Blackney and Total Marine Services Pty Ltd
[2004] AATA 269
•15 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 269
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2001/407
GENERAL ADMINISTRATIVE DIVISION ) Re RAYMOND BLACKNEY Applicant
And
TOTAL MARINE SERVICES PTY LTD
Respondent
DECISION
Tribunal Mr M Allen, Member Date15 March 2004
PlacePerth
Decision
The decision of the Tribunal is that:
(a)The reviewable decision made by the delegate of the respondent on 21 September 2001 is set aside;
(b)The matter is remitted to the respondent for reconsideration and re-determination in accordance with the following directions:
(i)the applicant was incapacitated for work as a result of the injury suffered on 31 July 1999 from 5 December 2000 until 3 Janury 2002; and
(ii)the applicant is entitled to compensation pursuant to sections 26, 28, 31 and 50 of the Seafarers Rehabilitation and Compensation Act 1999 (“the Act”).
(c)Pursuant to s92(2) of the Act, the costs of the proceedings incurred by the applicant are to be paid by the respondent
.........…...(sgd M Allen)….............
Member
CATCHWORDS
SEAFARERS COMPENSATION – applicant suffered laceration injury at work – subsequently diagnosed with thrombosis of superficial veins of lower leg – that condition caused by work injury – applicant incapacitated for work – incapacity resulted from work injury – determination of period of incapacity – reviewable decision to deny liability set aside – matter remitted to respondent for compensation to be determined.
Administrative Appeals Tribunal Act 1975, s37
Seafarers Rehabilitation and Compensation Act 1999, ss26, 28, 31, 50, 92
REASONS FOR DECISION
15 March 2004 Mr M Allen, Member 1. This is an application by Mr Raymond Blackney for review of a decision made by the respondent on 21 September 2001 which affirmed a determination made on 24 April 2001. That determination was that the respondent was not liable to the applicant for the payment of “weekly and associated benefits” in respect of a claim arising out of an incident at work on 31 July 1999 because the “evidence to hand suggests that any alleged ongoing incapacity is not related to your employment with [the respondent].”
2. At the hearing of the matter the applicant was represented by Mr Prast and the respondent was represented by Mr Naseem.
3. The Tribunal received into evidence documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T58) and two documents tendered by the applicant (A1 and A2). Oral evidence was given by the applicant and by Dr K C Wan, who was called by the applicant.
Background and Issues
4. The following background facts were not in dispute and the following findings of fact can be made. The applicant was born in September 1937 and has been a seaman in one capacity or another since the age of 14 years. In July 1999 the applicant was engaged by the respondent as a tugmaster on the respondent’s vessel “Total Docker” in the north-west of Western Australia.
5. The present case concerns the consequences of an alleged injury suffered by the applicant on 31 July 1999 – specifically whether the applicant was injured and whether the effects of the injury extended beyond April 2001, when the respondent denied any liability to the applicant under the Seafarers Rehabilitation and Compensation Act 1992 (“the Act”).
6. The applicant lodged a claim for rehabilitation and compensation in respect of the July 1999 injury (T8) that was received by the respondent on or about 20 March 2000. The claim form referred to the injury as “left lower leg abrasions and bruising” and referred to claims for “medical and related expenses” and “alterations, aids or appliances”.
7. Between March 2000 and April 2001 the applicant saw a number of medical practitioners and at various times was classified as fit or unit for normal duties.
8. On 24 April 2001 the respondent issued the determination denying liability for the payment of weekly and associated benefits as set out at [1] above. By letter dated 1 May 2001 the applicant sought reconsideration of that decision and by letter dated 24 July 2001 Comcare Australia reported to the respondent’s insurer for the purposes of the reconsideration under s78 of the Act, making certain recommendations.
9. By letter dated 21 September 2001 the respondent referred to the “certain recommendations/investigations” contained in Comcare’s letter and advised the applicant that “after carrying out the aforementioned recommendations [the] evidence in our possession suggests that any alleged ongoing incapacity is not related to your employment with [the respondent].”
10. As noted, the determination made on 24 April 2001 referred to a claim for “weekly and associated benefits” when denying liability. Although there are no documents before the Tribunal on the point, the letter from Comcare to the respondent noted “the advice that liability was only admitted for medical costs.” At the commencement of the hearing the respondent’s counsel informed me that the medical expenses had been paid by the respondent whilst specifically denying liability to do so and that the determination of 24 April 2001 constituted a denial of liability under sections 26, 28, 31 and Part 3 generally of the Seafarers Rehabilitation and Compensation Act 1992 (the Act) and the case was presented on that basis. I am satisfied that that is so.
