinatus tendon tore at this time, increasing pain in the left shoulder. He also reports experiencing numbness and paralysis down the left arm which he believes s related to the shoulder. I do however note, Dr Colvin’s report dated 31 October 201, where he states “I believe that he has neurologic problems involving the arms and that these have been present for some years. I am certain that they do not relate to his shoulder problems. They are an independent issue that require investigation under the care of a neurologist or neurosurgeon. As I understand it Mr Blackney’s workers compensation claim does not include an injury to his neck and therefore I have informed him that I believe he will need to seek treatment for his nerve symptoms through the public hospital system. Mr Blackney informed me that he has in fact been referred to a Neurologist and will be seeing this Neurologist at Fremantle Hospital on 30 April 2015. He intended to drive down to Perth, taking several days and reported that he would be staying with a friend in Safety Bay. He reports that he was transferring his Silverchain care to Carnarvon to Safety Bay for that period.

   …

   4.        Assessment of Hand Function

   Left Hand – Mr Blackney has a significant neural issue with his left hand. Mr Blackney was unable to oppose the thumb and the fingers, no was he able to make a fist. Mr Blackney reports that his left arm function from the elbow down to the hand has significantly deteriorated over time. He is independently seeing a Neurologist in relation to this.

   …

   5.        Assessment of Current Function  

Task	Detail current observed and assessed capacity
Mobility	Mr Blackney demonstrated capacity during the assessment to transfer from sitting to standing independently. He demonstrated capacity to walk from his villa out to a motor vehicle and transfer independently in and out of a motor vehicle. Mr Blackney demonstrated capacity to get out of the motor vehicle at the Newsagent, walking tin o the Newsagent and Chemist. He demonstrated capacity to repeatedly get in and out of the vehicle for the Chemist, the Newsagent, Australia Post and Woolworths. Mr Blackney demonstrated capacity to walk through Woolworths, pushing the trolley with his right arm.
Stairs	No stairs available, however based on his mobility, I do not anticipate that Mr Blackney would have any issue with stairs.
Transfers	Independent in transfers from sitting to standing. Reports that he is able to roll out of bed independently.
Standing	Independent
Sitting	Independent
Kneeling	Not assessed.
Squatting	Not assessed.
Reaching	Range of movement was assessed during the assessment. Mr Blackney reports that he feels he has had the further injury and deterioration to the left shoulder in August 2014. He feels that since that time he has had significant increase in restrictions in the left shoulder. He has also reported nerve involvement in the left arm, including inability to use the left hand. Range of movement in the left shoulder – abduction to 40° extension approximately 10° , no flexion demonstrated. He reports that the left shoulder locks. Right Shoulder – Mr Blackney demonstrated with his right arm the ability to push a shopping trolley, open and close the front door, open and close his post office box with a key at approximately chest height, open and close a car door, place his hand on his forehead with difficulty, lift/carry 2 litres of milk and place it into the fridge at waist hight, open and close the fridge door.
Lifting	Mr Blackney was unable to demonstrate any lifting with the left hand. Mr Blackney was able to demonstrates lifting and carrying 2 litres of milk with right hand.
Pushing/Pulling	Mr Blackney  was unable to push or pull with the left arm, however was able to push a trolley with the right arm.
Walking/drying	Mr Blackney confirmed that he is able to sit in the shower and wash his legs and the lower part of his body. He reports that he is independent in washing between his legs. He is unable to wash under his armpits, wash his back or wash his hair.
Dressing	Mr Blackney confirmed that he is able to dress himself, however he wears shirts which he can button from the front. He reports that has become increasingly difficult since August 2014, as has pulling up his pants.
Grooming	Mr Blackney reports that he is able to clean his teeth with his right hand. He reports that cannot get his arm up to wash his hair and attends the Barber regularly as he does not shave independently.
Toileting	Mr Blackney reports that he is independent in toileting and is able to wipe himself with is right hand.
Eating/Drinking	Independent in eating and sinking using the right hand. Is unable to cut food up with the left hand. Unable to use cutlery in left hand.
Kitchen Activity	Mr Blackney demonstrated capacity to load 2 litres of milk into his fridge and unpack some of his shopping when we got home. He reported that he is able to make a simple meal such as toasted sandwich and make himself a hot drink. Again he reports that the issues with his left arm and hand have significantly impacted on his independence in the kitchen.
Cleaning	Mr Blackney does not engage in any cleaning. At present he has a cleaner every day for 2 hours in the afternoon.
Laundry	Mr Blackney has a top loading washing machine. Sue Knapton from Sue Knapton Cleaning confirmed that Mr Blackney can load the washing machine and turn it on. He has a clothes airer which the cleaner puts his washing on. With addition of a trolley, I believe Mr Blackney could independently remove one piece of washing at a time from the washing machine with his right hand, place it into the trolley, push the trolley outside to the airer and load the washing machine into the airer with the right hand.
Shopping	Demonstrated independence in going to the Chemist, Newsagent and Post Office. Needed assistance in Woolworths to get the trolley out of the other trolley’s, however was then able to independently push the trolley around and pick up some items of groceries with the right hand and load them into the shopping trolley.
Gardening	Mr Blackney would not have sufficient strength through the shoulders to complete gardening activities. He would, however, be able to water his plants with his right hand using a hose.

7.        Current Service Provision

The first record of assessment in relation to activities of daily living was completed on 21 December 2011 by Sarah Buchannan, Occupational Therapist at the Pilbara Population Health West. She recommended a shower chair, the provision of a long handled sponge, the provision of a long handled wiper, the provision of a jar and bottle opener. She did not recommend any personal care for Mr Blackney at this time.

Mr Blackney then reports further injury to his left shoulder in August 2014. Dr Colvin has confirmed a failure of the rotator cuff repair to the left shoulder. He notes in his report that, "it is not possible at this point in time to determine when that repair failed\ though he does note that, "he would not be in this position were it not for the original tendon tear which occurred at work“ He organised MR! scans and x-rays and further saw Mr Blackney on 12 November 2014. He notes that, “the MRI confirms rotator cuff, has tom and retracted and is not suitable for re-repair at this point in time." He noted that they may be able to get some improved pain relief with a less invasive procedure and he has referred him to Dr Paul Grisotti for pain management.

Dr Colvin also notes significant neurologic problems developing through the arms, present for some years. He notes that these do not relate to the shoulders. Mr Blackney confirms that his left and function has significantly deteriorated overtime.

Mr Blackney reports that as his care needs have increased since August 2014, his neighbour has been assisting him. His neighbour has documented to Allianz that she had been assisting him for up to 2 hours per day.

The next assessment noted on file was from Emma Patrick on 2 February 2015. She notes that he has currently receiving cleaning assistance of 1 hour per week and gardening services of 1 hour per week, however his neighbour was assisting him for 2 hours per day in showering drying Messing, shopping, meal preparation, cooking and household tasks. She notes that Mr Blackney would benefit from increased services to assist with self-core and home management tasks however she does not detail what increased services these would be and how they relate to the shoulder claims.

