Broken Hill Proprietary Co Ltd v Mathiassen, Peter Edward
[1997] FCA 1525
•23 DECEMBER 1997
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - Consideration by Administrative Appeals Tribunal of claim for compensation under the Seafarers’ Rehabilitation and Compensation Act 1992 - whether finding of injury and consequential incapacity by Tribunal open to it having regard to the medical evidence - whether Tribunal made findings inconsistent with findings of injury and incapacity
Administrative Appeals Tribunal Act 1975, s 44.
Seafarers’ Rehabilitation and Compensation Act 1992, ss 26, 28.
BROKEN HILL PROPRIETARY COMPANY LIMITED v PETER MATHIASSEN
DAVIES, MOORE, EMMETT JJ
23 DECEMBER 1997
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 708 of 1997
On appeal from a single Judge of the Federal Court of Australia
BETWEEN:
BROKEN HILL PROPRIETARY COMPANY LIMITED
AppellantAND:
PETER MATHIASSEN
RespondentJUDGES:
DAVIES, MOORE, EMMETT JJ
DATE OF ORDER:
23 DECEMBER 1997
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The appeal is dismissed.
The Applicant pay the Respondent’s costs.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 708 of 1997
On Appeal from a single Judge of the Federal Court of Australia
BETWEEN:
BROKEN HILL PROPRIETARY COMPANY LIMITED
APPELLANTAND:
PETER EDWARD MATHIASSEN
RESPONDENT
CORAM:
DAVIES, MOORE & EMMETT JJ
DATE:
23 DECEMBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Davies J: I have had an opportunity to read the reasons for judgment prepared by Moore J. I agree with the views expressed by his Honour but would add a few words of my own.
A vital finding of the Administrative Appeals Tribunal was as follows:
"64. Notwithstanding the evidence of Dr Tooth, the fact remains that the Applicant has a vulnerable right shoulder which precludes him from undertaking heavy work, and in particular, it precludes him from returning to his work as a seaman. His shoulder was not vulnerable before the accident of 17 April 1994. Notwithstanding that it is now not the source of his ongoing symptoms, the residual underlying condition in his right shoulder, however defined, on the weight of the medical evidence, precludes the Applicant from continuing to undertake heavy work and, in particular, his pre-injury work."
On 17 April 1994, Mr Mathiassen had a fall while working on the "Iron Dampier". He injured his right shoulder and aggravated a condition of cervical spondylosis in his neck. As a result, he suffered pain in the shoulder and referred pain from the cervical spondylosis down through his right shoulder and arm to his fingers.
On 22 December 1994, a general medical practitioner, Dr Evans, reported that Mr Mathiassen was "now fit for duty". However, on 12 January 1995, the treating surgeon, Dr R M Tooth, reported:
"I think he would be fit for limited duties including onboard ship provided it does not include lifting heavy lines, climbing ladders and cranes, etc. Whether such work is available is another question."
On 2 May 1995, Dr Tooth reported:
"His present disability is predominantly due to cervical spondylosis with some referred pain to the right arm. The right shoulder problems appears to have virtually recovered.
...
The prognosis must remain guarded although I would expect that the aggravation of his cervical spondylosis should eventually settle."
The aggravation of the cervical spondylosis did not settle as Dr Tooth expected. On 2 June 1995, Dr David Millons reported:
"If his neck could be made less irritable then I would have thought that he might get back to work as an Integrated Rating. For the moment, I would give him the benefit of the doubt and state that I think it would perhaps be unwise for him to go back to the full duties of an integrated rating, bearing in mind that he would have to negotiate vertical ladders and deal with heavy lines. He would certainly be fit for lighter tasks avoiding ladder work or excessive use of his right upper limb."
On 2 July 1995, Dr Millons reported:
"Accepting that Mr Mathiassen has lost less than half of the normal range of movements of the shoulder, percentage impairment of the whole person would be of the order of 10%. As I noted in my report, perhaps rather more than half of that would reflect the incident in 1990 and rather less than half the effects of the fall in 1994.
With some minimal degenerate change noted radiologically in the neck and some minimal stiffness present, the percentage impairment in regard to the spine would be of the order of 5% of which perhaps one half might reflect the pre-existing degenerate change and the rest the effects of the fall in 1994."
On 25 July 1995, Dr W H Wolfenden reported:
"He still has pain from his neck going down through the right shoulder and down the right arm with pins and needles in the right index and middle fingers. There is some pain there all the time though it varies in severity. It is aggravated by lifting anything heavy and he has a lot of trouble sleeping. It is not getting any better nor any worse.
...
OPINION: You have opinion about his shoulder. I believe that he has jerked his neck in the incident described aggravating degenerative changes in the cervical spine and causing some irritation of the 6th or 7th cervical nerve root on the right side with consequent pain down the right arm and tingling in the index and middle fingers. X-rays or scans of the neck would be useful in confirming this conclusion and it may be that reports on his neck x-rays can be obtained or, if necessary, a later scan can be arranged.
I would agree with Dr Tooth that he is fit for seaboard duties provided they do not involve any heavy lifting. He is not fit for heavy lifting or bending or throwing weights over his shoulders and would only be fit for light clerical type of work.
I consider his disability attributable to the incident described on 17.4.94. This has been due to aggravation of an underlying degenerative cervical disorder. I do not believe that he will be fit for heavy work again though continued physiotherapy may give him useful pain relief."
On 1 February 1996, Dr Peter Conrad reported:
"He still has pain and stiffness in his right shoulder and has difficulty in lifting his arm up to or above shoulder level. He continues having pain in his neck especially on the right side and this is associated with his right shoulder pain.
...
OPINION: This man has been involved in two accidents at work. The first accident in about 1991 in which he appears to have sustained a right acromio-clavicular joint injury which was corrected by Dr Tooth's operation in August 1991. The second accident in 1994 resulted in a different type of injury and on this occasion it appears that he has sustained a capsular tear to his right shoulder joint capsule. He should have more sophisticated investigations such as an Arthrogram and CT Scan of his right shoulder and possibly an Arthroscopy. Should this show a tear he may well need a Capsulorrhaphy Operation. The present day costs of such a procedure is about $4,000.
In the meantime he is fit for extremely light part-time work only not involving heavy or repetitive use of the right arm or lifting anything with his right arm weighing more than 2 kg. He certainly would not be able to lift anything above shoulder level. I do not believe he can go back to work as a seaman but he may be able to do light work such as cleaning or clerical work starting with 20 hours per week as part of a structured rehabilitation programme.