11. Section 26 relevantly provides that the respondent will be liable to pay compensation to the applicant for an injury that results in incapacity for work or impairment. Section 28 provides that compensation includes the cost of reasonable medical treatment and s31 provides for compensation by way of payments of weekly amounts (calculated in accordance with the section) to an employee who is incapacitated for work as a result of an injury. Part 3 of the Act deals with the obligation of the employer of an incapacitated employee to assess the employee’s capability to undertake a rehabilitation program, to meet the costs of any resulting program, and to pay certain forms of compensation.
The July 1999 Incident
12. The evidence of the applicant as to what happened on 31 July 1999 was not challenged by the respondent by adducing evidence from other employees who were present at the time, nor was the applicant cross-examined to any significant degree about the incident that occurred. I accept the applicant’s evidence about the incident and find the following.
13. At about 4.50am the applicant was standing at the front of a dingy holding onto the jetty at Thevenard Island whilst two other crewman attempted to start the motor of the dinghy in order to travel out to the Total Docker. The motor started suddenly and was jammed in gear. The dinghy lurched forward and the applicant was knocked off his feet, cutting his lower left leg when he fell back over a seat in the dinghy.
14. The applicant went onboard the Total Docker and travelled out to a tanker, where the Total Docker was ordered by the pilot to standby for some 3 to 3½ hours. During that time the applicant cleaned the wound and bandaged it using the Total Dockers first aid kit. The leg remained sore and bleeding. At about 9.30am the applicant was able to return to Thevenard Island and was seen by a first aid officer who cleaned and taped the wound and suggested that it be packed in ice. The applicant then returned to the Total Docker and again went on standby at the tanker until the tanker sailed. Whilst on standby the applicant remained in the wheelhouse of the Total Docker with his leg wrapped in an ice compress. During that time he completed an incident report (T50) that is consistent with the above description of events and which was signed by the two other employers who were in the dinghy at the time. The injury was described as “abrasions and bruising left innercalf”.
15. I am satisfied that the applicant suffered an injury in the course of his employment in the way described above that involved abrasions, bleeding and bruising of his lower left leg.
Post-accident Events
16. There was no particular dispute between the parties as to subsequent events and, except where noted, I find the following to have occurred.
17. Later in the day the applicant returned to Thevenard Island and then to Onslow. On the following day (being Sunday, 1 August 1999) the applicant flew to Perth as his roster had finished, and on Monday, 2 August, he reported the accident to an officer of the respondent who arranged for him to see Dr Martin at the Westpoint Medical Centre. Dr Martin had been the applicant’s usual medical practitioner because he is also an examiner for the Australian Marine Safety Authority (“AMSA”).
18. Medical certificates issued by Dr Martin at the initial stage were not produced in evidence, but I accept the applicant’s evidence that Dr Martin treated the wound with saline dressings and bandages and that he was able to return to work within 4 or 5 days, continuing to use the saline dressings and bandages for about 2 months. The applicant experienced no particular problems with the injury at the time. He took leave between 17 and 30 September and on 2 November 1999 Dr Martin certified him as having wholly recovered from the effects of the injury sustained on 31 July and that he was fit for work.
19. The applicant took further leave between 14 December 1999 and 6 January 2000 and on his return from leave was sent on a 7-week relieving job on a seismic vessel operated by the respondent. On 2 March 2000, after the seismic vessel job finished, the applicant was informed by the respondent that no suitable positions were available for him and that advice was confirmed by a letter dated 15 March 2000 (T55).
20. In early March 2000 the applicant claimed to have experienced muscle pain and swelling in his left ankle region whilst working on the seismic vessel. He claimed that wearing the safety boots on that vessel had caused swelling in his left leg in the region of the cut suffered in the July 1999 incident. He reported that to the respondent and was referred to Dr Martin.
Documentary evidence of medical treatment
21. By letter dated 9 March 2000 (T5) Dr Martin reported that he had seen the applicant on that day and he had complained of “an area of residual skin thickening associated with swelling, which becomes pronounced when he wears socks which rest over the region, causing indentation”.. Dr Martin reported that clinical examination confirmed residual swelling and induration and that radiographic studies (T5) had demonstrated several small, rounded, calcific deposits in the underlying fatty tissue, consistent with minor vein thrombosis in that region. Dr Martin referred the applicant to Dr Steven Baker, a vascular specialist, for review and report.
