Cook and ASP Ship Management
[2006] AATA 478
•29 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 478
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/784
GENERAL ADMINISTRATIVE DIVISION ) Re GEORGE COOK Applicant
And
ASP SHIP MANAGEMENT
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr P. Fricker, MemberDate 29 May 2006
Place Melbourne
Decision 1) The reviewable decision of ASP Ship Management Pty Ltd made 10 July 1995 will be affirmed.
2) The reviewable decision of ASP Ship Management Pty Ltd made 13 June 2000 will be affirmed.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
SEAFARERS’ REHABILITATION AND COMPENSATION – Claim for compensation for permanent impairment of lower left leg – Claim for compensation for injury to left ankle - Whether compensable injury resulted in permanent impairment – Degree of impairment.
Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 3, 39
Re Pavic and Comcare (1996) 45 ALD 409
REASONS FOR DECISION
29 May 2006 J.W. Constance, Senior Member
Dr P. Fricker, MemberINTRODUCTION
1. In his career as a marine engineer Mr Cook spent many years at sea aboard merchant vessels. Whilst at work on 5 July 1993 he suffered a severe attack of cellulitis in respect of which ASP Ship Management Pty Ltd has paid him compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth).
2. In 1995 the company rejected Mr Cook’s claim for compensation for permanent impairment of his lower left leg arising from the compensable injury. In these proceedings Mr Cook is seeking a review of this decision.
3. There is a second application before the Tribunal. In 2000 Mr Cook made a further claim for compensation which in part referred to the injury for which liability had already been accepted. However the claim form also referred to a separate injury to the left ankle which Mr Cook said he suffered as he was leaving the ship to seek treatment for the cellulitis. The company also rejected this claim and a review of this decision is sought.
4. Mr Cook did not attend the first two days of the hearing. For reasons already given we decided to hear the matter in his absence. Mr Cook did appear on the third day on which the matter was heard and did provide written submissions.
5. For the reasons which follow we have decided that both decisions under review refusing Mr Cook’s claims will be affirmed.
EVIDENCE AND FINDINGS OF FACT
6. Unless otherwise stated the findings of fact are based on the evidence of Mr Cook.[1] Much of his evidence as to the circumstances of his suffering the first bout of cellulitis and his treatment for this condition are not in dispute. Some of the disputed facts are dealt with later in these reasons in relation to particular issues. We are satisfied as to the facts found on the balance of probabilities.
[1] Ex. A4.
7. On 5 July 1993 Mr Cook was an engineer officer employed by the company. He was on board the “Searoad Tamar”, a merchant vessel at sea off the Tasmanian coast. There is no doubt that at this time Mr Cook became seriously ill with the onset of a condition which was later diagnosed as severe cellulitis of the lower left leg.
8. On 7 July 1993 the ship docked in Port Melbourne. In order to negotiate the five flights of stairs from the deck on which his cabin was located to the gangway from the ship Mr Cook had to slide down the banisters. The lift was out of action and he was unable to walk down the stairs by reason of his illness. Mr Cook says that he stumbled on the first flight of steps and injured his left ankle. He says that the pain from his injured ankle was so intense he thought he was going to faint.[2] Mr Cook did not refer to the injured ankle in the claim form he completed on 19 July 1993[3] nor did he refer to it in his own notes which he made a few months later. He said that he must have forgotten to do this.[4] We will deal with this aspect of the evidence in detail later
[2] Ex. A4 p.151.
[3] Ex. A2 p.12.
[4] Ex. A4 p.157.
9. Immediately after disembarking Mr Cook went to the Bridge Industrial Clinic where he was examined by Dr Constantinou who diagnosed him as suffering from severe cellulitis.[5] Mr Cook then spoke to his general practitioner and surgeon, Mr Watkins, who reported him as suffering from “fever, cellulitis of the left lower leg, lymphadenitis and lymphangitis of the left leg and groin.” [6] On the same day he was admitted to Lincare Hospital and remained there until 26 July 1993.
[5] Ex. A2 p.10.
[6] Ex. A2 p.17.
10. Following his discharge from hospital Mr Cook recuperated at home under the care of Mr Watkins. At the time he was discharged he could only walk slowly as he was restricted by tightness in the lower leg tissues. His recuperation included walking and swimming.
11. In his evidence Mr Cook said that from the time he was hospitalized his left leg has always been extremely sensitive.[7] In describing the severity of this condition he said:
“……nurses and doctors have seen me jump a mile. I almost kicked an observation light off Mr Watkin’s bulkhead one day.” [8]
[7] Ex. A4 p.168.