As far as attributability is concerned, following the 1991 accident he says that his right shoulder symptoms settled down so I believe that the majority of his present problems are directly due to his 1994 accident. He also has sustained a neck strain.
According to the whole person impairment tables - Table 9.4 - I believe that he has a 20% loss of limb function relating to a percentage of whole person impairment. According to Table 9.6 he has a 10% loss of his cervical spine as a percentage of whole person impairment."
On 24 May 1996, Dr Millons reported:
"... permanent impairment of Mr Mathiassen's right upper limb remains of the order of 20% of which on review of matters raised by you perhaps three quarters would reflect the incident in 1990 and the other quarter the effects of the incident in April 1994 when he either fell onto his outstretched hand or had his hand whipped back behind him.
There is some minimal degenerate change noted in the neck which would account for a 5% permanent impairment of the neck."
Dr Millons stated, inter alia:
"A low level of continuing cervical and right shoulder problems would appear likely. The prognosis is guarded."
In the light of this evidence, which was consistent with the evidence given by Mr Mathiassen to the Tribunal, the Tribunal was fully justified in finding that Mr Mathiassen suffered an injury at work on 17 April 1994 which affected his right shoulder and that, as a result of that injury, he suffered a residual condition which precluded him from continuing to undertake heavy work including the work which, prior to the injury, he had undertaken as an Integrated Rating. I would not have expected the Tribunal to have come to any other conclusion on the evidence before it. Indeed, I am of the view that any contrary conclusion would have been perverse.
That finding of the Tribunal justified its decision that:
"The Tribunal:
1.sets aside the determination under review which ceased liability for work injury to the Applicant's right shoulder on and from 22 December 1994;
2.substitutes for the determination set aside the decision that on and from 22 December 1994 the Respondent is liable to pay compensation and medical treatment to the Applicant in respect of the condition in his right shoulder on the basis that since that date he has been fit to perform light work in accordance with the Tribunal's findings."
A problem with the Tribunal's reasons for decision arises from another finding of the Tribunal:
"67. On the basis of all the evidence before it, the Tribunal finds that the Applicant has ongoing symptoms consistent with mild cervical spondylosis. However, there is insufficient evidence for the Tribunal to be satisfied on the balance of probabilities, that any of the Applicant's ongoing neck symptoms arose from the April 1994 accident rather than from the underlying disease process. Therefore the Tribunal finds that the Applicant's ongoing problems with his neck arise from his pre-existing condition and that aggravation of this condition arising from that fall had ceased no later than 22 December 1994."
This finding is difficult to understand. The evidence of all the doctors, other than the report of Dr Evans of 22 December 1994, was that Mr Mathiassen had an ongoing problem which precluded him from undertaking his pre-accident workload. It is clear from the evidence that his symptoms were contributed to by the injury which occurred directly to his shoulder and by the aggravation of his cervical spondylosis, although the doctors gave differing emphasis to these factors.
One way of reading para 67 of the Tribunal's reasons is to take it as referring to the neck pain and ongoing problems with the neck from which Mr Mathiassen suffered rather than to the symptoms in and about the right shoulder of which he complained. Alternatively, the passage may be explained by a discussion which appears in para 66 where the Tribunal said:
"66. ... On the evidence of Dr Tooth the pins and needles in the Applicant's arm were a symptom of his neck pathology. Dr Millons considered that some of the Applicant's present neck symptoms ‘could' be attributable to the effects of the injury. The Tribunal has interpreted this evidence, when considered in context, as indicating that Dr Millons was of the opinion that it is no more than ‘possible' that the effects of the neck aggravation were continuing. This does not provide proof at the required civil standard."
This passage in para 66 of the Tribunal's reasons involved an error of law. In the absence of evidence to the contrary, the Tribunal was entitled to draw the inference which arose from the sequence of events. See Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 564 and Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 at 312. The problems in and about Mr Mathiassen's right shoulder were ongoing.
For the purpose of dealing with Mr Mathiassen's claim, I consider that para 67 should be read as limited to neck pain rather than to the pain which radiated from the cervical spine to and through the right shoulder or that the finding should be ignored as involving an error of law.
Another problem with the Tribunal's reasons was said to arise from the Tribunal's statement in para 73 of its reasons that:
"Applying Table 9.1 of the Guide the Tribunal finds that the Applicant's impairment assessment in respect of his right shoulder is nil."
However, I read this finding as no more than a finding that, under the provisions of the Guide, lump sum compensation for permanent impairment was not payable. It may be assumed that the Tribunal applied s 39(7) of the Seafarers' Rehabilitation and Compensation Act 1992 (Cth) which provided that, where the degree of permanent impairment of the employee was less than 10%, an amount of compensation was not payable. It seems likely that the Tribunal applied the degrees of impairment reported by Dr Millons and found them to be relevantly less than 10%. Such a finding would not be inconsistent with the crucial finding in para 64 which I have set out above.
In my opinion, the learned trial Judge was correct in dismissing the appeal from the decision of the Tribunal. No relevant error of law in its finding in para 64 has been demonstrated. The finding in para 67 may involve an error of law, but there is no cross-appeal with respect to it and, as the order made by the Tribunal does not depend on it, no order with respect to it is required.
I agree with the orders proposed by Moore J.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies
Associate:
Date: 23 December 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 708 of 1997
On appeal from a single Judge of the Federal Court of Australia
BETWEEN:
BROKEN HILL PROPRIETARY COMPANY LIMITED
ApplicantAND:
PETER MATHIASSEN
Respondent
JUDGES:
DAVIES, MOORE, EMMETT JJ
DATE:
23 DECEMBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Moore J:
INTRODUCTION
This is an appeal from the judgment of a single judge (Einfeld J) who dismissed an appeal by Broken Hill Proprietary Company Limited ("the Company") against a decision of the Administrative Appeals Tribunal ("the Tribunal") of 8 May 1997. The decision of the Tribunal concerned the entitlement of Peter Edward Mathiassen to compensation under the Seafarers’ Rehabilitation and Compensation Act 1992 (Cth) ("SRC Act") for injuries he suffered while working as a seaman: see s 26, and compensation for medical and related expenses: see s 28.
BACKGROUND
The decision of the Tribunal was made against the following background which is taken from its reasons. Mr Mathiassen was born in August 1947. In 1991 he had an accident while working as a seamen on the "Seaway Hobart" and injured his right shoulder. In August 1991 he underwent surgery in which the outer end of his right clavicle was excised. He returned to work three months after the accident and continued working as a seamen on that and other vessels. In January 1994 Mr Mathiassen had a fall at his home and he consulted a general practitioner who examined his shoulder and found no abnormality.