22. On 10 March 2000 Dr Baker reported (T6) to Dr Martin that he understood the laceration suffered on 31 July 1999 was very slow to heal and that, given the location of it, this was not surprising. He noted that the applicant informed him that he had been on his feet more than usual in his work on the seismic vessel and this had resulted in swelling, particularly just above the level of the laceration. Examination revealed mild pitting oedema of the left lower leg above the scar resulting from the laceration. Dr Baker expected the swelling to become worse as the day progresses. He found no evidence of lipodermadosclerosis at the ankle; there was some venous flare on the medial side of both ankles, but no other signs of chronic venous disease; the pedal pulses were easily palpable in the left foot. Dr Baker suspected the applicant had suffered some damage to the lymphatics in the area of the laceration and that this would be sufficient to explain the persistent swelling he complained about. He requested a lymphoscintogram to obtain further information about this and also a venous duplex scan to check that there was no post-phlebitis damage in the veins of the left leg. He thought that a below-knee graduated compression stocking was the best thing for the applicant as, “although there is a level of inconvenience with wearing compression stockings, I think this is the best way to enable him to continue to work…”.
23. On 28 March 2000 Dr Baker reported to Dr Martin (T11) on the results of the lymphoscintogram (T10) and the venous duplex scan (T9). Dr Baker reported that “the lymphoscintogram shows local hold up of lymph drainage at the site of the laceration. The venous duplex scan shows that thrombosis has occurred in the popliteal vein. These are both tangible causes for persistent swelling and both may relate to his injury.” Dr Baker said that management with a compression stocking was all that was needed at that time and that he would see the applicant again in 3 months. He expected the swelling to improve slowly over time but not to resolve completely.
24. On 4 April 2000 Dr Martin made a progress report (T12) to the respondent that the applicant was fit to return to pre-disability duties but required further treatment i.e. specialist review in June 2000 and a compression stocking. The progress report referred to the diagnosis as “1. Localised lymphatic damage (L) leg. 2. Thrombosis popliteal vein – lateral portion (L) leg. 3. Cervical neuropathy (R) arm (possibly related to injury)”.
25. By letter dated 6 April 2000 Dr Martin provided the respondent with copies of the reports provided by Dr Baker, noting that “the consensus opinion is that Mr Blackney remains fit for duty. The only treatment recommended is that of a supporting below knee stocking.”
26. On 6 June 2000 Dr Martin certified (T14) that the applicant was fit for pre-disability duties but required further treatment and pending specialist review by Dr Baker on 20 June 2000. The clinical findings/diagnosis was described in the certificate as “1. Soft tissue injury (L) lower leg – residual subcutaneous tissue defects. 2. Thrombosis (L) popliteal vein (lateral portion) 3. Cervical spondylitis”.
27. For reasons that were not explained at the hearing the applicant was not seen by Dr Baker on 20 June 20000. No oral evidence was given on the point and there is no report from Dr Baker in the T documents. I refer to this issue again at [40] to [42] below.
28. A certificate issued by Dr Martin on 10 October 2000 described the clinical findings in the same way as above but makes no reference to the previously arranged appointment with Dr Baker on 20 June 2000 or plans for any future appointment with Dr Baker.
29. On 5 December 2000 Dr Martin issued a further progress certificate (T16), describing the clinical position as above but adding a further condition, namely “(L) knee weakness developing since September 2000”. The certificate states that the applicant was fit for pre-disability work, but required further treatment, namely medication, vein compression stockings and imaging of lumbo-sacral spine.
30. On the same day Dr Martin provided a certificate (T17) for use in the applicant’s claim for social security benefits (sickness allowance). The certificate refers to “cervical spondylitis, left leg weakness for investigation” and certifies that the applicant was not currently able to do his usual work or any work for 8 hours or more per week and would be likely to be able to work full-time or part-time in 3 months.
31. After obtaining the results of the imaging of the applicant’s lumbo-sacral spine (T18), on 14 December 2000 Dr Martin certified (T19) that the applicant was fit to return to pre-disability duties but required further treatment, namely that he was to see a neurologist, Dr Knezevic, on 12 January 2001.
32. By letter dated 8 February 2001 (T20) Dr Knezevic noted continuing pain and swelling of the left leg involving the left calf, lateral aspect of the left leg behind the left knee and along the left hamstring. The applicant had not complained of any significant back pain. Dr Knezevic noted mild pitting oedema at the left ankle and a scar that was well healed from the previous laceration. He noted moderate degenerative changes, but no evidence of nerve root compression, in the lumbar sacral spine from the x-rays and CT scan. Dr Knezevic did not think there was any neural cause to explain the applicant’s symptoms, and thought that the applicant’s weakness in the left leg was secondary to the pain, which he thought was predominantly related to his injury, soft tissue pain and also some left knee pain. He advised using a surgical stocking and physiotherapy.