Currently Mr Blackney is receiving care every morning for up to an hour for a shower. Wednesday, 1 hour for shopping with Silverchain and 2 hours of care Monday to Friday in the afternoon from Sue Knapton Cleaning Services. On the weekends he also has 25 minutes of care in the morning for shower and dressing.

…

9.        Discussion with Emma Patrick, Occupational Therapist

I contacted Emma Patrick on 10 April 2015. I went through her report and recommendation for further services, yet note that she had not outlined what these services should be or how long they should be for. I also explained that it does not relate specifically to his shoulders, rather his entire health issues.  I have asked her to send through an updated report with further information on her assessment. She requested an email and explained that as she worked in the public hospital system this would need to go on a wait list and it could take some time for her supplementary report to come through. MP Safety Management forwarded her an email, dated 21 April 2015 where I have stated:

“Dear Emma, thank you for taking my call last week in relation to your assessment on 2 February 2015 in relation to Mr Raymond Blackney. I was asked by Allianz to complete an Activities of Daily Living Assessment based on his care needs in relation to his shoulder claims. I have read your report and note that your say, 'in my opinion Mr Blackney would benefit from increased services to assist with his self-care and home maintenance tasks to increase his safety and independence at home and decrease his neighbours role as a carer'.

Could you please quantify what you mean by increased services?

How do you feel that this would assist in self-care of home maintenance tasks?

How would this increase his safely and independence at home?

Have you recommended any equipment to increase his independence?

Did you assess his care needs in relation to his shoulders or in relation to his overall health concerns?

Emma explained that it could be several months before her report could be received; therefore I have not waited to receive this prior to submitting my report.

10.      Discussion with Sue Knapton

Sue confirmed "that her company is currently providing 2 hours of cleaning in the afternoons Monday to Friday. Sue confirmed that every day they are completing the following activities.

•Vacuuming.

•Making bed.

•Pegging out washing on a clothes airer,

•Folding washing and bringing in washing.

•Putting food into the oven,

•1 hour per week gardening.

•Mopping.

•Dusting.

•Wiping over surfaces.

•Cleaning kitchen.

•Cleaning bathroom.

Sue confirmed that Ray is independent in putting things into the washing machine and turning it on. She reports that she does not help him with any self-care tasks. She reports that in the past he has made her soup which she has kindly declined, she reports, however, over the last few months his physical health has deteriorated and there are some days where he looks really tired and unwell.

11.      Discussion with Helen Brooks, Silverchain

Ray recommended I ring Helen Brooks as she was the nurse who assessed his physical care needs when Silverchain came on board in February 2015. I rang and spoke to Helen. Unfortunately she was on leave for one week which has delayed my report. Helen explained to me that she never did a care assessment of Mr Blackney. She reports that this was done by Emma Patrick the Occupational Therapist. I explained that Emma has not listed what his needs are or the amount of time so how did she come up with 1 hour per day for self-care and then 2 hours in the afternoon for Sue Knapton Cleaning. Helen Books confirmed that Mr Blackney determined this himself. She reports that he originally requested Silverchain to shower him twice per day, however she just said she doesn't have the resources or the staffing to do this. She explained that Mr Blackney is very happy with their service. She explained that it is very unusual for Silverchain in Carnarvon to do a fee for service as normally they work through an aged care package, which therefore has much stricter requirements on time and appropriateness of services. She did however confirm that she has never actually physical assessed him in relation to his shoulders or his other medical conditions. She explained she was not sure of exactly what he can or cannot do for himself. She just based it on the assessment from the OT and Mr Blackney’s reported needs.

12.      Summary

MP Safety Management has applied the Nationally Endorsed Clinical Framework for the Delivery of Health Services when considering the care needs for Mr Blackney in relation to his bilateral shoulder claim with Allianz. The five principles of the Clinical Framework that ensure the injured worker receives the right care at the right time are:

•    Measure and demonstrate the effectiveness of treatment.

•    Adopt a bio psychosocial approach.

•    Empower the injured person to manage their injury.

•    Implement goats optimising function and participation.

•    Base treatment on the best available research and evidence.

The clinical framework has been established to optimize participation at home and in the community and to achieve the best possible health outcomes for injured people. The clinical framework helps inform healthcare professionals of expectations and provide a set of guiding principles for the provision of healthcare, if ensures the provision of healthcare services are goal Rented, evidence based and clinically justified.

Prior to Mr Blackney moving to Carnarvon in December 2012, he had an OT assessment which did not identify any personal care needs. This assessment identified equipment to assist Mr Blackney to maintain as much independence as possible. Mr Blackney at that stage was receiving 1 hour of cleaning per week and 1 hour of gardening per fortnight.

On moving to Carnarvon. Mr Blackney was receiving I hour of gardening per week and I hour of cleaning/housekeeping. Formal personal care activities did not commence until February 2015. Mr Blackney reports that since August 2014 when he believes he re-ruptured the supraspinatus tendon in the left shoulder, he reports his ability to complete personal care significantly deteriorated to the point where his neighbour has been assisting him with showering, dressing, cooking, cutting up his food, washing and clearing.

He underwent further assessment by Emma Patrick, OT on 2 February '2015, however unfortunately her report does not delail what his personal care needs are, nor what services he requires I have asked her to clarify this.      

MP Safety Management can only consider the shoulder claims when considering the personal care needs for Mr Blackney that are the responsibility of Allianz.

Mr Blackney confirms the following;

•Independents driving.

•Independent in washing lower half of body.

•    Independents transfers.

•    Independent in standing and walking.

•    Independent in rolling cigarettes and smoking.

•    Independent in opening and closing doors,

•    Independent in accessing the community in his own vehicle.

•    Independent in pushing trolley.

•    Independent of lifting and carrying 2 litres of milk and placing it into the fridge.

•    Independent in making light, simple meals including toasted sandwich.

•    Able to put on shirt that buttons at the front.        

•    Able to put on slip on shoes.

•    Able to purchase items at the newsagent, chemist and Woolworths.

•    Able to handle money.

…

based on my assessment and specifically in relation to his shoulders, Mr Blackney would have difficulty with the following:

•    Washing his hair.

•    Washing his back without a long handled back sponge.

•    Putting clothes over his head.

•    Hanging washing on a high clothes line.

•    Vacuuming.

•    Dusting high places.

•    Mopping.

•    Home maintenance.

•    Garden maintenance, however he would be able to pull out an occasional weed with his right hand and water his garden with his right hand.

•    Carrying heavy items to and from his vehicle to his home.

•    Stripping and remaking his bed.

Mr Blackney is experiencing a neurological issue with his left arm and hand which has significantly reduced his ability to engage in self-care. Because of the issue he now has with his left hand, Mr Blackney would be unable to safely:

•    Wash under his right armpit.

•    Grip and hold a fork or knife in the left hand.

•    Grip or hold a steering wheel in the left hand.

•    Engage in bilateral food preparation at a bench.

•    Lift and carry anything with his left hand.

•    Pulling up underpants and shorts/trousers bilaterally.

•    Turning on a tap with the left hand.

•    Opening and closing a door with the left hand.