On 14 March 1994 Mr Mathiassen commenced working on the "Iron Dampier". On 17 April 1994 he fell while working on that vessel and injured his shoulder. Whether he fell on 17 April 1994 was a contentious issue before both the Tribunal and the primary judge. However it was not in issue in this appeal and senior counsel for the Company accepted we could proceed on the basis that Mr Mathiassen did fall on 17 April 1994. The Tribunal found that Mr Mathiassen was engaged in fitting a spreader onto a bolster, an open container measuring 20 feet by 8 feet by approximately 4 feet high. The spreader is a lifting apparatus that is a fixed rectangular frame with four pins in each corner that locks automatically into a container. The Tribunal found that Mr Mathiassen pulled his left hand quickly out of the way as the spreader was released by a crane. He fell backwards landing on an outstretched right hand. Mr Mathiassen's evidence before the Tribunal, though it was not the subject of an express finding by the Tribunal, was that he experienced pain in his right shoulder, arm and neck on the night of the incident and reported the matter to the ship's master the following day. He was seen by a company doctor, Dr Bartholomeusz and shortly after by Dr Tooth, an orthopaedic surgeon who had operated on his right shoulder in 1991. Mr Mathiassen received compensation payments in respect of his injury until 22 December 1994.
THE TRIBUNAL'S DECISION
The Tribunal was called on to review a decision affirming a decision that Mr Mathiassen's entitlement to compensation ceased on 22 December 1994. The Tribunal had evidence in the form of reports from four medical practitioners, Dr Tooth, Dr Wolfenden, Dr Millons and Dr Conrad. The following is a summary of the dates of their examination of Mr Mathiassen:
DOCTOR DATE OF REPORT DATE OF EXAMINATION Tooth 2 May 1994 26 May 1994 25 May 1994 30 June 1994 30 June 1994 15 August 1994 15 August 1994 22 August 1994 5 September 1994 5 September 1994 6 October 1994 6 October 1994 7 November 1994 7 November 1994 7 December 1994 7 December 1994 12 January 1995 12 January 1995 2 May 1995 1 May 1995 Wolfenden 25 July 1995 25 July 1995 5 September 1995 Millons 22 June 1995 21 June 1995 23 June 1995 10 July 1995 24 May 1996 22 May 1996 24 May 1996 22 May 1996 Conrad 1 February 1996 31 January 1996
Dr Millons also gave evidence before the Tribunal. The Tribunal reviewed in detail the medical evidence in paragraphs 24 to 39 of its reasons. In the section of its decision entitled "ANALYSIS OF THE EVIDENCE AND THE TRIBUNAL'S FINDINGS", the Tribunal found that as a result of the fall on 17 April 1994 Mr Mathiassen injured his neck and right shoulder. The Tribunal noted that Mr Mathiassen suffered from a pre-existing degenerative mild cervical spondylosis. It found that this condition was aggravated as a result of the injury and became symptomatic within a few weeks of the injury at the most. At two points in its reasons, paras 67 and 71, the Tribunal expressed the conclusion that the aggravation of this neck condition arising from the fall had ceased by 22 December 1994. However, it also said in para 64:
"Notwithstanding the evidence of Dr Tooth, the fact remains that the Applicant has a vulnerable right shoulder which precludes him from undertaking heavy work, and in particular, it precludes him from returning to his work as a seamen. His shoulder was not vulnerable before the accident of 17 April 1994. Notwithstanding that it is now not the source of his ongoing symptoms, the residual underlying condition in his right shoulder, however defined, on the weight of the medical evidence, precludes the Applicant from continuing to undertake heavy work and, in particular, his pre-injury work. In coming to this conclusion the Tribunal has applied the decision of the High Court in Asioty (supra). The Tribunal considers that the submission made by the Respondent in respect of Asioty being distinguishable on the facts does not take into account the vulnerability of the Applicant's shoulder which has emerged only since the April 1994 injury."
That conclusion had been preceded in paragraph 63 by two observations. The first was that Mr Mathiassen had given evidence that pins and needles in his arm had ceased and that although he still had pain in his shoulder and sometimes in his arm, it was a lot better than it had been. It also noted that Mr Mathiassen had acknowledged that he had a good range of movement in his arm. The second observation concerned the evidence of Dr Tooth to which the Tribunal said it gave "considerable weight". The Tribunal described the essence of that evidence as being that Mr Mathiassen's right shoulder condition had been resolved effectively and the pain in his shoulder and arms emanated from his cervical spondylosis.
The ultimate finding of the Tribunal concerning Mr Mathiassen's incapacity was in paragraph 71 which read:
"In considering all the evidence the Tribunal finds that the Applicant sustained a work-related injury to his right shoulder and a work-related aggravation of an underlying degenerative condition in his neck on 17 April 1994. The effects of the aggravation of the neck condition ceased by 22 December 1994. However the effects of the right should injury have continued to the present time. The Tribunal finds that the Applicant has been fit to perform light duties on and from 22 December 1994. However in consideration of the Application's age that he has worked as a seamen since his youth, and that he is now unable to return to work as a seamen because of his disabilities, the Tribunal find that he is unlikely to be able to obtain suitable work without the assistance of a structured rehabilitation program. His alcohol abuse since he has not worked and his low self esteem are further factors, arising from his work related injuries, which inhibit his inability to return to work without rehabilitation assistance. Therefore, the Tribunal finds that the Applicant is entitled to be paid compensation on the basis of incapacity from his right shoulder injury and medical treatment in respect of those injuries from the time the Respondent determined that liability ceased, that is from 22 December 1994.
72. The decision under review in respect of the Applicant's right shoulder is therefore set aside, and in substitution the Tribunal determines that on and from the cessation of liability by the Respondent which had taken effect from 22 December 1994 the Respondent continues to be liable to pay compensation and medical treatment in respect of the Applicant's work-related condition in his right shoulder pursuant to subs. 26(1) and 28(1) of the Act."
The Tribunal went on to consider the question of whether Mr Mathiassen was entitled to compensation for an injury which had resulted in permanent impairment: see s 39 of the SRC Act. It concluded in para 75 that Mr Mathiassen was not entitled to payment under s 39. In reaching that conclusion the Tribunal referred to evidence of Dr Tooth, Dr Wolfenden, Dr Conrad and Dr Millons. It then said, in paras 73-74:
"The picture that these reports seem to illustrate is that the Applicant's shoulder condition has been deteriorating which seems antithetical with the Applicant's evidence given at the hearing which indicated that his shoulder condition has improved over time. The Tribunal, in consideration of this conflicting evidence, finds on the strength of the Applicant's evidence provided at the hearing, and which is the most recent evidence on this issue, that the Applicant has virtually normal range of movement in his shoulder. Applying Table 9.1 of the Guide the Tribunal finds that the Applicant's impairment assessment in respect of his right shoulder is nil.