33. On 14 February 2001 Dr Martin reported to the respondent (T21) about his review of the applicant following his assessment by Dr Knezevic. He noted the applicant complained of “difficulty with sitting, lifting, carrying, operating appliances and sleeping” and that the applicant attributed his incapacity to the injury sustained “to his neck, right shoulder and left leg, the latter being the most significant.” Dr Martin referred to the applicant’s claim of intermittent swelling over two sites in the left lateral calf and thought that these were “clinically related to varicose vein enlargement”. There was no evidence of significant muscle tenderness of either quadriceps or calf muscles.” Dr Martin said that he was unable to define the basis for the applicant’s continuing symptoms and claims of significant functional incapacity. He noted that he and two specialists had recommended the use of a compression stocking but noted that the applicant was not wearing the stocking when seen. Dr Martin recommended review by an orthopaedic surgeon to exclude underlying musculoskeletal disturbance and by an occupational physician to assess the degree of functional impairment and that he would expedite these referrals. There is no evidence of a referral to an orthopaedic surgeon but on 16 February 2001 Dr Martin referred the applicant to Dr Wan, an occupational physician.
34. On 9 March 2001 Dr Martin certified (T23) that the applicant was fit for restricted duties i.e. “shore based only as determined by rehabilitation”, noting that vocational rehabilitation was likely to be necessary, subject to review in 4 weeks. A similar certificate was issued by Dr Martin at about the same time but on a date that cannot be determined (T24).
35. On 9 March 2001 Dr Wan (a specialist in occupational medicine) reported (T56) that he had seen the applicant on 3 March. He noted that the applicant had “pain and tenderness in his left calf (Homans sign positive) and had difficulty getting up from a squatting position which is consistent with deep vein thrombosis.” He also detected basal crackles over his left lung base. He recommended chest x-rays to check out the basal crackles and examination by a vascular surgeon to exclude deep vein thrombosis in the left leg. He said the applicant was unfit to go to sea because of the left leg pain which required investigation by a vascular surgeon. Dr Wan expressed the opinion that the applicant’s thrombosis was consistent with the history of “delayed treatment” for the laceration injury, which he noted had been about 36 hours between the accident and the applicant seeing Dr Martin for treatment.
36. On 16 March 2001 Dr Peter Leaver, a radiologist, provided a report (T25) to Dr Martin on an ultrasound examination of the deep veins of both the applicant’s legs. There was no sign of deep vein thrombosis in the right leg and, on the left leg, “the common femoral, popliteal, calf deep veins and proximal half of the superficial femoral vein have a normal appearance. There are no signs of deep vein thrombosis. The lower half of the left superficial femoral vein demonstrates a thin, irregular lumen, in keeping with recanalisation of the previously thrombosed segment.” The conclusion was that there had been “recanalisation of the previously thrombosed lower half of the left superficial femoral vein, with collateral flow in surrounding varicosities.”
37. On 3 April 2001 Dr Martin reported (T26) that the applicant continued to claim a significant disability and that he had certified Mr Blackney as unfit for sea duties because of the opinion of Dr Wan and because of the continuing abnormality of the superficial femoral vein, albeit a degree of recanalisation had occurred. Dr Martin reported that he had informed the applicant that Dr Wan recommended further review by a vascular surgeon but that the applicant had advised that he wished to defer that referral for 4 weeks as he “understood that a proposal to settle his claim for compensation was being considered.” Dr Martin recommended a further approach to Dr Wan for any further information that he could provide and that the applicant be referred back to Dr Baker for an opinion regarding the resolution of the underlying pathology and the impact of any current disease in the left leg upon his work capacity. If necessary a second opinion should be obtained from another vascular specialist. In the meantime the applicant was “fit for shore-based duties as determined by an appropriate rehabilitation plan.”
38. On 23 April 2001 Dr Martin certified (T27) that the applicant was fit for restricted duties as determined by a rehabilitation plan and noted that he was to be reviewed by Dr Baker on 21 May 2001 and that a vocational rehabilitation plan was likely to be necessary following the review by the vascular surgeon. It was at this stage that the determination denying liability was issued by the respondent.
39. On 4 May 2001 the applicant’s recently-appointed general practitioner, Dr Troy, certified (T29) the applicant as totally unfit for work for 28 days (to 2 June 2001) and subsequently renewed that to 19 September 2001.