[8] Ex. A4 p.168.
Mr Cook also said that when he left hospital his ankle was stiff to the extent that he could not move it and that when he walked he could not bring his left leg in front of his right. He said that in late 1993 or early 1994 he instantly regained slight movement in his ankle as a result of a “popping” sensation in his ankle. [9]
[9] Ex. A4 pp 112-113.
12. In February 1994 Mr Cook suffered another attack of cellulitis and was again admitted to hospital.
13. Mr Cook said that by April 1994 he ‘just limped along very slowly.”[10]
[10] Ex. A2 p.168.
14. In 1994 Mr Cook suffered a severe reaction to a mosquito bite. This reaction included pain in his left lower leg. Mr Cook had not previously suffered a reaction such as this. He was assessed by Dr Chenoweth, Consultant Physician, who reported that this incapacity was a result of the 1993 attack of cellulitis.[11] Mr Cook says that he still suffers from a severe reaction to mosquito bites.
[11] Report of 18/08/94, Ex.A2 p.46.
15. In August 2002 Mr Cook described the symptoms which he claimed arose from the initial bout of cellulitis as:
·a lack of proper control of the left leg below the knee including uncontrollable shaking and an inability to move the muscles in the left side of the leg;
·hypersensitivity of the left leg to such an extent that slight brushing of the leg causes severe pain;
·pain in the foot extending up the left leg;
·spasm of the left leg and foot;
·constant pain in the left leg;
·a limitation of the movement of the left ankle to “a small rocking movement”;[12]
·pain in the left ankle;
·limitation of ability to walk other than at a slow pace and only with the aid of a walking stick or crutches (crutches used continuously since approximately 2000);
·extreme difficulty in walking up ramps and stairs requiring the use of walking sticks;
·increased sensitivity to mosquito bites;
·pain, swelling and weakness of the right leg as a result of overuse;
·necessity to use a wheelchair from time to time;
·swelling of the legs requiring the wearing of surgical stockings;
·an increase in weight of 10-15 kilos; and
·pain on movement of the right foot.
[12] Ex. A4 p.56.
Mr Cook claims that these disabilities are continuing.
16. Mr Cook gave evidence that from about three to six months after he left hospital he would walk with at least one walking stick if he was walking in the street.[13] He also said that by October 2002 he was using two crutches to walk and had to lean on the crutches to take the weight off his legs;[14] if walking a distance he would need to stop approximately every one hundred yards.[15] He described pain in his left leg “everywhere from the knee joint down, including the knee joint” [16] which caused his difficulty in walking.
[13] Ex. A4 p.216.
[14] Ex. A4 p.219.
[15] Ex. A4 p.221.
[16] Ex. A4 p.241.
17. Mr Cook also gave evidence that since 1994 the condition of cellulitis had recurred “multiple times”.[17] He said that on occasions he had been able to overcome bouts of cellulitis by rest and meditation and on other occasions he was treated with antibiotics.[18]
[17] Ex. A4 p.183.
[18] Ex. A4 p.231.
18. Mrs Cook gave evidence that when Mr Cook came home from hospital he spent a lot of time in bed and that when he was tired his legs would go up in the air and would start shaking.
MEDICAL EVIDENCE
19. We have taken into account the numerous medical reports in evidence. Mr Battlay and Dr Eisen were called on behalf of the company and gave evidence. Prior to the hearing commencing Mr Cook had notified the Tribunal that he proposed to call Mr Wearne. Apparently, after he decided not to appear at the hearing, Mr Cook cancelled the arrangements for Mr Wearne to give evidence. As Mr Wearne was the only medical witness which Mr Cook intended to call we took the view that it was important that we hear Mr Wearne’s evidence and the Tribunal arranged for Mr Wearne to give evidence by telephone. When Mr Wearne gave his evidence Mr Cook was not present.
20. Mr Watkins was Mr Cook’s medical practitioner at the time of the original bout of cellulitis and continued as such until Mr Watkins died in recent years. In his report of 27 July 1993[19] Mr Watkins stated that Mr Cook should not need a period of rehabilitation after 24 August 1993 and should be fit to resume his normal duties towards the end of that month.
[19] Ex. A2 p.17.
21. On 26 August 1993 Mr Cook was examined by Dr Wallin, Consultant in Occupational Health and Safety, on behalf of the company. At that time it was the opinion of Dr Wallin that Mr Cook “will recover fully from a functional point of view and virtually certainly will recovery [sic] fully in so far as the circulation etc in his left leg is concerned.” Dr Wallin was also of the view that there was an outside possibility that it would take Mr Cook between four to eight weeks to be in a condition to return to work but that there was “virtually zero potential”‘ for Mr Cook to be disabled on a longer term basis.