74. The Tribunal has already found that the conditions which the Applicant now experiences in his neck is no longer work-related and therefore any permanent impairment in respect of his neck is not compensable."
THE APPEAL UNDER S 44 TO THE PRIMARY JUDGE
An appeal against a decision of the Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) to this Court is on a question of law only. The notice of appeal under s 44 identified the following errors of law:
"(a)Whether the Tribunal erred in law in that the Tribunal failed to afford the parties procedural fairness;
(b)Whether the Tribunal erred in law in that the Tribunal failed to correctly apply Section 4 and Section 26 of the Seafarers’ Rehabilitation and Compensation Act ("the SRC Act"); and
(c)Whether the Tribunal erred in law in that the Tribunal made findings of fact when there was no evidence before the Tribunal to make such findings of fact."
Insofar as it was being alleged there had been a denial of procedural fairness, it was clear from the grounds in the notice of appeal that this was based on time that had elapsed between the hearing before the Tribunal in June 1996 and its decision in May 1997. In relation to the issue that has been ventilated in the appeal before this Full Court, the grounds in the original notice of appeal under s 44 provided:
"(b) The Tribunal found the Respondent is entitled to payments of compensation because he suffered an injury to his right shoulder. The evidence before the Tribunal, from the Respondent's treating orthopaedic surgeon, was that the Applicant suffered pain of the right shoulder which was referred from the Respondent's neck. The Tribunal found the Respondent suffered from a work related aggravation of his cervical spondylosis on 17 April 1994, but that such aggravation had ceased to result in an entitlement to compensation by 22 December 1994;
(i)The Tribunal erred by failing to determine the Respondent's entitlement, if any, to payments of compensation on the evidence before it;
(ii)The Tribunal erred by failing to consider the correct statutory test "disease" as provided by the SRC Act, in particular, whether the aggravation of an ailment had ceased to cause the respondent to suffer incapacitating right shoulder pain;
(iii)The Tribunal erred by failing to properly consider the evidence of the Respondent's treating orthopaedic surgeon on the question of the cause of the Respondent's right shoulder pain when the Tribunal found that the work related effects of the aggravation of the cervical spondylosis had ceased."
The primary judge gave ex tempore reasons for judgment on 14 August 1997. His Honour briefly summarised the background facts and then identified the three errors of law raised in an amended notice of appeal. The first concerned the Tribunal's finding that Mr Mathiassen had an accident on 17 April 1994. That matter has no present relevance.
The second was identified in these terms:
"2. That the Tribunal confused the conditions of right shoulder pain and aggravation of cervical spondylosis and attributed to the right shoulder the disabling effects which should properly have been attributed to the cervical spondylosis which was not caused by the accident at work."
The third concerned the delay between the hearing and the decision of the Tribunal. His Honour noted that ground was not argued in the appeal and he proposed to make no further reference to it. While the transcript of the proceedings before his Honour reveals that mention was made by counsel for the Company of a denial of procedural fairness, the appeal to this Full Court does not challenge this assertion of his Honour or his failure to deal with that point. A denial of procedural fairness based on delay is not a matter raised before this Full Court.
The primary judge dealt with the evidence and the findings of the Tribunal as to whether an accident occurred on 17 April 1994 at all. It is unnecessary for me to refer to it. His Honour then dealt with the second error which he described as more difficult. His Honour characterised the question of law raised as constituting a contention that the Tribunal's finding concerning Mr Mathiassen's shoulder disability and the finding concerning the cause of his ongoing incapacity were irreconcilably inconsistent. His Honour noted that there was a stark difference of opinion in the medical evidence and that was a matter the Tribunal had recognised. His Honour observed that Dr Tooth had been of the opinion that the right shoulder condition had resolved by December 1994 at the latest, and pain experienced by Mr Mathiassen in his shoulder and arm emanated from a long standing degenerative cervical spondylosis which was not a work injury although it had been temporarily aggravated by the incident concerned.
His Honour noted that other evidence about the shoulder condition seemed to be at odds with the opinion of Dr Tooth. He then referred in a summary way to the evidence of Dr Wolfenden, Dr Conrad and Dr Millons. The primary judge concluded:
"The Tribunal said that it gave considerable weight to the opinion of Dr Tooth but, at the same time, it appears to have rejected his conclusions on the shoulder condition. The Tribunal found that Mr Mathiassen's shoulder was not vulnerable before the incident of 17 April 1994 and, although it was now not the source of his ongoing symptoms, and he now has a virtually normal range of movement, he had an underlying vulnerable condition in the shoulder which precludes him from continuing to undertake heavy work, especially the work of a seamen on the Iron Dampier or similar activity.
I have come to the conclusion that the Tribunal's apparently diverse findings in relation to Mr Mathiassen's shoulder can be resolved from the context in which they were made. The range of movement was dealt with in a context where the Tribunal was considering permanent impairment and the possibility of a lump sum payment, whereas the pain and other disabilities were dealt with in the context of Mr Mathiassen’s being precluded from undertaking heavy work. I think that the Tribunal was drawing a distinction between the range of movement in the shoulder on the one hand, and the ongoing symptoms including pins and needles -- improving though they were -- and periodic pain on exertion, on the other. As it seems to me, what the Tribunal was saying was that he did not have a sufficient restriction of movement in his shoulder as to entitle him to any assessment of permanent impairment but he did have a shoulder which was sufficiently disabled by and vulnerable to pain and other symptoms on effort as to preclude him from doing his work as a seamen."
His Honour later concluded that the Tribunal's finding that there were continuing disabilities and symptoms in and from the right shoulder resulting from the Iron Dampier incident such as to conclude that he was still suffering from incapacitating effect of his fall after 22 December 1994 was supported by credible evidence. His Honour concluded that no error of law had been demonstrated.
THE APPEAL FROM THE JUDGMENT OF THE PRIMARY JUDGE
The grounds of appeal from the primary judge are:
"2.That His Honour erred in finding that the Administrative Appeals Tribunal was entitled, as a matter of law, to find that there were sufficient symptoms to justify its finding that the Respondent was still suffering the effects of a shoulder injury at the time of the hearing before the Tribunal.