13.      Recommendations

MP Safety Management would recommend an independent medical assessment with an orthopaedic Surgeon to determine the current status of both the left and right shoulders and the relationship to the original injury. Mr Blackney’s Surgeon has confirmed that the supraspinatus repair in the left shoulder has failed. He was unable to determine when this failed, however Mr Blackney believes it is on or around August 2014. He has had a significant reduction in capacity to complete personal care activities since that time however, the reduction in personal care ability is a potential combination of both the failed supraspinatus tendon and the neurological issues of the left and right arms and hand (left hand in particular) MP Safety Management can only consider the left and right shoulder claim when making recommendations that are Allianz's responsibility. I require further medical clarification in supraspinatus tendon detachment and its impact on his current functional loss in the left arm and hand. Once this independent medical is received I would greatly appreciate if it is forwarded to me so that I can make recommendations in relation to his personal care needs, specific to the left and right shoulder claim.

MP Safety Management has confirmed with Mr Blackney that he is undergoing independent investigation for the neurological problem of his left arm and hand with a Neurologist/Neurosurgeon at Fremantle Hospital on 30 April 2015. I note in Dr Colvin's report that he refers to neurological problems through both the left and right arms originating potentially from the neck.        

MP Safety Management would recommend that Mr Blackney undergo an OT driving assessment. The lack of grip strength in the left hand, in my opinion, would make it difficult for him to grip the steering wheel. He was unable to grip at all with the left hand during the assessment Mr Blackney may therefore benefit from a steering wheel knob which would allow him to safely manoeuvre the vehicle with the right arm. This recommendation is not in relation to his shoulders but in relation to the neurological issue.

MP Safety Management would recommend that Mr Blackney undergo an Aged Care Assessment with the Department of Human Services. The Aged Care Assessment Team assesses the care needs of older people. An application for care can then be submitted. The ACAT team can consider his health issues external to his shoulders which are currently impacting on his ability to manage some activities of daily living and personal care.

…

If the independent assessment confirms that the deterioration in his level of function is related to the neurological issues and not related to his shoulders, the MP Safety Management supports the following ongoing care which has been provided prior to his deterioration in August 2014:

•    Weekly service to strip and remake his bed, vacuum his house, mop, dust, wipe over and clean the bathroom and clean the kitchen. This service would be up to approximately 2 hours.

•    Fortnightly service of approximately 1 to 2 hours to assist Mr Blackney with gardening.

Report of Dr Karen Hill dated 3 November 2015 (A10)

1. On or around 3 November 2015, Mr Blackney wrote to Dr Hill requesting that she report on any neurological disorders contained in his GP medical records. Dr Hill’s report relevantly reads as follows:

   [Mr Blackney] has seen me regularly from august 2006 until june 210 when he moved away from the area. During this time, there is no mention of any neurological symptoms or problems involving his neck or arms and no correspondence from any specialists.

   He was next seen in our surgery in November 2014 when we received a letter from Dr David Colvin, orthopaedic surgeon who had reviewed Mr Blackney. Dr Colvin mentions that MR Blackney had neurological symptoms in his left arm of pins and needles with numbness and weakness which he felt were not due to the original rotator cuff shoulder injury. Dr Colvin recommended further investigation and also said that he had noted neurological symptoms back in 2011, but we have no letter about that in the medical records.

   He was reoffered for nerve conduction studies in November 2014 which confirmed a moderately severe chronic left ulnar neuropathy at the elbow with some mild left median neuropathy at the wrist.

   He elected not to have any surgical treatment on this as there was no guarantee that it would improve his symptoms.

   He has never had any neck pain and has not been referred to a neurologist or neurosurgeon for possible cervical spine radiculopathy which was suggested by Dr Colvin in his letter in November 2014.

   Certainly at the time of his original rotator cuff injuries in 2008, he had no neurological symptoms in his arm.

   Report of Dr Anthony Cairns, Consultant Orthopaedic Surgeon, dated 3 October 2016 (R2)

2. On 10 September 2016, Mr Blackney was referred to Dr Cairns for a medical assessment and report.  This report reads as follows:

   Thank you for referring Raymond John Blackney for medical assessment and report.  Based on Mr Blackney's medical condition as specified in your referral, I confirm that my specialty is appropriate for the conduct of this assessment.

   Having reviewed the available records and file data, interviewed and examined Mr Blackney, I now submit a detailed medical report in answer to your request.

   The following file records were made available to me:

   I confirm receipt of the copious documentation accompanying your referral of 31 August 2016 as cited at #2: Enclosures, page 2, down to and including the document entitled “Activities of Daily Living Assessment: Melanie Parker-Doney dated 21 April 2015”, and confirm that this documentation together with the Guidelines for Persons Giving Expert and Opinion Evidence and for Expert Witnesses in Proceedings in the Federal Court of Australia, 846 pages in total, were examined in detail and taken into consideration in formulation of this report.

   The following details of interview are those as obtained from Mr Blackney who was accompanied at stages during the interview and assessment by his friend and Power-of­ Attorney, Brian Carthew, JP (unless otherwise specified).

   HISTORY:

   Occupation/Work Duties:

   Raymond Blackney advised that he received no more than two years of secondary level education and left school at age 14 years.  He suggested his entire work experience from that point was at sea as a sailor.  However, he states that he has acquired qualifications as a Ship Master, Ship Engineer, Grade 2 qualification in Refrigeration and Marine Engine Driver, Master 3 in Training and Fishing, qualification in Small Business Management and Planning, and Workplace Assessment.

   Mechanism of Alleged Injury/Sequence of Events:

   The circumstances of Mr Blackney's injuries are repeatedly described within the copious accompanying documentation.

   Essentially, on or about 19 January 2008 as he was stepping from a tender on to a wharf he fell on to his front/”stomach” and his shoulders were jammed between the concrete wharf and a steel pile.

   Similarly, the progress and treatment of his injuries is repeatedly outlined within the documentation, including the contemporaneous descriptions by the treating Orthopaedic Surgeon, Dr Colvin.

   Summarily, he underwent left rotator cuff repair on or about 13 February 2008, apparently disrupted shortly afterwards during an acute admission to Fremantle Hospital where he underwent abdominal surgery with resection of a large portion of his bowel.

   It appears that during this crisis the left rotator cuff repair was disrupted, and following review by Dr Colvin he underwent revision surgery on or about 9 May 2009.

   He continued to experience some problems post-operatively, and was re-admitted to hospital on or about 27 August 2009 for manipulation under anaesthetic.

   Between that event and 2014 (Colvin letter 31 October 2014), the status of Mr Blackney's left shoulder continued to deteriorate, and in the interim he developed unrelated neurologic problems involving his non-dominant left upper limb, together with development of a significant contracture of the left little finger due to Dupuytren's disease.

   Mr Blackney was assessed in the Department of Orthopaedic Surgery at Fremantle Hospital on 4 June 2015 and subsequently admitted to that hospital for amputation of the left fifth finger, carpal tunnel and cubital tunnel release (letter Dr Bentley 4 June 2015).

   The injury to his right shoulder was treated by right rotator cuff repair on or about 6 May 2010.