22. In April 1994 Mr Watkins reported that Mr Cook was more mobile in that he could walk a reasonable distance but had difficulty with stairs and steps.[20] In the same month Dr Wallin reassessed Mr Cook. He reported that Mr Cook was “quite tender “ to pressure over the medial aspect of his left leg but that he had a full range of movement in the left knee and ankle. In his opinion at that time Mr Cook had some degree of remaining disability in the form of persisting discomfort, pain and swelling of the left leg and an apparent propensity for recurrence of the previous infection/cellulitis; nevertheless he believed the leg disability would “fully settle down”.[21]
[20] Ex. A2 p.23.
[21] Ex. A2 p.67.
23. Mr Neri, Surgeon, examined Mr Cook on behalf of the company in July 1994. He described Mr Cook’s sensitivity to touch on the left leg as “acute and inordinate”. He assumed that this resulted from an element of localised neuritis of cutaneous nerves as a consequence of the original infection and that the problem should resolve progressively over the next 18 months. Mr Neri was also of the view that Mr Cook may be left with an element of restricted function regarding the mobility of his left ankle and calf muscle but that it was quite likely that this function would improve.[22]
[22] Ex. A2 p.36.
24. In July 1994 Mr Cook was further assessed, this time by Ms Hjorth, Psychologist, of the Commonwealth Rehabilitation Service. Ms Hjorth found no evidence of any wilful action on the part of Mr Cook to maintain the limitations of his disability and recommended a rehabilitation program with the aim of an early return to work. She recorded his limitations as being a “somewhat limited” ability to walk and that he found prolonged standing painful. She assessed him as able to undertake sedentary work. [23]
[23] Ex. A2 pp 40-44.
25. Mr Buzzard, Surgeon, examined Mr Cook on behalf of the company in October 1994. At that time Mr Buzzard recorded Mr Cook’s complaints as:
·constant aching in the whole of the left leg;
·swelling of the left leg in hot weather;
·involuntary movement of the left leg interfering with ability to sleep; and
·difficulty in walking involving a lack of “push” in the toes.
On examination Mr Buzzard found subtalar movement of the left ankle restricted to ten degrees in each direction but no significant restriction in the forefoot movement. Involuntary movements of the left leg appeared to be deliberate. In the opinion of Mr Buzzard, Mr Cook had recovered from the cellulitis but did have “ some limitation in movement of the left foot joints probably secondary to capsular contraction itself secondary to the immobilisation for a substantial period of time” and that this would probably be permanent. [24] In his opinion the cellulitis could not have caused any of the other problems.
[24] Ex. A2 p.52.
26. In December 1994 Mr Cook returned to the Bridge Industrial Clinic which he first attended on leaving the “Searoad Tamar” on 7 July 1993. He was examined by Dr Cass whose prognosis was:
“……not to be favourable as far as full and complete recovery is concerned but again it is not likely that severe exacerbations will occur.” [25]
[25] Ex. A2 p.60.
Dr Cass was of the view that Mr Cook should be encouraged to seek an office type vocation and noted that he seemed keen to resume employment.
27. In August 1995 Mr Cook was examined on behalf of the company by Mr Strangward, Surgeon. His diagnosis was ‘cellulitis of the left leg resulting in some residual soft tissue changes and residual stiffness of the ankle.” He was of the opinion that Mr Cook was suited for moderate work activity at that time.[26]
[26] Ex. A2 p.109.
28. The next assessment of Mr Cook was by Dr Leftkovits, Consultant Physician. This assessment took place in November 1996 at the request of the company’s solicitors. Dr Leftkovits reported that Mr Cook walked with a limp and with the aid of a walking stick. He also reported that he found it strange that “the exquisite hyper-sensitivity he demonstrated on examination, did not seem to occur when he was taking off and putting on his elasticised stocking and footwear.” [27]
[27] Ex. A2 p.120.
29. Mr Buzzard reassessed Mr Cook in December 1996. At that time Mr Cook reported a relapse of the symptoms of cellulitis once per year and that the stiffness of his left ankle was slowly getting worse. Mr Buzzard maintained his earlier view that Mr Cook was predisposed to cellulitis and that he still had some degree of capsular contraction. However he expressed the opinion that “the situation now though is dominated by functional overlay…..some of the functional problem may be at a deliberate level.” [28] Mr Buzzard was unable to adequately test the left ankle joint because of Mr Cook’s claimed sensitivity of the leg although when measuring Mr Cook’s legs Dr Buzzard was able to touch them without particular difficulty.