40. It appears that the applicant was indeed scheduled to see Dr Baker again sometime in May 2001 because document T30 (dated 18 May 2001) is a report from Dr Tidbury from SKG Radiology to Dr Baker concerning the results of a left lower limb venogram in the light of “conflicting duplex scan reports of 17.3.2000 and 16.3.2001.” That letter reported that “the anatomy in the mid to lower thigh is complex with apparent duplication of the superficial femoral vein. I do not believe there are any significant varicosities present. At venography no evidence of deep vein thrombosis is noted. The superficial femoral vein is duplicated with the larger branch noted laterally and the smaller branch noted medially. There is a circuitous connection between the proximal and distal portions of the lateral branch in the lower thigh and this has probably led to some confusion at the ultrasound examination of 16.3.2001. Evidence of previous [deep vein thrombosis] and recanalisation is only noted optimally at ultrasound.”
41. On 12 June 2001 Dr Martin certified (T31) that the applicant had work restrictions, namely “shore based activity as determined by rehabilitation plan” and pending specialist opinion from Dr Baker. That certificate noted that care of the applicant had been transferred to Dr Troy. Notwithstanding the references to the applicant seeing Dr Baker again it seems that he did not. The applicant’s evidence was that he only saw Dr Baker twice (but did not say precisely when that was) and there are no further reports from Dr Baker in the T documents. The letter from Comcare to the respondent (T35) refers only the Dr Baker’s report of 10 March 2000 (T6) and to “a later report”, which from the context I find was the report of 28 March 2000 (T11).
42. I pause at this point to refer to my note at [36] that Dr Martin, in his report of 3 April 2001, recorded the applicant requesting that further review by a vascular surgeon (as recommended by Dr Wan) be deferred for 4 weeks. On the other hand the applicant’s oral evidence was that he thought Dr Martin must have been incorrect about this because he could not recall ever deferring any medical consultation because of an expected settlement of his claim. At one stage an employee of the respondent (the safety officer, Mr Johnson) had asked him what he wanted out of the claim and had said that he would write to the applicant – but he had not done so. I also note that by 23 April 2001 an appointment had apparently been made for the applicant to see Dr Baker on 21 May 2001. If the applicant saw Dr Baker in mid 2001 then Dr Baker did not provide a report about that consultation (or was not asked to do so). On balance I find that the applicant did not see Dr Baker after March 2000.
43. The report to the respondent from Comcare expressed the view that no question of liability for the laceration to the left lower leg arose (which I understand to mean that it was clear that the respondent was liable) but the writer was not satisfied that the question had been answered as to whether there was any probable as distinct from possible relationship between the current condition and the injury of 31 July 1999. Nor had the current condition been related to the employee’s stated advice that on his return from leave there was a greater need for him to be on his feet and that this aspect was somehow relevant. The report recommended that, although it would be open to the insurer to affirm a denial of ongoing liability, it would also be open to undertake further investigation and it would be recommended that specific questions be put to the vascular surgeon with the specific request for an opinion as to whether there is any probable as distinct from possible relationship between the current problem and the laceration to the left lower leg.
44. It appears that the insurer, in response to the report from Comcare, did not put questions to Dr Baker. Rather, it obtained a report (dated 14 September 2001, T44,) from an internal medical consultant, Dr Mastroianni, who said that he had read reports from Drs Martin, Baker and Knezevic. No reference was made to the report of Dr Wan. Reference was made to the ultrasound and venogram of March and May 2001 but no mention was made of any subsequent report by Dr Baker. Dr Mastroianni did not see or speak to the applicant.
45. Dr Mastroianni noted that “the various investigations did show oedema at the site of the laceration. Subsequently duplex studies show evidence of thrombosis of the superficial femoral vein which subsequently was found to have re-canalised in the duplex ultrasound in March 2001.” Dr Mastroianni expressed the opinion that “having read all the medical correspondence, and the injury sustained at the time of the fall (Mr Blackney sustained laceration to the lower part of the leg and some disruption of the lymphatic system around the injured part now responsible for some swelling of that part of the leg. Venous thrombosis could have occurred secondary to the injury, or it could be idiopathic, however, the thrombosis is no longer a problem as reported in duplex ultrasound in March 2001 and also the venogram in May 2001." Dr Mastroianni was prepared to accept that the applicant “would have some discomfort from the swelling, and provided he uses the stockings as advised, which he appears not to have done to date, the swelling would be better controlled, enabling him to return to his normal duties.”
