Cook and ASP Ship Management
[2003] AATA 372
•24 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 372
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V95/977 V98/354
GENERAL ADMINISTRATIVE DIVISION ) V00/1320 Re GEORGE COOK Applicant
And
ASP SHIP MANAGEMENT
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Mr G.D. Friedman, Member
Associate Professor J.H. Maynard, MemberDate24 April 2003
PlaceMelbourne
Decision1. In matter V1995/977, the Tribunal sets aside the decision under review and in substitution varies the determination of 19 May 1995 to provide that Mr Cook is entitled to compensation under the Seafarers’ Rehabilitation and Compensation Act 1992 (“the Act”) as follows:
(i)under s 39 of the Act in respect of a 20% impairment of the left leg, and
(ii)under s 41 of the Act, for non-economic loss calculated under s 41(2) of the Act on the basis that the degree of permanent impairment is 20% and the degree of non-economic loss is to be calculated in accordance with Tables 5 and 6 of the Guide to the Assessment of the Degree of Permanent Impairment using the following ratings:
Pain
4
Suffering
4
Mobility
3
Social Relationships
3
Recreation and Leisure Activities
4
2.In matter V1998/354, the Tribunal sets aside the decision under review and in substitution for the deemed refusal of the claim, decides that Mr Cook is entitled to compensation under s 28 of the Act in the sum of $6490.00 for provision of hearing aids.
3.In matter V2000/1320, the Tribunal sets aside the decision under review and in substitution varies the decision of 13 June 2000 to provide that Mr Cook is entitled to the sum of $864.00 under s 43 of the Act for provision of lawnmowing services.
4.The Tribunal reserves liberty to the parties to apply to the Tribunal if they cannot agree as to the issue of costs.
(Sgd) Joan Dwyer
Senior Member
SEAFARERS’ COMPENSATION – whether permanent impairment of left leg results from compensable cellulitis condition – assessment of permanent impairment of left leg – compensation for non-economic loss in respect of permanent impairment of left leg
hearing loss and tinnitus – whether compensation payable for permanent impairment in respect of hearing loss due to noise exposure where exposure and hearing loss occurred during period of operation of Seamen’s Compensation Act 1911, but hearing loss did not disable employee from earning full wages – concession that respondent obliged to pay the cost of hearing aids
– whether entitlement to other compensation arising out of the cellulitis claim – decisions set aside and primary determinations varied
Seamen’s Compensation Act 1911 s 5A(1)
Seafarers’ Rehabilitation and Compensation Act 1992 ss 11, 26(1), 28, 39, 41, 41(2),43
Seafarers’ Rehabilitation Compensation (Transitional Provisions and Consequential Amendments) Act 1992 s 7(1)
Whittaker v Comcare (1998) 28 AAR 55
Re Richards and Howard Smith Industries (AAT 12573, 2 February 1998) [1998] AATA 40
Howard Smith Industries Pty Ltd v Richards (1999) FCR 268; (1999) 30 AAR 213
Commissioner for Railways v Bain (1965) 111 CLR 246
Accident Compensation Commissioner v Fletcher [1990] VR 102
REASONS FOR DECISION
24 April 2003 Mrs Joan Dwyer, Senior Member
Mr G.D. Friedman, Member
Associate Professor J.H. Maynard, Member1. This hearing sought review of three decisions made, or deemed to have been made, under the Seafarers’ Rehabilitation and Compensation Act 1992 (“the Act”). Mr Cook appeared and gave evidence. He was assisted by his former wife, Mrs Rosemary Cook, who also gave evidence on his behalf. The hearing started on 5 August 2002 when Mr Wallace of Counsel appeared for ASP Ship Management (“ASP”). It continued for a short time on 6 August 2002. As Mr Wallace was not well that day, Mr Leslie, a solicitor, appeared for the respondent while Mr Cook finished his evidence-in-chief and Mrs Cook gave evidence. On 7 August 2002 Mr Wallace appeared and cross-examined Mr Cook. Shortly before 3.22pm, Mr Cook said he could not continue any longer and the hearing was adjourned. That evening Mrs Cook rang the Presiding Member’s Personal Assistant to say that Mr Cook had not been well after the hearing and she had taken him to the doctor. Mrs Cook arranged for the doctor to forward a medical certificate to the Tribunal by facsimile. It stated that Mr Cook was unfit until 9 August 2002. On 8 August 2002 Mrs Cook telephoned the Tribunal and said that both she and Mr Cook were sick and that he had influenza. She said they would not be able to attend the Tribunal on 9 August 2002. The Presiding Member’s Personal Assistant pointed out that the medical certificate already received stated that Mr Cook would be fit on 9 August 2002 and therefore a further certificate was requested. Later that day Dr Plenderleith forwarded a further facsimile medical certificate to the Tribunal stating that Mr Cook would be unfit on 9 August 2002, he added “Still quite unwell with infection confined to bed”.
2. The hearing resumed on 29 October 2002. Before that date, the Tribunal was informed that Mr Wallace was no longer practising at the Bar. Mr Lenczner of Counsel appeared for the respondent. Mr Cook’s cross-examination resumed. In the afternoon Mr Lenczner, arranged for Mr Cook and the Tribunal to view excerpts from a number of videotapes of Mr Cook. On 30 October 2002 Dr Battlay gave evidence for the respondent. Before giving evidence Dr Battlay had been given the opportunity to view two of the videotapes (Nos. 1 and 7). After Dr Battlay had completed his evidence the Tribunal completed viewing the videos. There were seven in all and they were taken into evidence as exhibit R7. Mr Cook was further cross-examined after he had been shown all the videos.
3. When the hearing resumed on 31 October 2002 Mrs Cook appeared for Mr Cook. She told the Tribunal that Mr Cook was very sick and was being attended by a doctor. The Tribunal suggested that a certificate from the doctor would be important if, as Mrs Cook said, Mr Cook’s leg was showing symptoms which she believed were attributable to the cellulitis. Mrs Cook told the Tribunal that Mr Cook did not want to have the hearing resume at a later date. The Tribunal directed as follows:
1.This matter was resumed for hearing on 29, 30 and 31 October 2002. On 31 October 2002 Mr Cook did not appear, but Mrs Cook appeared on his behalf. Mr J Lenczner of Counsel appeared for the respondent.
2.The Tribunal directs:
(a) Mr Cook, or Mrs Cook on his behalf, advise the Tribunal in writing by 14 November 2002, forwarding a copy to the respondent, whether or not Mr Cook intends to participate further in this hearing.
(b)The Tribunal will conduct a Telephone Directions Hearing in this matter on Friday, 22 November 2002 at 9.30 am. contacting Mr Cook, or Mrs Cook on his behalf, at Mrs Cook’s telephone number.
4. On 13 November 2002 the Tribunal received a letter from Mr Cook stating:
I write in response to your letter of 31 October 2002.
The status of the matters listed above was that the hearing was complete apart from closing statement; Brack not having been produced as a witness for ASP.
As I am unwell, and Rosemarie Cook is unwell, I request that a decision be given for the above three matters without our further attendance. The matters have dragged on for nine plus years and I, We, will consider what is to be done when your decision arrives.
I am adamant that I will never return to the Administrative Appeals Tribunal. I have attended limping, on one or more walking-sticks, by wheelchair and crutches, and brokendown twice at hearing. I have suffered enough. Rosemarie has too.
Ample materials have been submitted since 1993 upon which to base your decision.
I would appreciate a copy of whatever ASP submits as a closing statement.
I state that the letter sent to Bob Alchin is not ‘flamboyant’ as claimed by Leslie/Lenczner, but measured and temperate in view of the threats and tactics used through nine plus long painful years with little assistance from ASP.
Certificates to hand are included with this fax. I am not yet well enough to produce more copious documentation.
Please do not ring Rosemarie Cook. She has high blood pressure and has recently suffered multiple episodes of bleeding from her nose. She needs complete rest for quite a while.
I await your decisions,
5. The Tribunal on 14 November wrote to the parties as follows:
The Tribunal has received Mr Cook’s letter of 13 November 2002 together with enclosures. The Tribunal will comply with Mr Cook’s request not to telephone Mrs Cook and thus the telephone directions hearing listed for 22 November 2002 at 9.30 am will not proceed.
The Tribunal understands that all witnesses the parties intend to call have given evidence. On that basis the Tribunal proposes to direct that the respondent deliver written submissions within fourteen days of 22 November 2002. If the respondent seeks any different direction would it please advise the Tribunal and Mr Cook by letter, copy to Mrs Cook, by Friday 22 November 2002.
6. On 6 December 2002 the Tribunal received the respondent’s written submissions dated 6 December 2002. On 12 December 2002 the Tribunal received a response from Mr Cook to the respondent’s written submissions. Mr Cook’s response was erroneously dated 11 November 2002 rather than 11 December 2002. The respondent lodged a reply on 20 December 2002.
7. The Tribunal had before it one volume of documents (“T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and covering matters V1995/977 and V1998/354 and referring also to matter V2000/1320. It also had a supplementary volume of T documents lodged at its request in respect of matter V2000/1320. Mr Cook, on 2 October 2002, lodged a bundle of documents he described as Additional T documents submitted at the Request of the District Registrar (T1-T37). He lodged a second volume of Additional T documents (T1-T13). The Tribunal also had before it the exhibits tendered during the hearing.
THE CLAIM FOR PERMANENT IMPAIRMENT OF THE LEFT LEG
8. The first application, V95/977, seeks review of a decision under s 78 of the Act affirming a decision refusing Mr Cook compensation for permanent impairment in respect of the left lower leg. That claim was made by the applicant’s former solicitors on 29 August 1994 (T14 p47). Mr Cook’s claim (T6 pp11-16) for compensation in respect of widely disseminated cellulitis of the left leg (T22 p101) had been accepted, probably in 1993. Surprisingly, the voluminous T documents before the Tribunal do not seem to include the first determination accepting the claim as compensable, although there is clear reference to the fact that the claim was accepted (see e.g. T22 p101).
9. On 19 May 1995, Messrs Middletons Moore and Bevins for, and on behalf of, ASP, denied liability to pay Mr Cook compensation for permanent impairment under s 39 of the Act. The reasons for determination were set out at T20 p99 as follows:
Your degree of permanent impairment as determined under Section 39(5) is less than 10% and therefore pursuant to Section 39(7) compensation is not payable to you under Section 39 of the SRCA.
10. On 24 May 1995 Mr Cook’s solicitors sought a reconsideration of that determination under s 78(2) of the Act. Section 78(4), (5) and (6) of the Act provide as follows:
(4) On receipt of a request, the employer must for the purposes of this section:
(a)if the employer is a party to a certified agreement that relates to industry panels—arrange for an industry panel; or
(b)in any other case—arrange with Comcare for a Comcare officer to assist the employer in reconsidering the determination under subsection (5).
(5)After making arrangements under paragraph (4) (a) or (b), the employer must, with the assistance of the industry panel or the Comcare officer, reconsider the determination.
(6)After an employer reconsiders a determination, the employer must make a decision affirming or revoking the determination or varying the determination in such manner as the employer thinks fit.
11. On 7 July 1995 a Comcare officer recommended to the solicitors for the respondent that the determination of 19 May 1995 be affirmed (T22). Accordingly on 10 July 1995 the reviewable decision was made affirming the determination of 19 May 1995. The application for review constituting matter V95/977 was lodged on 28 August 1995. In the s 37 statement (T26) lodged on 20 October 1995 the respondent set out the reasons for reviewable decision as follows:
1.Any impairment suffered by the Applicant has not been contributed to in a material degree by his employment with the Respondent.