[28] Ex. A2 pp 124-125.
30. Mr Cook was re-examined by Dr Leftkovits in May 1998. Dr Leftkovits also reported difficulty in examining the left ankle because of extreme hyper-sensitivity. He said that Mr Cook did not have features to suggest causalgia (severe burning pain as a result of damage to sympathetic and somatic nerves) which could have explained a lot of the hyper-sensitivity, muscle spasm and poor recovery.[29]
[29] Ex. A2 p.161.
31. In July 1999 there was an MRI investigation of Mr Cook’s left ankle. The conclusion in the report[30] was that there had been old injuries to ligaments in the ankle.
[30] Ex. A2 pp 197-198.
32. Mr Leftkovits next examined Mr Cook in October 1999. Mr Cook then reported his last attack of cellulitis as being in June 1998. In his report of 8 October 1999 [31] Dr Leftkovits stated:
“The recent MRI investigation however, has given a more plausible explanation for the ankle loss, which suggests that this gentleman has osteoarthritis of the left ankle, due to a combination of age, his excessive weight and previous injury……..I believe that the contribution to his overall impairment from recurrent cellulitis now would have to be considered to be minimal, and that the ankle injury may well be the predominant cause of this gentleman’s persisting symptomatology in the left lower limb.” [32]
[31] Ex. A2 p.176.
[32] Ex. A2 pp 176-179.
33. Dr Watkins referred Mr Cook to Mr Wearne, Surgeon, in 1998. The referral was for investigation of the problems Mr Cook was experiencing with “degenerate knees”[33] although Mr Wearne has reported on the cellulitis condition. On 1 September 1998 Mr Wearne reported that Mr Cook suffered with chronic cellulitis of his left foot and ankle with the complication of the development of a chronic pain syndrome. He also reported that the skin on the left foot and ankle was hyper-sensitive and that the left foot and ankle had become stiff.[34]
[33] Transcript of Proceedings, 23.06.05, p.73.
[34] Ex. A7 referred to in Ex A4 in these proceedings.
34. Mr Wearne saw Mr Cook again in May 1999 because of increased pain in the left ankle. Mr Wearne reviewed scans and an MRI and reported that in his opinion a small lesion which was evident would not be responsible for the severe pain of which Mr Cook was complaining.
35. Mr Wearne re-examined Mr Cook in August 2004. In his opinion Mr Cook was suffering “chronic cellulitis of his left shin, ankle and foot which has been complicated by the development of a complex regional pain syndrome. The skin of his left foot and ankle is hyper-sensitive and his left foot and ankle have become very stiff.” [35] After a further examination in January 2005 Mr Wearne reported that in his opinion Mr Cook continued to have “significant disability in the form of pain, hypersensitivity, swelling and a reduced range of movement in his left foot and ankle.” [36] He also reported Mr Cook’s complaint of pain in the right heel which Mr Wearne attributed to Mr Cook’s efforts to protect the left ankle. When he gave evidence before us Mr Wearne said that in January 2005 Mr Cook had “slight and generalised swelling of his leg below the knee, with the pigmentation, and this extraordinary tenderness.” [37]
[35] Ex. A9 referred to in Ex. A4 in these proceedings.
[36] Ex. A10.
[37] Transcript of Proceedings, 23.06.05, p.68.
36. In giving evidence Mr Wearne said that on two occasions Mr Cook had consulted him for treatment for cellulitis. On the question of the diagnosis of cellulitis Mr Wearne agreed with the evidence of Professor Eisen that the four cardinal signs of active cellulitis were redness, swelling, tenderness and heat.[38] Mr Wearne also stated that the common treatment for this condition is antibiotics, rest and elevation and that meditation is not a treatment.[39]
[38] Transcript of Proceedings, 23.06.05, p.68.
[39] Transcript of Proceedings, 23.06.05, p.65.
37. Mr Battlay, General Surgeon, examined Mr Cook in March 2002 and again in October 2004. These examinations were at the request of the company’s solicitors.
38. In his report of 18 March 2002 Mr Battlay said that in his opinion Mr Cook’s employment in 1993 had caused minor microvascular damage and that other problems were unrelated to his illness. He did not think the episodes Mr Cook was able to treat by resting were true manifestations of recurrent infection. With reference to the effect of the microvascular damage he was of the opinion that Mr Cook “would experience only transient oedema, there is dilation of small subcutaneous veins not requiring surgery, and in themselves, not resulting in curtailment of activity.” [40]
[40] Ex. R5 referred to in Ex. A2 in these proceedings.