46. Dr Mastroianni summarised his views as being that the applicant had “sustained laceration to the left lower leg [and] subsequently developed some swelling and evidence of a DVT. He has had recanalisation of the effected vein. The swelling is persisting but less than previously. The swelling could be better controlled by the use of surgical stockings. [He] was considered fit for normal duties in April [2000], and I would agree on the medical evidence that he was in fact fit for those duties and I would consider him still fit for those duties with regard to the left leg injury.”
The Oral Evidence
The Applicant
47. The applicant said that the work on the seismic vessel in January/February 2000 was normal work (2 four-hour watches each day) but as second mate he was also responsible for safety gear, firefighting gear and the boats. This required extra time outside his normal watches and the wearing of safety boots for extended periods. He had never experienced problems from wearing safety boots before, but now he experienced swelling from the ankle up to the site of the laceration.
48. After consulting Dr Martin in March 2000 about the swelling he had then, up to April 2001, seen numerous doctors. This had taken up a lot of time. He was not paying any medical bills but he was not receiving any compensation payments.
49. The applicant considered that during this period of about a year he was not fit for his pre-accident work. He had cramps and muscular pain in the lower left leg. He was wearing the stocking prescribed by Dr Baker and doing walking exercises. At no stage had he had any trouble with his neck or right shoulder as a consequence of the July 1999 accident and never mentioned any such troubles to Dr Martin. He had however, been treated by Dr Martin in mid 1998 for pleurisy, which had caused pain in his left shoulder.
50. The applicant said he was eventually referred by Dr Martin for rehabilitation assistance and Mr Johnson arranged for him to see the payroll officer to organise where his wages would go while he was on rehabilitation. However, the respondent or its insurer had stopped the rehabilitation proposal for reasons he was not aware of and he never did receive any rehabilitation assessment or assistance from the respondent. He had eventually organised a rehabilitation program through Dr Troy with CRS Australia. This was started in October 2001 and completed in October 2002 (T51). In November 2002 CRS Australia had given notice to the respondent’s insurer that the cost of rehabilitation services provided to the applicant was $5,790.20, which amount is a debt owed to the Commonwealth by the insurer (A2).
51. By 3 January 2002 the applicant’s doctor had cleared him as fit for shore-based work and CRS Australia had sponsored him on a trial job as a truck driver to demonstrate that his leg would stand up to work. On 5 March 2002 he had passed his AMSA medical as fit for all seagoing duties and subsequently gained maritime work.
52. The applicant still got “background pain” in his left leg and occasionally wore the stocking if he needed to – when he was on his feet for lengthy periods. Being a seaman involves being on one’s feet for long periods at times and, in his opinion, he was not fit to do that until January 2002.
53. He had arranged his own physiotherapy, which he had paid himself (claiming on his private medical insurance) after the respondent had refused to pay the costs.
54. In cross-examination the applicant agreed that he had initially been assessed as fit to return to duties subject to further treatment and provided he wore the stocking. Eventually he had discussed his position with Mr Johnson and told him he was not getting any treatment. Mr Johnson had said he could seek a second opinion and so he had consulted Dr Troy – who assessed him as unfit for work.
55. In relation to what efforts he had made to find work between his redundancy in March 2000 and seeing Dr Wan in March 2001, the applicant said he could not provide details of how many, or what specific, jobs he had applied for – but he had tried to find work in the maritime industry. He could not recall the names of any potential employers he had approached or the number of times he had tried.
56. In relation to the stocking, the applicant said he had originally asked Dr Martin if he could wear a stocking because the crepe bandage he was using was cutting into his leg or causing the leg to swell. He had been told to wait until he saw Dr Baker – who had recommended the stocking. He (the applicant) had been concerned that wearing a stocking would harm his chance of finding a job, but thought the stocking would not cause ridging of his leg in the way the bandage had.
57. In relation to the comment made by Dr Martin (in T21) that he was not wearing the stocking, the applicant said that on several occasions he had left off the stocking when he saw Dr Martin because he hoped that might induce Dr Martin to examine his leg, which Dr Martin did not always do. He had in fact worn the stocking most of the time – and still does occasionally. As far as he knew, Drs Martin, Barker and Knezevic all knew he was using the stocking as directed.
58. The applicant had lodged his claim for compensation after a discussion with Mr Johnson. His main concern was to cover medical expenses, but he was concerned that he may be off work for some time and therefore wanted to claim compensation generally to protect his entitlements. He redundancy had not prompted the claim.