2.Alternatively, the Applicant’s degree of permanent impairment as determined under Section 39(5) is less than 10% and therefore pursuant to Section 39(7) of the SRCA compensation is not payable to the Applicant.
12. The decision before us is a decision affirming a refusal to pay compensation for permanent impairment, made under s 39(5) of the Act on 19 May 1995. However, the Tribunal may consider evidence as to the relevant issues, even if it did not exist, and thus clearly could not have been before the decision-maker in 1995, so long as the evidence is relevant to the issue for determination which was before the decision-maker in 1995 and is now before the Tribunal, namely whether Mr Cook suffers permanent impairment of his left leg as a result of his compensable cellulitis.
13. The background to the claim is not in dispute in these proceedings. Mr Cook contracted cellulitis of the left leg, with evidence of widespread dissemination of infection, while working as 3rd Engineer on the vessel, Sea Road Tamar. The condition was first noticed by Mr Cook on 5 July while sailing to Hobart, but was not diagnosed until 7 July 1993, by Dr Constantinou at the Bridge Industrial Clinic Port Melbourne (T5). Mr Cook left the vessel and was hospitalised that day. He was in Linacre Hospital until 26 July 1993. While there, he was given intravenous antibiotics and prescribed rest with the leg elevated. His treating doctor, Mr Watkins, advised in a report dated 27 July 1993 (T7), that Mr Cook had had “an haemorrhagic eruption covering the whole of his lower leg caused by the infection, there was also an area which sloughed on the dependant part of the calf.” Mr Watkins reported at that time that Mr Cook was “walking slowly restricted by the tightness of the leg tissues”.
14. Mr Cook saw Dr Wallin who practices in the field of occupational health and safety, at the request of ASP on 27 August 1993. He reported to Dr Wallin that he had twice had to go back to his doctor for further antibiotics and that he still had persistent pain, swelling and redness in the left leg. Dr Wallin confirmed that there was “persisting redness from the mid shin region down to the ankle with a shiny appearance consistent with the presence of brawny oedema”. He added “Palpation of the leg revealed quite marked brawny oedema from the mid calf or shin level down to the ankle” (T8 p20). Dr Wallin wrote (T8 p21):
When one develops a severe cellulitic infection of a limb such as Mr Cook has recently experienced, one tends to get vascular and lymphatic disturbance leading to persisting swelling, inflammation and the potential for the redevelopment of infection which sometimes lies dormant in the tissues for at least a number of months. In Mr Cook’s case his presentation today suggested that it would be over optimistic to expect that he will be fit for work short of one month and there is a possibility that it could take a little longer.
Mr Cook expressed some concern today that the infection might have invaded his body elsewhere and that it might break out there. He was assured that this is a most unlikely possibility although it is not impossible that excessive activity too early in the post recovery stage can lead to the infection reigniting in the originally affected area.
From a treatment point of view, Mr Cook now has to try to increase his level of exercise in order to stimulate circulation in his affected leg, thereby diminishing the persisting swelling and aiding the recovery process. He does not in my opinion require vocational rehabilitation, and his only real treatment is ongoing medical review to make sure that the infection does not redevelop as well as physical activity such as swimming, careful cycling etc in order to diminish the swelling. It is possible that he could require a little massage type physiotherapy, but I do not believe that he requires what one might term formal rehabilitation. Application of standard medical treatment techniques are all that is needed to get Mr Cook back to the point that he is ready to go back to work.
There is virtually zero potential for Mr Cook to be disabled on a longer term basis, and I believe that the question of Mr Cook requiring a shore based job in the future is highly unlikely ever to arise in relation to this incident at least.
15. Unfortunately the recovery Dr Wallin expected did not occur. On 13 February 1994 Mr Cook presented to Mr Watkins with rigours and a recurrence of the cellulitis of the left leg causing him to be readmitted to hospital (T9).
16. By 5 April 1994, when Mr Watkins wrote a further report, he stated as to Mr Cook’s impairment (T9 p23):
He has continued to become more mobile though limited in that he can walk a reasonable distance, but has difficulty with stairs and steps. He is able to swim a reasonable distance.
Mr Watkins also referred to Mr Cook having developed a serious reaction with recurrence of pain and discomfort in his leg, when being tested with mosquito bite allergen.
17. As to his current problems, Mr Cook said he has not overcome the limp, and he has a very restricted range of movement of the ankle. He can walk slowly on level ground for about one mile, but it takes him an hour and a half, with frequent stops. He also swims. He can drive an automatic car and can sit in a yacht and do some sailing. He is now extremely sensitive to insect bites. He never had any problem before with insect bites. He had to give up the desensitisation treatment, because of his extreme reaction to the mosquito extract as explained by Dr Chenoweth at T13 pp45-46. Mr Cook explained that he thinks his immune system “goes into overdrive” to repel any intruder. He does not have proper control of his left leg.. It goes into spasm. He cannot move his left ankle quickly or far. He can no longer mow lawns or do home maintenance. He has trouble putting on his own socks. He has to wear an elastic stocking to keep the oedema of his leg under control.
18. The respondent’s case was that Mr Cook did not have as much impairment of the left leg as he claimed, and further that the impairment he did have was not all due to the compensable cellulitis.
19. Although Mr Wallace and Mr Lenczner did establish that Mr Cook had some ill health before July 1993, they did not establish that Mr Cook had any impairment of his legs. Mr Wallace suggested to Mr Cook that he was obese before the incident in July 1993, and that this would have caused some impairment in walking and going up and down steps. Mr Cook denied that he was obese saying that before July 1993, he was fit and sporty, although since he went to sea on 26 June 1967 he had stopped regular waterpolo or other sport. He said that he had put on 10 to 15 kilograms since his activities were restricted after the first attack of cellulitis.
20. The medical records made available to the respondent on summons showed that Dr Taft, a resident medical officer, at an unidentified hospital, on 19 March 1987, had described Mr Cook as obese (R10). In view of the fact that Mr Cook was working as a third engineer on a ship at the time of the incident in July 1993, we find that Mr Cook did not have any impairment of his legs at that time. If there had been any problem with the performance of Mr Cook’s duties due to a lack of agility, we would have expected evidence to that effect to have been called by the respondent.
21. The other submission of the respondent, based on Mr Buzzard’s opinion and that of Mr Battlay, was that the Tribunal should find that Mr Cook’s current impairment of the left leg is due to degenerative change unrelated to the cellulitis.
CONSIDERATION OF THE EVIDENCE AS TO IMPAIRMENT OF THE LEFT LEG
22. In a review of a decision as to permanent impairment all the evidence, including up to date medical reports, is considered, and if there is any compensable permanent impairment an assessment is made of the degree of permanent impairment in accordance with the Guide to the assessment of the degree of permanent impairment (“the Guide) made under the Commonwealth Employees’ Rehabilitation and Compensation Act 1988, or, as in this matter, the Act. In fact although there are two different Guides their assessment tables are identical.
23. In this matter the issues are complicated by the delay which occurred between the date of the reviewable decision in mid 1995 and the commencement of the hearing in August 2002. As we will explain later in these reasons, we find that Mr Cook’s presentation changed during the years 1995-2002, so that at times he exaggerated his impairment, perhaps to emphasise his perception that he had not been fairly treated. We must endeavour to disregard the exaggeration and find the true level of permanent impairment.
24. The first step is to consider the medical reports in the T documents which were before the decision-maker in May and June 1995, and also later reports included in the T documents or tendered in evidence. Those reports are very material even though they received little attention during the seven days of hearing.
25. Secondly we must consider the evidence of Mr Cook. His evidence was, we find, sometimes exaggerated. Further, it was often not responsive to questions from Counsel for the respondent or to suggestions from the Tribunal. We therefore found Mr Cook’s evidence less helpful than we would have expected. Mrs Cook’s evidence was brief and related mainly to the early stages of caring for Mr Cook, rather than to issues relevant to the permanent impairment claim.
26. Thirdly we have the video evidence shown during the hearing and tendered by the respondent. Video evidence is helpful in that it is objective evidence. It can not show pain or give much idea as to range of movement but it does show matters such as whether a person has a limp and how a person uses walking aids such as a stick or crutches. We regret that the video evidence had not been disclosed prior to the hearing. We think it desirable that there be a full disclosure of all relevant evidence at the time when negotiations are proceeding. The respondent had been videoing Mr Cook since 31 January 1995, following the lodging of his claim for permanent impairment on 29 August 1994.
27. The fourth type of evidence was the evidence of Mr Battlay which was the only medical evidence given at the hearing. Mr Battlay had previously provided a report of 18 March 2002 (R5). In his evidence he was able to comment on two of the videos (Nos. 1 and 7) which he had seen before giving evidence. It was helpful to the Tribunal to have medical evidence as to the interpretation of what was seen in the videos. We regard it as unfortunate that Mr Cook did not take advantage of the opportunity offered him to have a medical witness of his choice look at and comment on the videos.
RELEVANT LEGISLATION
28. The legislative provision as to compensation for permanent impairment is found in s 39 of the Act which, so far as relevant, provides as follows:
(1)If an injury to an employee results in a permanent impairment, compensation is payable to the employee for the injury.
(2)For the purpose of determining whether an impairment is permanent, the employer must have regard to the following matters:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment;
(d)any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is an amount assessed under subsection (4) by the employer, being an amount that is not more than the maximum amount at the date of the assessment.
(4)The amount assessed must be an amount that is the same percentage of the maximum amount as the percentage determined under subsection (5).
(5)The employer under this section must determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment must be expressed as a percentage.
(7)Subject to section 40, where the degree of permanent impairment of the employee, as determined under this section, is less than 10%, an amount of compensation is not payable to the employee under this section.
(i) the reports before the decision-makers and later reports
29. Dr Wallin on 11 April 1994 set out his findings at review examination on that date, having previously examined Mr Cook on 27 August 1993 (T10). He wrote at pp26-27:
At examination Mr Cook once again presented as a very solid [No weight given] late middle aged gentleman who was co-operative throughout the interview and examination. Inspection of his left leg revealed virtually zero swelling in comparison with my earlier observation in August when he had very marked residual swelling and inflammation. He had some brown pigmentation over the medial aspect of his lower left leg consistent with the previous cellulitic infection. He was quite tender to pressure over this area of the leg with such tenderness extending up to the left knee. However he had a full range of movement in the left ankle and in the left knee.
DISCUSSION AND OPINION
Mr Cook, on a purely medical basis, currently appears to have some degree of remaining disability involving his left leg which presents itself as persisting discomfort, a tendency to increase pain, swelling etc. when he increases his level of activity and an apparent propensity for recurrence or redevelopment of the previous infection/cellulitis as evidenced by the episode of 13 February 1994 which seems to have happened spontaneously, and without cause.
He has also now been demonstrated to be severely allergic to mosquitos which was hitherto unknown and which one can postulate perhaps has resulted from changes to his immune system brought about by the early infection which I believe almost certainly still resulted from a spider or similar arachnid bite.
His present immune situation is somewhat confusing but it certainly appears to be somewhat appealing to attempt to relate the severe reaction to mosquitoes to the original disability and I believe that it is certainly reasonable for Mr Cook to continue with his desensitising course of injections as there is a probability that if he were bitten by a mosquito at sea, he would experience a further severe reaction.