39. At the second examination Mr Cook informed Mr Battlay that since March 2002 he had continued to experience minor attacks of cellulitis and for these he had continued to rest and had not had antibiotic treatment. In his report of 26 October 2004[41] Mr Battlay confirmed the view set out in his previous report that Mr Cook had suffered minor microvascular damage to his left leg but that it was unlikely Mr Cook was having current episodes of cellulitis. In his opinion problems other than the microvascular damage were unrelated. He also expressed the opinion that Mr Cook has osteoarthritis of the weight-bearing joints of both legs.
[41] Ex. R1.
40. A transcript of the evidence Mr Battlay gave to the Tribunal in October 2002 is in evidence.[42] Mr Battlay had viewed the videos taken of Mr Cook over a number of years. It was his observation based on the video material that in 1995 Mr Cook was able to weight-bear on his left leg without aid, albeit not normally. He said there was evidence of a limp but the limp was not consistent with the type of pain reaction to pressure on the left leg Mr Cook had described and displayed in October 2004 and which he continues to show. He said that the videos showed Mr Cook was not taking significant weight on the crutches.[43]
[42] Ex. A4 pp 272-294.
[43] Ex. A4 p.276.
41. Mr Battlay gave oral evidence. In his opinion it was not probable that Mr Cook had suffered from capsular contraction of the left ankle as a result of immobilization following the initial bout of cellulitis. Such a condition usually arose in a person who was hospitalized for periods of 3 to 4 months at a time.
42. Associate Professor Eisen is a Consultant Infectious Diseases Physician. He is also an Associate Professor of Medicine at the University of Melbourne and the full-time Director of Infectious Diseases at Royal Melbourne Hospital. He is a Doctor of Medicine.
43. Professor Eisen examined Mr Cook in April 2005 at the request of the company’s solicitors. He provided a report of 30 April 2005[44] and he gave oral evidence. He confirmed that cellulitis is an infectious disease of the lower level skin and the tissue below and one with which he has had extensive experience.
[44] Ex. R2.
44. The history given by Mr Cook as recorded by Professor Eisen in his report is consistent with the description of his complaints given by Mr Cook to the Tribunal and to other medical practitioners. Professor Eisen stated in his report that the history given was one of cellulitis due to Streptococcus pyogenes as there was pronounced lymphangitis and lymphadenopathy. The pictures of Mr Cook’s leg taken in 1993 confirmed the presence of severe cellulitis.
45. On the basis of his examination and copy medical reports available to him Professor Eisen was of the opinion that Mr Cook had the following physical conditions:
· chronic pain syndrome of the left leg, the symptoms of which are exaggerated and largely functional in nature;
· osteoarthritis of the left ankle which bears no relation to any episode of cellulitis; and
· simulated involuntary movements of the legs.
46. Professor Eisen also reported that testing of lower limb motor power showed preserved power and that Mr Cook “affected an exaggerated limp to suggest that he had reduced power in the left leg……I observed Mr Cook leaving the consultation rooms walking with his crutches with a balanced gait markedly better than that demonstrated during the examination.” [45] He also expressed the opinion that, at the time of the examination, Mr Cook was predisposed to recurrent cellulitis due to his obesity, diabetes mellitus and macerated skin between his 4th and 5th toes.
[45] Ex. R2 p.2.
47. In his oral evidence Professor Eisen made the following points:
· cellulitis had not affected the function of Mr Cook’s left leg, knee or ankle;
· capsular contraction was not a common complication of cellulitis;
· cellulitis does not affect the muscles or the joints;
· the signs of active cellulitis are redness, swelling, tenderness and heat;
· other than Mr Cook’s reports of tenderness there were no signs of current cellulitis, chronic or otherwise;
· the recognized method of treatment for cellulitis is antibiotics; and
· meditation is not a method of treating cellulitis;
VIDEO EVIDENCE
48. We viewed a number of surveillance videos. Mr Cook had previously identified himself as the person depicted in those videos. They covered periods of surveillance between early 1995 and early 2003.