   Current Status:

   Left Shoulder:

   Raymond reports ongoing painful restriction of movement of his left shoulder exacerbated by episodes of “locking up” in various positions.  This event causes him to adopt a pendulum position with his shoulder which unlocks the joint and provides resolution of the pain.

   He also describes a background pain said to be present “most of the time”, for which he employs Tramadol 50 mg SR irregularly, estimated about two or three times weekly.  The shoulder feels tight and movement is restricted.

   Raymond is of the view that his left shoulder impairment does not seem to be changing with the passage of time.

   Right Shoulder:

   He describes similar painful restriction of movement and intermittent episodes of “locking up”, but overall not as bad as his left shoulder.

   He is of the view that this problem also does not seem to be changing with the passage of time.

   Left Upper Limb:

   Problems in relation to neurologic impairment in his non-dominant left upper limb and Dupuytren's contracture affecting the fifth finger of his left hand have been treated surgically by Dr Jarrett, Orthopaedic Surgeon, on an unspecified date in 2015 as described.

   Raymond states that post-operatively symptoms were improved, but he continues to experience “phantom symptoms” in relation to the fifth finger amputation, and frequent episodes of cramping involving his fingers, weakness and reduction of grip strength.

   Present Work Status:

   Raymond confirms that he has not resumed gainful employment since injuries were sustained on 19 January 2008.

   Present Activities:

   As documented in detail, Raymond requires assistance with some aspects of personal grooming and hygiene provided by the Silver Chain Organisation.  He is restricted driving a motor vehicle to less than an hour, and is capable of limited food preparation, mostly canned food.  All other aspects of daily living, cooking, domestic duties, laundry and shopping activities require assistance from friends or other entities.

   Gardening services are also subsidised, no lawn mowing required.  The wheelie garbage bin is placed for collection by a helpful neighbour.

   Apart from the usual activities of daily living, Raymond states that he is unable to resume fly fishing or boating activities.

   Present Treatment:

   He employs the medication Tramadol 50 mg SR as described.  He also continues to perform self-supervised exercises, including employing pulleys for shoulder exercises.

   Past Medical History:

   Raymond advises that he suffers emphysema, experiences discomfort in his left lower extremity which is painful and sore, ongoing bowel problems and diarrhoea following the extensive bowel surgery, and reports problems with anger for which he receives counselling.

   He gives a past history of insertion of a stent to an aortic aneurysm, deep venous thrombosis and the major gastrointestinal surgery.  He also gives a past history of previous left lateral epicondylitis.

   Family History:

   Both parents are deceased, father cause unknown, mother from emphysema.  A half-brother is deceased from coronary disease, half-sister aged 96 health status unspecified.

   He gives no known family history of arthritis, gout or diabetes.

   Personal/Social History:

   Raymond is a divorcee, two sons apparently enjoying good health, and he currently resides in a rented Homes West residence, experiencing some financial hardship.

   He ceased smoking 20 cigarettes daily in about February 2016, rarely consumes alcohol, and denies use of illicit substances.

   PHYSICAL EXAMINATION:

   Raymond Blackney presented in a timely manner for his appointment, accompanied by his friend Brian.  Brian provided some assistance with disrobing, and redressing at completion of the assessment.

   Mr Blackney was argumentative and somewhat discordant throughout the interview, in particular expressing his disdain when informed that my geographic base was in the Eastern states, apparently shared with the Occupational Therapist assessor Ms Parker-Doney.  On a number of occasions Mr Blackney questioned the purpose of the particular question asked. He was otherwise generally cooperative if not somewhat surly, and reminded me that he has a problem with anger.  He has advanced balding, decorated by short grey facial beard and moustache and a ring piercing in the left earlobe, ambulating with the assistance of a cane due to apparent difficulty with his left leg, confirmed by Mr Blackney as to have been present since the major abdominal surgery, and adopting a stooped-over posture.  His shirt was slit open at the front and held by a safety pin, and he was decorated by elaborate tattoos over his arms and chest, with a prominent abdomen, midline vertical surgical incision and underlying incisional hernia.

   Height measured at 178 cm, weight 90 kg, a body mass index calculated as slightly over 28 kg/m2, upper overweight range.

   Head/Neck:

   Inspected seated at rest there is a forward-thrust posture of his short neck secondary to an increase in thoracic kyphosis.

   Active movements of the neck were estimated as to flexion 45°, extension 15°, right lateral flexion 20°, left 15°, right and left lateral rotation to 40°.

   He reported a variation in sensation to light touch and pinprick below the left elbow, and there was a global variation in weakness of muscle contraction against resistance throughout the left upper limb, deep tendon jerk responses absent.

   Mr Blackney, who had registered his and his chiropractor's disagreement with Dr Colvin's opinion that these findings were “neurological”, sought opinion from me, and was advised that they are “neurological”, met with some chagrin on his part.

   Amputation of the left fifth finger confirmed.

   Upper Limbs/Shoulder Girdles:

   In upright stance Raymond adopts a stooped position leaning to the left maintaining his left elbow in flexion, said to be due to shoulder and elbow pain.

   He described the pain as globally throughout the left upper limb, inspection confirming puncture scars and a coronally-orientated incision over the point of the shoulder consistent with the reported surgery, and there was generalised wasting of the musculature about both shoulder girdles.

   Bilateral prominence of the acromioclavicular joints was non-tender to firm pressure.

   Active movements at the left shoulder as compared to right were estimated as to flexion 60°/60°, extension 40°/40°, abduction 70°/60° painful, adduction not assessable, external rotation 20°/45°, internal rotation with arm by his side was such that he could place his forearm against his abdominal wall, but was unable to put his hand behind his back, and it was not possible to assess external rotation at 90° abduction.

   Inspection of the left hand confirmed atrophy of the intrinsic muscles associated with amputation of the fifth finger, restricted power of grip and the variation in sensation over the forearm and hand as described above.

   INVESTIGATIONS:

   Imaging investigations presented for inspection included:

   Plain X-ray of the Left Shoulder of 10 November 2014 demonstrating intra-osseous anchors employed in rotator cuff repair, irregularity and possible resection of the acromioclavicular joint, and calcification in the rotator cuff.

   This X-ray was reported by Dr Butterfield as:

   “There are six metallic suture anchors within the greater tuberosity consistent with previous rotator cuff repair.  There is mild irregularity of both the greater and Jesser tuberosities consistent with chronic rotator cuff tendinopathy.

   There is widening of the AC joint consistent with previous resection.  The acromion is also attenuated in areas consistent with previous acromioplasty.

   There is, however a large ossified focus within the subacromial space.

   There is some spurring of the anterior under surface of the acromion but much of this ossified material is detached and may be dystrophic in nature.”

   MRI- Left Shoulder of same date, also reported by Dr Butterfield as:

   “Comment:

   Recurrent full thickness tear of the supraspinatus tendon.  There are possibly a few very attenuated fibres remaining intact posteriorly, though this is uncertain.  The majority of the tendon is medially retracted to the level of the superomedial head.  Mild to moderate supraspinatus muscle belly atrophy.

   Attenuation and tendinopathy of the infraspinatus tendon.  The anterior fibres are not well assessed distally however no obvious high grade tear or tendon retraction is seen.