There is also an ongoing danger that should he return to sea in the short term, he could suffer a flare up of the left leg condition and would therefore require urgent repatriation. This of course is not impossible and should not necessarily prevent him from going back to sea.
In relation to his residual obvious physical disabilities, he still has problems with his left leg which I believe are sufficient to prevent him from returning to sea and I think that it will probably be at least two or three months realistically before any thought can be given to getting him back to sea.
Thus, as at 11 April 1994, it was Dr Wallin’s opinion that Mr Cook’s condition had not stabilised.
30. The next report in the T documents is that of Mr Neri, an orthopaedic surgeon, provided to Mr Cook’s solicitors on 14 July 1994 (T11). He set out the history given to him by Mr Cook at pp32-34. He then referred to his findings at examination which included the fact that Mr Cook walked with a noticeable limp favouring the left leg. He stated that “there was no evidence whatsoever of oedema” and that the vascularity of the foot and leg appeared to be fully restored. However, Mr Neri added, at p34:
He was unable to squat, abandoning the manoeuvre very rapidly, when his knee had reached flexion of 90 degrees and dorsiflexion of the left ankle was being stressed.
Examined lying down, however, the left knee joint is capable of full flexion without restriction and without pain. Dorsiflexion of the foot, however, is restricted by 20 degrees and plantar flexion is restricted by 10 degrees when these movements are compared with the normal right leg.
There was some slight evidence of muscular wasting in the left calf [No measurements given] when compared with the right calf where the muscles were exceedingly well developed. It is my impression that this diminution of volume in the left calf is a direct indication of disuse following his experiences and the disease condition from which he suffered, from 7/7/1993 onwards.
Testing the left ankle, stress of dorsiflexion, which would put the tendo Achilles and calf muscle on stretch, produced pain and discomfort indicating an element of fibrosis and scarring in the musculature with shortening of the muscle belly, which has not yet been overcome.
The actual movement of the ankle joint is relatively supple within this limitation of dorsiflexion and plantar flexion.
Eversion and inversion are supple and normal and there is no sign here of any restriction of tarso-metatarsal movement or movement of the toes.
What was curious once again was the extraordinary sensitivity of the entire skin of the leg below the knee joint and over the foot and even on the sole of the foot when this sensitivity was compared with the situation on the right side. It appeared that even gentle touch produced an intolerable reaction.
Mr Neri’s opinion contained the following passage (T11 p36):
The general clinical situation is one where the problem is resolving slowly but one has to recognise that the end result of such infection and cellulitis has been the degree of fibrosis of soft tissues around the ankle joint and possibly involving the calf muscle as well. In such a circumstance, it is only prolonged activity and exercise designed to stretch the calf muscle and improve its function that would result in complete healing and this can by no means be guaranteed as an ultimate outcome of such treatment.
In view of the fact that it is now a year since he has been treated and has recovered from the initial infection, I would believe that he may well be left with an element of restricted function in regard to mobility of the ankle joint and mobility of the calf muscle which would interfere with his capacity for walking long distances, for physical exercise and his ability to climb ladders and stairways and to squat and to kneel, activities which may well be integral to his duties as a ship’s engineer where a degree of mobility is demanded of him.
At the same time it is quite likely that improvement in his function with regard to his ability to walk and stand will be progressive to a point and even at the present time would allow him to perform light and sedentary duties where change of posture and movement from time to time was allowed and encouraged.
Mr Neri expressed concern about Mr Cook’s “acute and inordinate sensitivity of the skin to pressure and to touch over the left lower limb and particularly below the knee”.
31. Mr Neri provided an assessment of impairment on the Comcare Guide. As stated in paragraph 22 above, it is identical to the Guide under the Seafarers’ Act (“the Guide”). Mr Neri qualified his assessment by stating that there could still be some improvement over the next year. He suggested that his assessment be regarded as an “interim assessment” (which was mistyped as an “interior assessment”) as provided for at p5 of the introduction to the Guide.
32. Mr Neri assessed Mr Cook when he saw him on 14 July 1994 (T11 pp29-39) as having a 4% impairment on Table 9.2 of the Guide in respect of loss of range of movement of the ankle. However that is not in accordance with Table 9.2. The impairment rating should have been 5% for “Loss of less than half normal range of movement of ankle”. On Table 9.5 Mr Neri assessed Mr Cook as having a 20% impairment rating, saying, “He can rise to standing position and walk, but has difficulty with grades, steps and distances”. Mr Neri combined the ratings on Tables 9.2 and 9.5 instead of choosing the higher rating yielded by Table 9.5. The introduction to Table 9.1 explains that either the musculo-skeletal Table or Table 5 should be used but not both.
33. A Commonwealth Rehabilitation Service (“CRS”) report of 28 July 1994 (T12) noted at p40:
Mr Cook maintains fitness by swimming 3-4 times a week, and has a daily walking program to maintain mobility and build up muscle strength in his left leg.
At p41 Ms Hjorth, a psychologist, and the author of the report, wrote:
Mr Cook presents as a most intelligent and genuine person who is motivated to reduce the impact of his disability and resume employment as soon as possible. Furthermore, there is no evidence whatsoever that there is or has been any wilful action on the part of Mr Cook to maintain the limitations of his present disability.
At p42 Ms Hjorth commented an Mr Cook’s limitations:
Mr Cook’s walking is somewhat limited, and he finds standing for any length of time painful, but sitting is manageable, provided he can change position at will to prevent swelling in his ankle. He has not been able to return to seafaring work since his initial illness, but he could reasonably undertake sedentary work.
34. The only rehabilitation recommended by Ms Hjorth was “active and intensive help to obtain a new position preferably in the shipping industry”. She concluded at p44:
It is my opinion that Mr Cook is coping well and has accepted the lifestyle changes associated with his disability.. Mr Cook presents as an intelligent and resourceful person who has met his misfortune with resilience and courage. He has taken all the necessary steps to rehabilitate himself physically, and I am sure that he will exhibit great determination in re-creating a career.
On a psychological level, Mr Cook’s present inability to return to work is causing him frustration and boredom, and is probably exacerbating his stress levels and increasing fatigue. It is likely that a swift return to work will be good for Mr Cook’s morale and circumvent any psychological complications from his ongoing disability. It is recommended that a rehabilitation program with the aim of an early return to work, be approved for Mr Cook.
35. On 18 August 1994, Dr Chenoweth, an allergist, provided a report in which he recounted a history of treatment to attempt to desensitise Mr Cook so that he could tolerate mosquito stings, as he had done before July 1993 (T13 pp45-46). He expressed the opinion that Mr Cook had an incapacity to return to sea due to his sensitivity to mosquito stings, and that the incapacity was “unequivocally due to the July 1993 incident”.. Dr Chenoweth described the allergic reaction as causing very noticeable symptoms all over the body and including aggravation of the leg condition involving pain. Dr Chenoweth concluded by saying that Mr Cook was “more sensitive to mosquito stings than any other subject I have seen while practising allergy”.
36. Those were the relevant medical reports in existence when the claim for compensation for permanent impairment was lodged on 29 August 1994 (T14).
37. As would be expected the respondent’s solicitors arranged for their own medical report. They arranged for Mr Cook to see Mr Buzzard on 31 October 1994. Mr Buzzard wrote that Mr Cook told him he had the following complaints (T15 pp49-50):
PRESENT COMPLAINTS
1. Left leg trouble
The patient said he suffers from constant aching in the left leg involving the whole of the leg but in particular the left lower leg. The left leg aching has been so since “I got hurt” (July 1993). This problem is associated with swelling in hot weather. He does take Dyazide (Diuretic) and Aspirin.
2. Involuntary movement of the left leg
The patient said that when he lies in bed “my left leg jumps all over the place – and I have no control over it”. He said that “as a consequence, I often don’t get any sleep during the night”.. This has been so for six to eight months. This is static.
3. Difficulty in walking
The patient said that he has “terrible trouble walking – there is no push in my toes…”. That has been so “ever since I got out of hospital…it took me four months to walk…not properly…but to walk”.. He had never had difficulty in walking before that time.
On examination Mr Buzzard reported as to the legs (p52):
Both legs were equally and normally developed by measurement. When I was examining the patient’s left leg and touching the left leg, this produced shaking of the right leg.
There was some evidence of loss of subcutaneous tissue turgor in both lower legs in the gaiter area but there was no evidence of any varicose veins on standing the patient.
I couldn’t detect significant hip pathology. I couldn’t detect significant knee pathology.
There was no restriction in movement of the talo-crural components of the left ankle but subtalar movement was 10o in each direction. There appears not to have been significant restriction of the forefoot movement. No other significant abnormalities were noted.
38. Mr Buzzard concluded (at pp52-54):
The patient’s cellulitis appears to have been associated with a very slow recovery and with recrudescence’s [sic] of it. This is not uncommon. I think that the cellulitis has now recovered. The patient does however 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.
The patient does have radiological evidence of degenerative disease in the left foot but this is fairly widespread and is probably part of degenerative disease involving other joints and unrelated to the incident of 5/7/1993 or indeed the patient’s cellulitis in general. In other words, I don’t think that that is significant.
I think it is reasonable to accept that the patient does have difficulty in walking because of the subtalar joint capsular contraction. I think that that will probably always be so.
I do think it is reasonable to accept that the patient does have some aching in the left leg which is consequent upon the chronic venous insufficiency.
39. Mr Buzzard then responded to questions (p53):
You have asked me about the patient’s physical condition with particular reference to the injuries alleged. I think that the patient has a number of physical problems – obesity, chronic venous insufficiency in his legs, capsular contraction of the left subtalar joint, a functional problem and a hypersensitivity to mosquito toxin.
You have asked me whether or not in my opinion the accident could have caused the particular injuries. In my opinion, there was no accident in the normally accepted sense of the word. The patient’s cellulitis came on spontaneously. It could have given rise to the capsular contraction of the left subtalar joint but could not in my opinion have given rise to any of the other problems.
You have asked me whether or not the patient’s condition is stable. I believe that it is.
Mr Buzzard agreed that Mr Cook had an incapacity to return to work at sea.
40. For some reason Mr Buzzard’s impairment assessment did not refer to the Guide. He gave a 6% lower extremity impairment which is not a rating available when applying the Guide. Mr Buzzard’s opinion that there was chronic venous insufficiency unrelated to the July 1993 incident is not supported by the Doppler study of 15 August 1993 (R3). His opinion that the hypersensitivity to mosquito toxin was not related to the cellulitis was in direct conflict with the opinion of the allergist Dr Chenoweth. We prefer Dr Chenoweth’s evidence on that issue.
41. Mr Cook was also referred back by ASP to Bridge Industrial Clinic, where he saw Dr Cass on 12 December 1994. Dr Cass wrote as to the current history given him by Mr Cook (T16 p58):
He is still having symptoms however which cause considerable pain between his left knee and toes, swelling around the ankle particularly in hot weather, stiffness in the left ankle and soreness up into the left groin. He also gets pains around the left low back area and involuntary nerve contractions and spasm affecting mainly his left lower leg. As a result when walking, he walks with a considerable limp.
42. Dr Cass, at examination, noted involuntary nerve activity affecting mainly the right leg. He elicited tenderness on palpation over the left leg and groin. Dr Cass concluded at p60:
2. Current prognosis. This would appear not to be favourable as far as full and complete recovery is concerned but again it is not likely that severe exacerbations will occur. This is also complicated by increased stiffness around the left ankle involuntary nerve reaction of the muscles of the left leg, pain and difficulty sleeping. It was also noted that he complained of low back pain especially after exertion.