49. The video taken in February 1995 showed Mr Cook walking relatively freely. Another, taken in November 1996, showed Mr Cook in a supermarket holding onto a trolley but without the aid of a walking stick. He appeared to move freely and on one occasion appeared to place all his weight on his left leg. His manner of walking did not suggest any restriction of the movement of his ankles. Video taken on 2 December 1996 shows Mr Cook walking along a footpath with the aid of a stick and with a slight limp. The function of his ankles appeared normal. Most of the videos showed Mr Cook walking with a gait far less uneven than that described by him and that observed and reported by the medical practitioners. A video taken on 15 June 2002 showed him with crutches but that he did not appear to be using them for weight-bearing.
STATUTORY BACKGROUND
50. Subsection 39(1) of the Act provides for compensation to be paid to an employee if a compensable injury results in permanent impairment. Subsection 39(2) sets out the matters to which regard must be had in determining whether an impairment is permanent. If there is a determination that an impairment is permanent the degree of that impairment is to be determined by reference to an approved Guide: subsection 39(5). Subject to provisions not relevant here compensation is not payable if the degree of impairment is less than 10%: subsection 39(7).
51. In section 3 “impairment” is defined to mean “the loss, the loss of use, or the damage or malfunction, of any part of the body or of the whole or part of any bodily system or function.”
ISSUES
52. The issues for determination are:
1)has Mr Cook suffered a permanent impairment of his left leg as a result of a compensable injury?
2)if so, what is the degree of that impairment?
3)did Mr Cook suffer an injury to his left ankle while descending stairs on the “Searoad Tamar” on 7 July 1993?
4)if so, has Mr Cook suffered a permanent impairment as a result of that injury?
5)if so, what is the degree of that permanent impairment?
DETERMINATION OF THE ISSUES
Has Mr Cook suffered a permanent impairment of his left leg as a result of a compensable injury?
53. Liability for the cellulitis condition has been accepted and there is no issue before us that this condition is an injury within the meaning of the Act.
54. On the basis of the evidence of Mr Battlay we are satisfied that Mr Cook continues to suffer from some micro vascular damage to the left lower leg and some pigmented areas of the lower left leg, both secondary to his work-related cellulitis. On the basis of the evidence of Dr Chenoweth we are satisfied that Mr Cook suffers from an increased allergy to mosquito bites as a result of the initial cellulitis attack. However we are not satisfied that Mr Cook suffers from the other impairments which he alleges and which are set out in paragraph 15 of these reasons.
55. We are satisfied that Mr Cook suffered two recurrent bouts of cellulitis, one about three months after the initial attack and another in about 1996. However we are not satisfied that Mr Cook is suffering from either chronic or some form of recurrent cellulitis. On this matter we prefer the evidence of Professor Eisen and Mr Battlay to that of Mr Wearne. Professor Eisen is extremely well qualified in the field of infectious diseases (of which cellulitis is one) and none of the other medical practitioners who gave evidence and/or provided reports had similar qualifications. Professor Eisen’s views were supported by Mr Battlay.
56. We accept Professor Eisen’s evidence that when he examined Mr Cook the indications of current cellulitis, namely, redness, swelling, tenderness and heat were not present. In his evidence before us Mr Wearne stated that when he last examined Mr Cook (in January 2005) there was only slight swelling and extraordinary tenderness. He agreed that the assessment of the degree of tenderness was subjective to the person being assessed and that as a treating doctor he accepted what Mr Cook told him as to symptoms.
57. We are not satisfied that Mr Cook has suffered multiple recurrences of cellulitis, some of which he was able to treat by rest and meditation. We are satisfied that the appropriate treatment for cellulitis is that described by Professor Eisen, with whom Mr Wearne agreed. Had Mr Cook suffered the number of attacks of cellulitis he claims and treated them in the way he claims it is probable he would have become seriously ill and required treatment with antibiotics. It may be that Mr Cook did suffer from some other condition which he believed was recurrent cellulitis but the medical evidence which we have preferred does not support his view.
58. We are not satisfied that the pain and tenderness in the left leg, the restriction in the use of the left ankle and the consequent difficulty in walking are a result of the compensable cellulitis condition. For the reasons already stated we prefer the evidence of Professor Eisen and Mr Battlay to that of Mr Wearne. We accept the evidence of Mr Battlay that these problems are unrelated to the compensable cellulitis condition. This view is supported by Professor Eisen. We also take into account that Mr Cook suffers from osteoarthritis of the weight-bearing joints of both legs, unrelated to the cellulitis, and this may be an explanation for his symptoms.