3.That His Honour erred in finding that it appeared that the Administrative Appeals Tribunal must have concluded that notwithstanding that restriction of movement in the Respondent's shoulder caused no permanent impairment, it created an inability to carry out his work.
4.That His Honour erred in taking into account irrelevant considerations in reaching his decision.
The Tribunal's task was to consider the application of s 26 of the SRC Act. It was first necessary to ascertain whether Mr Mathiassen had suffered an injury as a result of his fall on 17 April 1994. “Injury” is defined in s 3 of the SRC Act as:
“"Injury” means;
(a)a disease; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, in the course of, the employees employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include anything suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
It was necessary for the Tribunal to consider whether or not that injury had resulted in his incapacity for work beyond 22 December 1994. The submissions of the Company in this appeal focused on several of the findings of the Tribunal and whether these findings could be reconciled with what the Company submitted was the vague finding about a "vulnerable right shoulder" in paragraph 64 of the Tribunals reasons. I accept that the conclusion of the Tribunal in para 64 has to be considered in the context of two of the express findings of the Tribunal. The first was that the effects of the fall on the pre-existing degenerative mild cervical spondylosis of Mr Mathiassen had ceased no later the 22 December 1994. The other finding was that any injury to Mr Mathiassen's shoulder as a result of the fall had not resulted in any permanent impairment. That was a finding associated with a finding of fact that Mr Mathiassen had virtually a normal range of movements in his shoulder.
The Company submitted that the Tribunal had also accepted the evidence of Dr Tooth that "the Applicant's right shoulder condition has been resolved effectively." However on a fair reading of paragraphs 63 and 64 of the Tribunal's reasons, it did not, on this point, accept the evidence of Dr Tooth. Rather, the Tribunal said that, notwithstanding the evidence of Dr Tooth, other evidence justified a finding that did not accord with the opinion of Dr Tooth.
It may be accepted that Dr Tooth had expressed the view on 7 December 1994 that: "His shoulder is coming on quite well and would probably not prevent him from returning to his normal work", and on 2 May 1995 that: "The right shoulder problem appears to have virtually recovered". However also relevant was the other medical evidence before the Tribunal. In his report of 1 February 1996, Dr Conrad described the accident generally as it was found by the Tribunal to have occurred, though overstated the distance Mr Mathiassen fell. Dr Conrad found, on examination, that the abduction of Mr Mathiassen's right shoulder was 90 degrees only. He expressed the opinion that the 1994 accident had resulted in an injury which differed from the injury suffered in 1991 which had been corrected by surgery. He expressed the view that the injury suffered in 1994 was a capsular tear to his right shoulder joint capsule. Dr Conrad went on to indicate that further investigation should be undertaken to ascertain whether there had been such a tear. To this extent, his opinion as to the nature of the injury was qualified. Dr Conrad went on to express the view that:
"... he is fit for extremely light part-time work only not involving heavy or repetitive use of the right arm or lifting anything with his right arm weighing more than 2 kg. He certainly would not be able to lift anything above shoulder level. I do not believe he can go back to work as a seamen but he may be able to light work such as cleaning or clerical work starting with 20 hours per week as part of a structured rehabilitation program.
As far as attributability is concerned, following the 1991 accident he says that his right shoulder symptoms settled down so I believe that the majority of his present problems are directly due to his 1994 accident. He also has sustained a neck strain."
Of some importance is that the opinion of Dr Conrad about the incapacity of Mr Mathiassen is being given well over 12 months after the primary decision maker had decided Mr Mathiassen was fit to return to work and thus not incapacitated.
Dr Conrad also expressed the view that Mr Mathiassen had a 20 per cent loss of limb function relating to a percentage of whole person impairment. This was by reference to Table 9.4 of the "Guide to the Assessment of the Degree of Permanent Impairment" published by the Seafarers Rehabilitation and Compensation Authority and an approved guide for the purposes of s 42(1) of the SRC Act.
In Dr Millons’ first report of 22 June 1995 he generally described the accident in April 1994 in a way consistent with the findings of the Tribunal as to how it had occurred. Dr Millons noted a limitation of movement on examination and noted that Mr Mathiassen could abduct his right shoulder to 120 degrees. He also noted that internal and external rotation was restricted to about half the normal range. Dr Millons noted that Mr Mathiassen said his shoulder had been that stiff since his operation, that is, since 1991. Dr Millons said:
"After that fall there was immediate pain around the right shoulder and it was felt that he might have had a capsulitis there but, on the history that he gives, it seems that it was also felt that problems might be coming from his cervical region where there is radiological evidence of some early degenerate change. Certainly, a forceful blow on to an outstretched hand can jar the upper limb and neck and it would not be inconceivable that he could have aggravated some degenerative changes in his neck. While one would have expected there to have been a downturn in symptoms with appropriate treatment, he maintains neck symptoms are continuing and I think it would be hard to totally deny that there could be a nexus between his current state and the effects of the fall.
Dr Millons concluded by indicating that it would be perhaps unwise for Mr Mathiassen to go back to the full duties of an integrated rating, bearing in mind that he would have to negotiate vertical ladders and deal with heavy lines. He noted, however, that he would be fit for lighter duties avoiding ladder work or excessive use of his right upper limb. Dr Millons concluded by saying:
"A low level of continuing cervical and right shoulder symptoms would appear likely. The prognosis is guarded."
In his report of 24 May 1996 Dr Millons discussed the results of his most recent examination of Mr Mathiassen and they appeared to correspond with those that had been evident some eleven months earlier. However Dr Millons opinion was expressed in terms that are not entirely clear. He firstly noted that Mr Mathiassen's condition appeared not to have changed since he last saw him. He then referred to Mr Mathiassen falling off a container resulting in a forcible blow to an outstretched hand which could jar the upper limb and neck. He noted that this could also have aggravated some degenerative changes in the neck. He then said:
"His right shoulder may have been stirred up in the fall but he claims that the stiffness in his shoulder region is now how it was after the operation in 1991. That would tend to indicate the cervical problems probably reflect the fall with not a great deal of input in right shoulder problems coming from that 1994 incident."
Dr Millons then discussed documents he had been given to consider and posited that there may have been two incidents. The first was in January 1994 when Mr Mathiassen fell, jarring his arm and neck. Dr Millons said that such a fall "could have aggravated shoulder problems and also the degenerative changes in his neck in that fashion". He described an incident in April 1994 involving Mr Mathiassen pulling back his hand quickly which he said would most likely have aggravated his shoulder rather than the neck. To this extent the opinion of Dr Millons about an incident in April 1994 is not about the incident which, in fact, happened. He repeated his opinion that, because Mr Mathiassen admitted that his right shoulder was as stiff as it was after the operation, the aggravation occasioned by the April 1994 incident had more than likely mostly passed. In relation to what Dr Millons was describing as the January 1994 incident, he said that neck problems might have come from that incident rather than the April 1994 incident. In this report he repeats his view about the likely continuation of a low level of cervical and right shoulder problems.