59. The applicant said that he had to submit to an AMSA medical every year. He had done so in February 1999 but had not done so in 2000 or 2001. He thought that he would not pass the test and that it was better to not present for the test at all than to try and fail. During 2000 he had not had any discussion with Dr Martin about whether he would pass the test. In hindsight, given that Dr Martin was at that time certifying him as fit for pre-accident duties, it may have been wise to try to get Dr Martin to pass his medical test. He was busy attending appointments with doctors and trying to get a job in-shore (where an AMSA medical was not necessary). At about the time he was due to see Dr Wan he had asked Dr Martin if he thought he (the applicant) would pass the AMSA test. Dr Martin said he would “leave it up to the relevant authority.” The applicant didn’t know what Dr Martin had meant by that. However, when he saw Dr Wan he had been certified as unfit for work – so he had not tried to pass his AMSA test at that time. At no stage had he considered himself fit for pre-accident work until January 2002.
60. The applicant said his union operated a roster system for finding maritime work – both off-shore and in-shore. Although the AMSA medical is not strictly necessary the union recommends everyone have it. During 2000 and 2001 the applicant did not have his name on the union roster.
Dr K C Wan
61. Dr Wan is a specialist in occupational medicine of long standing. He said that he had only seen the applicant once and, having provided his report (T56) had heard nothing more. Dr Wan said he understood there had been a delay of about 36 hours between the laceration injury and the applicant seeing a medical practitioner. His view was that any delay in treatment of such an injury would predispose to a thrombosis. His examination of the medical reports shown to him suggested that the applicant had suffered a thrombosis and the clinical symptoms he observed were consistent with a thrombosis – but a vascular surgeon would need to investigate that to be sure. His concern was that he found crackles in the applicant’s lungs and if that was associated with a thrombosis it could be fatal. There is a correlation between crackles in the lungs and deep vein thrombosis. It was for that reason he concluded the applicant was unfit for work.
62. Dr Wan said that the clinical symptoms of superficial veins being thrombosed were swelling of the leg – because the blood and the lymph cannot flow back adequately.
Consideration
63. At the outset I observe that I accept all Dr Wan’s evidence and the substance of the applicant’s evidence. The failure of the respondent to adduce any oral evidence to counter the contentious aspects of the applicant’s evidence – or to cross-examine him in any detail about those aspects was, in my opinion, important.
64. Additionally, I consider that there are a number of aspects about how the respondent dealt with the applicant’s claim that suggest that proper consideration was not given to that claim. Specifically I refer to:
(a)the fact that no determination was made on the claim until a year after it was made, although medical expenses were paid;
(b)the failure to produce at the hearing the first medical certificate issued in early August 1999;
(c)the failure to ensure that the applicant saw Dr Baker in June 2000, May 2001 or subsequently;
(d) the failure to make any assessment of the applicant’s rehabilitation needs;
(e)the failure to carry out the further investigations recommended by Comcare; and
(f)the failure to provide Dr Wan’s report to Dr Mastroianni or to Comcare.
65. For the purposes of s26 of the Act the applicant will be entitled to compensation if he suffered an injury that resulted in his incapacity for work. I have concluded at [15] that the applicant did suffer an injury on 31 July 1999. Although the early medical certificates issued at the time were not available at the hearing, it was not in dispute that, whatever the incapacity suffered by the applicant may have been as a result of that injury, he was able to return to normal duties after only a few days and was able to carry out those duties until the end of his assignment on the seismic vessel at about the end of February 2000.
66. The respondent contends that from March 2000 the applicant was not in fact incapacitated at all for normal duties or, if he was, any incapacity was not a consequence of the July 1999 injury. The principal issue in these proceedings is whether that contention is correct.
67. I am satisfied from the applicant’s evidence that he did experience pain and discomfort and swelling in his lower left leg between his ankle and the site of the laceration whilst on the seismic vessel in January/February 2000. His evidence to that effect was confirmed by Dr Martin’s report of 9 March 2000 (T5) – which also noted the consistency with minor vein thrombosis in that area. Dr Baker’s reports of 10 and 28 March 2000 confirm the existence of lymph drainage hold-up and superficial vein thrombosis – both of which were “tangible causes for persistent swelling and both may relate to his injury” (T11).
68. On the balance of probabilities I find that the problems identified by Dr Martin and Dr Baker were a consequence of the July 1999 injury and caused the pain and swelling experienced by the applicant. The next question to address is to what extent those conditions caused an incapacity to work in and after March 2000.
69. It seems evident that Drs Martin and Baker considered the applicant was fit to work in April 2000 subject to wearing the compression bandage and, in the case of Dr Martin, subject to further specialist review by Dr Baker. This latter aspect is puzzling and troubling because, although appointments appear to have been made on two occasions, the applicant did not see Dr Baker after March 2000 and I accept his evidence that he never missed appointments or refused to see doctors.