43. The original determination of 19 May 1995 was made on the basis of Mr Buzzard’s report which ignored the requirement in s 39(5) of the Act that the degree of permanent impairment be determined under the provisions of the Guide. His 6% impairment rating was less than the minimum 10% impairment rating required by s 39(7) of the Act. However 6% is not a rating in accordance with the Guide. The “difficulty walking” accepted by Mr Buzzard, gives a rating of 20% or 30% on Table 9.5 of the Guide.
44. It is surprising that when a Comcare officer provided assistance to ASP, as required by s 78(4) of the Act, he did not point out that deficiency in Mr Buzzard’s assessment and arrange for another assessment in accordance with the Guide as required by s 39(5) of the Act. That is particularly puzzling as he did correct Mr Neri’s error in combining ratings on Tables 9.2 and 9.5, rather than choosing the higher of the two Tables. The Comcare Officer summarised the assessments referred to in the preceding paragraphs and commented at T22 p103:
Table 9.2 when consulted in relation to the employee’s condition would result in an assessment of 5% whole person impairment, for “loss of less than half normal range of movement of ankle”. While the assessment under Table 9.5 results in a logic defying 20% whole person impairment, compared with what can be obtained under Table 9.2, this would appear to be the correct one. It is not for us to try and overcome a demonstrable weakness in the approved Guide by substituting a different assessment.
45. However, instead of accepting his own advice, the Comcare officer then calculated an assessment of 10% on Table 9.5 from the history obtained by Mr Buzzard that Mr Cook had difficulty with steps and uneven surfaces. Because Mr Buzzard had not specifically referred to difficulty walking distances the Comcare officer concluded that Mr Cook had no such difficulty. That is of course overlooking the history noted by Mr Buzzard of “terrible trouble walking, … no push in my toes” and “I haven’t been well enough to be able to go to the swimming pool – it’s quite a distance away”. It also overlooks the fact that Mr Buzzard wrote, at Tdocs p53, “I think it is reasonable to accept that the patient does have difficulty in walking because of the subtalar joint capsular contraction”.. It should be noted that the term "subtalar joint capsular contraction" refers to capsular contraction beneath the ankle joint. “Talus” is the Latin word for ankle (Dorland’s Illustrated Medical Dictionary 27th Edition pp1602 and 1661).
46. However, in spite of preferring Mr Buzzard’s alleged 10% impairment rating to Mr Neri’s 20%, the Comcare officer rejected both, on what can only be described as an irrelevant ground. He stated that Mr Buzzard had expressed the opinion that Mr Cook’s condition “was not contributed to significantly by his employment”, and that Mr Neri’s report also “allows speculation that there might have been no connection between the employment and the employee’s condition”.
47. The Comcare officer mistakenly regarded that as a relevant matter under s 39(2) of the Act. So long as there was a determination in existence accepting the cellulitis as an “injury”, as defined in s 3 of the Act, it was compensable and gave rise to an entitlement to compensation for permanent impairment resulting from the injury. The fact that Mr Buzzard or any other doctor doubted that it should be compensable was not relevant to a determination as to permanent impairment resulting from an “injury”, as defined in s 3 of the Act.
48. The Comcare officer recommended that the determination of 19 May 1995 be affirmed. That recommendation was accepted and the reviewable decision was made on 10 July 1995 (T23 p104).
49. It will be clear from those reasons that in our view the reviewable decision was flawed. It was not the correct decision on the material before the decision-maker. It affirmed a decision which was also flawed, but for a different reason. Mr Cook has been seeking to have the flawed reviewable decision of 10 July 1995 reviewed since 28 August 1995.
50. On the medical reports before the decision-makers in 1995, if it was accepted that Mr Cook’s impairment was stabilised as required by s 39(2), he was entitled to compensation for permanent impairment. As already explained, in respect of permanent impairment of the left leg, he was entitled to the higher of the appropriate ratings on Tables 9.2 or 9.5. The higher rating on each medical assessment was that on Table 9.5, where Mr Neri gave a rating of 20%. A rating of 20% or 30% was appropriate on a fair reading of Mr Buzzard’s report.
51. It is appropriate for us to also consider subsequent medical opinions. As requested by Mr Cook, we disregard the report of Mr Strangward (T24) dated 7 August 1995 and obtained by Mr Cook’s former solicitors (R2). Mr Cook said that having read Mr Strangward’s report of 9 August 1995, he did not wish to rely on Mr Strangward in any way. Mr Strangward wrote to the solicitors (R2):
The AMA assessment is enclosed.
I have suggested the opinion of a neurologist might be sought in regard to his leg hypersensitivity, there are a lot of inconsistencies with this and little evidence of true organic problem.
I could however put a higher figure in on the last page if you so desire, a new last page could be sent. However the inconsistencies make it difficult to confirm positively that in fact he has the problem of which he complains and could be detrimental in a court situation but it may be helpful outside of court.
Accordingly then a compromise figure might be not unreasonable.
We agree with Mr Cook that no weight can be given to any opinion expressed by Mr Strangward.
52. On 26 November 1996 Dr Lefkovits, a rheumatologist, prepared a report at the request of the respondent’s solicitors. Dr Lefkovits rejected Mr Buzzard’s assumption that the problems were a result of underlying venous insufficiency pointing out that the Doppler ultrasound (R3) “showed normal venous circulation in the left lower limb”.. Dr Lefkovits described Mr Cook as seeming genuine, but he raised concern about some inconsistencies on examination. He did not give any impairment assessment in his first report but we have before us four later reports of his which do address that issue.
53. In an undated report after a re-examination, probably in May 1998, Dr Lefkovits described Mr Cook’s clinical status as “quite extraordinary” and postulated that he may have developed some form of causalgia which is defined in Black’s Medical Dictionary ed Macpherson 39th edition as, “A severe burning pain in a limb in which the sympathetic and somatic nerves have been damaged”. However, in his conclusion, Dr Lefkovits wrote, “He does not have features to suggest causalgia . . . I cannot find any alternative explanation, which would fit in with known organic factors”. On the basis of the presentation he saw, he assessed Mr Cook as follows (T39 p161):
PART A Table 9.2
Loss of more than half normal range of movement of ankle. Whole person Impairment 15%
TABLE 9.5
Can rise to standing position and walk with difficulty but he is limited to level surfaces. Whole Person Impairment 30%
PART B Guide to assessment of non-economic loss
TABLE 1
PAIN AND SUFFERING
Pain score 3. Suffering score 4, mobility score 4, social relationships score 2 and recreation and leisure activities score 4.
54. In a subsequent report of 8 October 1999 (T48), Dr Lefkovits reported that Mr Cook had told him he had again been treated with antibiotics for cellulitis in June 1998. There does not seem to be confirmation of that in the clinical notes of Bayside Medical Practice (R18). Dr Lefkovits reported that Mr Cook walked with a single stick and had an obvious limp. Dr Lefkovits gave the same impairment assessment as in June 1998. Dr Lefkovits referred to a recent MRI investigation which showed that Mr Cook had osteoarthritis of his left ankle which he wrote was due to “a combination of age, his excessive weight and previous injury”. He added (T48 p178-179):
These radiological findings do bring the whole question of the cause of his ongoing symptomatology into serious question. Nevertheless, cellulitis does not seem to be the issue at this stage, but he certainly does have a regional pain syndrome.. This can occur in the post-traumatic setting, and further exploration of possible previous left ankle injury should be sought.
. . .
Finally, with regards to his impairment, I would say that there is no significant change in the overall impairment assessment as compared to 1998, but 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.
As the condition has not appreciably changed over the last twelve months, one would have to consider it to have stabilized. He will never work on a ship again, and will take a prolonged period of time getting his Law degree. However, ultimately he certainly could work in any form of sedentary position.
His treatment requirements are essentially symptomatic.
55. The conclusions of the MRI of the left ankle (T53 p197) dated 20 July 1999 are as follows (p198):
Conclusion
1.There is an osteochondral lesion seen in the medial talar dome with a subchondral cyst decompressing into the talus. Reparative fibrocartilage is seen overlying the lesion.
2.There has been a previous moderate-grade injury to the superficial and deep fibres of the deltoid ligament. Old injuries to the anterior talofibular and calcaneofibular ligaments are seen.
3. There are no MR features of infection.
56. Mr Buzzard provided a second report, T28, after seeing Mr Cook again in December 1996. In that report Mr Buzzard wrote that he thought it reasonable to accept that Mr Cook probably did still have some degree of capsular contraction of the left subtalar joint complex, but the situation was dominated by functional overlay some of which he though may be at a deliberate level. He suggested that a report of a consultant psychologist or psychiatrist would be required to assess that. Once again, with no factual basis for his assumption that Mr Cook had a predisposition to cellulitis, he suggested that Mr Cook’s alleged predisposition was “not an employment problem”. In so doing he ventured a legal opinion which was incorrect, in that he confused the alleged predisposition with the contraction of the condition.
57. Mr Cook saw Mr Wearne as a treating specialist on 6 April 1998, on referral by Mr Watkins. In a report dated 1 September 1998, Mr Wearne diagnosed Mr Cook as suffering “chronic cellulitis of his left foot and ankle which has become complicated by the development of a chronic pain syndrome” (A2). Like Dr Lefkovits, he assessed Mr Cook as having a 15% impairment rating on Table 9.2 for loss of more than half the normal range of movement of the ankle and a 30% impairment on Table 9.5 “Can rise to standing position and walk with difficulty BUT is limited to level surfaces”. He gave the following ratings on Part B of the Guide as to Non Economic Loss (A2 p3):
Pain 4
Pain occurring most of the time. Restrictions on activity. Resistant to treatment.
Suffering 4
Symptoms wide ranging. Tend to dominate thinking. Little time when free of symptoms. Difficulty coping or performing activity. Treatment necessary
Mobility 3 Mobility markedly reduced. Needs some assistance from others. Unable to use most forms of transport.
Social relationships 3
Difficulty in maintaining relationships with close friends and extended family.
Recreation and Leisure Activities 4
Range of activities greatly reduced. Needs some assistance to participate.
58. Mr Wearne provided an updated report of 26 February 2002 which added details of reports on a bone scan and CT scan of Mr Cook’s left ankle of 5 May 1999 as well as the MRI already referred to of 20 July 1999. Mr Wearne concluded (A3 p4):
Following recurring episodes of cellulitis, and an episode of ulceration of his left calf, in 1993, Mr Cook developed a chronic condition in the form of pain, stiffness and exquisite tenderness of the calf, ankle and foot. The exact cause of the condition remains obscure and has been labeled [sic] a chronic pain syndrome. In my opinion, the small osteochondral lesion in the dome of the left talus does not play a major role in the condition.
In my opinion, the condition of Mr Cook’s left leg has stabilised insofar that there is unlikely to be any improvement in the future.
Mr Wearne upgraded his ratings for social relationships and recreation and leisure activities to 5, on the basis of advice from Mr Cook that his wife had recently left him, and the history Mr Cook gave of his symptoms having become worse.
59. There was no impairment assessment from Mr Watkins, nor was there any updated report. Mr Cook said that he had died shortly after providing the letter at T16 of Mr Cook's first bundle of additional T documents dated 13 December 1999.