Dr Wolfenden described in his report of 25 July 1995 an incident that generally conforms to the incident as found by the Tribunal. He said than, on examination, Mr Mathiassen disclosed some limitation on the extremes of shoulder movement. He noted that Dr Tooth had identified degenerative change in the cervical spine. In the section of his report entitled "opinion", Dr Wolfenden noted that:
"You have opinion about his shoulder."
Nothing more was said about the shoulder but an opinion was given that Mr Mathiassen jerked his neck in the incident aggravating degenerative changes in the cervical spine. Dr Wolfenden went on to indicate his concurrence with the opinion of Dr Tooth that Mr Mathiassen was fit for seaboard duties provided they did not involve heavy lifting. He went on to express the view that Mr Mathiassen was not fit for heavy lifting and bending or throwing weights over his shoulders and that he would only be fit for light clerical type work. He concludes by saying that he considered Mr Mathiassen's disabilities were attributable to the incident described on 17 April 1994 and were due to an aggravation of an underlining degenerative cervical disorder.
In a later report of September 1995, Dr Wolfenden revised this opinion. He did so because he had been informed that Mr Mathiassen sustained the injury on 17 January 1994 and not 17 April 1994. This erroneous assumption then led Dr Wolfenden to conclude that the onset of neck pain was late in the sense that it occurred four months after the original injury. This led him to express the ultimate conclusion that it was unlikely the injury sustained on 17 January 1994 was associated with any neck trouble.
It is clear that the various medical opinions diverge on a range of issues. It may well be that the Tribunal took an unduly narrow view of those opinions in concluding that the effects of the aggravation of the neck injury had ceased by 22 December 1994. Much of the medical evidence pointed in the opposite direction. However it is a finding that the Tribunal made and its present relevance is that it is one of the matters pointed to by the Company in this appeal as evidencing an error of law.
The grounds of the appeal to the primary judge and to this Full Court do not raise an issue about the adequacy of the Tribunal's reasons as a separate error of law: see Dornan v Riordan (1990) 24 FCR 564. This is of some importance because I accept that, in its reasons, the Tribunal does not describe with great precision the nature of the work related injury it concluded Mr Mathiassen had suffered. However that deficiency is not, of itself, the error of law that was raised. Rather, the gravamen of the case of the Company raised in the notice of appeal is that the finding made by the Tribunal in para 64 was unreasonable in the sense that it was perverse, arbitrary and capricious: see FederalCommissioner of Taxation v McCabe (1990) 26 FCR 431, and not supportable by the evidence. I do not agree. It was open to the Tribunal to not accept the evidence of Dr Tooth that Mr Mathiassen's right shoulder condition had resolved. To that extent it was rejecting his evidence as a basis for concluding that Mr Mathiassen was not incapacitated after 22 December 1994. It was also open to the Tribunal to find, particularly having regard to the evidence of Dr Conrad, that Mr Mathiassen had a "vulnerable right shoulder". That is, there was evidence to support this finding. While, as earlier noted, this finding was not expressed with great precision, it nonetheless constituted a finding of fact that Mr Mathiassen had suffered an identifiable physiological change as a result of the accident that could properly be described as a personal injury: see Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156 at 175, per Kirby J. Allied to that finding was a finding that Mr Mathiassen remained incapacitated because of that injury. Again there was evidence, particularly that of Dr Conrad, to support that finding.
The Tribunal's conclusion that Mr Mathiassen has not suffered a permanent impairment is not inconsistent with the earlier finding that Mr Mathiassen was incapacitated in the sense that because of his vulnerable right shoulder, he was unable to undertake heavy work and, in particular, his pre-injury work. Table 9.1 was the table relied upon by the Tribunal in making its assessment about permanent impairment. That table relates to the assessment of the impairment arising from specific joint lesions or amputations. The table declares that assessment is to be made by reference to the range of joint movement. Given the Tribunal's finding that Mr Mathiassen, based on his own evidence, had a virtually normal range of movements in his shoulder, it was open to the Tribunal to conclude that there had been no permanent impairment. Table 9.1 is structured in such a way that there can be nil level of impairment because there has been no loss of function having regard to joint movement, even though the use of a limb is restricted for other reasons. However the finding that there was no impairment for the purposes of Table 9.1 does not preclude a finding that, notwithstanding a normal range of movements, the shoulder was injured in such a way as to incapacitate Mr Mathiassen.
For these reasons, I would dismiss the appeal with costs.
I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Full Court.
Associate:
Dated: 23 December 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG708 of 1997
ON APPEAL FROM A SINGLE JUDGE OF THIS COURT
BETWEEN:
THE BROKEN HILL PROPRIETARY COMPANY LIMITED
(ACN) 004 028 077)
ApplicantAND:
PETER EDWARD MATHIASSEN
Respondent
JUDGES:
DAVIES, MOORE AND EMMETT JJ
DATE:
PLACE:
SYDNEY
REASONS FOR JUDGMENT
EMMETT J: The respondent (“the Worker”) worked as a seaman. In 1991 he had an accident, injuring his right shoulder. He received compensation for that injury for three months and during that time he had an operation on his shoulder. He made a reasonably good recovery from the operation although he has not been able to put his right arm behind his back since the operation.
On 14 March 1994, the Worker commenced work on the “Iron Dampier” as an integrated rating. “Iron Dampier” is owned by the appellant (“BHP”). When he commenced work on that ship, he was no having any problems with his neck, shoulder or arm. On 17 April 1994 he had another fall at work on “Iron Dampier” and he injured his right shoulder. On 18 April 1994 he reported the accident to the ship’s master and was sent for medical treatment. He has not returned to work since.
The Worker received compensation payments in respect of the injury on 17 April 1994 until 22 December 1994. From that time, BHP stopped compensation payments. The Worker therefore applied for compensation in respect of the period after 22 December.
On 16 May 1995, a determination was made under the Seafarers Rehabilitation Compensation Act 1992 (“SRC Act”) that the Worker’s entitlements to the receipt of compensation ceased as at 22 December 1994 and that any incapacity experienced after that date did not arise out of the injury sustained on 17 April 1994. That decision was reviewed and on 13 July 1995 and the same decision was made.