70. The only conclusion that I believe is available to me is that the appointments were never actually made with Dr Baker or, if they were, they were cancelled by the respondent. Either way, the absence of Dr Baker’s later opinions regarding the applicant’s condition is unfortunate and liable to lead to uncertainty about the progress of the condition.
71. Also confusing is the inclusion by Dr Martin in progress certificates as early as April 2000 (T12) of “cervical neuropathy (R) arm (possibly related to injury).” I accept the applicant’s evidence that he did not complain to Dr Martin at that time about any shoulder condition. Finally, the situation was further confused in December 2000 when, on the same day, Dr Martin certified (T16) the applicant as fit for pre-disability work (subject to further treatment) but also certified him as unfit for his normal work full-time or part-time for 3 months (T17).
72. I note that in his letter of referral to Dr Wan dated 16 February 2001 Dr Martin referred to the applicant alleging “at the time of the accident … injuries to his cervical spine and right shoulder.” That is contrary to the applicant’s oral evidence, which I accept, and to the applicant’s formal claim for compensation and the early medical reports of Drs Martin and Baker - none of which make any reference to spine or right shoulder problems.
73. I am satisfied that throughout 2000 and into 2001 the applicant continued to experience pain and swelling of the left leg. Dr Baker had expressed the opinion in March 2000 that the swelling would improve slowly over time but not to resolve completely, and Dr Knezevic recorded the applicant as saying the pain and swelling had continued and that his left leg was weaker. Dr Knezevic’s assessment of the connection between the original injury and the continuing pain and leg weakness is noted at [32] above.
74. The applicant’s concerns about the extent of his continuing incapacity resulted in Dr Martin’s referral to Dr Wan in February 2001 (T22), who, of course, considered the applicant to be unfit to go to see because of the left leg pain that needed investigation by a vascular surgeon – which investigation never occurred.
75. I have tried to make the best of the confusing picture described above. In trying to take a commonsense approach to the issue of incapacity I have been influenced by my favourable impression of the applicant as a person who was concerned about his condition and anxious to get back to work. I accept his evidence that he took the initiative to obtain physiotherapy treatment (which Dr Knezevic recommended in February 2001 but which the respondent was not prepared to arrange or pay for). He also took the initiative (in late 2001) to obtain a rehabilitation program through CRS Australia because the respondent had failed to do so, despite Dr Martin’s frequent comments after April 2001 that a program was needed. Equally, I an influenced by the comment made by CRS Australia (T51) that the applicant had “shown extremely competent skills in job-seeking and is managing the return to work successfully.” Those factors, in my opinion, depict a person who was keen to return to work and genuine in his concerns about, and descriptions of, his perceived continuing incapacity.
76. In the light of the views expressed by Dr Baker in March 2000 I am not prepared to conclude that the applicant was incapacitated for work in the first half of 2000 as a result of the July 1999 injury. I do, however, consider that there is sufficient evidence available to me to permit a conclusion, on balance, and for the purposes of sections 26 and 31 of the Act, that by late 2000 the applicant’s condition was such that he was incapacitated as a result of the 1999 injury and its consequences. On the evidence outlined above I find that the applicant was so incapacitated by no later than 5 December 2000 and that the incapacity continued until 3 January 2002. The applicant is entitled to compensation under those two sections of the Act during that period, to be determined by the respondent.
77. For the purposes of s28 of the Act I find that the applicant is entitled to compensation under that section, being the expenses reasonably incurred by the applicant. Both parties informed me that if such a finding were made the respondent would determine the relevant quantum of compensation.
78. Finally, I find that the respondent was obliged, under Part 3 of the Act, to assess the applicant’s capability to undertake (s49), and to provide (s50), a suitable rehabilitation program at its cost.
79. My decision is that:
(a)The reviewable decision made by the delegate of the respondent on 21 September 2001 is set aside.
(b)The matter is remitted to the respondent for reconsideration and re-determination in accordance with the following directions:
(i)the applicant was incapacitated for work as a result of the injury suffered on 31 July 1999 from 5 December 2000 until 3 January 2002; and
(ii)the applicant is entitled to compensation pursuant to sections 26, 28, 31 and 50 of the Act.
(c)Pursuant to s92(2) of the Act, the costs of the proceedings incurred by the applicant are to be paid by the respondent.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member
Signed: ........…........(sgd V Wong)......................
AssociateDate/s of Hearing 10 – 11 April 2003
Date of Decision 15 March 2004
Counsel for the Applicant Mr C Prast
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr W Naseem
Solicitor for the Respondent Cocks Macnish
0
0
0