59. We have considered the evidence relating to the possibility that the problems Mr Cook says he is experiencing with his left ankle are a result of capsular contraction secondary to immobilisation for a substantial period of time. Mr Buzzard was of the opinion that it was probable that this was the cause of the ankle stiffness (see paragraph 25 of these reasons). Mr Neri and Mr Strangward also were of the opinion that the cellulitis had resulted in some stiffness in the ankle, although neither explained the mechanism by which he considered that this had occurred.
60. For reasons already stated we accept the view of Professor Eisen that cellulitis does not directly cause ankle stiffness and the evidence of Mr Battlay that capsular contraction usually arises only after a period of immobilization of three to four months. Immediately following the initial attack Mr Cook was hospitalized for a period of nineteen days. On his own evidence following his discharge he exercised his legs as directed by Mr Watkins. Following Mr Cook’s discharge both Mr Watkins and Dr Wallin expected that Mr Cook would recover full function of his leg. Having taken into account all this evidence we are not satisfied that Mr Cook suffered capsular contraction of his left ankle as a result of the condition of cellulitis or as a result of his subsequent treatment for that condition.
61. It follows from our findings in the preceding paragraph that we are not satisfied that the problems which Mr Cook says he experiences with his right leg and his arms are a result of the compensable cellulitis condition.
62. If we are wrong and in fact some of the impairments of which Mr Cook complains are a result of the cellulitis condition, we are not satisfied that Mr Cook’s impairments are as described by him. We find that Mr Cook has seriously exaggerated the nature and extent of his present condition in both his evidence to the Tribunal and to many of the medical practitioners who have examined him. We are conscious that this is a finding which must not be made lightly; it is made on basis of the following:
·the opinion of Professor Eisen that “Mr Cook has an elaborate range of exaggerated symptomatology, little of which is organic in origin” and his observation that Mr Cook left his consultation rooms walking with “a balanced gait markedly better than that demonstrated during the examination”. [46]
[46] Ex. R2.
·the opinion of Mr Battlay that Mr Cook exhibited a “bizarre” pattern of motion with his toes when being examined which was consistent with voluntary factors and that he demonstrated an illness behaviour most probably of the voluntary variety; [47]
·our observation of Mr Cook’s ability to walk as shown on the videos in comparison to his statements as to his restrictions;
·Mr Wearne’s evidence that, assuming a description of what was shown in the video of November 1996, such evidence was in stark contrast to what Mr Cook had told him of his condition;[48]
·we are satisfied that the description of the activity which Mr Wearne was asked to assume was a proper representation of the evidence;
·Mr Wearne’s evidence that he did not assess Mr Cook’s credibility;
·the opinions of Mr Watkins and Dr Wallin, both formed shortly after Mr Cook suffered the initial bout of cellulitis, that he was expected to recover and be fit to return to his work as a marine engineer;
·the opinion of Mr Watkins in April 1994 that Mr Cook’s leg disability would fully settle down;
·the observation of Dr Leftkovits that the extreme sensitivity of the leg described by Mr Cook did not appear to occur when Mr Cook was putting on or removing an elasticized stocking;
·Mr Buzzard’s opinion that some of Mr Cook’s functional problem may be at a deliberate level; and
·Professor Eisen’s opinion that Mr Cook simulated involuntary movements of the legs whilst being examined.
[47] Ex. R1.
[48] Transcript of Proceedings, 23.06.05, p.67.
2) What is the degree of the permanent impairment suffered by Mr Cook?
63. The degree of permanent impairment resulting from the microvascular damage and the skin pigmentation is to be determined under the Guide. Table 1.2 deals with Peripheral Vascular Disease and Table 1.3 deals with Varicose Veins, Deep Venous Thrombosis, Oedema and Ulceration. Table 4.1 deals with Skin Disorders. None of these Tables deals with either of the impairments we have determined.
64. In the event that an employee’s impairment is of a kind that cannot be assessed under the Guide, as is the case here, the assessment may be made under the provisions of the American Medical Association’s Guides.[49] In Re Pavic and Comcare (1996) 45 ALD 409 the Tribunal held that while the AMA Guides were not to be resorted to as a matter of course the discretion may be used in appropriate circumstances. The Tribunal did not accept the argument of Comcare that if a condition does not come within the Comcare Guide it is not compensable. We agree with the approach previously adopted by the Tribunal.
[49] Seafarers Safety, Rehabilitation and Compensation Authority, “Guide to the Assessment of the Degree of Permanent Impairment”.
65. Chapter 4.3 of the AMA Guides (5th Ed.) deals with Vascular Diseases Affecting the Extremities. Table 4-5 provides for a 0%-9% impairment of the lower extremity in the following relevant circumstances:
“Neither intermittent claudication or pain at rest
or
only transient edema
and
on physical examination, not more than the following findings are present: ……….asymptomatic dilation of arteries or of veins, not requiring surgery and not resulting in curtailment of activity.”