The Worker therefore applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the decision of 13 July 1995. The Tribunal, constituted by Mrs M.T. Lewis, senior member, made a decision on 8 May 1997 setting aside the determination under review and substituting the decision that on and from 22 December 1994 BHP is liable to pay compensation and medical treatment to the Worker in respect of the condition in his right shoulder, on the basis that since that date he has been fit to perform light work in accordance with the findings made by the Tribunal.
Appeal was then brought to this Court and a judge of this Court dismissed the appeal on 14 August 1997. From that decision, an appeal has been brought to the Full Court. An appeal lies to this Court from the decision of the Tribunal only on a question of law. The grounds specified in the notice of appeal from the Tribunal was as follows:
The Tribunal found the respondent is entitled to payments of compensation because he suffered an injury to his right shoulder. The evidence before the Tribunal, from the respondent’s treating orthopaedic surgeon, was that the applicant suffered pain of the right shoulder which was referred from the respondent’s neck. The Tribunal found that the respondent suffered from a work related aggravation of his cervical spondylosis on 17 April 1994, but that such aggravation had ceased to result in an entitlement to compensation by 22 December 1994:
(i)the Tribunal erred by failing to determine the respondent’s entitlement, if any, to payments of compensation on the evidence before it;
(ii)the Tribunal erred by failing to consider the correct statutory test “disease” as provided by the SRC Act, in particular, whether the aggravation of an ailment had ceased to cause the respondent to suffer incapacitating right shoulder pain;
(iii)the Tribunal erred by failing to properly consider the evidence of the respondent’s treating orthopaedic surgeon on the question of the cause of the respondent’s right shoulder pain when the Tribunal found that the work-related effects of the aggravation of the cervical spondylosis had ceased
The ground of appeal to the Full Court were as follows:
1.That his Honour erred in finding that the Administrative Appeals Tribunal was entitled, as a matter of law, to find that there were sufficient symptoms to justify its finding that the respondent was still suffering the effects of a shoulder injury at the time of the hearing before the Tribunal.
2.That his Honour erred in finding that it had appeared that the Administrative Appeals Tribunal must have concluded that notwithstanding that restriction of movement in the respondent’s shoulder caused no permanent impairment, it created an inability to carry out his work.
3.That his Honour erred in taking into account irrelevant considerations in reaching his decision.
The argument before the Full Court centred on several paragraphs of the reasons for decision of the Tribunal.
The Tribunal found that there was sufficient evidence to support a conclusion that, in the process of the fall on 17 April 1994, the Worker injured his neck and his right shoulder. The Tribunal found that the Worker suffered from a pre-existing degenerative mild cervical spondylosis which was aggravated as a result of the injury. However, the Tribunal stated that it was necessary to consider whether the effects of the work related injury continued on and from 22 December 1994.
The Tribunal found that the Worker’s recovery following surgery in August 1991 was at least at a level where he could perform his work as an integrated rating without any difficulty. The apparent careful medical scrutiny of seaman before being allowed to go to sea negates the likelihood of either the 1991 injury or an injury which the Worker suffered at home in January 1994 providing any residual incapacity for work when he joined the Iron Damper in March 1994. The Tribunal concluded, accordingly, that any incapacity in relation to the Worker’s right shoulder which he now suffers arises from the accident on 17 April 1994.
In paragraph 63 of its reasons, the Tribunal referred to the evidence of the Worker’s treating orthopaedic surgeon, Dr R.M. Tooth. The following appears:
Of particular significance in the Tribunal’s view is the evidence of Dr Tooth, the applicant’s treating orthopaedist, to which the Tribunal gives considerable weight. The essence of that evidence is that the applicant’s right shoulder condition has been resolved effectively, and the pain he now has in his shoulder and arm emanates from his cervical spondylosis including a possible lesion at the C5/6 level. The nature of Dr Tooth’s findings during his clinical examinations supports his focus on the applicant’s neck rather than right shoulder as being the source of his ongoing disability.
In paragraph 64, the Tribunal said:
Notwithstanding the evidence of Dr Tooth, the fact remains that the applicant has a vulnerable right shoulder which precludes him from undertaking heavy work, and in particular, it precludes him from returning to his work as a seaman. His shoulder was not vulnerable before the accident of 17 April 1994. Notwithstanding that it is now not the source of his ongoing symptoms, the residual underlying condition in his right shoulder, however defined, on the weight of the medical evidence, precludes the applicant from continuing to undertake heavy work and, in particular, his pre-injury work...
The contention of BHP is, in substance, that there was no evidence to support the finding in paragraph 64 that there was any connection between the accident of 17 April 1994 and the current condition of the Worker’s shoulder. On 7 December 1994, Dr Tooth reported as follows to the Worker’s general practitioner:
His shoulder is coming on quite well and would probably not prevent him from returning to his normal work. However, his main problem is his cervical spondylosis which is likely to be aggravated by further stress or strain and would probably be at risk if he returned to work on board ship. He would, however, be fit for many other light and selected types of work and it is a pity that he could not be given a temporary shore job.
Dr Tooth reported again on 12 January 1995 saying:
His main problem is pain above the right shoulder which is obviously referred from his neck and is reproduced by lateral flexion of his neck to the right. He actually has full range of movement in the shoulder and quite good power.
I do not think there is much doubt that his major problem is referred pain from his cervical spondylosis spine and this would be aggravated by heavy lifting or climbing ladders and cranes and if those activities were involved on return to sea, he would almost certainly aggravate his problem.
Finally, on 2 May 1995, Dr Tooth reported as follows:
His main complaints are now pins and needles in the right arm which originates from pain in the neck and is aggravated by movements of the neck. There was very little discomfort in the shoulder as such and there was no real restriction of movement.
........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
I had x-rays of his cervical spine taken which show early degenerative spondylosis.
Opinion
His present disability is predominantly due to cervical spondylosis with some referred pain to the right arm. The right shoulder problem appears to have virtually recovered.
It is difficult to be certain of the relationship of his present neck problem to his work injury but he does appear to have had some neck problem from the time of his injury and I think it would be difficult to say there is no relationship. The prognosis must remain guarded, although I would expect that the aggravation of his cervical spondylosis should eventually settle.
The Tribunal also went on to say as follows:
65.The issue of the applicant’s neck disability is less easy to resolve. The issue for the Tribunal is whether the effects of the aggravation of his underlying cervical spondylosis ceased by 22 December 1994. The Tribunal would give considerable weight to Dr Tooth’s evidence on this issue. In his report of 2 May 1995 he noted that he expected that the aggravation of the applicant’s cervical spondylosis “should eventually settle”. That is the last report from Dr Tooth which is available to the Tribunal.