60. Mr Watkins had also referred Mr Cook to Dr Blombery, who is a vascular surgeon, in respect to what Dr Blombery described as “a pain syndrome after cellulitis”, Dr Blombery noted involuntary movements on examination and in his report of 12 May 1998 to Mr Watkins (A8) he wrote:
He appears to have developed a pain syndrome with a prominent component of muscle spasm and in patients who develop such pain syndromes, involuntary movement is seen not uncommonly. Whilst he does not actually have reflex sympathetic dystrophy, this could be viewed as a variant of a chronic pain syndrome stimulated in some way by the cellulitis. I have commenced him on baclofen, 10mgs increasing to 20mgs bd, for the muscle spasm, as well as Epilim 200mgs increasing to 200mgs tds, to reduce any component of neuropathic pain that is present. He does obtain some relief from Rivotril but finds that this sedates him too much. I do not feel that there is any indication to consider sympathetic blockade in the absence of autonomic disturbance, and hopefully the combination of baclofen and Epilim will be of some use in settling his debilitating muscle spasm.
I have asked him to see me again in six weeks time.
61. Mr Cook said that the medication Dr Blombery had prescribed did not agree with him, and so he did not continue treatment with Dr Blombery. A further report from Dr Blombery of 6 July 1989 (R12) refers to those side effects. It also refers to the attack of cellulitis in 1998 as to which there is no record in the Bayside Medical Practice clinical notes (R18).
(ii) the evidence of Mr Cook
62. Mr Cook, with some assistance from the Tribunal, described his impairment in his evidence-in-chief on the first day of hearing (trans. pp56‑57). He said that he had had a restricted range of movement of the ankle since the incident in July 1993. He said he can not step out the long strides as he used to, nor can he move quickly. He said he can walk slowly and carefully but cannot “slam my foot down and march quickly”. He added that he has enough movement in the ankle to get about. He said he has a problem with steps because they require him to bear his full weight entirely on one ankle. He said going up and down ramps or steps is a real trial. He uses sticks or crutches then in an effort to relieve his left side of weight bearing. He had sticks but not crutches with him at the Tribunal on the first days of hearing.
63. In cross-examination Mr Lenczner seemed to be suggesting to Mr Cook, that he was not limping in the videos (trans. pp253-254). As will be demonstrated later in these reasons that course of questioning by Mr Lenczner was inconsistent with the evidence of Mr Battlay, the expert witness called by the respondent.
64. At the resumed hearing in October Mr Cook did bring crutches and at times he used them to walk around the hearing room. Mr Lenczner asked Mr Cook about his activities and about some of the matters referred to in the Tables in Part B of the Guide (trans. p200-). He said usually he can still drive, but on occasions he cannot drive at all. He said he sometimes ambles along an internal road which he approaches by a gradual descent. He said he sometimes goes out with a friend on his 18’ trailer sailer. To do so he drives to a parking area and from there he uses a gentle ramp to get onto a pontoon from where he puts a leg over to get into the boat (trans. p204). He said he surrenders his sticks and holds onto people standing near by before sitting with his feet in the cockpit of the boat. Mr Cook said he can still steer a course, handle a rope and pull himself from one side of the cockpit to the other.
65. Mr Cook said he cleans his small unit himself and has employed someone to help with small gardening or home maintenance tasks. He said he can go out but sometimes, if his ankles “play up”, he does not go out for three or four days. He said when he is well enough he goes for a swim at least once a week at Cranbourne or Wonthaggi swimming pool and on the way back does some shopping (trans. p242). He said he swims with his upper body and keeps his legs floating with a pool buoy (trans. p246).
66. Mr Cook said that he believes he has developed pain in his right leg and ankle as a result of putting too much weight on them to protect his left side. He described what he calls a cellulitis attack with involuntary movements of the left leg and said the pain is shocking from the leg up to the base of his spine. He said that during such attacks the leg swells up at the back of the knee and in the groin and you can see track lines of infection (trans. pp238-240). He said the leg looks flushed and also goes black and grey. He said he slowly recovers from those episodes with rest and meditation.
67. Unfortunately there was no medical evidence confirming Mr Cook’s account of his attacks of cellulitis over recent years. He said he does not always go to a doctor when he has an attack as he has been having them since 1993. However it would have assisted the Tribunal if there had been medical evidence confirming that Mr Cook’s left leg at times still shows signs of cellulitis.
(iii) the video evidence
68. The videos were taken on 31 January 1995, 16 February 1995, 30 November 1996, 2 December 1996, 24 December 1998, 8 January 1999, 9 December 1999, 19 February 2000, 7 and 8 May 2001, 8 January 2002, 11 January 2002, 15 February 2002, 15 March 2002, 15 June 2002 and 6 July 2002. In the 1995 and November 1996 videos Mr Cook walks slowly with a limp (as stated by Mr Battlay) and at times stops for a rest. He leans on a shopping trolley but does not use either a stick or crutches. In December 1996 he does use a stick in his left hand. At times he stands on his right leg apparently to rest his left leg. In December 1998 and January 1999 he again uses one stick in his left hand. By December 1999 he is using two walking sticks and seems more disabled. The first time he is shown using crutches is on 19 February 2000. In all the later videos he again uses two crutches until 15 March 2002 when he was using only one stick at the beginning of the video but took both crutches when he went into a medical centre at Pakenham. In the later videos he again had two crutches.
(iv) the evidence of Mr Battlay
69. Mr Battlay is a general surgeon. He was the only medical expert to give evidence as well as provide a report. Further he saw the videos taken of Mr Cook and was able to comment on them. In his report of 18 March 2002 (R5) he wrote, that Mr Cook had told him he had “gradually deteriorated” and that he was now “unable to get about outside without crutches, and can only manage 150-200 metres at a time, without having to rest”. Mr Cook told Mr Battlay that he had been on crutches for the last two years.
70. Mr Battlay in his report carefully set out his findings on examination of the left leg including “continuous involuntary movement in the leg”, but he noted normal muscular development and no wasting of the quadriceps or calf muscles and no evidence of lymphadoema in the left leg. He reported that there was normal venous circulatory return and arterial pulsation. Mr Battlay confirmed that there was evidence of ligamentous injury to the left ankle and evidence of osteoarthritis in both ankles. He said the osteochondral lesion of the left ankle could account for some of Mr Cook’s problems, but he was of the opinion it was unrelated to the cellulitis. He concluded that “on the whole his symptoms are grossly overrated and are unlikely to reflect accurately, his physical capacity from a strictly objective organic point of view”.
71. As to assessment on the Tables in the Guide, Mr Battlay wrote at R5 p7:
I have perused the various Tables for Assessment of Impairment of the Musculoskeletal System. I think that it is important to distinguish here between any pre-existing problems due to his ankle injury and degenerative changes in the foot and the effects of his recurrent cellulitis.
According to Table 9.2, he probably does have a 15% impairment resulting from loss of more than half normal range of movement of the ankle, but I think this is the result of his osteochondral lesion rather than of his cellulitis.
According to Table 9.5, he would have a 20% impairment as he would most probably have difficulty with grades, steps and distances, but I think that this impairment again, is not the result of his cellulitis, but of the pre existing ankle problem and degenerative change in the foot. He is therefore assessed at the higher level of 20% of the Whole Person, with respect to left leg function.
72. Mr Battlay, in his evidence, accepted that he had made a mistake in his report in referring to a previous injury to Mr Cook’s left ankle. He accepted Mr Cook’s assertion that he had told him the earlier injury was to the right ankle. Mr Cook has claimed, since he was aware of the MRI scan of the ankle, that he injured his left ankle while descending stairs to go ashore in Melbourne.
73. As to the video which was taken in February 1995, Mr Battlay observed, “Well, there is an obvious limp”. He added (trans. p276):
He can weight bear without aid, in '95. The limp would be consistent with stiffening of the ankle. It wouldn't be consistent with the sort of contemporaneous reports where he is unable to allow the leg to be touched. I mean, he is obviously weight bearing on it, albeit not normally. But he can take the weight. So, yes, there is evidence of a limp, but no, there is no evidence of that kind of pain reaction that he has shown then and has continued to show.
74. As to the later video taken in 2002, where Mr Cook is using crutches, Mr Battlay said (trans. p276-277):
They are used widely, so - and they are not used in rhythm with the weight bearing, so - and certainly there is no significant weight being taken on the crutches. So the limp is still there, and I suppose that, you know, the reasons why he is carrying those crutches is either for safety or for decoration.
75. Mr Battlay said that on the basis of his consultation and the videos, he thought Mr Cook’s complaints were exaggerated. Mr Battlay said that if there were significant ongoing recurrence of cellulitis he would expect to see that either the venous circulation or the lymphatic circulation would be affected. He would expect to see chronic swelling that had to be controlled by strapping or an elastic stocking and he would expect “evidence of that on an ongoing basis” (trans. p277). Mr Battlay said that on examination he saw some signs of venous damage but they were not “very significant”. Because Mr Battlay had such difficulty touching Mr Cook’s lower left leg, his evidence as to the absence of brawny oedema was not persuasive. Mr Battlay said that he had never before come across “that sort of hypersensitivity following cellulitis”.. Mr Battlay also said that the uncontrolled leg movements were “very bizarre”.
76. In cross-examination, Mr Battlay agreed with Mr Cook that he had been wearing an elastic stocking when he attended for examination, and that an elastic stocking is an appropriate measure to control swelling due to venous damage. Mr Battlay also agreed that if Mr Cook had pointed out to Mr Watkins that his ankle was “lying at a funny angle” when he saw him in July 1993 (trans. p283), it would have been reasonable for Mr Watkins to respond, "I don't care about that, that is secondary, I have to save your life first" (trans. p283).
77. Mr Battlay also agreed with Mr Cook that three episodes of cellulitis could produce chronic pain. He explained that the chronic pain could be “sympathetically mediated or sympathetically maintained or, basically, [if] left with[out] any other explanation, psychologically based” (trans. p286). He said he saw no evidence of sympathetic mediation so he thought the chronic pain syndrome was of the psychological variety. He said that his theory was that the testing of the true severity of pain could only be done by indirect observation. He explained (trans. p286):
Now, a person who can bear weight, substantially normally, I would say would still have a chronic pain syndrome but it would not be a major overriding physical one from a clinical point of view.
78. Mr Cook had the habit in cross-examination of putting questions to Mr Battlay on the assertion that his views differed from those of other medical practitioners, without producing any evidence as to the views of those medical practitioners. Some examples are, at trans. p284, as to an alleged opinion of Mr Wearne, and, at trans. p286, as to alleged opinions of three doctors at the Bayside or Brighton Clinic or, at p293, as to the opinion of “other people”. As the Tribunal explained to Mr Cook, cross-examination of that nature was of no assistance to the Tribunal and did not in any way advance Mr Cook’s case. It would only have been relevant if any of those doctors or “other people” had given evidence.
79. We accept Mr Battlay’s evidence that both the 1995 and the 2002 videos showed that Mr Cook walked with a limp. We also accept his evidence that in the 2002 video, although Mr Cook was carrying two crutches there was no significant weight being taken on the crutches, and so he was using them for “safety or decoration” (trans. p277).
CONCLUSION AS TO LEFT LOWER LIMB IMPAIRMENT
80. Mr Lenczner in his written submissions on behalf of the respondent dated 6 December 2002 submitted that the decision under review should be affirmed on the ground that medical evidence did not support a finding of impairment due to the attack of cellulitis. He also submitted that any loss of function of the ankle was unrelated to the cellulitis infection sustained in 1993.