   The intra-articular portion of the long head of biceps tendon is deficient.  There may have been previous tenotomy or tenodesis.

   Previous AC joint resection and acromioplasty.   There is a large recurrent subacromial spur and irregular subacromial ossification, which may at least be partially dystrophic in nature. Inferior spurring of the distal clavicle may also be contributing to impingement.

   There is superior migration of the humeral head and chondral wear with areas of full thickness fissuring seen on the medial articular surface. Irregular inferior labral tear extending from 5 to 7 o'clock.”

   Within the documentation is report of MRI Right Shoulder of 13 April2010, by Dr Breidahl as:

   “Comment:

   1.        Full thickness tear of the mid posterior supraspinatus tendon estimated at 15 mm in AP extent with medial retraction of the torn tendon fibres to the lateral acromion. Muscle bulk is relatively normal.

   2.        Tearing of the lesser tuberosity insertion of the subscapularis tendon, with a few superficial fibres remaining in continuity with the transverse humeral ligaments.  Mild to moderate subscapularis muscle atrophy.

   3.        Prior rupture of the intra-articular portion of the long head of biceps tendon.  Antero­ inferior acromial spur.  Downward lateral acromial slope.”

   At the time of presentation Mr Blackney also provided documents:

   •          Copy of letter Dr Colvin to Dr Lacey 31 January 2008.

   •          Copy of report Dr D Oldham to Allianz Australia 28 May 2008.

   •          Copy of letter Dr Colvin to Allianz 19 May 2008.

   •          Copy of statement B Morphet, Senior Social Worker 1 April2011.

   •          Copy of final medical certificate Dr Colvin 27 May 2011.

   •          Copy of report bilateral shoulder ultrasound 4 August 2014.

   •          Copy of letter Dr Kaitharath to Allianz Insurance 12 September 2014.

   •          Copy of statement C Armstrong, Registered Psychologist 7 October 2015.

   •          Copy unidentified handwritten note Silver Chain.

   The report of the bilateral shoulder ultrasound undertaken at Carnarvon Hospital on 4 August 2015 is as follows:

   Left Shoulder:

   “'The long head of biceps tendon is attenuated and normal in position.  No biceps tendon sheath effusion seen.  The subscapularis tendon is intact and normal.

   There is complete rupture of the supraspinatus tendon.  The infraspinatus tendon is intact and normal in appearance.  No paralabral cyst.

   There is mild degenerative change at the left acromioclavicular joint.

   There is moderate thickening of the subacromial bursa with bursal bunching on abduction and internal rotation of the left shoulder.”

   Right Shoulder:

   “The right biceps tendon is attenuated and normal in position.   There is no biceps tendon sheath effusion.  Subscapularis tendon is attenuated.

   The supraspinatus tendon is intact though appears heterogeneous, this may be related to previous surgery.  The infraspinatus tendon is intact.  No paralabral cyst.

   Mild degenerative change at the acromioclavicular joint noted.

   The subacromial bursa is mildly thickened and there is bursal bunching on abduction and internal rotation of the right shoulder.”

   SUMMARY AND ASSESSMENT:

   In summary therefore, this now 79 year-old plaintiff presents with history, clinical findings, documented records and imaging investigations consistent with having sustained significant injuries to the rotator cuff structures of both shoulders in a fall in the course of his work activities on or about 19 January 2008, recorded ulnar nerve involvement at the left elbow and median nerve involvement at the wrist associated with significant Dupuytren's contracture of the left fifth finger, the clinical and neurophysiological findings also suggesting likely cervical spondylosis with “superimposed left C8 radiculopathy”, Dr Knezevich also making reference to possible “brachial plexopathy” (report 28 November 2014).

   However, the overriding impairment relates to that derived from his bilateral shoulder girdle injuries, on the left limiting his capacity to deliver the upper limb to the point of activity despite the impairments not related to the original work injuries.

   Therefore, in response to the questions within your referral of 31 August 2016, I have the following answers to offer:

   Schedule of questions: Current condition

   3.1Does the Applicant continue to suffer the effects of the bilateral rotator cuff tears (the accepted injury) and, if not, when did the effects, such as incapacity and impairment  cease?

   In my opinion, the Applicant continues to suffer the effects of the bilateral rotator cuff tears.

   3.2      If the Applicant continues to suffer the effects of the accepted injury:

   (a)       What impairment does the Applicant presently suffer from?

   Refer foregoing report.

   He presents with significant painful restriction of shoulder girdle movement bilaterally.

   There are also findings suggesting cervical spondylosis and radiculopathy, and residual effects of ulnar and median nerve involvement at the left elbow and wrist respectively.

   (b)      What incapacity does the Applicant presently suffer from?

   Refer foregoing report at paragraphs “Physical Examination”, “Current Status” and “Present Activities”.

   In my opinion, the Applicant's claimed incapacities are consistent with bilateral shoulder impairment resulting from the original injuries despite surgical treatment thereof.

   3.3How does the accepted injury restrict the Applicant?  Please specify the Applicant's restrictions in relation to the Applicant's activities of daily living and any other relevant activities related to the Applicant's functioning.

   Refer foregoing report at paragraph “Present Activities”.

   I also note the opinion expressed by Ms Parker-Doney in her report of 21 April 2015 which appears to be consistent with his current clinical presentation.

   3.4Is the current incapacity and restriction due solely to the accepted injury?

   Despite the other diagnoses as cited, in my opinion the Applicant's current incapacity and restrictions are due primarily and overridingly to the accepted injuries.

   3.5If not, are there any other non-work related conditions or circumstances that are presently resulting in the Applicant's impairment and incapacity?  Please explain your answer.

   As noted, there are findings in his non-dominant left upper limb consistent with the other non-work related conditions as diagnosed which I consider, on the balance of probabilities, of themselves are not making any significant additional contribution to the level of the Applicant's impairment and incapacity, on the basis that regardless of those conditions the Applicant would have difficulty delivering his left upper limb functionally because of the significant shoulder girdle impairment and incapacity.

   3.6Have the effects of a pre-existing or other medical related condition overtaken the effects of the accepted injury?  Please explain your answer.

   No.

   There is no information based on the history, clinical findings, operative findings and imaging investigations to indicate that a pre-existing or other medical related condition has overtaken the effects of the accepted injury.

   His current predicament constitutes the long term outcome of the injuries sustained on 19 January 2008 and the events which have followed.

   3.7Based on the Activities of Daily Living Assessment by Melanie Parker-Doney dated 21 April 2015, the Applicant presently receives 2 hours per week assistance with home services and 1 to 2 hours per fortnight for garden maintenance.  With regard only to the applicant's accepted injury does the Applicant require this level of assistance?

   Please note that I am an Orthopaedic Surgeon, assessing Mr Blackney in isolation away from his normal environment.

   In my opinion, response to this question lies outside the province of an Orthopaedic Surgeon, and within that of either an Occupational Physician, or Workplace Occupational Therapist, such as Ms Parker-Doney.

   Having read Ms Parker-Doney's report in detail, it would appear that the Applicant does require this level of assistance related only to the accepted injuries.