On the basis of the evidence of Mr Battlay the maximum impairment of the lower extremity (in relation to the vascular damage) would be 9% which gives a maximum Whole Person Impairment of 4% (Table17-3). Mr Battlay assessed the Whole Person Impairment at 2%.[50] We are satisfied that this is a proper assessment.
[50] Ex. R5 referred to in Ex. A2.
66. Chapter 8 of the AMA Guides refers to the Skin and Chapter 8.2 specifically deals with disfigurement which includes changes in pigmentation. Rating is carried out under Table 8-2. Class 1 provides for 0%-9% Impairment of the Whole Person in the following relevant circumstances:
“skin disorder signs and symptoms present……
and
no or few limitations in performance of activities of daily living; exposure to certain chemical or physical agents may temporarily increase limitation
and
requires no or intermittent treatment.”
We do not have the benefit of expert evidence as to the rating of the skin discolouration suffered by Mr Cook but applying the principles in the Guides and taking into account the examples provided we are satisfied that the degree of Whole Person Impairment arising from this skin condition is less than 5%.
67. Even on an application of the figures most generous to Mr Cook the combined Whole Person Impairment is less than 10% and consequently, under subsection 39(7) of the Act there is no compensation payable.
3) Did Mr Cook suffer an injury to his left ankle prior to his disembarking from the Searoad Tamar on 7 July 1993?
68. On the evidence before us we are not satisfied that Mr Cook suffered an injury to his left ankle on 7 July 1993. According to Mr Cook the injury was significant and extremely painful. Mr Cook said that as he was descending a flight of stairs he “jarred” his left ankle.[51] He was asked in cross-examination:
“Now, in terms of that ankle, did it pain you immediately, over and above whatever pain you were feeling from the developing cellulitis?
Mr Cook replied:
“Absolutely intensely, I stood there and I thought I was going to faint…….” [52]
[51] Ex. A4 p.37.
[52] Ex. A4 p.151.
The MRI investigation of July 1999, to which we have already referred, does confirm that there was evidence of old injuries to the left ankle but does not give any indication of the time of those injuries.
69. Mr Cook said that he informed Dr Constantinou of his ankle injury yet there is no evidence that Dr Constantinou recorded this and it is not referred to in his report of 12 December 1994.[53] Mr Cook also says that he informed a doctor at the Lincare Hospital of the ankle injury and that at the time his ankle “was sitting at a funny angle”.[54] There is no evidence that this was recorded. Mr Cook came under the care of Mr Watkins immediately after his discharge from hospital yet his reports in 1993 and 1994 do not refer to the injury.
[53] Ex. A2 p.58.
[54] Ex A4 p.160.
70. In July 1993 Mr Cook completed a compensation claim form.[55] On 3 August 1993 he wrote to the Maritime Safety Authority concerning his treatment on the ship.[56] In October 1993 Mr Cook made notes of the events of 5-7 July 1993 for his own use.[57] In none of these records was there mention of the ankle injury.
[55] Ex. A2 p.13.
[56] Ex. A4 p.156.
[57] Ex. A2 p156.
71. There is no record of an injury such as Mr Cook describes until 11 August 1999 when Mr Cook wrote to Seacare. As already set out Mr Cook consulted a number of medical practitioners and there were numerous medical reports prior to this date none of which report a history of the ankle injury. Giving due consideration to all the evidence we are not satisfied that Mr Cook suffered an injury to his left ankle on 7 July 1993.
72. Even if we are wrong in not being satisfied that Mr Cook suffered an injury as he was descending the stairs we have no evidence that allows us to make a finding as to the nature and extent of this injury or that it has any ongoing effects or that it contributed in any way to any of the conditions from which Mr Cook now claims to suffer. On this basis we would not have been satisfied that Mr Cook has suffered any impairment as a result of such an ankle injury.
DECISION
73. The reviewable decision of ASP Ship Management Pty Ltd made 10 July 1995 will be affirmed.
74. The reviewable decision of ASP Ship Management Pty Ltd made 13 June 2000 will be affirmed.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr P. Fricker, Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 21, 23 & 26 June 2005 & 23 March 2006
Date of Decision 29 May 2006
Representative for the Applicant Self
Counsel for the Respondent Mr J Ferwerda, Mr J Lenczner
Solicitor for the Respondent Middleton's Lawyers
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