81. We do not accept those submissions. We find that Mr Cook does still suffer impairment of the left leg as demonstrated on the videos in which Mr Battlay said Mr Cook has a limp both in 1995, when he is not using a stick or other aid, and in 2002 when he is carrying crutches but not using them for weight bearing. We find that Mr Cook has had some impairment in walking since he started to walk again after discharge from Linacre Hospital in 1993. We also find that right from the time of onset of the episode of cellulitis, Mr Cook’s ankle was recorded as affected by the infection. The third mate referred to oedema in the left leg and ankle in the referral to a doctor at T5.
82. On 7 July 1993 Dr Constantinou noted “oedema in the left leg and ankle” amongst other symptoms (T5 p10). Mr Watkins at T7 p17, noted that the haemorrhagic eruption covered the whole of the left lower leg and said that walking was restricted by the tightness of the left lower leg tissues. The fact that the oedema went down to the ankle is confirmed by Dr Wallin (T8) when he reported on 27 August 1993:
inspection of the left leg revealed persisting redness from the mid shin region down to the ankle with shiny appearance consistent with the presence of oedema palpation of the leg revealed quite marked brawny oedema from the mid calf or shin level down to the ankle.
At T8, p21, Dr Wallin explained the mechanism by which a severe cellulitis infection of a limb can lead to vascular and lymphatic disturbance and persisting swelling and inflammation. It is relevant to note that Dr Wallin gave his opinion at a time when on the evidence Mr Cook was still expecting to get back to work on a ship and that was his desired outcome. We find that the fact that there was severe cellulitis infection with swelling in or to the left ankle noted from 5 July to 27 August 1993 is a factor which explains the connection between the cellulitis, the enforced immobility and the subsequent impairment of the ankle. Stiffness of the ankle was noted by examining doctors from early in the recovery phase.
83. As Dr Wallin explained in his report of 27 August 1993, impairment does not depend on continuing severe cellulitic infection. The infection can cause vascular and lymphatic disturbance. Dr Wallin hoped and expected that an increased level of exercise by stimulating the circulation would aid the recovery process. That does not appear to have happened.
84. Mr Neri on 14 July 1994 (T11 p34) noted that Mr Cook was unable to squat, abandoning the attempt when his dorsiflexion of the left ankle was stressed. On testing the left ankle he found “pain and discomfort indicating an element of fibrosis and scarring in the musculature” which had not been overcome. He noted limitation of dorsiflexion and plantar flexion. Mr Neri explained the ongoing impairment as due to the cellulitis resulting in a degree of fibrosis of soft tissues around the ankle joint and the calf muscle. He warned that Mr Cook may well be left with an element of restriction of ankle joint function and mobility of the calf muscle.
85. Mr Buzzard in October 1994 (T15 pp49-50) noted restriction of subtalar movement and explained that the limitation of movement of the left foot joints was “probably secondary to capsular contraction itself secondary to the immobilisation for a substantial period of time”. He also accepted that the subtalar ankle joint capsular contraction caused difficulty in walking which would “probably always be so”.
86. The respondent relies on MRI (T53 p197) and CT results showing damage to the ligaments of the left ankle and signs of an old injury and X-ray, bone scan and CT results (A3) showing degenerative change in the left and also in the right ankle, as indicating either that the left and right ankle problems result from degenerative change due to age and excessive weight, or that they relate to some prior injury to the left ankle. We accept Mr Cook’s evidence that he has never, to his knowledge, sustained an injury to his left ankle other than in relation to the episode of cellulitis. We also accept the opinion of Mr Wearne expressed in his report (R1) that the lesion shown on the MRI is not responsible for the severe ankle pain of which Mr Cook complains.
87. Whether or not Mr Cook had prior degenerative change in either or both of his ankles, there is no evidence that it caused him any trouble in his duties as a ship’s engineer which, as he described it, required much climbing up and down ladders and clambering over pipes. We accept Mr Cook’s evidence that before July 1993 he was physically fit and could perform his duties without difficulty. Certainly no evidence was called to the contrary.
88. We find that the ankle only became symptomatic, and a problem, after the episode of cellulitis, and that whether or not there was an underlying degenerative condition, the pain, discomfort and impairment of the ankle resulted from the cellulitis and the capsular contraction which was probably a result of the period of immobility due to the cellulitis as explained by Mr Buzzard. We find further that the left ankle was implicated in the disseminated attack of cellulitis on 5 to 7 July 1993 and that the end result of that infection has been the degree of fibrosis of soft tissues around the ankle joint as described by Mr Neri.
89. We find as to the level of impairment in respect of the left lower limb the appropriate rating at all relevant times on Table 9.5 has been 20% which applies where a person “Can rise to standing position and walk but has difficulty with grades, steps and distances”.. The medical evidence set out in the preceding paragraphs shows that to have been the assessment of Mr Neri in 1995. We consider it was also the appropriate assessment on a fair reading of Mr Buzzard’s report of 1995 and is the figure chosen by Mr Battlay.
90. Mr Wearne and Dr Lefkovits gave higher ratings of 30% on Table 9.5. Dr Lefkovits first saw Mr Cook in 1996. He rated Mr Cook’s impairment at 30% in his later 1998 and 1999 reports. In the 1998 report he described Mr Cook’s presentation as “quite extraordinary”.. In the 1999 report he was reluctant to ascribe all the impairment to the cellulitis and so looked to the possibility of it being due in part to an ankle injury. Mr Wearne too, in giving a 30% impairment rating expressed doubt about its cause.
91. We would have been assisted by up to date evidence from a treating doctor but although we explained that to Mr Cook it was not available to us. On 31 October 2002, the last hearing day, Mrs Cook told the Tribunal (trans. p351):
Mr Cook is very sick. The doctor will be attending now. I think he might go to hospital, he had a very bad attack. His left foot is black, both legs in the air.
92. The Tribunal responded (trans. p351):
Mrs Cook, if his left leg is black it is very important for his case that a doctor see the black left leg and be prepared to give some evidence to the Tribunal.
No medical evidence relating to 30 or 31 October 2002 was ever produced to the Tribunal.
93. We find that the 20% impairment assessment of Mr Neri and Mr Battlay and the similar conclusions in the report of Mr Buzzard relate to impairment resulting from the cellulitis. We find that the 30% impairment ratings of Dr Lefkovits and Mr Wearne are not so clearly the result of the episode of cellulitis in 1993.
94. In 1995 there may have been a question as to whether Mr Cook’s condition might have still improved. With the benefit of later evidence, we find that there has been no improvement such as to reduce the left leg impairment resulting from the compensable cellulitis to less than 20%.
95. Mr Cook’s evidence was to the effect that his permanent impairment was more than it had been in 1995, and would be more accurately assessed as 30% on Table 9.5 which is appropriate where a person can only walk with difficulty, perhaps requiring the use of sticks or crutches. We do not make that finding. We accept the evidence of Mr Battlay that there is a component of exaggeration (trans. p277) in Mr Cook’s current presentation. From seeing the videos we find that is a factor which has arisen since the making of the reviewable decision.
96. At different times and by different doctors Mr Cook has also been assessed as having a 5% (Mr Neri), or 15% (Dr Lefkovits and Mr Wearne) permanent impairment on Table 9.2. It is not necessary for us to make a finding as to which of those levels of impairment is appropriate on Table 9.2. The instructions at the beginning of Table 9.1 of the Guide state “either the musculo-skeletal table or Table 9.4 or 9.5 should be used – not both.” It is thus appropriate to use the higher of the two possible ratings as explained in Whittaker v Comcare (1998) 28 AAR 55 at p69 where the Full Court said:
There is no discretion: where both Tables 9.2 and 9.5 are applicable, the decision-maker must assess the degree of permanent impairment under that one of Tables 9.2 or 9.5 which yields the most favourable result to the employee.
97. We find under s 39 of the Act that Mr Cook has a 20% permanent impairment of the left lower limb which results from his compensable cellulitis condition. We find that he is entitled to compensation in respect of that permanent impairment.
98. As to compensation for non-economic loss under s 41 of the Act, there was considerable agreement by Dr Lefkovits and Mr Wearne as to the appropriate ratings. Their ratings were as follows:
Table
Dr Lefkovits
T48 p178
Mr Wearne
A2 A3
1. Pain
3
4 4
1. Suffering
4
4 4
2. Mobility
4
3 3
2. Social Relationships
2
3 5
2. Recreation and Leisure Activities
4
4 5
99. We find that Mr Wearne’s assessment in A2, his report of 1 September 1998, is appropriate. Those ratings are as follows:
Pain 3 Episodes of pain more persistent. Not easily tolerated. Treatment, if available, of limited benefit. Suffering 4 Symptoms wide ranging. Tend to dominate thinking. Little time when free of symptoms. Difficulty coping or performing activity. Treatment necessary. Mobility 3 Mobility markedly reduced. Needs some assistance from others. Unable to use most forms of transport. Social Relationships 3 Difficulty in maintaining relationships with close friends and the extended family Recreation and leisure activities 4
Range of activities greatly reduced. Needs some assistance to participate.
The figure for compensation payable under s 41 for non-economic loss will have to be calculated in accordance with the formula in s 41(2) of the Act.
100. We are aware that the evidence of Mr and Mrs Cook is that the effects of the compensable injury have led to the breakdown of their marriage and that because of that issue Dr Wearne increased his rating on the social relationships and recreation and leisure activities items from 3 to 4 in his report of 26 February 2002 (A3). Our difficulty on those issues is that it was not clear to us on the evidence how much of the problem, which led to Mrs Cook finding herself unable to continue to live with Mr Cook, was due to the consequences of his compensable injury, how much was due to exaggeration, perhaps to emphasise his feeling of injustice, and how much may have been due to the psychological effects of the protracted litigation to establish his entitlement to compensation. The last two items are not compensable (Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173).
101. Similarly, in view of the lack of any evidence at the hearing, either in person or by telephone or video from a current treating doctor, or even of an up to date detailed report, we are not able to find that all the problems which Mr Cook described do occur as a result of his compensable injury. In those circumstances we consider it appropriate to adopt the ratings made before the changes in presentation which were apparent on the videos taken from late 1998 onwards. We find that since then the situation has become confused by other factors such that the evidence of Mr and Mrs Cook, for instance, as to attacks of cellulitis when his legs became black and blue, is unreliable. We consider that if Mr Cook were subject to attacks as described, Dr Penderleith or Dr Taylor or Mr Wearne, if they had seen them, would have been prepared to write a report and give telephone evidence to that effect. In the absence of any medical evidence as to such an increase in the severity of Mr Cook’s symptoms, we find that the assessment of Mr Wearne of 1 September 1998 as to non‑economic loss is the most appropriate.
CLAIM IN RESPECT OF HEARING LOSS AND HEARING AIDS
(i) claim for compensation for permanent impairment
102. This matter, No. V1998/354 commenced with a claim dated 12 December 1997 (T29) for hearing aids and compensation for loss of hearing.