   3.8What in your opinion is the required level of assistance the applicant requires to assist with his accepted injury only?

   Refer response 3.7 above.

   I am a Consultant Orthopaedic Surgeon not qualified to respond to the detail required of this question, which more appropriately lies within the province of either a Consultant Occupational Physician or Occupational Therapist.

   3.9If you recommend the Applicant requires household services, either maintained at the current level or an increased level of services, please explain how these relate to the accepted injury.

   Whatever level of services are recommended by the appropriate suitably qualified consultant, in my opinion Mr Blackney's upper limb impairments relate predominantly to the accepted injuries.

   Other factors.

   3.10Is there any evidence of non-organic factors and voluntary or involuntary exaggeration of the symptoms or signs?  Please explain.

   Mr Blackney reports problems with anger management, and presented as an irritable and argumentative witness, possibly manifesting elements of biopsychosocial potentiation in his presentation with increased illness/injury focus and conviction, probably understandable given the extent and chronicity of his predicament.

   I did not detect any apparent voluntary or involuntary exaggeration of the symptoms or signs related to the index injuries.

   3.11Should the Applicant be examined by a practitioner in any other field of medicine?  If so, which?

   I do not consider that the Applicant should be examined by a practitioner in any other field of medicine with respect to the impairments derived from his shoulder injuries.

   However, despite Mr Blackney's protestations to the contrary, there are abnormal neurologic findings in his non-dominant left upper limb, at least in part attributable to the abnormal findings reported on the neurophysiological investigation, but there are clinical findings to suggest degenerative disease involving his cervical spine (spondylosis) with possible left C8 radiculopathy.

   Further clarification may be derived from assessment and investigation by a Consultant Neurologist.

   Supplementary Report of Melanie Parker-Doney dated 21 July 2017 (R4)

1. Upon review of the report from Dr Cairns, dated 3 October 2016, Ms Parker-Doney produced a supplementary report to her report dated 21 April 2015 (T63). Her supplementary report relevantly reads as follows:

   I have read the report from Dr Cairns, dated 3 October 2016. I will now answer your schedule of questions.

   3.1We note your report dated 21 April 2015 recommended an assessment by an Orthopaedic Surgeon to determine the current status of the left and right shoulders in relation to the original injury. The Applicant attended an independent assessment with Dr Cannes, Orthopaedic Surgeon, on 10 September 2016 and Dr Cairns subsequently produced a report dated 3 October 2016. Could you please consider the report of Dr Cairns, dated 3 October 2016 and advise if it remains your opinion that the Applicant requires the following assistance:

   (a)       2 hours per week for home services; and

   (b)       1 to 2 hours per fortnight for garden maintenance.

   “Raymond reports ongoing painful restriction of movement of his left shoulder exacerbated by episodes of ‘locking up' in various positions. This event causes him to adopt a pendulum position with his shoulder which unlocks the joint and provides resolution of the pain. He also describes a background pain said to be present ‘most of the time’ for which he employs tramadol 50mg SR irregularly, estimated about two to three times weekly. The shoulder feels tight and movement is restricted. Raymond is of the view that his left shoulder impairment does not seem to be changing with the passage of time.”

   In relation to current status under the right shoulder, Dr Cairns states in his report:

   “He describes similar painful restriction of movement and intermittent episodes of ‘locking up' but overall not as bad as his left shoulder. He is of the view that his problem also does not seem to be changing with the passage of time.”

   Dr Cairns goes on to say in relation to Mr Blackney’s left upper limb:

   “Problems in relation to neurologic impairment of his non dominant left upper limb and Dupuytren’s contracture affecting the fifth finger of his left hand have been treated surgically by Dr Jarrett, Orthopaedic Surgeon on an unspecified date in 2015 as described. Raymond states that postoperatively symptoms were improved but he continues to experience phantom symptoms in relation to the fifth finger amputation and frequent episodes of cramping involving his fingers, weakness and reduction of grip strength. ”

   Dr Cairns goes on to say in his report, on upper limb shoulder girdle physical examination:

   “In upright stance Raymond adopts a stooped position, leaning to the left, maintaining his left elbow in flexion, said to be due to shoulder and elbow pain. He described the pain as globally throughout the left upper limb, inspection confirming puncture scars and a coronally oriented incision over the point of the shoulder consistent with the reported surgery and there was generalised wasting to the musculature about both shoulder girdles. Bilateral prominence of the acromioclavicular joints was non-tender to firm pressure. Active movements of the left shoulder as compared to right were estimated as flexion: 60o/60o, extension: 40o/40o, abduction: 70o/60o, painful, adduction: not assessable, external rotation: 20o/45o, internal rotation with arm by his side was such that he could place his forearm against his abdominal wall but was unable to put his hand behind his back and it was not possible to assess external rotation at 90o abduction. Inspection of the left hand confirmed atrophy of the intrinsic muscles associated with amputation of the fifth finger, restricted power of grip and a variation in sensation over the forearm and hand as described above.”

   Dr Cairns goes on to say, under “Summary and assessment”:

   “The overriding impairment relates to that derived from his bilateral shoulder girdle injuries, on the left, limiting his capacity to deliver the upper limb to the point of activity despite the impairments not relating to the original work injuries.”

   Dr Cairns is asked: “How does the accepted injury restrict the Applicant? Please specify the Applicant’s restrictions in relation to the Applicant’s activities of daily living and any other relevant activities relating to the Applicant’s functioning.” He refers to my opinion noted in my report dated 21 April 2015 and he says that this opinion appears to be consistent with his current clinical presentation. I have not reassessed Mr Blackney since April 2015.

   Dr Cairns goes on to say in his report, under point 3.5:

   “There are findings in his non-dominant left upper limb consistent with the other non work related conditions as diagnosed, which I consider on the basis of probabilities of themself are not making any significant additional contribution to the level of the Applicant’s impairment and incapacity on the basis that regardless of those conditions, the Applicant would have difficulty delivering his left upper limb functionally because of the significant shoulder girdle impairment and incapacity.”

   Since my assessment in April 2015, Mr Blackney has had surgery to the left hand and left upper limb. Dr Cairns notes that regardless of this, his work-related left shoulder issue results in him having difficulty placing the left upper limb functionally.

   I note that Mr Blackney has reported to Dr Cairns that he is of the view that his right and left shoulder problem does not seem to be changing with the passage of time. It has been over two years since I assessed Mr Blackney. Dr Cairns has indicated in his report that his current clinical presentation remains consistent with my opinion of April 2015. Therefore, it would appear that Mr Blackney has not reported any change since my assessment of 2015. Given this, my opinion remains that the Applicant requires two hours per week of home services and one to two hours per fortnight of garden maintenance.

   However, I would add that it has been over two years since an Activities of Daily Living Assessment was completed with Mr Blackney and given his age, I would think it possible that his care needs have changed in that period, in relation to his shoulder injuries and his general health. It may therefore be appropriate for an Activities of Daily Living Assessment to be completed with Mr Blackney, and I would recommend this is completed by a Perth based medicolegal Occupational Therapist.