67.On the basis of the evidence before it, the Tribunal finds that the applicant has ongoing symptoms consistent with mild cervical spondylosis. However, there is insufficient evidence for the Tribunal to be satisfied on the balance of probabilities, that any of the applicant’s ongoing neck symptoms arose from the April 1994 accident rather than from the underlying disease process. Therefore the Tribunal finds that the applicant’s ongoing problems with his neck arise from his pre-existing condition and that aggravation of this condition arising from that fall had ceased no later than 22 December 1994.
It is difficult to see how that conclusion was justified by anything said by Dr Tooth. Nevertheless, notwithstanding that the Tribunal said that considerable weight would be given to Dr Tooth’s evidence on the issue, it appears to have reached a conclusion inconsistent with that evidence. On the other hand, counsel for the Worker did not seek to advance an alternative argument for reaching the same conclusion. Rather, the Worker’s contentions were that there was evidence before the Tribunal which would enable it to reach the conclusion set out in paragraph 64.
There was medical evidence before the Tribunal other than the reports of Dr Tooth. Dr David Millons, Dr William H. Wolfenden and Dr Peter Conrad furnished reports which were before the Tribunal and Dr Millons also gave oral evidence.
In a report of 22 June 1995, Dr Millons concluded that a low level of continuing cervical and right shoulder symptoms would appear likely and concluded that “The prognosis is guarded”. That opinion was repeated in a report of 24 May 1996. In the report of 24 May 1996, Dr Millons also said the following:
One would have expected there to have been some settling of symptoms within a few weeks. Mr Mathiassen admits that his right shoulder is just about as stiff now as it was after his operation which would suggest that aggravation occasioned by the incident in April 1994 has more than likely mostly passed.
Counsel for the Worker emphasised the word “mostly” and drew attention to a short report of the same day by Dr Millons containing the following:
Further to my report to you of even date permanent impairment of Mr Mathissen’s right upper limb remains of the order of 20% of which on review of matters raised by you perhaps three quarters would reflect the incident in 1990 and the other quarter the effects of the incident in April 1994 when he either fell onto his outstretched hand or had his hand whipped back behind him.
Thus, Dr Millons concluded that there was permanent impairment of the right shoulder by reason of the accident in April 1994 to the extent of approximately 5%.
In dealing with the question of permanent impairment, the Tribunal noted that there were differences of opinion in the various medical reports. Paragraph 73 of the Tribunal’s reasons contains the following:
Dr Millons examination of the applicant in May 1996 found him to have about half the normal range of movement. The picture that these reports seem to illustrate is that the applicant’s shoulder condition has been deteriorating which seems antithetical with the applicant’s evidence given at the hearing which indicated that his shoulder condition has improved over time. The Tribunal, in consideration of this conflicting evidence, finds on the strength of the applicant’s evidence provided at the hearing, and which is the most recent evidence on this issue, that the applicant has virtually normal range of movement in his shoulder. Applying Table 9.1 of the Guide the Tribunal finds that the applicant’s impairment assessment in respect of his right shoulder is nil.
It was suggested by counsel for BHP that, in that paragraph, the Tribunal was rejecting the opinion of Dr Millons. However, if permanent impairment is less than 10%, there is no entitlement under the SRC Act to compensation in respect of the permanent impairment. Thus, there is not necessarily any inconsistency between the Tribunal’s conclusion in paragraph 73 and Dr Millons opinion that there is permanent impairment to the shoulder as a result of the injury to the extent of 5%.
A report from Dr Wolfenden of 25 July 1995 recorded the examination of x-rays of the Worker’s shoulder. The opinion contained the following:
You have opinion about his shoulder. I believe that he has jerked his neck in the incident described aggravating degenerative changes in the cervical spine and causing some irritation of the sixth or seventh cervical nerve route on the right side with consequent pain down the right arm and tingling in the index and middle finger...
I would agree with Dr Tooth that he is fit for seaboard duties provided they do not involve any heavy liftings. He is not fit for heavy lifting or bending or throwing weights over his shoulder and would only be fit for light clerical type of work.
I consider his disability attributable to the incident described on 17.4.94. This has been due to aggravation of an underlying degenerative cervical disorder. I do not believe that he will be fit for heavy work again, although continued physiotherapy may give him useful pain relief.
It is not entirely clear whether the disability referred to by Dr Wolfenden is the Worker’s shoulder or his neck. Counsel for BHP contended that the opening sentence in the quotation set out above indicates that Dr Wolfenden was expressing no view about the Worker’s shoulder because that was the subject of a different report. That is by no means clear.
Dr Conrad furnished a report of 1 February 1996. The report contained the following:
The second accident in 1994 resulted in a different type of injury and on this occasion it appears that he has sustained a capsular tear to his right shoulder joint capsule. He should have more sophisticated investigations such as an Arthrogram and CT Scan of his right shoulder and possible and Arthroscopy. Should this show a tear he may well need a Capsulorrhaphy Operation.
........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
In the meantime he is fit for extremely light part-time work only not involving heavy or repetitive use of the right arm or lifting anything with his right arm weighing more than 2 kg. He certainly would not be able to lift anything above shoulder level. I do not believe he can go back to work as a seaman but he may be able to do light work such as cleaning or clerical work starting with 20 hours per week as part of a structured rehabilitation programme.
As far as attributability is concerned, following the 1991 accident he says that his right shoulder symptoms settled down so I believe that the majority of his present problems are directly due to his 1994 accident. He also has sustained a neck strain.
It was suggested that Dr Conrad’s report was unreliable because it was based on a misapprehension as to the extent of the Worker’s fall. Dr Conrad referred to the accident of April 1994 as involving a fall of distance of about 6 metres to the deck. However, the finding by the Tribunal, supported by the Worker’s evidence, was that the fall was about 10 feet. Be that as it may, Dr Conrad’s opinion is at least some evidence that the Worker’s present difficulty with his shoulder is the result of the 1994 accident.
In all of the circumstances, there appears to have been evidence before the Tribunal which was capable of supporting the finding which the Tribunal appears to have made in paragraph 64 that the condition of the Worker’s right shoulder is at least in part attributable to the fall which occurred in April 1994. While some criticism might be made of the description of the condition as “a vulnerable right shoulder” and a “residual underlying condition in his right shoulder, however defined”, there is evidence to support the finding made by the Tribunal. It follows that the appeal should be dismissed with costs.
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