103. In February 1998 Mr Rayner, an Ear, Nose and Throat (“ENT”) surgeon, provided a report (T31) stating that pure tone audiometry with standardised testing equipment in an appropriate test situation showed, “he has normal hearing at low frequencies, but he has a very severe hearing loss at high frequencies which would be compatible with very severe noise exposure and would certainly produce the symptoms that he complains of, including tinnitus.” Mr Rayner reported that Mr Cook had a binaural hearing loss of 28.1%, noise exposure being the only factor causing this hearing loss. Mr Rayner concluded (T31 p130):
I consider that his hearing loss has been caused by the very hostile noise environment in which he had worked and his hearing loss disability should be compensated.
104. On 18 February 1998, Mr Cook sent a copy of Mr Rayner’s report in support of his claim for compensation hearing loss, to the respondent. There was no response. On 6 April 1998 he lodged an application for review by this Tribunal (T34), seeking review of a deemed decision refusing his claim for compensation for hearing loss. Mr Cook, in an attachment to that letter, relied on s 79(2) of the Act as the basis for his entitlement to review a deemed refusal. In fact, it refers to deemed reconsideration decisions. He should have referred to s 73A(6) which relates to deemed primary determinations as to permanent impairment. It provides:
73ATime limit for determining claims relating to permanent impairment
(6)If the employer has not determined the claim by the end of the period allowed by this section, the employer is taken to have made a decision, at the end of that period, disallowing the claim.
105. In a letter to the Tribunal dated 14 May 1998 (T34), the respondent’s solicitor pointed out that Mr Cook had not requested a reconsideration of the deemed primary decision disallowing his claim, and thus that the AAT had no jurisdiction under s 88 of the Act to deal with the issue of hearing loss.
106. On 19 May 1998 Mr Cook sought reconsideration under s 79(1) of the Act, of the deemed decision disallowing of the hearing loss claim (T38). On 8 September 1998 a Comcare officer, as required by s 78(4) of the Act, provided a report to the respondent as to the hearing loss claim. The Comcare officer recommended an acceptance of liability on the basis of the decision of the AAT in Re Richards and Howard Smith Industries (AAT 12573, 2 February 1998) [1998] AATA 40. However that recommendation was not accepted. Liability was denied on 9 September 1998. That constituted a reviewable decision, so the Tribunal had jurisdiction to determine the hearing loss claim.
107. An appeal from the decision in Richards had been heard on 7 September 1998. Goldberg J delivered judgement allowing the appeal on 3 September 1999, Howard Smith Industries Pty Ltd v Richards (1999) FCR 268; (1999) 30 AAR 213.
108. The issue in respect of the claim for permanent impairment is a legal issue, rather than an issue as to the quantification of the impairment or its causation. Mr Millar, who specialises in otalaryngology reported to the respondent’s solicitor on 14 October 1999 (T49). He diagnosed a 31.0% binaural hearing loss which he described as, “Moderately severe bilateral symmetrical high frequency sensori-neural deafness with a pattern compatible with the long term effects of acoustic trauma”.
109. Mr Millar also wrote (T49 p183):
6.Treatment – The only available treatment is fitting of hearing aids.
7.Fitness for Work – He is unfit both on the grounds of his general ill health and his deafness.
8.Hearing Loss Prior to and Subsequent to 23.6.93 – Since he effectively retired from service as a marine engineer on July 7th, 1993, I assume that his hearing loss would have been static from that period (31.0% binaural) since there is no presbyacusis adjustment indicated under the age of fifty-five years. Hence, the hearing loss prior to and subsequent to 23.6.93 would be 31.0% binaural.
9.In my opinion the binaural loss of hearing resulting from exposure to noise in the course of his employment in the Australian Maritime Industry would warrant the provision of a hearing aid or aids.
10.The onset Time of Tinnitus – I cannot exactly define this date. He believes it was during the cellulitis illness. Tinnitus can develop at any time during the course of a noise induced hearing loss and there is no exact pattern. Very often it occurs many years after the first onset of the hearing loss.
11.It is evident that Mr Cook was working full-time as a marine engineer prior to the development of the cellulitis illness on 5.7.93 and despite any existing hearing loss. Hence, it is my opinion that any loss of hearing in existence as at June 23rd, 1993 would not have precluded him from continuing to work at sea. Provision of hearing aids would not alter this opinion.
12.The question of drug ototoxicity should be considered as an aggravating cause of the noise induced hearing loss but there is no detail of the therapeutics involved in the treatment process of the cellulitis. Also, there is no record of any audiometric assessment prior to June 23rd 1993 for comparison with the current test results.
110. There are two aspects to the claim for compensation for hearing loss. The first concerns the claim for permanent impairment. The issue raised in Richards concerned a claim under the Act for permanent impairment in respect of a hearing loss which commenced while the Seamen’s Compensation Act 1911 (“the 1911 Act”) was in force before the date of commencement of the Act, namely 24 June 1993.
111. Goldberg J held that the Seafarers’ Rehabilitation Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (“the Transitional Act”) did not provide any relief from the provisions of the 1911 Act which had provided in ss 5 and 5C, that no compensation was payable in respect of an injury or disease which did not incapacitate a seaman. Thus, under the 1911 Act, there was no compensation for permanent impairment in respect of hearing loss if the seaman, even with his hearing loss, was still able to work and earn full wages. Under s 39 of the current Act, as under the Safety, Rehabilitation and Compensation Act 1988, there is an entitlement to compensation for permanent impairment in respect of hearing loss, even if it does not affect earning capacity.
112. The issue in Richards was whether the deeming provision in s 11 of the current Act operated so as to make the date of giving notice of the injury the deemed date of injury. Section 11 of the Act now provides as follows:
11 Hearing impairment—time when suffered
If an employee suffers a hearing impairment as a result of an injury, the employee is taken, for the purposes of this Act, to suffer the injury on the day on which the employee gives a notice of the injury under section 62.
Section 26(1) of the Act provides:
26 Compensation for injuries
(1)If an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for the injury.
113. Goldberg J held that those provisions of the Act had to be read subject to s 7(1) of the Transitional Act which provides:
7.(1) A person is not entitled to compensation under the Principal Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage under the repealed Act.
114. His Honour did not approve of the Tribunal’s reasoning to the effect that s 11 of the 1992 Act deemed the hearing impairment to have arisen on the day on which notice of it was given, and thus, as that day was after the 1992 Act came into force, the Transitional Act had no application. He distinguished the cases on which the Tribunal had relied, on the ground that they were decided under different legislation. He held that as Mr Richards was not incapacitated for work due to hearing loss, and thus was not entitled to compensation under the 1911 Act in respect of hearing impairment sustained before 24 June 1993, s 7 of the Transitional Act had the effect that he had no entitlement to compensation in respect of that injury under the 1992 Act. Goldberg J stated at para 32:
To find otherwise would be to create a situation where the respondent’s rights were greater on the commencing day of the 1992 Act than they had been on the previous day under the 1911 Act.
115. Goldberg J did not consider whether that might not have been one of the intended reforms brought in by the 1992 Act, because it was an anomaly that seamen were not entitled to compensation for permanent impairment in respect of hearing loss unless it resulted in an incapacity for work. Employees covered by the Safety, Rehabilitation and Compensation Act 1988 (“the Compensation Act”) had no such bar to entitlement. His Honour did point out that the Explanatory Memorandum for the Transitional Act did not specify payment of compensation for hearing loss resulting in impairment as one of the increased or new entitlements introduced by the Act. His Honour held that s 11 must be read subject to the provisions of the Transitional Act.
116. His Honour explained at paragraph 40 of his reasons:
40 The respondent submitted that he sustained an injury prior to 24 June 1993 for which he might, under the 1911 Act, be able to receive the cost of medical treatment but not compensation: s 5A(1) of the 1911 Act. Because he was not disabled from earning full wages and was not incapacitated for work he had a potential right to compensation, but the 1992 legislation had changed the policy in relation to compensation. It is true that the potential right to compensation is carried forward in the sense of being converted into a right under the 1992 Act (see for example, ss 4 and 12 of the Transitional Act) but that right is converted, in the terms of s 4 of the Transitional Act, "subject to the limitations imposed by the repealed Act [the 1911 Act]". Those limitations include the provision in s 5(2)(a) that compensation is not payable where the seaman is not disabled from earning full wages and the requirement in s 5C(1) that compensation is only payable where the disease incapacitates the seaman for work or causes his death.
117. Goldberg J distinguished the High Court decision of Commissioner for Railways v Bain (1965) 111 CLR 246 and the Victorian decision in Accident Compensation Commissioner v Fletcher [1990] VR 102 on the ground that there was no provision in the New South Wales or the Victorian legislation similar to the provisions found in Part 2 of the Transitional Act.
118. In this matter, practically speaking, all Mr Cook’s hearing loss occurred before the date of commencement of the Act, namely 24 June 1993. It was only two weeks later that he went straight from his ship to hospital, with cellulitis, and he never returned to life at sea.
119. We are bound to apply the decision of the Federal Court in Howard Smith Industries. It follows that we must find that Mr Cook has no entitlement under the Act to compensation for permanent impairment in respect of his 28.1 or 31.0% binaural hearing loss, even though, on the opinions of the two expert medical witnesses, it is a noise induced hearing loss resulting from noise exposure during his working life at sea. The reason why Mr Cook is not entitled to compensation is that the hearing loss was suffered while the 1911 Act was in force, and it did not cause Mr Cook to be incapacitated for his employment as a ship’s engineer. The reason he had to give up his career was because of incapacity as a result of his cellulitis condition. While there is evidence that the tinnitus may relate to the cellulitis, there is no medical evidence that such a connection is probable. We do not find that the tinnitus is a sequela of the cellulitis.
(ii) claim for compensation for cost of provision of hearing aids
120. Quite early in the hearing the Tribunal asked Mr Wallace to explain why there was any issue about Mr Cook’s entitlement to compensation in respect of the cost of hearing aids. Section 5A of the 1911 Act provided:
(1) Where any compensation is payable by the employer under this Act to, or in respect of, a seaman, or where a seaman suffers injury or disease in circumstances in which compensation would be payable under this Act but for the fact that the seaman is not rendered incapable of earning full wages or but for the operation of clause (I) or (ii) of sub-paragraph (b) of paragraph (2), or paragraph (4) or paragraph (4A) of Schedule 1, the employer shall pay the cost of such medical treatment and ambulance services in relation to the injury, or disease, as the case may be, as are, in the opinion of the Minister, reasonably necessary:
121. Mr Wallace immediately conceded that Mr Cook was entitled to compensation for the cost of his hearing aids. There was no explanation as to why Mr Cook had not been reimbursed for the cost of his hearing aids. Mr Cook sent the respondent an invoice and receipt for hearing aids supplied by Audio Clinic Cheltenham at a cost of $6490 on 29 May 2000 (T4 pp20, 23 and 24 of Supplementary T docs lodged by respondent). So far as the material before the Tribunal establishes there was no response or acknowledgment from the respondent.
122. As Mr Millar had advised on 14 October 1999 (T49 p183) that Mr Cook’s hearing loss would warrant the provision of a hearing aid or aids, there would seem to have been no reason why that aspect of the claim should not have been accepted. That was conceded at the hearing and in the respondent’s submissions, but it is unfortunate that Mr Cook was left uncompensated for a substantial medical expense for approximately three years.
123. The decision under review in matter V1998/354 will be varied to provide that Mr Cook is entitled to compensation under s 28 of the Act by way of reimbursement of $6490, being the amount he paid for provision of hearing aids on 12 May 2000.