   ORAL EVIDENCE

   Mr Blackney

2. At the hearing Mr Blackney gave oral evidence that he did not agree with Ms Parker-Doney’s findings in the report.  He said that he had concerns that she did not have access to relevant medical reports when she wrote her report and this affected her findings.

3. Mr Blackney explained that he did not understand how, as a result of the report of Ms Emma Parker, Occupational Therapist, he had been receiving 7 hours of assistance but that as a result of Ms Parker-Doney’s report this had been reduced to 2 hours per week assistance with home services and 1 to 2 hours per fortnight for garden maintenance.

4. The Tribunal notes that Mr Blackney was at times vague and argumentative when giving evidence and being cross examined.  Given the considerable negative health effects of his injuries and the drawn out nature of these proceedings, his frustration is understandable. Despite his demeanour during the hearing, Mr Blackney struck the Tribunal as forthright and credible and has no reason to question his evidence.

   Ms Parker-Doney

5. Ms Parker-Doney gave oral evidence at the hearing in relation to both her original report dated 21 April 2015 and in relation to her supplementary report dated 21 July 2017.

6. Ms Parker-Doney was extensively cross examined by Mr Blackney.  She was calm and professional throughout.  Other than some minor recollection issues, her memory of Mr Blackney’s home situation and assessment appeared to be accurate.  The Tribunal found her to be a highly credible and honest witness.  

7. During cross examination, Ms Parker-Doney reiterated her findings in relation to both of her reports and confirmed her recommendation regarding the household services required by Mr Blackney.

8. Ms Parker-Doney was not cross examined in detail about the wording of the care recommendations in her original report or the medical evidence she relied upon when determining the household services required by Mr Blackney.

   Ms Helen Brooks, Registered Nurse

9. Ms Brooks gave evidence that she had written a report dated 2 March 2015 in relation to Mr Blackney’s care needs. This report formed the basis of the care arrangements contained in the interim agreement between Allianz and Silverchain.  At the hearing, Ms Brooks gave evidence that she had not actually done a care assessment of Mr Blackney but had instead relied upon the report of Ms Emma Patrick to reach the conclusions contained in her report of 2 March 2015.  Ms Brooks confirmed that she had had a conversation with Ms Parker-Doney in this regard

   Dr Cairns, Consultant Orthopaedic Surgeon

10. At the hearing, Dr Cairns gave evidence on terms similar to those within his report dated 3 October 2016 (R2). He reiterated his position that Mr Blackney’s incapacity is “overridingly” as a result of his accepted injury. The Tribunal attaches considerable weight to these comments. Dr Cairns is a highly regarded, objective orthopaedic surgeon.  There is no reason to doubt his findings in relation to Mr Blackney. 

    CONSIDERATION

11. While it is not disputed that Mr Blackney suffers the ongoing effects of his accepted injury, it is, in the Tribunal’s opinion, important to establish the extent to which Mr Blackney’s accepted injury results in his impairment.

12. In relation to Mr Blackney’s functional capacity the Tribunal places considerable weight on the report of Dr Cairns dated 3 October 2016 (R2).  When writing that report, Dr Cairns had all of Mr Blackney’s medical history at his disposal and prepared a comprehensive overview of Mr Blackney’s medical condition.

13. The Tribunal notes that in response to a question about Mr Blackney’s functional capacity, “Is the current incapacity and restriction due solely to the accepted injury?”, Dr Cairns responded:

    Despite the other diagnoses as cited, in my opinion the Applicant's current incapacity and restrictions are due primarily and overridingly to the accepted injuries.

14. Further, when asked whether there were any other non-work related conditions or circumstances that are presently resulting in Mr Blackney’s impairment and incapacity, Dr Cairns responded:

    As noted, there are findings in his non-dominant left upper limb consistent with the other non-work related conditions as diagnosed which I consider, on the balance of probabilities, of themselves are not making any significant additional contribution to the level of the Applicant's impairment and incapacity, on the basis that regardless of those conditions the Applicant would have difficulty delivering his left upper limb functionally because of the significant shoulder girdle impairment and incapacity.

15. From the above and on the available evidence, the Tribunal finds that Mr Blackney’s accepted injury has caused significant impairment and any inability Mr Blackney may have undertaking household tasks and personal care results solely from the accepted injury.

    What services are reasonably required as a result of the accepted injury?

16. In relation to this issue, the Tribunal notes that Allianz was entirely reliant upon the report of Ms Parker-Doney dated 21 April 2015 when making the determination.  The Tribunal has reviewed Ms Parker-Doney’s report in detail and makes the following findings.

    Report of Ms Parker-Doney dated 21 April 2015

17. The Tribunal notes that in her report, Ms Parker-Doney reported that:

    (a)Mr Blackney reported that he felt he had had further injury and deterioration to his left shoulder in August 2014 (T63 at 156);

    (b)Mr Blackney had reported that as his care needs have increased since August 2014, his neighbor has been assisting him (T63 at 161);

    (c)in his report dated 31 October 2014, Dr Colvin reported that Mr Blackney was experiencing ‘neurological problems involving his arms’, that these problems ‘do not relate to his shoulder problems’ and that the these neurological problems ‘require investigation under the care of a Neurologist or Neurosurgeon’ (T63 at 161);

    (d)she did not wait for a detailed report from Ms Emma Patrick before completing her report (T63 at 162); and

    (e)Mr Blackney had been referred to a Neurologist and would be seeing said Neurologist on 30 April 2015 (T63 at 165).

18. In the summary to her report, Ms Parker-Doney reports:

    Mr Blackney is experiencing a neurological issue with his left arm and hand which has significantly reduced his ability to engage in self-care. Because of the issue he now has with his left hand…

    [Emphasis added]

19. In the recommendations section of the report, Ms Parker-Doney relevantly writes:

    If the independent assessment confirms that the deterioration in his level of function is related to the neurological issues and not related to his shoulders, the MP Safety Management supports the following ongoing care which has been provided prior to his deterioration in August 2014:

    •    Weekly service to strip and remake his bed, vacuum his house, mop, dust, wipe over and clean the bathroom and clean the kitchen. This service would be up to approximately 2 hours.

    •    Fortnightly service of approximately 1 to 2 hours to assist Mr Blackney with gardening.

    [Emphasis added]

20. The Tribunal has concerns about the conclusions drawn by Ms Parker-Doney – in particular, the medical evidence used as the basis for her findings, and, as a consequence her recommendations regarding the household services required by Mr Blackney.

21. The Tribunal notes that prior to Ms Parker-Doney authoring her report, Dr Colvin reported that Mr Blackney was experiencing ‘neurological problems involving his arms’ and that his neurological problems were an independent problem which required investigation ‘under the care of a neurologist or neurosurgeon’.  Despite this, no assessment by a Neurologist or Neurosurgeon of Mr Blackney’s neurological symptoms or their effect on his ability to engage in self-care appears to have been performed. Certainly, no evidence was provided to the Tribunal that would stand as proof that an assessment of this sort was actually undertaken.