CLAIM FOR OTHER COMPENSATION ARISING OUT OF THE CELLULITIS CLAIM
124. The third matter before the Tribunal V2000/1320 commenced with a claim by Mr Cook dated 14 May 2000 (T50) claiming he suffered permanent impairment as follows (p187):
All of my body is affected by a cellulitic organism which is “loitering” in my blood – hence recrudescence. [Left] and [Right] legs, [Right] elbow, back, bilateral hearing damage/loss
In that claim Mr Cook also sought compensation for (p187):
Orthopaedic boots/shoes, crutches/walking sticks, wheelchair (motorised needed soon) hand controls for motor car
125. The respondent on 13 June 2000 denied liability in respect of both aspects of the claim (T52) and also denied liability in respect of alterations, aids or appliances and household and attendant care services and property damage.
126. On 18 June 2000 Mr Cook sought a reconsideration of the primary determination (T53). He sent with that letter a copy of the MRI scan report of 20 July 1999 (T53 pp197-198) and other material which he saw as supporting his claim. By 31 October 2000 there had been no reviewable reconsideration decision.
127. On 31 October 2000 Mr Cook applied for review of a deemed reviewable decision. Under s 79(6) of the Act, the employer is deemed to have made a decision on reconsideration disallowing the claim at the expiration of 60 days or such longer period as may have been allowed. No longer period was allowed. There was no copy of the application for review of the deemed reviewable decision in respect of the claim lodged on 14 May 2000 included in any of the T documents lodged pursuant to s 37 of the AAT Act. However that application is in the Tribunal file.
128. The Tribunal during the hearing requested that both Mr Cook and the respondent lodge any material they were holding relating to Mr Cook’s claims in V2000/1320 for compensation in respect of permanent impairment, other than in respect of the left lower limb, and for compensation in respect of medical treatment as defined in s 3 of the Act. That covers provision of medicines and of aids or appliances that it was reasonable for a person to obtain. The Tribunal also requested information as to Mr Cook's claim for household and attendant care services.
(i) permanent impairment of parts of the body other than the left leg
129. The material which is before the Tribunal does not allow the Tribunal to make any finding that Mr Cook is entitled to compensation for permanent impairment of “all of my body” or of “[Right] leg, [Right] elbow, back”. There is no medical evidence that Mr Cook suffers permanent impairment of those parts of the body as a result of his episode of cellulitis. Mr Cook explained his perception of the basis of his claim in a letter of 29 May 2000 to the respondent (T4 in his first bundle of additional T documents). He wrote:
Since December of last year I have been obliged to use crutches to maintain mobility. This transfers my support and stability to my upper torso, and arms. Consequently I have developed pain and soreness in my right elbow, spine and a mass on my back. You will no doubt receive accounts for x-rays, ultra sound, and CT scan required for monitoring and diagnosis of these corollary conditions in due course. The supply of a wheelchair, which I requested months ago, would have avoided or ameliorated this development.
However Mr Cook did not produce any medical evidence supporting his assertion that he had developed permanent impairment of his right leg or of his right elbow, spine and back as a result of his left leg condition.
130. We cannot make a finding that Mr Cook’s compensable cellulitis condition has resulted in permanent impairment of other parts of his body unless we have medical evidence to that effect.
131. The Tribunal suggested to Mr Cook a number of times that he arrange for a current treating doctor to give evidence at the hearing, even suggesting that such evidence could be taken over the telephone. Mr Cook did not call either of his treating doctors, Dr Penderleith or Dr Taylor. Nor did his treating surgeon, Mr Wearne give evidence. Further he advised the Tribunal by facsimile dated 13 November 2002 that he did not wish the hearing to resume again after it was adjourned on 31 October 2002 due to his ill-health.
132. We do not find that Mr Cook is entitled to compensation for permanent impairment of his right leg, right elbow or back.
(ii) compensation in respect of medical and related expenses
133. Mr Cook stated in his claim (T50) that he required “Crutches/walking sticks, wheelchair (motorised needed soon), hand controls for motor car”. The Tribunal can only decide that Mr Cook is entitled to compensation for those items (apart from aspects already covered in matters V95/977 and V98/354) if there is medical or other expert evidence to that effect.
134. The only such evidence is in the bundle of documents prepared by Mr Cook and lodged on 20 October 2002 and described as “Additional T docs lodged by Mr Cook V1”. That bundle at T07, T16, T17 and T18 contains notes from Mr Watkins. T07 is undated it states:
Is becoming progressively more disabled. Needs assistance with showering, home help. Supply of wheelchair IMPERATIVE.
T16 is a short note dated 13 December 1999 which reads:
Needs supply of crutches and wheelchair to maintain mobility.
T17 and T18 are to the same effect.
135. Having seen the videos tendered in evidence, we accept Mr Battlay’s opinion that Mr Cook does not usually need crutches or a wheelchair to maintain mobility. The evidence was that the respondent has provided a walking stick and orthopaedic shoes for Mr Cook. Unfortunately Mr Watkins died before the hearing and so could not explain the basis the opinion expressed in his note. No current treating doctor gave evidence as to Mr Cook needing crutches, a wheelchair or handcontrols for his motor car, as a result of impairment from the cellulitis.
136. We do not have appropriate evidence on which to find that Mr Cook is entitled to compensation to pay for the provision of crutches, a wheelchair or hand controls for his car.
137. The only medical evidence directed as to the question which medications should be covered by the accepted cellulitis claim, was that of Dr Lefkovits at T43 of the first volume of T documents lodged by the respondent. Dr Lefkovits wrote on 9 July 1998 that the cost of Flopen and Dalacin, both antibiotics, should be compensable as they were antibiotics which had “presumably” been used to treat the cellulitis. He added that Diamox and Epilim, which is a drug used to treat epilepsy, should not be compensable.
138. However, Dr Blombery in his report (A8) of 12 May 1998 wrote that he had suggested the use of Baclofen for the muscle spasm and Epilim to treat any component of neuropathic pain in what he diagnosed as a pain syndrome stimulated in some way by the cellulitis. He viewed the syndrome as a variant of chronic pain syndrome having a prominent component of muscle spasm and involuntary movements. In a later report of 6 July 1998 (R12) Dr Blomberry wrote that he had suggested that Mr Cook cease Epilim and increase the dose of Baclofen.
139. At T4 p15 of the respondent’s of Supplementary T documents the respondent provided a schedule showing that Mr Cook had been refunded the cost of all prescriptions of Epilim, Flopen, Baclofen and Dalacin. The only prescriptions for which no compensation had been paid were for Voltaren, Duramure and Diamox. We have no evidence that those prescriptions relate to the compensable condition.. Thus we do not find compensation should be paid for outstanding prescriptions for those medicines.
140. The other aspect covered by claim V2000/1320 is lawnmowing expenses. The respondent accepted liability for the cost of lawnmowing until Mr Cook moved from his home at Highett. But it claimed that all accounts forwarded had been paid. The schedule at T4 p15 of the respondent’s Supplementary T documents shows payments for lawnmowing from April to September 1998. Mr Cook in a letter dated 29 May 2000 (T4 p21) thanked the respondent for reimbursement for lawnmowing and other items but claimed further lawnmowing expenses of $35.00 per month for November and December 1999. He also sent the respondent an account for lawnmowing expenses of $35.00 for May 2000. In a further letter of 9 January 2001 (T24 in Mr Cook’s first bundle of documents described by him as T documents, Mr Cook repeated his claim for $70.00 for lawnmowing expenses for November and December 1999 and also claimed lawnmowing expenses as follows:
Date.
Description.
Amount.
06-05-00
Lawnmowing, letter 29.05.00
$35.00
16-05000
“ “ “
$35.00
03-06-00
Lawnmowing, letter 02-07-00
$35.00
27-06-00
“ “ “
$35.00
11-07-00
Lawnmowing, letter 01-08-00
$38.00
15-08-00
Lawnmowing, letter 23-08-00
$38.00
29-07-00
Lawnmowing, letter incorrectly
$38.50
12-09-00
“ marked November
$38.50
26-09-00
“ “ “
$38.50
11-10-00
Lawnmowing, letter 26-11-00
$38.50
31-10-00
“ “ “
$38.50
15-11-00
“ “ “
$38.50
05-12-00
Lawnmowing, letter 22-12-00
$77.00
19-12-00
“ “ “
$39.50
Total
$563.00
At T4 pp28, 31, 34 and 36 of the respondent’s supplementary T documents there are further lawnmowing accounts or reference to accounts for $38.50 per time for January, March, May and June 2001 totalling $231.00.
141. Mr Cook advised the respondent of his change of address on 19 June 2001 (T4 p36). Thus there should be no further lawnmowing accounts for the year 2001.
142. We accept, as the respondent did, that Mr Cook was entitled to the cost of fortnightly lawnmowing until he moved from Highett. On the evidence before us we find he has an entitlement to reimbursement of lawnmowing expenses of $864.00 as follows:
November and December 1999 70.00
Year 2000 563.00
Year 2001 231.00
$864.00
143. Mr Cook also claimed in correspondence that he was entitled to the cost of care provided for him by Mrs Cook (Supplementary T docs T4 p18 and p31). There is no supporting medical evidence, nor was there any evidence on which we could find that compensation under s 43(1) was reasonable in the circumstances.
CONCLUSION
144. In matter V1995/977 the decision under review will be set aside and in substitution the determination of 19 May 1995 will be varied to provide that Mr Cook is entitled to compensation as follows:
(i)under s 39 of the Act in respect of a 20% impairment of the left leg, and,
(ii)under s 41 of the Act, for non-economic loss calculated under s 41(2) of the Act on the basis that the degree of permanent impairment is 20% and the degree of non-economic loss is to be calculated in accordance with Tables 5 and 6 of the Guide using the following ratings:
Pain
4
Suffering
4
Mobility
3
Social Relationships
3
Recreation and Leisure Activities
4
145. In matter V1998/354, the decision under review will be set aside and in substitution for the deemed refusal of the claim the Tribunal will decide that Mr Cook is entitled to compensation under s 28 of the Act in the sum of $6490.00 for provision of hearing aids.
146. In matter V2000/1320 the Tribunal will set aside the decision under review and in substitution will vary the decision of 13 June 2000 to provide that Mr Cook is entitled to the sum of $864.00 under s 43 of the Act for provision of lawnmowing services.
147. As to costs, Mr Cook has succeeded in each matter, in that in each case the Tribunal has set aside the reviewable decision and in substitution has varied the primary decision in a manner favourable to him. Thus the Tribunal may order that the costs of the proceedings incurred by Mr Cook be paid by the respondent under s 92(1) of the Act. Mr Cook was not represented and so he has no entitlement to legal professional costs. He did not call any witnesses, other than Mrs Cook. However he did incur out of pocket expenses in travelling to Melbourne for the hearing each day with parking and he may have had to spend a night in a motel when he was not well enough to return home after the hearing on 30 October 2002. We would hope that the respondent would agree to pay any out of pocket expenses of that nature without a further hearing. However, in case the parties cannot resolve that issue, we will reserve leave to the parties to bring the issue as to costs on before the Tribunal.
I certify that the 147 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member
Mr G.D. Friedman, Member
Associate Professor J.H. Maynard, MemberSigned: Grace Carney
Personal AssistantDate/s of Hearing 5, 6, 7, 8 August and
29, 30 and 31 October 2002
Date of Decision 24 April 2003
Solicitor for the Applicant Self Represented
Counsel for the Respondent Mr J Wallace and Mr J Lenczner
Solicitor for the Respondent Middletons
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