22. The Tribunal can only work with the evidence put before it. On the evidence available, it appears that at the time Ms Parker-Doney prepared her report there was no evidence by a sufficiently qualified medical professional that Mr Blackney did actually have neurological issues that were significantly reducing his ability to engage in self-care (T63 at 165).  Accordingly, Ms Parker-Doney was unable to conclude (as she appears to have done) that Mr Blackney had neurological issues that were significantly reducing his ability to engage in self-care.

23. Later in her report, Ms Parker-Doney gives a provisional recommendation relating to Mr Blackney’s care needs.  Her recommendation states that if the independent assessment confirms that the deterioration in his level of function is related to the neurological issues and not related to his shoulders, then the MP Safety Management supports the following ongoing care which has been provided prior to his deterioration in August 2014 (T63 at 168).

24. This recommendation appears to contradict her earlier conclusion that Mr Blackney had neurological issues which significantly reduce his functional capacity (T63 at 165).  It also creates some confusion given Dr Cairns’ findings that any functional incapacity Mr Blackney has is due entirely to his shoulder injury.  It is unclear from Ms Parker-Doney’s recommendation what she envisaged Mr Blackney’s care needs would be if it were found that his level of function was unrelated to the ‘neurological issues’.

25. Unfortunately, Ms Parker-Doney did not extrapolate on these points during the hearing or in her supplementary report other than to say:

    It has been over two years since I assessed Mr Blackney. Dr Cairns has indicated in his report that his current clinical presentation remains consistent with my opinion of April 2015. Therefore, it would appear that Mr Blackney has not reported any change since my assessment of 2015. Given this, my opinion remains that the Applicant requires two hours per week of home services and one to two hours per fortnight of garden maintenance.

    [Emphasis added]

26. In her supplementary report, Ms Parker-Doney extensively referenced Dr Cairns’ report relying on Dr Cairns’ response to the following question:

    How does the accepted injury restrict the Applicant?  Please specify the Applicant's restrictions in relation to the Applicant's activities of daily living and any other relevant activities related to the Applicant's functioning.

    Refer foregoing report at paragraph “Present Activities”.

    I also note the opinion expressed by Ms Parker-Doney in her report of 21 April 2015 which appears to be consistent with his current clinical presentation.

27. The Tribunal notes Dr Cairns’ response but highlights that it only relates to the restrictions faced by Mr Blackney in relation to his activities of daily living. The Tribunal does not accept that Dr Cairns’ response to this question is an affirmation of Ms Parker-Doney’s care recommendations, particularly given that the recommendations were provisional upon a finding that neurological issues experienced by Mr Blackney were significantly reducing his functional capacity – something Dr Cairns specifically found not to be the case.

28. The Tribunal is by no means impugning the professionalism or ability of Ms Parker-Doney as an Occupational Therapist. While the Tribunal accepts that Ms Parker-Doney is the most appropriately qualified professional to determine Mr Blackney’s functional capacity, based on the observations above, the Tribunal finds that the genesis of the care recommendations made by Ms Parker-Doney, and adopted by Allianz, were ill conceived and based on findings she was not qualified to make and medical evidence she did not have available to her at the time.

29. Further, Ms Parker-Doney’s recommendation provides no guidance as to what Mr Blackney’s household service needs should be given that his accepted injury is primarily responsible for his impairment.  The Tribunal notes that in her supplementary report, which was made after Dr Cairns’ report, Ms Parker-Doney does not address the inconsistencies in her original report.  In coming to the same conclusion as that provided in her original without any explanation, she thus provides a somewhat defective and questionable conclusion. In the circumstances, the Tribunal places little weight on her recommendations.

30. For completeness, the Tribunal notes that counsel for the Respondent, in a Statement of Facts, Issues and Contentions dated 21 April 2017, contended that Tribunal should accept Ms Parker-Doney’s recommendations based on the following comments made by Dr Cairns in his report:

    Based on the Activities of Daily Living Assessment by Melanie Parker-Doney dated 21 April 2015, the Applicant presently receives 2 hours per week assistance with home services and 1 to 2 hours per fortnight for garden maintenance.  With regard only to the applicant's accepted injury does the Applicant require this level of assistance?

    Please note that I am an Orthopaedic Surgeon, assessing Mr Blackney in isolation away from his normal environment.

    In my opinion, response to this question lies outside the province of an Orthopaedic Surgeon, and within that of either an Occupational Physician, or Workplace Occupational Therapist, such as Ms Parker-Doney.

    Having read Ms Parker-Doney's report in detail, it would appear that the Applicant does require this level of assistance related only to the accepted injuries.

31. As rightly pointed out by Dr Cairns himself, this question lies outside the province of an Orthopaedic Surgeon.  On this basis, and in conjunction with the Tribunal’s findings in relation to Ms Parker Doney’s report at paragraphs 57 to 69 above, the Tribunal also places little weight on this comment.

    CONCLUSION

1. From the above and on the available evidence, the Tribunal finds that the report Allianz relied upon when coming to the determination is based on findings that the author was not qualified to make and medical evidence she did not have available to her at the time.

2. Further, given the fact that the most recent medical evidence from Dr Cairns seems to contradict the basis for the recommendations made in the report, the Tribunal finds that Ms Parker-Doney’s report and thus the determination are defective.

3. On this basis, the Tribunal is of the opinion that Ms Parker-Doney’s report cannot be used as the basis for a determination of Mr Blackney’s care needs. This is particularly so given that the issue of whether Mr Blackney’s neurological problems affect his ability to engage in self-care remains unresolved.

4. On the evidence, which is flawed and incomplete, the Tribunal is unable to determine what Mr Blackney’s functional capacity actually is and therefore what household services and/or care attendant services he reasonably requires. As a result, the Tribunal is also not in a position to accurately determine the sum total of compensation Mr Blackney should be entitled to in relation to household services and/or care attendant services.

5. The Tribunal notes that immediately prior to the determination Mr Blackney’s care arrangements were in the terms of the interim agreement in place between Allianz and Silverchain. Given that the determination is defective, and in the interests of fairness, the interim agreement should continue until a fresh assessment of Mr Blackney is performed and a new determination, if any, is made.

   DECISION

6. Having regard to the evidence before it, and to the above discussion, the decision under review is set aside and this matter remitted to the respondent with the following directions that:

   (a)the applicant be referred to a Neurologist or Neurosurgeon for assessment and reporting;

   (b)the report prepared by the Neurologist or Neurosurgeon referred to above by provided to Dr Cairns, Consultant Orthopaedic Surgeon, for assessment and reporting;

   (c)an Activities of Daily Living Assessment of the applicant be completed by a Perth based medicolegal Occupational Therapist having read the reports referred to at subparagraphs 77 (a) and (b); and

   (d)until such time as a new determination, based on the report of the Occupational Therapist referred to at subparagraph 77(c), above is made, Mr Blackney receive care on the terms of the interim agreement in place for the period 5 March 2015 – 5 April 2015 being the cost of 7 hours per week for home services, consisting of 6 hours allocated to cleaning services and 1 hour to garden maintenance.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall

.........[sgd]...........................................................

Administrative Assistant - Legal

Dated: 30 November 2017

Date of hearing:	30 August 2017
Date final submissions received:	17 October 2017
Applicant:	In person
Counsel for the Respondent:	Mr M Hawker
Representative for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers