Davis and Total Marine Services Pty Ltd
[2007] AATA 1314
•10 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1314
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200500375
) W 200600387
GENERAL ADMINISTRATIVE DIVISION ) Re BRIAN LESLIE DAVIS Applicant
And
TOTAL MARINE SERVICES PTY LTD
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate10 May 2007
PlacePerth
Decision Application No W 200500375
The Tribunal affirms the deemed reviewable decision of the respondent.
Application No W 200600387
The Tribunal sets aside the deemed reviewable decision of the respondent and, in substitution therefor, decides that as at, and from,
27 September 2006 the respondent has been liable, and is presently liable, pursuant to s 31(5)(a) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”), to pay compensation to the applicant in an amount per week determined on the basis that the amount per week that the applicant is “able to earn… in suitable employment” is nil.Either party may make an application in relation to the costs of the proceedings in Application No W 200600387 within 14 days of the date of this decision. If no such application is made, the Tribunal orders, pursuant to s 92 of the Act, that the respondent pay the applicant’s costs of the proceedings in Application No W 200600387.
.............(Sgd. S D Hotop)..................
Deputy President
CATCHWORDS
COMPENSATION – seafarers – permanent impairment – applicant sustained elbow injury in course of employment – respondent accepted liability to pay compensation to applicant in respect of elbow injury – applicant claimed compensation for permanent impairment resulting from elbow injury – applicant’s elbow injury has resulted in permanent impairment – degree of permanent impairment – tables 9.1 and 9.4 in approved Guide – degree of permanent impairment under table 9.1 not more than 5% – applicant does not have difficulty with digital dexterity – degree of permanent impairment under table 9.4 less than 10% – compensation for permanent impairment not payable to applicant – decision under review affirmed
COMPENSATION – seafarers – incapacity payments – determination of amount applicant able to earn in suitable employment – relevant matters – availability of suitable employment to applicant – applicant not able to earn in suitable employment – compensation by way of incapacity payments payable to applicant on that basis – decision under review set aside
Seafarers Rehabilitation and Compensation Act 1992 (Cth), s 3, s 8, s 25, s 26, s 31, s 32, s 39 and s 41
Comcare v Fiedler (2001) 115 FCR 328
Comcare v Moon (2003) 75 ALD 160
Esam v ASP Ship Management (1998) 87 FCR 82
Re Fiedler and Comcare [2001] AATA 518
Martin v Australian Postal Corporation (2000) 32 AAR 199
Telstra Corporation Ltd v Warner (1994) 20 AAR 259
Re Toohey and Australian Postal Corporation (AAT Decision No 13360, 9 October 1998)
Whittaker v Comcare (1998) 86 FCR 532REASONS FOR DECISION
10 May 2007 Deputy President S D Hotop
Dr D Weerasooriya, MemberIntroduction
1. On 11 January 2004 Brian Leslie Davis (“the applicant”) suffered an injury to his right elbow in the course of his employment as an integrated rating (deckhand) on board the vessel Total Voyager, and on 10 March 2004 he made a claim for compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”) in respect of that injury.
2. On 16 March 2004 the applicant’s employer, Total Marine Services Pty Ltd (“the respondent”), accepted liability under the Act to pay compensation to the applicant in respect of his right elbow injury, and the applicant was subsequently paid compensation by way of weekly incapacity payments in accordance with the Act.
3. On 22 April 2005 the applicant made a claim for compensation under the Act for permanent impairment and non-economic loss resulting from his right elbow injury, but the respondent did not accept liability to pay such compensation to the applicant.
4. On 26 September 2006 the respondent made a determination reducing the amount of compensation payable to the applicant by way of weekly incapacity payments by $1,000.00 per week on the basis that the applicant “has an ability to earn [$1,000.00 per week] in suitable employment as an accredited pilot”.
The Issues and the Tribunal’s Determination
5. Having regard to paragraphs 3 and 4 above, the issues for the Tribunal’s determination are as follows:
· Is the respondent liable under the Act to pay compensation to the applicant for permanent impairment and non-economic loss resulting from his right elbow injury?
· For the purpose of determining the amount of compensation payable to the applicant by way of weekly incapacity payments in accordance with the Act, what amount (if any) per week has the applicant been able to earn in suitable employment from 27 September 2006?
6. For the reasons which follow, the Tribunal has determined that:
· the respondent is not liable under the Act to pay compensation to the applicant for permanent impairment and non-economic loss resulting from his right elbow injury;
· for the purpose of determining the amount of compensation payable to the applicant by way of weekly incapacity payments in accordance with the Act, the amount per week that the applicant has been able to earn in suitable employment from 27 September 2006 is nil, and, accordingly, the amount of such compensation payable to him on and from that date should not have been reduced.
The Evidence
7. The evidence before the Tribunal comprised:
·
the “T Documents” lodged by the respondent, in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), in respect of Application No W 200500375 (T1-T52, pp 1-102) and Application No
W 200600387 (T1-T24, pp 1-77);
· documents tendered in evidence by the applicant (Exhibits A1-A7) and by the respondent (Exhibits R1-R2); and
· the oral evidence of the applicant, Dr P Hardcastle, Dr S Clarke, and Mr D Brandis.
The Factual Background
8. The relevant factual background, which appears from the T Documents, is as follows.
9. The applicant completed an Incident Report, dated 11 January 2004, relating to a personal injury suffered by him on that date in the course of his employment on board the vessel Total Voyager. In that Incident Report, the applicant stated that he sustained the relevant injury, which he described as a “bruised right elbow”, when he struck his right elbow on a power pack frame “whilst unlashing drums secured to spooling gear power pack”. (W 200500375 – T3, p 7)
10. On 4 March 2004 Dr D Syed issued a “Worker’s Compensation FIRST Medical Certificate” in which he described the relevant injury as follows:
“Very tender lateral epicondyle and proximal wrist extensor tendon. Consistent with traumatic lateral epicondylitis.”
He opined that the applicant was fit for a restricted return to work and added that he was “fit for most normal duties… but should avoid repetitive gripping and pulling where possible”. (T4, p 9)
11. Dr Syed subsequently issued regular progress medical certificates, indicating that the applicant was fit for a restricted return to work, covering the period from March 2004 to August 2005. (T10-T14, T17, T21, T24, T26, T31, T35, T40, T47, T49)
12. Meanwhile, on 11 March 2004 the applicant had lodged a claim for compensation in respect of his right elbow injury (T8), and on 16 March 2004 the respondent had made a determination that it was liable under the Act to pay to the applicant “weekly compensation and associated benefits”. (T9)
13. On 28 June 2004 the respondent, in consultation with Dr Syed, referred the applicant to WorkFocus Australia Pty Ltd (“WorkFocus”) for a vocational rehabilitation assessment. (T15)
14. In a Vocational Assessment Report by WorkFocus, dated 19 August 2004, the following vocational options were identified as being the most appropriate and feasible for the applicant:
· Sales Assistant – Cars or Other
· Sales Manager
· Buyer/Valuer – Cars
· Crane Operator
· Catering/Café Manager
· Special Care Worker. (T20, pp 33-37)
15. In a report from WorkFocus to the respondent, dated 23 September 2004, it was stated that:
· it had been agreed with the applicant that he was “vocationally suited to car sales, specifically, wholesale car purchasing” because he had done that work in the past, and to “working in a welfare role such as a Job Coordinator within a disability employment agency”;
· the applicant had “reported an interest in applying for a job working in an educational role in a remote Aboriginal Community, Blackstone, located in the Gibson Desert”, and that he was “following up with his application”;
· Dr Syed had “agreed it was unlikely [the applicant] would return offshore as a Deckhand given his limited recovery to date”. (T23)
16. In a Refocus Assessment Report by WorkFocus, dated 14 November 2004, the view was expressed that the applicant “has a reasonable to high likelihood of returning to work as either a Car Wholesaler (which he has done previously) or in the Social Welfare industry within three months”. (T27)
17. WorkFocus subsequently arranged a work trial for the applicant as a Sales Representative at Perth Candy Company in the period from 18 April 2005 to 13 May 2005, and, with the approval of Dr Syed, the applicant commenced that work trial. On 29 April 2005 WorkFocus reported to the respondent that:
· the Manager of Perth Candy Company had advised that the applicant was “working well”;
· the applicant had advised that he was working from 7.30am to 4.30pm on weekdays and that he was “managing well” with his duties, but that, on 26 April 2005, while performing his “picking and packing” duties, he lifted boxes weighing more than the recommended lifting restriction of 5kgs, resulting in his experiencing increased symptoms in his right elbow. (T46)
18. On 4 May 2005 Dr Syed issued a progress medical certificate which stated that the applicant was fit for restricted return to work from 4 May 2005 to 4 June 2005 with the following work restrictions:
· “no lifting anything heavier than 500 grams”;
· “office based duties only for at least 1 month until symptoms settle again; could also engage in sales or promotional activities”. (T47)
19. On 31 May 2005 WorkFocus reported to the respondent as follows:
“…
On 4 May 2005, Mr Davis advised [that] Dr Syed, General Practitioner, recommended to cease the Work Trial due to the increase in symptoms. The Work Trial Host, Mr Fraser, advised if Mr Davis was unable to perform any picking and packing duties, then there were other options. Mr Davis could use Perth Candy Company’s van to perform Sales Representative duties, selling goods to Perth car yards (sic). Mr Fraser advised [that] Mr Davis did not manage his situation well, as he often packed and lifted boxes weighing up to 10 kilograms, when he was able to pack lighter boxes.
Mr Davis advised he did not wish to return to Perth Candy Company as he felt he would eventually return to performing picking and packing duties, he didn’t wish to use his own vehicle to drive to Osborne Park every day and he could not avoid lifting above his lifting restriction due to his ‘strong work ethic’.
Mr Davis participated in the Work Trial for seven consecutive business days, working eight hours per day.
…” (T48)
20. On 3 June 2005 Dr Syed issued a progress medical certificate which stated that the applicant was fit for restricted return to work from 3 June 2005 to 3 August 2005, and which contained the following progress report:
“No significant change right elbow. Mild symptoms at rest, with pain ++ on lifting, gripping, pulling. Clinically still very tender lateral epicondyle. Remains unenthusiastic regarding surgical management. Nil success with Work-Trial placement. Recommend move to settlement of claim.” (T49)
21. A labour market report, dated 3 June 2005, prepared by LabourNet Australia for the respondent in relation to the occupation of Car Salesperson, stated that (inter alia):
· in Western Australia, a Motor Vehicle Salesperson must first obtain a Motor Vehicle Salesperson Licence issued by the Motor Vehicle Dealers Licensing Board;
· estimated average weekly earnings of a Car Salesperson, as at February 2005, were $1,046.00;
· employment growth for Motor Vehicle and Parts Salespersons to 2010-11 is expected to be “moderate”;
· “a suitable person should be able to find employment as a Car Salesperson within a reasonable period of time”. (T50)
22. On 16 August 2005 WorkFocus reported to the respondent that (inter alia):
“…
· Mr Davis successfully completed a seven week Work Trial as a Wholesale Car Buyer at Boss Motor Company, working eight hours per day, five days per week.
· Mr Davis advised he did not experience any difficulties or pain in his right elbow while performing the Work Trial.
…
· Mr Davis has previously been reluctant to pursue employment in the automotive industry. Mr Davis has demonstrated the physical capacity to work within the automotive industry during the recent Work Trial. Therefore, it is recommended Mr Davis actively canvass for employment options within the automotive industry, as well as his preferred options.
…
· Mr Davis does not have the appropriate Motor Vehicle Salesperson’s Licence legally required to work as a Salesperson in the automotive industry. It is only possible to apply for a licence once an offer of employment has been made. In addition, three separate Police Clearances are required when applying for the licence.
...” (W 200600387 – T3)
23. Following a request by the applicant, the respondent agreed to authorise a change of vocational rehabilitation program provider (T5), and that role was henceforth performed by PeopleSense Pty Ltd (“PeopleSense”).
24. In an Initial Assessment Report, dated 22 December 2005, Mr D Brandis of PeopleSense reported to the respondent (inter alia):
“…
Exploration of work options
When I initially met with Mr Davis, he advised that he would participate and pursue any form of employment as long as it did not increase his level of symptoms. He reported participating in a work trial in the motor vehicle industry, however stated that he had made it clear to his previous provider that he did not wish to re-enter this industry and furthermore, his qualifications were outdated.
Following further consultation with Mr Davis, he advised he wished to pursue employment as a postman. He had spoken with a contact who is employed with Australia Post and obtained details of the company presently recruiting for postmen (Ready Workforce). Other options discussed with Mr Davis, which he expressed an interest in were:
▪ Parking inspector
▪ TAB operator
▪ Road traffic management.
…” (T10)
25. In a report, dated 23 December 2005, to the respondent, Dr H Campbell, Occupational Physician, expressed, inter alia, the following opinions:
“…
4. What is your diagnosis and assessment of the worker’s physical condition?
The diagnosis is a right common extensor tendinopathy. His current physical condition is limited by his elbow symptoms.
5. Does Mr Davis have the current capacity to perform alternative work? If yes, please describe the type of work and whether full-time or part-time. (ie car salesman, crane operator, special care worker, café manager, sales assistant at hardware store, light warehouse duties, trades assistant).
Mr Davis has the capacity to perform alternative work. In particular, he is able to undertake duties which do not require repetitive use of the right arm, particularly forceful gripping, twisting and heavy lifting. He would be fit to perform a role as a salesman, café manager, sales assistant at a hardware store, or light warehouse duties. A trades assistant role may be beyond his physical capacity if this involves repetitive or forceful use of the right upper limb. Additionally, a role as a crane operator would have to be assessed in terms of use of the right upper limb. A special care worker may require transfer of disabled people which may see an increase in his elbow symptoms.
…” (T11)
26. On 19 April 2006 Mr D Brandis of PeopleSense reported to the respondent as follows:
“…
Progress to Date
Further to our meeting on Monday, 3 April 2006 we have conducted extensive labour market research into the employment opportunities and training requirements for an accredited pilot. The following companies were consulted:
▪ Strategic Transport
▪ Select Pilot Services
▪ Keen Brothers WA Pty Ltd
▪ Transport Forum WA.
Please find enclosed a comprehensive outline of the training course and other requirements to become an ‘Accredited Pilot/Authorised Person’, which has been provided by the Transport Forum WA.
Our research has shown that there are excellent job opportunities for accredited pilots. The course conducted by Transport Forum to become an ‘Accredited Pilot/Authorised Person’ is generally of three days’ duration at a cost of $690.00 per person.
Upon successful completion of the course the trainee will be licensed to operate legally as a WA ‘Accredited Pilot/Authorised Person’. In addition, the trainee will receive an ‘Accredited Pilot/Authorised Person’ ID card, a standard certificate and a traffic control vest approved by the Commissioner of Police.
Following course completion, the pilot registers with several agencies (eg Oz West/Golden Pilots) and they are placed in a pool for various jobs throughout Western Australia and Australia. Generally pilots work as subcontractors and are paid approximately $1 per kilometre.
Another requirement to becoming an accredited pilot is an appropriate vehicle (generally a four-wheel drive vehicle) which can be slept in. The vehicle must have appropriate signage and lights fixed prior to commencing employment.
I have discussed this option with Brian and he is keen to pursue employment as an accredited pilot given his previous experience working in remote and outback communities.
In relation to other employment options, Brian has advised that he still has received no contact from Ready Workforce regarding Australia Post positions. Furthermore, this option has become inappropriate due to Brian’s increased symptoms from his motorcycle lessons. Upon medical review it has been recommended that he cease any further motorcycle lessons and hence is unable to obtain his motorcycle licence. (Please find enclosed medical certificate.)
…” (T15, pp 48-49)
27. On 3 May 2006 Mr D Brandis of PeopleSense wrote to the respondent as follows:
“Further to your request for information related to accredited pilot employment opportunities and wages.
As outlined in our report of 19 April 2006, research was undertaken with:
▪ Strategic Transport
▪ Select Pilot Services
▪ Keen Brothers WA Pty Ltd
▪ Transport Forum WA.
This research indicated that there were excellent job opportunities for accredited pilots.
Further to this I have been in contact with Oz West and Golden Pilots to discuss employment and was advised that at present, given the current economic climate, there are excellent employment opportunities for accredited pilots. Following our discussions, I was made aware that once the person obtains an approved ticket, has a vehicle and insurances are in place, employment could be commenced immediately.
With regard to wages, pilots are employed as subcontractors and are paid approximately $1.00 per km travelled. This equates to approximately $1,000.00 per week or approximately $50,000 per annum.
… I believe this is an appropriate vocational option for Brian to pursue given the employment opportunities, the non-physical nature of the work and Brian’s interest in the area.
If I can provide you with any further details, please do not hesitate to contact me.” (T16)
28. The respondent subsequently approved the applicant’s undertaking the “Accredited Pilot/Authorised Person” training course provided by Transport Forum WA Inc, and on 19 July 2006 Mr Brandis reported to the respondent that he had arranged for the applicant to undertake that course, commencing on 28 August 2006. (T19)
29. On 7 September 2006 Mr D Brandis of PeopleSense reported to the respondent as follows:
“…
Progress to Date
As outlined in my correspondence of 19 July 2006, Brian commenced his accredited pilot operators course on 28 August 2006. Brian successfully completed the course and received a statement of attainment for:
· Certificate III Transport and Distribution (Road Transport)
· TDTC 1097B – Pilot or escort over size and/or over mass loads.
…
As you are aware from my previous correspondence, in order to obtain employment, Brian needs an appropriate vehicle set up for pilot work. As per our discussion on 5 September 2006, I will not proceed with any further rehabilitation assistance, pending further notice from your office.
…” (T20)
30. On 26 September 2006 the respondent made a determination as follows:
“Terms of determination
In accordance with the provisions of the SRC Act I determine that:
1 The Seafarer has an ability to earn in suitable employment as an accredited pilot.
2 An accredited pilot is able to earn approximately $1,000.00 a week.
3 75% of the Seafarer’s normal weekly earnings is $1,233.40.
4 Under section 31(5)(a) of the SRC Act, the amount of compensation per week payable to the Seafarer from 27/09/06 is $233.40.
5 Under section 31(8) of the SRC Act, the amount of compensation per week payable to the Seafarer is increased to $356.90.” (T21, p 65)
The Legislative Framework
31. The relevant provisions of the Act are as follows:
“…
3 General definitions
In this Act, unless the contrary intention appears:
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of the whole or part of any bodily system or function.
…
permanent means likely to continue indefinitely.
…
suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means any employment (including self-employment) for which the employee is suited having regard to:
(a)the employee’s age, experience, training, language and other skills; and
(b)the employee’s suitability for rehabilitation or vocational retraining; and
(c)if employment is available in a place that would require the employee to change his or her place of residence – whether it is reasonable to expect the employee to change his or her place of residence; and
(d)any other relevant matter.
…
8 Incapacity for work
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work as an employee at the same rank or level at which he or she was engaged immediately before the injury happened.
…
25 Compensation to be paid in full
Subject to subsection 29(4) and sections 30 to 37 (inclusive), 47, 55, 58 and 139, compensation in respect of an injury must be paid in full by an employer whose employment has made a material contribution to the injury.
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.
…
31 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 33, 34, 35, 36 or 37 applies.
(2) Subject to subsection (3) and this Part (other than this section), compensation for the injury is payable to the employee, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount worked out using the formula:
Normal weekly earnings - Earnings in suitable employment
where:
Normal weekly earnings means the amount of the employee’s normal weekly earnings.
Earnings in suitable employment means the amount per week (if any) that the employee is able to earn in suitable employment.
...
(4) Subject to this Part (other than this section), compensation for the injury is payable to the employee, for each week during which the employee is incapacitated, being a week to which subsection (2) does not apply.
(5) The amount of compensation per week payable under subsection (4) to an employee is:
(a)if the employee is not employed during that week – an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment; or
…
32 Determination of suitable employment
An employer who determines, for the purposes of section 31, the amount per week that an employee is able to earn in suitable employment must have regard to the following:
(a)if the employee is in employment – the amount per week that the employee is earning in that employment;
(b)if, after becoming incapacitated for work, the employee received an offer of suitable employment and did not accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)if, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, did not engage, or continue to engage, in that employment – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)if, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee did not fulfil that condition – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(e)if, after becoming incapacitated for work, the employee has not sought suitable employment – the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)if paragraph (b), (c), (d) or (e) applies to the employee – whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in the opinion of the employer, reasonable in all the circumstances;
(g)any other matter that the employer considers relevant.
...
39 Compensation for injuries resulting in permanent impairment
(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.
…
41 Compensation for non-economic loss
(1) If an injury to an employee results in a permanent impairment and compensation is payable for the injury under section 39, the employer is liable to pay additional compensation in accordance with this section to the employee for any non-economic loss suffered by the employee as a result of the injury or impairment.
…”
32. Tables 9.1 and 9.4 in the “approved Guide” referred to in s 39(5) of the Act (namely, the Guide to the Assessment of the Degree of Permanent Impairment) are as follows:
“ 9 MUSCULO-SKELETAL SYSTEM
TABLE 9.1
Upper Extremity
(Percentage Whole Person Impairment)
Introduction – These tables are intended to be used to assess impairment arising from specific joint lesions or amputations. Where the joints function normally but the use of a limb is restricted for other reasons, eg soft tissue injury, nerve injury or bony injury not involving joints, Tables 9.4 or 9.5 should be used. These Tables can be used to assess the impairment of overall limb function from any cause. NOTE: either the musculo-skeletal table or Table 9.4 or 9.5 should be used – not both.
…
___
% DESCRIPTION OF LEVEL OF IMPAIRMENT
0X-ray changes but no loss of function of shoulder, elbow or wrist.
5ANY ONE of the following:
-x-ray changes with minimal loss of function of shoulder, elbow or wrist
-anykylosis of any joint of fingers 4 and/or 5.
10ANY ONE of the following:
-loss of less than half normal range of movement of shoulder or elbow
-loss of half normal range of movement of wrist
-ankylosis of any joints of fingers 2 and/or 3.
15ANY ONE of the following:
-loss of more than half normal range of movement of wrist
-ankylosis of any joints of thumb.
20ANY ONE of the following:
-loss of half normal range of movement of shoulder or elbow
-ankylosis of wrist.
30Loss of more than half normal range of movement of shoulder or elbow.
40Ankylosis of shoulder or elbow.” (original emphasis)
“TABLE 9.4
Limb Function – Upper Limb
(Percentage Whole Person Impairment)
___
% DESCRIPTION OF LEVEL OF IMPAIRMENT
10Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity.
20Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding.
30Retains some use of limb BUT has difficulty with self care.
40Cannot use limb for self care.”
The Applicant’s Evidence
33. The applicant confirmed that he had signed two witness statements, dated 28 November 2006 and 9 February 2007, for the purposes of these proceedings, and that their contents are true and correct. Those statements were tendered in evidence (Exhibits A1 and A2).
34. The contents of the applicant’s statement of 28 November 2006 are as follows:
1.
I make this statement in relation to my application for permanent impairment and non-economic loss compensation pursuant to ss 39 & 41 of the Seafarers Rehabilitation and Compensation Act 1992.
"
2.I sustained an injury to my right elbow whilst I was unlashing drums secured to spooling gear whilst I was working for Total Marine Services on the ‘Total Voyager’ on 11 January 2004.
3.The vessel was at sea at the time of the accident – there was a slight sea with a moderate south-westerly swell. I was trying to undo a tie-down strap on a container which was stuck. I was applying considerable force through my arms when it suddenly freed up causing my elbow to violently strike against the side of another container.
4.I submitted a claim for compensation under the Act which was accepted by Total Marine on 16 March 2004.
5.I continued to experience pain in my right elbow after the accident, together with some numbness in my right arm. I have not been able to return to work in spite of the treatment which I have received, including shockwave therapy and reviews by the orthopaedic surgeon, Alan Wang.
6.I had three injections in my right elbow but they did not help. I have also had physiotherapy and hydrotherapy but nothing has made a significant difference to the symptoms I experience.
7.I need to take painkillers on a daily basis and my arm wakes me from my sleep at night, in spite of taking Panadeine Forte before I go to bed.
8.My right elbow injury affects many aspects of my life. I used to play golf until I hurt my elbow but I am no longer able to play golf because of the pain which is aggravated by playing golf. Similarly, I have also had to stop playing darts.
9.I can undertake most of the home duties which I used to do prior to the accident but I am limited in terms of what I can do in the garden as I cannot use as much physical force through my right arm. This limits me in terms of lifting, digging and shovelling.
10.Other aspects of my life which have been affected by my injury are as follows:
(a)I cannot do recreational fishing as using a fishing rod aggravates my right arm from the elbow up to the shoulder;
(b) I cannot do ten-pin bowling as the weight of the ball causes my elbow to hurt;
(c) I am limited in terms of the amount of shopping I can carry – I can now only carry any shopping of a reasonable weight in my left hand;
(d) home handywork – I am very limited in the amount of painting and general maintenance work I do around the house, and maintenance on my vehicles, as use of my right arm causes my elbow and shoulder to hurt.
11.The type of pain that prevents me from undertaking the activities referred to above is a sharp pain into my elbow with an ache going up to my shoulder. Taking pain killers takes the edge off this pain but it is still present and I am concerned that, if I try and work through the pain, I will just make the problem worse.” (Exhibit A1)
35.
The contents of the applicant’s statement of 9 February 2007 are as follows:
"
1.I make this statement in relation to my application to the Administrative Appeals Tribunal in which I seek a review of the respondent’s determination to reduce my compensation payments by $1,000.00 per week.
Employment history
2.I left school having completed the first year of high school at Princess May in Fremantle.
3.After leaving school, I started working as an apprentice bricklayer.
4.After a couple of months of bricklaying, I went to work for Laurie Chivers as a general hand which involved doing workshop cleaning.
5.I then went to work for Bairds department store doing counter sales in menswear. I worked there for a year or so and then I worked for Walsh’s Menswear in Melville, again doing counter sales.
6.I then went to work for David Jones when they opened in Booragoon, again in menswear.
7.I then went to work for Wool Dumpers doing unloading trucks in the wool stores.
8.After working for Wool Dumpers, I went to work as a salesman for Pizzazz Menswear in Johnson Court, Fremantle.
9.I then worked for the Australian Wool Testing Authority as a wool sampler.
10.I was keen to go to Melbourne so I could play more baseball: I played ‘A’ grade baseball and the Melbourne ‘A’ grade season took place in the Western Australian off-season. I therefore transferred to Melbourne where I stayed for approximately 6 months.
11.I continued to work for the Australian Wool Testing Authority whilst I was in Melbourne and then worked as a roustabout for WAPET at Barrow Island for, I think, a year or so.
12.I then decided to have a look at Darwin. I drove to Darwin and worked driving a mobile crane for Bunnings – this was a job I had organised before I left for Darwin.
13.I worked for Bunnings on a 6-month contract. At the end of the contract I had decided that I wanted to stay in Darwin and I worked as a bookmaker’s clerk for a number of different bookmakers.
14.After that, I worked for a Ford dealership (Territory Ford) in sales. I also worked for another dealership (Kittle Bros) in Alice Springs – this was a job that had been set up by the manager of Kittle Bros who knew me from baseball. I went to play baseball for a season in Alice Springs and worked in Kittle Bros whilst I was there.
15.I then ran a sex shop which a friend of mine had opened up. I did this for a year or so and then went on a trip around Australia with a friend, just doing casual jobs here and there.
16.During the trip around Australia, I worked on prawn trawlers in Cairns. Whilst I was working on prawn trawlers out of Darwin, an owner of one of the boats I worked on flew me up to Kurumba. I was then taken by boat out to a trawler in the Gulf of Carpentaria called the Marandoo, which was fishing for prawns.
17.In October 1981, whilst on the Marandoo, I suffered an accident when my right leg became entangled in a rope capstan. As a result of the injury I sustained in that accident, I had a below-knee amputation.
18.The first job I had after my accident was working for the City of Cockburn driving a tractor and ride-on mowers. I worked there for a year or so and then I moved to Two Rocks to live and worked on a couple of cray boats which operated out of Two Rocks.
19.After a while, I was offered a job managing a crayfish depot in Two Rocks. I had the choice of either running that depot or one at Jurien for WA Seafoods. I decided to stay in Two Rocks and bought a small secondhand truck. Unfortunately, the person who was to set up the depot in Two Rocks pulled out and by then the vacancy in Jurien had been filled and I was left with a small truck and no job.
20.I then moved to Jurien and did crayfishing and processing. I then opened the Last Chance Pizza & Café in Jurien. This was only marginally viable as a business. I ran it for a year or so and then sold it. I hadn’t managed to grow it to any significant extent by the time I sold and lost money on the venture.
21.At that time, I had a young family (children aged 4, 3 and 1). My partner and I had a look at Cairns but we thought Cairns was a bit too expensive and I didn’t really have many contacts there. We therefore went to Darwin and I got a position as Used Car Manager for Bridges Autos.
22.I worked at Bridges Autos for a couple of years. Whilst I was there, I was involved in sales for both new and used cars but, primarily, it was used cars.
23.I then moved back to Perth and worked for a number of car yards in the Perth Metro area as I was waiting for a vacancy to come up at Fremantle Toyota. Eventually, a vacancy came about and, in 1990, I started working at Fremantle Toyota as a fleet manager dealing with companies looking to buy or lease cars. Whilst there, I dealt with some very large companies on large contracts – for example, I negotiated with Hamersley Iron and Robe River. These companies bought 50-100 cars a year and I found these negotiations extremely stressful.
24.Although I was reasonably successful as a fleet manager, I found that the stress involved was just too much for me and I therefore went back into retail as a buyer valuer, for Melville Toyota, working both in Melville and Rockingham. I was at Melville Toyota for 7 years. Although I found the work much less pressured, I still found the sales aspect difficult.
25.Whilst I was working with Melville Toyota, I became ill with what I was told was irritable bowel syndrome which, I believe, was caused by the stress involved in negotiating sales.
26.I also seemed to become less and less successful at my job which I think was largely because of the amount of anxiety I experienced whilst attempting to negotiate sales. Eventually, I realised that I was not going to be able to continue working in the industry.
27.At about that time, my general practitioner, Dr Fethers, told me that I should leave the industry because it was obviously causing me stress and anxiety. However, I had financial commitments which did not enable me to leave the industry when I felt I ought to but, after a while, it became apparent to me that I simply could not continue.
28.I then became general store manager and trainer at Blackstone General Store at Papulankeutja Community in the Great Gibson Desert. In that position, I was responsible for managing the store (it was the only one in the community) and training staff to use the till.
29.I knew many members of the Maritime Union of Australia from my days in the fishing industry and, when I decided that I had to leave the car sales industry, I arranged that I would get suitable training and then go into the maritime industry.
30.I therefore organised obtaining my integrated rating qualification with the Maritime College in Fremantle.
31.In order to earn some money during this period, I undertook relief work as a general store manager at the Blackstone General Store. This enabled me to save up enough money to enable me to do the IR course which cost approximately $5,000.00. At the same time, I still had to meet my ordinary living expenses, mortgage payments and so forth.
32.I obtained my integrated rating qualification and obtained employment with Total Marine Services as an integrated rating.
33.I worked on the project dredging Geraldton Harbour. I also worked on the Total Voyager, a chase boat which looked after the seismic ship operating out of Karratha. It was whilst I was working on the Total Voyager that I sustained the injury on 11 January 2004.
34.I didn’t stop work immediately I sustained the injury – I thought the effects would wear off. I carried on working for the rest of that swing, and another 5-day relief swing in Darwin. I then had to stop as the injury was becoming more and more painful and incapacitating.
35.When I stopped work, I didn’t think that I had a very serious injury. My right arm was certainly very sore but I thought it was the sort of injury that would heal itself if I rested up.
36.This impression was confirmed when I saw Dr David Syed at Westport Medical Centre. He told me that I had epicondylitis. He told me that there was no definitive prognosis – in some cases, the condition cleared up quickly, in some cases, it took a long time and, in some cases, it never cleared up at all.
37.I thought I would recover soon as I had never had a soft tissue-type injury that hadn’t cleared up.
38.I therefore thought I was going to have about a swing off work and then go straight back. Unfortunately, it didn’t turn out that way. I initially had injections – I’m not sure what they were – into my right elbow area. I had three of these injections at about monthly intervals. When they didn’t seem to be making any difference, Dr Syed said he wasn’t going to give me any more.
39.I then had shock treatment – this was done by using a light pulse directed at the elbow. The treatment was painful. It hurt during the treatment and also afterwards. It didn’t make any difference and I suspect it made the condition, if anything, a little bit worse.
40.I had some physiotherapy at South Lakes Leisure Centre and various other places. The physiotherapy was supervised by a girl from WorkFocus. The physiotherapy largely consisted of different water exercises and exercises with large rubber bands. Sometimes, the physiotherapy would flare the injury up but it didn’t seem to make any long-term difference for the better.
41.There were a couple of meetings involving Dr Syed, myself, Ann… from Total Marine and somebody from WorkFocus and, eventually, it was recognised that I probably wouldn’t be going back to work at sea and that it was necessary for me to be re-trained into another job.
42.I went through a vocational rehabilitation programme with WorkFocus for which I had to fill out various questionnaires. I had a number of different rehabilitation providers – WorkFocus seemed to have a very high turnover of staff at that time.
43.The WorkFocus employees were always very positive about the prospects of getting me redeployed but nothing ever eventuated.
44.After a while, I became frustrated and disillusioned with the rehabilitation programme as, in spite of their promises, WorkFocus never got close to obtaining any work trials, apart from the one with Perth Candy Company in Osborne Park which involved my working in the warehouse with the trucks on deliveries. That aggravated my symptoms because the job was largely lifting, carrying and re-stacking boxes of product.
45.I reported to Dr Syed that the work was aggravating the symptoms and I believe he told WorkFocus that the work placement was unsuitable because it was aggravating the problem.
46.WorkFocus tried to encourage me to get work in the car industry. I would have preferred not to have had anything to do with car sales because, as indicated above, I had found that line of work particularly stressful and the stress was the reason why I stopped working in the car sales industry.
47.However, I thought I should give it a try. I made contact with a former employer, Jim Romeo, and organised to go and do a work trial with him at his yard in East Victoria Park.
48.I worked there for about 5 or 6 weeks, working full-time. I was involved in buying and valuing other cars from dealers for resale through Jim’s yard. Having been out of the industry for a while, it took me some time to get a feel for values and negotiations. The more I did, the more stressful I found it as I had no confidence in my ability to properly value cars and always felt at a disadvantage when I was negotiating with other car yards because I had absolutely no confidence in what I was doing.
49.I reported directly to Jim and discussed how I was going with him frequently. My job was to try and maintain a reasonable level of stock for retail through Jim’s yard. This depended on my being able to purchase vehicles at a commercially acceptable price. I wasn’t able to achieve an adequate level of sales, in spite of trying as hard as I could, and both Jim and I realised that I was not going to be able to make a living in that line of work.
50.At that stage, Ashley, from WorkFocus, was handling my rehabilitation and I discussed how the work trial was going with him every couple of days.
51.Ashley came out and met me at the yard and he also spoke to Jim. He wasn’t able to offer any solutions as to how I might improve my performance.
52.Eventually, I came to the conclusion that I was not going to achieve anything with WorkFocus. The only opening they had found for me was the candy factory and, what with the constant turnover of personnel and the lack of any progress, I thought it would be better if I went to somebody for a fresh start.
53.I discussed the rehabilitation situation with both Dr Syed and Dr Martin and they agreed with me that, if I felt I wasn’t getting anywhere with WorkFocus, I might think about changing to another rehabilitation provider.
54.I therefore contacted Steven Parker, of ICS. I went and had an initial meeting with him but, when it became apparent that I was under the seafarers’ rather than the State workers’ compensation system, he told me that he couldn’t help me as he didn’t have the necessary accreditation.
55.Steve suggested that I contact Darren Brandis at PeopleSense. I went and had an initial meeting with him.
56.I felt much more confident with Darren – he concentrated on me as an individual rather than simply looking at the rehabilitation process and I felt that I was more likely to achieve rehabilitation with Darren than with WorkFocus.
57.I had a mate who worked for Australia Post. I’d been speaking to him about his work and I thought it was something that I could do. When I mentioned this to Darren, he agreed and he made contact with the company that organises recruitment for Australia Post.
58.I had some motorbike lessons but, after 4 or 5 lessons, it became apparent that holding on to the handlebars and using the hand controls was aggravating my symptoms and I would not be able to do that work.
59.Both Darren and I tried to telephone the recruitment organisation but we couldn’t manage to speak to the relevant person. We were both trying to see if there was something I could for Australia Post other than delivery work. (sic)
60.When the Australia Post idea came to nothing, we had further discussions. We talked about my working as a flag man and the idea of becoming an accredited pilot came up. I thought that was something that I could do. Darren and I had previously discussed my working as a courier but I didn’t have a vehicle that was suitable. I owned a 1989 Toyota Camry sedan and, for courier work, you need a late model car. I also needed to restrict my activity as a courier to parcel work because of my injury.
61.The possibility of working as an accredited pilot seemed like a great solution. I thought that the work would be within my physical capabilities. I was used to being away and driving long distances. I did the course which took 4 days and obtained my qualification.
62.Before I attended the course, I was told by Darren that the insurer had told him that they would be stopping my payments shortly after the course. I thought that seemed wrong because I wouldn’t be able to earn an income as an accredited pilot without a proper vehicle. I thought there was no point in obtaining a qualification which I couldn’t use but which would stop my compensation payments and I therefore told Darren that, if the insurance company was going to stop my payments as a result of my obtaining the qualification, there was no point in my doing the course.
63.Darren later told me that he had discussed this issue with the insurer which had agreed that they would not stop my compensation payments as a result of my obtaining the qualification.
64.I didn’t give an enormous amount of thought as to how I would obtain a vehicle but I thought the insurance company would come to the party in some way, such as leasing a vehicle or making it possible for me to lease one myself.
65.After I did the course, I told Darren that I obtained the qualification and asked him what happened now. He said he didn’t know and said something like that he would speak to the insurer and see what they had in mind.
66.At the time, the insurance company was negotiating with me, trying to get me to settle my claim. The next thing was that they had issued a determination saying that I was capable of earning $1,000.00 per week working as an accredited pilot, even though they well knew that I didn’t have a vehicle and was not in a position to obtain one, and therefore couldn’t work as an accredited pilot.
67.I then made enquiries as to whether it was possible for me to obtain the finance to get a vehicle. I approached Toyotaways in Rockingham to find out whether I could get finance for a late model 4WD suitable for use for work as an accredited pilot. They took my application and said that I’d get an answer in the mail, which I did – it was refused.
68.I approached my own bank but they said that they would not countenance the idea of lending me money when I wasn’t working.
69.Although I had primarily focused on attempting to get work with Australia Post and as an accredited courier (sic), I have kept my eyes and ears open for other possibilities of work which I think might be suitable. These include possibly working in a lunch bar, preparing food, and anything that does not involve me having to repetitively use my arms for lifting medium to heavy weights.
70.I scan the newspapers on Wednesdays and at the weekends for suitable vacancies.
71.I don’t have any computer skills and I am trying to get on to a course at TAFE so that I can see what is involved in using computers. This was another problem I had when working in Jim’s car yard. Quite apart from my lack of confidence, I was unable to use computers which are now used extensively in the car industry.
72.I have let all my friends know that I am looking for work and have asked them to let me know if they become aware of anything suitable. They are aware of my limitations.
73.I applied for work at a couple of lunch bars but I was unsuccessful. I don’t know whether it’s due to my age or the fact that I told them why I wasn’t working, but the outcome is always the same – I am told that the position has been filled.
74.When I was with WorkFocus, they tried to get me some work in a furniture store in sales. I was told by the WorkFocus guy that, when he telephoned, he was told that they were looking for somebody who was younger than me.
75.I do not know what I can do to obtain work. The difficulty I have is that I am in my 50s, I have a disability which prevents me from undertaking strenuous or repetitive manual work and have no special skills.” (Exhibit A2)
36. The applicant also tendered in evidence an affidavit sworn by him on 5 December 2006 whose relevant contents are as follows:
“…
2.In the determination, the Respondent reduced the amount of compensation payable to me by $1,000.00 per week, from $1,233.40 to $233.40.
3.The reason put forward by the Respondent to justify the reduction was that I am able to earn $1,000.00 per week as an accredited pilot.
4.I am an accredited pilot with Accreditation No WA-1-56617, which I achieved on 31 August 2006 as part of a vocational rehabilitation programme I was undergoing in respect of injuries I sustained whilst in the employment of the Respondent on 11 January 2004.
5.I have not been able to work as an accredited pilot since obtaining my accreditation as I do not have, and cannot obtain, a suitable vehicle, which is a pre-condition for obtaining work as an accredited pilot.
6.Before undergoing training as an accredited pilot, I attempted to train as a postman but I was unable to complete the motorbike training course…
7.There was thereafter some discussion between myself, my rehabilitation provider, Darren Brandis of PeopleSense Pty Ltd and Allianz, the Respondent’s seafarers compensation insurer, as to a suitable alternative vocation into which I could be trained. I suggested training to be an accredited pilot, along with a number of other possible occupations.
8.One matter that was immediately apparent as a possible impediment to being rehabilitated as an accredited pilot was the fact that I didn’t have a vehicle suitable for use as an accredited pilot.
9.It was known to both myself and to Darren Brandis before I underwent training that I would need a properly modified 4WD vehicle before I was able to obtain employment as an accredited pilot. This fact was communicated to Allianz, as can be seen from Darren Brandis’s letter to the Respondent dated 19 April 2006… A similar comment is made in Mr Brandis’s letter to the Respondent dated 3 May 2006…
10.Shortly before I commenced the training course of 28 August 2006, I was told by Darren Brandis that he had received a letter from Allianz saying that they were going to reduce my compensation payments three weeks after I finished the course, on the basis that, by that time, I would be able to work as an accredited pilot. I told Mr Brandis that if Allianz was going to reduce my compensation payment as they had indicated, then there was no point in my doing the course as I didn’t have a vehicle to work as an accredited pilot, and I did not have the funds to obtain such a vehicle.
11.Mr Brandis said that he would get back to Allianz to see what the position was in relation to a vehicle. He telephoned me shortly after that and advised me that he had been told that the letter in which Allianz had said that they were going to reduce my payments had been sent out in error. On this basis, I duly underwent the course and obtained accreditation.
12.I own a 1989 Toyota Camry sedan, which is not a vehicle suitable for work as an accredited pilot. I do not have another vehicle with which I can work as a pilot, nor can I afford to purchase such a vehicle.
13.I made application to St George Finance for a loan with which to purchase and modify a 4WD but that application was refused, in which regard I refer to the letter from St George Finance, dated 8 November 2006…
14.As a result of not having a suitable vehicle, and being unable to purchase a suitable vehicle, I cannot work as an accredited pilot…
…” (Exhibit A3)
[The Tribunal notes that the letters from Mr D Brandis to the respondent, referred to in para 9 of the applicant’s affidavit, are set out in paragraphs 26 and 27 above, and that a copy of the letter from St George Finance, referred to in paragraph 13 of his affidavit, is part of Exhibit A3.]
37. In his oral evidence-in-chief the applicant confirmed that he was still suffering symptoms as a result of his right elbow injury. His evidence continued:
“What are those symptoms?---Pain in my elbow and my shoulders. It’s causing me trouble sleeping and doing certain things.
Can you describe the nature of the pain?---Well, it’s a couple of things. It’s - if I do anything too hard I get a sharp pain - pain in the elbow. But - eventually I end up with - sorry, I end up with - very sore in the shoulders and down through the forearms.
And is that pain – you say if you do something you get a sharp pain?---Correct, if it’s something - if I do something to - too hard or something that’s over stressful like.
Is that the only type of pain you suffer?---No. I get numbness. Sleeping is a big - is a big - big thing for me. When I sleep, lying on it in bed, you know, if you go asleep and it causes a great deal of pain in the morning for me, discomfort, a great deal of discomfort. In the morning is mainly when I have a great deal of trouble with it.
… Can you give an example of the sort of thing which might provoke pain?---…if a tap was on very tight, too tight. If I was to turn a tap with my right hand, I tend to try to do everything with the left hand now. Sort of forced to do that, but if it was too tight and I went overboard on that it would, it would create a sharp pain straight into my elbow which - and eventually I end up with shoulder pains or soreness in my shoulder and down in through my forearm and the muscles in through here.
Can you give any other examples of actions that might provoke pain?---Lifting - lifting something too heavy would do it, would bring it on. Trying to do a screw - something with a screwdriver too hard that would hurt. I just - just get lots of everyday things.” (Transcript, p 10)
38. In cross-examination, the applicant confirmed that he had previously operated a pizza café business, and that he was presently willing to work as “a general hand in the kitchen” including “preparing the food… and helping with dishes and things”. He also confirmed that he cooks at home.
39. The applicant acknowledged that he has not registered for employment with a recruitment service or an employment agency. He said that he had made telephone calls and sent e-mails in response to certain job advertisements in the newspaper, but he acknowledged that he had not made any written applications for such jobs. He said that he had also contacted a person (whom he named) from Western Pathology about doing courier work in a vehicle supplied by the company.
40. The applicant confirmed that he did not wish to return to work in the automotive industry as a motor vehicle salesperson or wholesale buyer/valuer because such work presently causes him to suffer stress and anxiety and because he lacks recent experience in that industry. He said that, in his work trial placement with Boss Motor Company in June-August 2005, although he tried he found it “very hard” and felt that, because of his lack of recent experience, he was unable to do the job competently.
41. As regards the occupation of accredited pilot, the applicant agreed that he was physically able to do that work, which he described as “mainly just driving”. He acknowledged that a 4-wheel drive vehicle was not “exclusively required” for that work, but that, in cases involving transport to mine sites in remote locations “off the beaten track”, such a vehicle would be required. He also acknowledged that a new vehicle was not necessarily required, and that a used vehicle would suffice provided that it was “a very, very good one”. He estimated that it would cost approximately $50,000 to purchase an appropriate used 4-wheel drive vehicle fitted out with the necessary signage, lights, safety equipment, and also with a refrigerator and cooking facilities.
42. The applicant was referred to a report of Dr S Clarke, Occupational Physician, dated 29 March 2005 (see paragraph 43 below). As regards the applicant’s history recorded in that report, he gave the following evidence:
“And sporting activities. Now, you apparently say you can’t play golf any more because you’ve got grip problems in your right hand?---Yes, sir, in my elbow, yes.
Have you tried to play golf?---I’ve tried to swing it a couple of times at the backyard, but painful.
Now, were you a regular dart player previously to this?---Yes, I was.
And you can’t do that any more? Is that because of pain in your arm?---Yes, sir. Absolutely. That does cause me a great deal of pain.
Dr Clarke, though, goes on to say that whilst you can’t do the heavier aspects of gardening, you can still do light digging with some limited shovelling?---Yes, I don’t really use the shovel, sir, that much. I’ve made my garden sort of gardener friendly. Everything’s up high and I’ve - everything’s been made into - there's not really a great deal there.” (Transcript, p 50)
His evidence continued:
“Now, what activities can you do in terms of – let’s look around the house, you can cook using your right arm?---Most of the time cook, yes.
You can grip a pan?---I do that with my left hand, sir, anyway.
I didn’t ask you that, I asked can you grip a pan in your right hand?---For a short time, as long as there is nothing in it.
Yes. You can button your shirt up and undo it?---I can do that with one hand, sir, of course, yes.
But you can use your right hand to do that too, can’t you?---Yes, but I normally use my left hand.
I’m asking you can you use your right hand?---If I have to, sir, yes.” (Transcript, p 51)
43. In response to questions from the Tribunal regarding the activities of playing golf and playing darts, the applicant said that:
· as regards golf, it was the “swing”, rather than the “holding”, of the club which caused him pain in his right elbow and upper arm;
· as regards darts, “after five or six minutes of throwing”, he experiences pain in his right elbow and upper arm.
The Medical Witnesses
Dr Steve Clarke
44. Dr Clarke, who was called as a witness by the applicant, said that he has been practising as an occupational physician for 10 years. He confirmed that, at the request of the applicant’s solicitors, he had examined the applicant and prepared a report, dated 29 March 2005, for the purpose of these proceedings. In that report Dr Clarke recited the history of the applicant’s sustaining his right elbow injury in January 2004, diagnosed by Dr Syed as “right lateral epicondylitis”, and his subsequent medical treatment, and continued:
“Past Medical History
This is significant in this case as there was a prior and very significant occupational injury with the loss of the right leg below the level of the knee, consequent upon a maritime accident in 1981. To his very great credit, Mr Davis returned to full sporting activities and a full working life thereafter, including working as an integrated rating with a right below knee prosthesis.
There is no other significant medical history of note.
Socially, I note Mr Davis is in a stable relationship and the father of four children. He reports that his hobbies previously were golf, which he can now not undertake because of increased pain in his elbow when he attempts to play. He is keen on the horses, TV sport and of course can undertake these activities. He reports that he was previously active in playing darts but can no longer undertake this activity.
Around the home he reports he can undertake the majority of housework and can drive satisfactorily and do gardening if he is careful. He does report decreased endurance for heavier aspects, gardening in particular especially when there is heavy lifting involved. He has difficulty lifting in the palms down position, which is a very common finding in lateral epicondylitis. He can however undertake some light digging and some limited shovelling, he reports.
What he cannot do is undertake activities that require either a sustained grip or lifting in a palms down position.
Examination
Mr Davis demonstrated the typical findings of right lateral epicondylitis; that is pain on resisted third fingers extension and resisted supination. I measured the circumference of both forearms and these were equal. I note that he is right hand dominant.
I undertook to measure Mr Davis’ grip strength using a Jamar Dynamometer and whereas on the left non-dominant hand he could manage a maximum of 50 kilograms of grip strength, on the right he was reduced to a maximum of 22 kilograms of grip strength. There was no evidence of other neurological or vascular deficit in the right upper limb.
I have made the assessment of your client as suffering a 10% upper limb disability, based on the description in Table 9.4…” (T42, pp 80-81)
45. Dr Clarke also confirmed that he had prepared a supplementary report, dated 24 April 2006, addressed to the applicant’s solicitors. That report, which was tendered in evidence by the applicant, states as follows:
“Thank you for your letter requesting further information on the method of assessment I utilised in formulating my opinion that Mr Brian Davis has a ten (10) per cent permanent disability as per Table 9.4 of the Seafarers Rehabilitation and Compensation Act. Firstly I note that the correct Table for assessing this patient is indeed Table 9.4 and not Table 9.1 as outlined in the preamble as (sic) Table 9.1 heading Upper Extremity.
Turning to Table 9.4, a ten (10) per cent permanent disability is followed by the descriptor ‘can use limb for self-care and grasping and holding but has diffculty with digital dexterity.’
I have consulted my handwritten clinical notes taken at the time I saw Mr Davis noting the following points of history. I noted that he had previously been active in social golf but is now unable to play because of difficulty with grip. I noted that he could not play darts because of difficulty with both prolonged grip and fine motor digital control due to pain in his forearm. That finding is consistent with the description given under ten per cent disability, that is, having difficulty with digital dexterity. Similarly, I noted that although he had undertaken housework and driving, he was limited in the heavier aspects of gardening and limited in shovelling endurance.
Specifically he reported to me that he had difficulty with tasks that involved a sustained grip and tasks involving lifting with the palms down position.
Physical examination using a Jaymar Dynamometer revealed that he had substantially reduced grip strength on the right when compared to the left. In particular, his grip strength measured in handle positions 1, 3 and 5 on the right dominant hand were 14, 19 and 22 kilograms, whereas on the left, non-dominant hand he could achieve a much more normal grip strength of 46, 50 and 36 kilograms respectively.
For these reasons it is my opinion based on my history and examination that Mr Davis satisfies the conditions for a ten (10) per cent disability as described in Table 9.4 Upper Limb Function.
…” (Exhibit A5)
46. In cross-examination Dr Clarke agreed that the applicant is able to “grasp” and to hold things provided that it was not “sustained”.
47.
Dr Clarke acknowledged that, in his clinical notes regarding his examination of the applicant, he had not recorded any reason for the applicant’s stated inability to play darts. He added, however, that he would expect that the reason would be that the “pincer grip”, which is employed in dart throwing, “would be the sort of activity that is impeded with painful conditions such as lateral epicondylitis”. (Transcript,
p 100)
48. As regards his understanding of the phrase “digital dexterity”, Dr Clarke said:
“I take digital dexterity to include such fine motor control tasks as gripping the shaft of a dart to involve proper normal use of the human hand, involving a grip to generate somewhere near a normal grip strength which he does not do, and to be able to lift in range of both palms up and palms down.” (Transcript, p 102)
Dr Philip Hardcastle
49. Dr Hardcastle, who was called as a witness by the respondent, said that he has been an orthopaedic surgeon since 1985. He confirmed that, at the request of the respondent’s solicitors, he had examined the applicant on 29 November 2005 and had prepared a report, dated 5 December 2005, for the purpose of these proceedings. In that report, which was tendered in evidence by the respondent, Dr Hardcastle set out the applicant’s history, the details of the incident in January 2004 in which he sustained his right elbow injury, and his subsequent progress, and continued:
“CURRENT SYMPTOMS
He complains of pain over the lateral aspect of the right elbow which is not constant and over the past month, he has had some medial sided pain.
There is no associated swelling and he gets occasional tingling and numbness in the index long and ring fingers of his hand, but it tends to be worse on the opposite side on the left with sitting and he gets relief by putting his hands behind his back. There has also been some left scapular pain for which he has had an injection but no relief and he reports this starting about April 2004, although he is not sure (symptoms in this region were not drawn on his pain chart).
The main aggravating factors are the elbow pain with direct pressure, twisting, gardening for periods and lifting heavy weights.
CURRENT ACTIVITIES
He said he was not working, but his wife worked full time Monday to Thursday.
At home, he lives with all the family and looks after the 7 year old. He was able to do most of the household duties, including the cooking, vacuuming, mopping and sweeping when necessary, but he did very little maintenance.
He does some weeding in the garden, planting, clipping and fertilising, but did not mow it as it required a roll on mower, so he used a contractor.
His hobbies are golf and fishing, which he has not been able to do due to his elbow.
Socially, he visits friends.
CLINICAL ASSESSMENT
He was a well looking man with short dark, slightly greying, hair. He wore glasses. He was 170cm in height and weighed 76kg.
…
Upper Limbs
He was right handed and there was no evidence of any swelling, ligamentous laxity or callosities.
Both elbows demonstrated some thickening over the olecranon region.
There was local tenderness over the lateral and medial epicondyle and behind the lateral one as well. He demonstrated a full range of movement at the shoulder and elbow. Tennis Elbow Provocation test was positive.
There was decreased sensation throughout the entire right upper limb to light touch with motor examination being normal. Reflexes were symmetrical and intact, and circumferences at the axilla and forearm were equal.
Phalen’s test was negative. He had a good pinch grip and there was a very minor tremor. His finger to nose movements were normal.
Grip strength was 20kg on the right and 42kg on the left.
INVESTIGATIONS
· Plain x-rays right elbow – 9/11/04
Normal. There is a minor spur on the lateral epicondyle of no significance.
· Ultrasound right elbow – 8/07/04
This has reported common extensor tendonopathy with a small partial tear.
· Ultrasound right wrist – 7/07/04
This has reported some evidence of a low grade DeQuervain’s tenosynovitis (no symptoms of this at this stage).
· Ultrasound guided extracorporeal shockwave therapy – 8/07/04
This reports three treatments with shockwave beginning on 8 July 2004 and having two further treatments over the next two weeks.
SUMMARY
The diagnosis is of non specific right elbow pain on the right. There are features of an associated right tennis elbow, but the clinical signs are not specific. These were the only reported symptoms on the pain chart, though subsequently later he referred to some tingling in both hands, particularly on the left and some left scapula pain. In your referral there is mention of wrist symptoms which are also referred to on the enclosed ultrasound report, but there were no complaints of this. There were also no complaints of any digital dexterity problems, nor did he demonstrate any signs of such.
I would be a little reticent about surgical treatment because of his failure to improve with any of the methods of treatment that have been tried, which I find unusual and would consider at this stage, it is better to settle his claim.
There were no features on clinical examination nor reviewing the ultrasound reports that would suggest a poor long term prognosis.
In answer to your specific questions:
…
Permanent Impairment
1.Whether Mr Davis has any permanent impairment, being an impairment that is likely to continue indefinitely in relation to his left (sic) elbow and if so the nature of this impairment.
He reports ongoing symptoms for over eighteen months now and there has been no improvement despite an adequate course of treatment, so he would be considered to have a permanent impairment.
2.If you are of the opinion that Mr Davis suffers a permanent impairment in relation to his right elbow please assess the degree of permanent impairment in accordance with either Table 9.1 or 9.4. However, if you think that both tables apply, please provide an assessment under each table.
In accordance with Table 9.1, this would be 5%. Under Table 9.4, there is no evidence of permanent impairment.
3.If you consider Mr Davis suffers from a permanent impairment due to the January 2004 incident and non work related factors, if possible, please provide an assessment of the degree of permanent impairment due only to the January 2004 incident
This impairment would be considered to be predominantly due to the January 2004 incident.
…” (Exhibit R1)
50. Dr Hardcastle confirmed that, at the request of the respondent, he had also prepared a supplementary report dated 1 June 2006, in relation to Dr Clarke’s report of 24 April 2006. In that report, which was tendered in evidence by the respondent, Dr Hardcastle, in response to a question asked by the respondent, stated that he maintained his view that the degree of the applicant’s permanent impairment is 5% under Table 9.1 and 0% under Table 9.4. As regards the application of Table 9.4, he stated:
“The definition of dexterity is that of skill or cleverness, particularly using the hand. … It is not my opinion that his dexterity or skill in using his hand has been affected by his lateral epicondylitis. He did demonstrate a grip strength of 20kg, which although well below normal for a male, [is] still of reasonable strength and within the normal range for a female…” (Exhibit R2)
51. In cross-examination, Dr Hardcastle was questioned about his understanding of the word “dexterity”, as expressed in his report of 1 June 2006. He responded as follows:
“…when I’ve been doing assessments of upper limb function before, in terms of dexterity, in my experience, it’s been an injury to the hand or a neurological problem in the hand that’s resulted in the loss of hand dexterity, not someone complaining of pain in the elbow region, or tennis elbow. I’ve never heard of, well, never, in my experience, seen an elbow problem where there’s pain such as, well, in this case, tennis elbow that’s actually caused a dexterity problem in the hand. Most of the symptoms that you get in, or the loss of use of the hand, is because of the pain that they get here, not the dexterity problem in the actual hand. So it’s not my opinion that there is a - in this, he didn’t demonstrate any tenderness, there was no wasting, there was basically a normal looking hand… So I couldn’t see that there’s going to be a problem with dexterity. I can understand there’s a problem with pain inhibition, but I consider that that’s different to dexterity. Dexterity is something that’s objective and is due to a definitive problem involving the hand.” (Transcript, pp 79-80)
52. In response to questions from the Tribunal regarding the muscular system of the forearm, Dr Hardcastle said:
“…Going back to my previous point where I was talking about dexterity and hand injuries. So in terms of the fine movement and things that, you know, to me need good normal dextrous movement, the extensors really themselves are not that important in dexterity.” (Transcript, p 89)
The Lay Evidence
Statement of Hilda Colecchia
53.
The applicant tendered in evidence a signed statement of Hilda Colecchia, dated December 2006. Ms Colecchia was not required by the respondent for cross-examination and she did not give oral evidence. The contents of Ms Colecchia’s statement are as follows:
"
1.I am in a de facto relationship with Brian Davis and have been for 23 years.
2.I make this statement in relation to Brian’s claim for compensation for permanent impairment arising out of his elbow injury sustained in January 2004.
3.I first became aware of Brian’s elbow injury when he returned from his swing in early 2004. He was complaining of having a sore elbow and told me that he had hurt it at work.
4.Brian hasn’t returned to work since that time as a result of his elbow injury continuing to be painful.
5.As well as not being able to work, Brian has been unable to pursue a number of recreational activities in which he engaged before hurting his elbow. These include playing golf, which he and I used to do occasionally. He would play with his mates but he tells me that he is unable to play golf now as it hurts his elbow, both whilst playing golf and the next day.
6.Similarly, he doesn’t play darts which he used to do quite a lot – he was a member of a couple of teams and used to play twice a week.
7.Brian used to enjoy both golf and darts because it was a way of socialising with his friends.
8.Brian is also unable to play lawn bowls. He was on the point of joining Fremantle Bowling Club, where his mother is a member, but hasn’t pursued that because of the pain he gets in his elbow.
9.Brian also cannot go ten-pin bowling as the weight of the bowl, and the action of bowling, hurts his elbow.
10.I think that Brian is able to undertake most of his domestic activities without too much difficulty, although he is not able to do long stints of vacuuming and cannot use the outdoor vacuum as it is too heavy.
11.Brian finds it difficult to open tight jar lids – I don’t ask him to try and if I cannot open a lid myself I get one of the boys to do it for me.
12.Brian used to be a keen fisherman but he hasn’t been fishing for a long time. He tells me that casting and reeling in a fish hurts his right elbow.
13.Brian and I used to be quite social animals – we used to go out and visit friends and have them come over. This has almost completely stopped over the last couple of years mostly due to the fact that Brian doesn’t enjoy socialising as he feels he has nothing in common with our friends as he cannot go to work and can’t pursue his usual recreational activities.
14.Over the last couple of years, Brian has changed from somebody who used to be full of life and always doing things, to an introspective irritable person. He is always losing his temper with my two sons which would otherwise be out of character for him.
15.Brian has been drinking a lot more over the last couple of years as a way of escaping from the monotony and frustration of his day-to-day life, as well as the pain.
16.Our relationship has been under a lot of stress as there is very little we can do together which is enjoyable or seems to have any purpose.
17.Brian takes Panadeine Forte before he goes to sleep, and sometimes during the course of the day. His elbow pain causes him to wake up and that interferes with my sleep.” (Exhibit A6)
Statement of James Romeo
54.
The applicant tendered in evidence a signed statement of James Romeo, dated February 2007. Mr Romeo was not required by the respondent for cross-examination and he did not give oral evidence. The contents of Mr Romeo’s statement are as follows:
"
1.I am the manager of ‘Team Romeo’…
2.I was previously the manager of ‘Boss Motors’…
3.I have known Brian Davis for some time through his involvement in the motor industry.
4.I recall that, in about mid-2005, Brian undertook a work trial at Boss Motors. I needed somebody to be a wholesale buyer and valuer. I thought that Brian was a good prospect for the position given his involvement in the motor industry.
5.The job required him to be both physically active as he would have to drive to car yards, get in and out of cars and climb over and under them to inspect them. He also needed to be able to negotiate with other car yards.
6.From my observation, Brian had some difficulty in coping with the physical aspects of the job. He was slowed down, both by his arm injury and, I believe, by the fact that he has an artificial leg.
7.He also seemed to be unable to handle the negotiation side of the job. When negotiating with other car yards, you have to be very patient and tactful and use a fair amount of intuition and interpersonal skills to achieve a result.
8.Brian didn’t seem to have any of these qualities and, from my observation and from reports I received from people, he was very short, abrupt and impatient. I think this was simply due to the way Brian is.
9.From my observation and from my knowledge of Brian as a person, I believe he made a genuine attempt to make a success of the work placement but, in the end, it was very apparent to me that he simply couldn’t do the work and I suggested that he try and obtain employment in a job that wasn’t so physically demanding and which didn’t require him to negotiate.
10.I recall meeting Brian’s rehab provider at the yard and discussing Brian’s work placement – from my recollection, I told the rehab provider the same things as I have set out above.” (Exhibit A7)
The evidence of Darrin Brandis
55. Mr Brandis said that he is a registered psychologist and that he has worked in the rehabilitation industry for about 12 years, the last 4 years of which he has worked for PeopleSense, a vocational rehabilitation provider.
56. Mr Brandis said that the applicant was referred to him in December 2005 and that he first met with him on 13 December 2005 for the purpose of initial assessment, and that he subsequently provided a report, dated 22 December 2005, to the respondent (T10 – see paragraph 24 above). He confirmed that he subsequently provided various progress reports to the respondent in the period from February 2006 to September 2006.
57. Mr Brandis said that, having discussed several work options with the applicant, including postal officer and courier driver, they decided to pursue that of vehicle pilot operator. He confirmed that he had communicated orally and in writing with the respondent and its insurer (Allianz Australia) regarding that proposal, and that in those communications he had referred to the requirement to have an appropriate vehicle in order to work as an accredited pilot. He confirmed that those communications included progress reports which he had provided to the respondent (see paragraphs 26-29 above), and an e-mail message which he had sent to Mr M Cavallaro of Allianz Australia on 22 May 2006 as follows:
“Michael, thank you for your fax dated Monday, 15 May 2006. It confirms that the approval of Mr Davis’ training as a pilot on the basis of compensation for total incapacity would only continue for a period of four weeks. At the end of this period any incapacity payments would be made on the basis of the worker having the capacity to earn.
I met with Ms Ann El-Ansary, Total Marine Services, on 3 April 2006. At that time employment options were discussed. The option of pilot driver was raised and Mr Davis was keen to pursue this area of employment. I advised Ms El-Ansary at this meeting that it would appear that employment opportunities as a pilot operator are very good. I advised Ms El-Ansary that pilot operators are required to have a four-wheel drive vehicle, with appropriate light signage, in order to register with agencies to obtain employment. Ms El-Ansary agreed that further research should be done in this area to clarify the above and determine the appropriateness for Mr Davis.
In my progress report of 19 April 2006 I provided a comprehensive outline of the training courses and other requirements to becoming an accredited pilot/authorised person. Please note that on page 2 of my report I state: ‘… another requirement to becoming an accredited pilot is an appropriate vehicle (generally a four-wheel drive vehicle) which can be slept in. This vehicle must have appropriate signage and lights fixed prior to commencing employment.’
Further to this, in my correspondence (again to Ms El-Ansary) on 3 May 2006, in the second paragraph, I again indicate that once a person obtains the appropriate training and approved ticket, has a vehicle and insurances are in place, employment could be commenced immediately.
It would appear from your fax of 15 May 2006 that the requirement for Mr Davis to have an appropriate vehicle in order to obtain employment as a pilot driver has been neglected.
From our later market research it is evident that in order to be a pilot operator one needs a four-wheel drive vehicle (approximate cost $30,000 - $40,000) which needs to be set up with lights and appropriate signage. This roughly equates to a further $5,000-$6,000 in set-up costs.
Michael, my original discussion with Ms El-Ansary in April was that this employment option could be provided to Mr Davis as part of an agreed settlement opportunity. This was on the basis that should Mr Davis obtain the training, have the appropriate vehicle which is set up according to the necessary standards, his opportunities for employment are excellent. Further to this, he has an opportunity to earn a reasonable income (in the vicinity of $50,000 plus) and it is an option which Mr Davis has expressed an interest in pursuing.
In light of the above, I seek clarification on the matters outlined prior to arranging for Mr Davis to undertake pilot driver training with Transport Forum WA.” (T18)
58. Mr Brandis confirmed that, prior to the applicant’s undertaking the accredited pilot training course (for which approval had been given by the respondent), he had contacted pilot companies and, having made inquiries, it was clear to him that a person cannot work as an authorised pilot unless that person has an appropriate vehicle.
59. Mr Brandis was asked whether he was aware of any other appropriate work options for the applicant. He said that one of the options previously discussed with the applicant was road traffic management and he believed that that was a suitable option for the applicant. He added that, on the basis of the applicant’s previous experience of about 15 years in the motor vehicle industry, car sales would also be an appropriate vocational option for him. He acknowledged, however, that he had not asked the applicant why he left the motor vehicle industry, and that he did not know why he left that industry.
60. In response to questions from the Tribunal about the accredited pilot work option, Mr Brandis gave the following evidence:
“… the question of the necessity to have a suitable vehicle was mentioned before. Did you factor that into the suitability of that kind of work for him? Were you aware that he did not have such a vehicle and, from what we’ve been told anyway, was not in a financial position to buy one?---Yes. That was factored into the equation.
Well, having factored that in, presumably you still thought it was worthwhile pursuing that objective even without the essential vehicle?---Because I had met with Total Marine Services and discussed that with Ann El-Ansary.
And what was the outcome of that discussion?---Well, they were happy with that - that direction.
Was the specific issue of the vehicle discussed and if so, what was said about that?
---That it was discussed and the idea was that that would be put as part of a settlement offering to Mr Davis.” (Transcript, p 121)
Analysis and Findings
Is the respondent liable, pursuant to s 39 of the Act, to pay compensation to the applicant for his right elbow injury?
61.
The Tribunal is satisfied, on the basis of the whole of the medical evidence before it, and finds, that the applicant’s right elbow injury, namely, right lateral epicondylitis, has resulted in “permanent impairment”, within the meaning of
s 39 of the Act.
62. The more problematic matter is the degree of permanent impairment resulting from the applicant’s right elbow injury. The applicant contends that the degree of permanent impairment is 10% under table 9.4 in the approved Guide, whereas the respondent contends that the degree of permanent impairment is less than 10% under table 9.1 or table 9.4 in the approved Guide, and that, therefore, in accordance with s 39(7) of the Act, compensation is not payable to the applicant under that section.
63. In circumstances where both table 9.1 and table 9.4 in the approved Guide are applicable, and the application of one of those tables would result in a higher degree of permanent impairment than the application of the other table, the table whose application would result in a determination of a higher degree of permanent impairment (thereby producing a result more favourable to the employee) must be applied: Whittaker v Comcare (1998) 86 FCR 532.
64.
It is common ground that, under table 9.1 in the approved Guide, the degree of permanent impairment resulting from the applicant’s right elbow injury is not more than 5%. The Tribunal, on the basis of the evidence before it, agrees with that proposition. The question is, therefore, whether the application of table 9.4 would result in a determination of a higher degree of permanent impairment – namely,
10% – in which event compensation would be payable to the applicant under ss 39 and 41 of the Act.
65. In accordance with table 9.4 in the approved Guide, the degree of permanent impairment of an employee is 10% where the employee:
“Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity.”
In the present case it is common ground, and the Tribunal finds on the basis of the evidence before it, that the applicant can use his right upper limb for “self care” and “grasping and holding”, within the meaning of table 9.4. The parties are in dispute, however, as to whether the applicant “has difficulty with digital dexterity”, within the meaning of table 9.4.
66. In Comcare v Fiedler (2001) 115 FCR 328 the Federal Court of Australia (Full Court) said (at 334):
“The word ‘difficulty’, like most ordinary English words, has no fixed meaning but is, as the Tribunal observes, a word capable of covering a broad spectrum of restricton and disability in the context of a phrase such as ‘difficulty with digital dexterity’ in Table 9.4. According to the Macquarie Dictionary (3rd ed, 1997), ‘difficulty’ connotes a range of conditions from being ‘not easy’, to being ‘hard to do’, to ‘requiring much effort’. According to the Oxford English Dictionary (2nd ed, 1989), it connotes notions of not being easy, of requiring effort or labour, of being troublesome or hard to do, perform or carry out. An injury that leaves a person in the position of requiring much effort to perform tasks calling for digital dexterity involves a markedly more serious impairment than does an injury which makes it not easy or troublesome for a person to perform such tasks.
Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by Whittaker at 544-545, justify a 10 per cent impairment assessment under par 1 of Table 9.4.”
67. Likewise, the phrase “digital dexterity” comprises ordinary English words. The noun “dexterity” is defined in the Macquarie Dictionary (4th ed) to mean (appropriately):
“1. adroitness or skill in using the hands or body.”
In The New Shorter Oxford English Dictionary the appropriate definition of “dexterity” is:
“2. Manual or manipulative skill or adroitness;”.
The adjective “digital” is defined in the Macquarie Dictionary (4th ed) to mean (appropriately):
“1. of or relating to a digit.”
The noun “digit” is there defined to mean (appropriately):
“1. a finger…”.
Having regard to those definitions, the appropriate meaning of the phrase “digital dexterity” is adroitness or skill in using the hand and fingers.
68. The meaning of the phrase “digital dexterity”, for the purposes of table 9.4, has previously been considered by the Tribunal. In Re Toohey and Australian Postal Corporation (AAT Decision No 13360, 9 October 1998) the Tribunal said (at para 52):
“In the Tribunal’s view, ‘digital dexterity’ involves ease of use of the fingers and hand without undue restriction.”
Similarly, in Re Fiedler and Comcare [2001] AATA 518 the Tribunal said (at para 56):
“It is the Tribunal’s view that, in context, digital dexterity encompasses more than ‘handling things neatly’. It includes, in our opinion, the capacity to handle things skilfully and efficiently or, as suggested in Toohey and Australian Postal Commission (sic) …, ‘ease of use of the fingers and hand without undue restriction’.”
The Tribunal’s interpretation of the phrase “digital dexterity” in table 9.4 in Re Fiedler was approved by the Federal Court in Comcare v Fiedler (above), at 336.
69. The Tribunal accepts that, for the purpose of determining whether the applicant “has difficulty with digital dexterity” in respect of the use of his right upper limb, within the meaning of table 9.4, regard must be had to the degree of pain which is experienced by him in performing tasks or activities requiring or involving “digital dexterity”: Comcare v Moon (2003) 75 ALD 160 at 171.
Does the applicant have “difficulty with digital dexterity”?
The medical evidence
70. The medical evidence before the Tribunal is in conflict in relation to this matter. Dr Clarke has opined that the degree of permanent impairment of the applicant resulting from his right elbow injury is 10% under table 9.4 in the approved Guide on the basis that he has difficulty with digital dexterity as indicated by the following symptoms:
· difficulty with gripping a golf club;
· difficulty with “fine motor digital control” in gripping a dart;
· substantially reduced grip strength in the right hand.
Dr Hardcastle, on the other hand, has opined that the applicant’s dexterity in using his hand has not been affected by his right elbow injury, and that he does not satisfy the description for a 10% degree of impairment in table 9.4 in the approved Guide.
71. The Tribunal notes that neither Dr Clarke nor Dr Hardcastle, in the course of examining the applicant, apparently conducted any objective tests for the specific purpose of assessing the applicant’s digital dexterity in respect of his right hand. The only objective testing of relevance to that purpose which they each conducted was in relation to the applicant’s grip strength, which was demonstrated to be substantially reduced – but, nevertheless, “still of reasonable strength” according to Dr Hardcastle – in respect of his right hand. Other than that testing, Dr Clarke and Dr Hardcastle apparently relied on the history provided to each of them by the applicant for the purpose of formulating an opinion regarding the applicant’s digital dexterity in respect of his right hand and the degree of his impairment under table 9.4 in the approved Guide.
72. It appears from Dr Clarke’s report of 24 April 2006 (set out in paragraph 45 above) that, in forming his opinion that the degree of the applicant’s impairment is 10% under table 9.4 in the approved Guide, he relied substantially on the applicant’s history, as recorded by him, that the applicant was now unable to play golf “because of difficulty with grip”, and unable to play darts “because of difficulty with both prolonged grip and fine motor digital control due to pain in his forearm” (although the Tribunal notes that in his oral evidence he acknowledged that he had not recorded in his clinical notes any reason for the applicant’s stated inability to play darts – see paragraph 47 above). That history, as apparently recorded by Dr Clarke, is, however, at odds with the applicant’s oral evidence in which he attributed his inability to play golf and darts to the pain in his right elbow and upper arm caused by the actions of, respectively, swinging a golf club and throwing darts (see paragraphs 42-43 above).
73. The Tribunal accepts the applicant’s abovementioned evidence regarding the pain-provoking actions involved in his playing golf and darts, and it does not regard the abovementioned history regarding the reasons for the applicant’s inability to play golf and darts, as recorded in Dr Clarke’s report of 24 April 2006, as valid. That consideration in turn causes the Tribunal to have very substantial reservations about the validity of Dr Clarke’s opinion that the degree of the applicant’s impairment is 10% under table 9.4 in the approved Guide.
The applicant’s evidence
74. In his written statement of 28 November 2006 (set out in paragraph 34 above) the applicant referred to various activities that his right elbow injury either prevents him from undertaking or substantially restricts him in undertaking, namely, playing golf, playing darts, gardening (lifting, digging and shovelling), recreational fishing, ten-pin bowling, carrying shopping, painting and general maintenance work. He described the reason for his being prevented from undertaking the abovementioned activities as:
“a sharp pain into my elbow with an ache going up to my shoulder.”
75. Similarly, in his oral evidence the applicant referred to pain in his elbow and shoulders and added that if he does something which is “too hard”, such as trying to turn on a tap which is turned off “very tight” or trying to screw something “too hard” with a screwdriver or lifting something “too heavy”, that would produce pain in his elbow, shoulder and forearm. As regards playing golf and darts, he said that he had tried to swing a golf club a couple of times but found that it was “painful”, and that he cannot play darts anymore because it causes him a “great deal of pain” in his arm. He said that it was the action of swinging golf clubs, and the action of throwing darts, which caused him to experience pain in his right elbow and upper arm.
76. In the Tribunal’s opinion, the applicant’s evidence regarding the effects of his right elbow injury on his undertaking the abovementioned manual activities does not indicate that he has “difficulty with digital dexterity”, in the sense referred to in paragraphs 67-68 above, when performing any of those activities. Rather, his evidence indicates no more than that he suffers elbow pain when he undertakes each of those activities, and also shoulder and forearm pain when he undertakes the “heavier” kinds of those activities.
77. In the Tribunal’s opinion, furthermore, none of the abovementioned activities, which the applicant said he is prevented from, or restricted in, undertaking, is an activity which requires “digital dexterity” in the sense earlier described. As regards the activity of playing darts, the Tribunal regards that activity as requiring the “grasping and holding” of the darts – which, it is common ground, the applicant can do without difficulty – but not as requiring “digital dexterity”. The applicant’s evidence, moreover, was not that his inability to play darts is due to an inability or difficulty in holding the darts, but rather that his inability to do so is due to elbow and shoulder pain which is caused by the action of throwing the darts.
78. The applicant also said in evidence that he is able to button, and unbutton, his shirts – an activity which, in the Tribunal’s opinion, does require digital dexterity – with his right hand.
Finding
79. The Tribunal accepts the applicant’s evidence regarding the impact of his right elbow injury, and the pain resulting therefrom, on his ability to undertake activities involving the use of his right upper limb. On the basis of that evidence, however, the Tribunal is not satisfied that the applicant, as a result of his right elbow injury, finds it “troublesome or not easy” (Comcare v Fiedler, at 334) to undertake activities requiring “digital dexterity” (as described in paragraphs 67-68 above).
80. As regards the medical evidence, the Tribunal does not accept the opinion of Dr Clarke, that the degree of the applicant’s impairment is 10% under table 9.4 in the approved Guide on the basis that he has “difficulty with digital dexterity”, because, as indicated in paragraphs 72-73 above, Dr Clarke’s opinion was apparently based on an understanding of the applicant’s history which the Tribunal does not regard as valid. The Tribunal agrees with the opinion of Dr Hardcastle, as expressed in his abovementioned reports, to the effect that the applicant does not have difficulty with digital dexterity by reason of his right elbow injury, and that he therefore does not satisfy the description for a 10% degree of impairment in table 9.4, because that opinion is consistent with the evidence given by the applicant to the Tribunal.
81. Accordingly, the Tribunal finds that the applicant does not have “difficulty with digital dexterity” within the meaning of table 9.4 in the approved Guide, and that, therefore, under table 9.4, the degree of permanent impairment of the applicant resulting from his right elbow injury is less than 10%. It follows from that finding, and from the agreed fact that, under table 9.1, the degree of the applicant’s permanent impairment is no more than 5% (see paragraph 64 above), that, pursuant to s 39(7) of the Act, compensation is not payable to the applicant under s 39 or s 41 of the Act in respect of his right elbow injury.
Has the applicant been “able to earn” an amount per week in “suitable employment”, for the purposes of s 31 of the Act, from 27 September 2006?
82. The applicant has been incapacitated for work, as defined in s 8 of the Act, as a result of his right elbow injury and, accordingly, compensation by way of weekly incapacity payments has been paid to him by the respondent, pursuant to s 31 of the Act.
83. Up until 26 September 2006 compensation was paid to the applicant, pursuant to s 31 of the Act, on the basis that he was not “able to earn” an amount per week “in suitable employment”, within the meaning of that section. From 27 September 2006, however, compensation has been paid to the applicant, pursuant to s 31 of the Act, on the basis that he is able to earn $1,000.00 per week as an accredited pilot.
What is “suitable employment” for the applicant?
84. Having regard to the evidence before the Tribunal, including in particular the various reports of WorkFocus and PeopleSense (referred to in paragraphs 14-29 above) and the applicant’s résumé (T3, pp 21-22), the Tribunal is satisfied, and finds, that “suitable employment” (as defined in s 3 of the Act) for the applicant includes the following occupations:
· accredited pilot;
· café/general store manager/assistant;
· delicatessen/lunch bar assistant;
· kitchenhand.
85. As regards the occupations of motor vehicle wholesale buyer/valuer and motor vehicle salesperson, although the applicant has had extensive experience in each of those occupations in the past, the Tribunal is satisfied, on the basis of the applicant’s evidence and the evidence of Mr Romeo, that neither of those occupations has been since 27 September 2006, or is presently, “suitable employment” for the applicant. The Tribunal accepts the applicant’s evidence that he found in the course of his work trial placement with Boss Motors in 2005 that, having not worked for any length of time in the automotive industry since 2000, his lack of recent experience detracted from his confidence and competence and that this in turn caused him to experience stress, especially when negotiating with other dealers. This was confirmed by the evidence of Mr Romeo, the former Manager of Boss Motors, that the applicant, in his work trial placement as a wholesale buyer/valuer, was unable to perform satisfactorily, especially in relation to “the negotiation side of the job”. Accordingly, the Tribunal finds that neither the occupation of motor vehicle wholesale buyer/valuer nor the occupation of motor vehicle salesperson has been since 27 September 2006, or is presently, “suitable employment” for the applicant, for the purposes of s 31 of the Act.
Has the applicant been “able to earn” an amount per week in any of the abovementioned occupations constituting “suitable employment” from 27 September 2006?
86. As regards the matters to which, by s 32 of the Act, regard must be had in determining this issue, it is common ground that none of the matters referred to in paras (a)-(d) of that section is applicable in this case. In relation to the matter referred to in para (e), the Tribunal is satisfied, on the basis of the applicant’s evidence, that he has, since being incapacitated for work, sought suitable employment (albeit not very actively or effectively) and that, accordingly, that paragraph is not applicable in this case. It necessarily follows, therefore, that para (f) is also not applicable. Pursuant to para (g) of s 32, however, the Tribunal is required to have regard to “any other matter [it] considers relevant”.
87. For the purpose of determining in which of the abovementioned occupations (if any) the applicant has been, from 27 September 2006, “able to earn” an amount per week, within the meaning of s 31 of the Act, regard must be had not only to the applicant’s physical and mental capacity to undertake each of those occupations, but also to the actual availability to the applicant of employment in each of those occupations: Telstra Corporation Ltd v Warner (1994) 20 AAR 259 at 264; Martin v Australian Postal Corporation (2000) 32 AAR 199 at 204-205. Likewise, the state of the labour market in the relevant period will also be a relevant consideration: Esam v ASP Ship Management (1998) 87 FCR 82 at 86.
88. There is no dispute, and, on the basis of the evidence before it, the Tribunal finds, that the applicant has the physical capacity (his mental capacity not being in issue) to undertake, on a full-time basis, each of the abovementioned occupations, and that he has had that capacity from 27 September 2006.
89. As regards the actual availability (having regard to the state of the labour market) to the applicant of each of the abovementioned occupations, there is evidence before the Tribunal only in relation to the occupation of accredited pilot. The reports of Mr D Brandis of PeopleSense, dated 19 April 2006 and 3 May 2006, stated that “extensive labour market research”, involving consultation with specified transport organisations, had indicated that there are “excellent job opportunities for accredited pilots”. The applicant, following approval from the respondent, successfully completed the “Accredited Pilot/Authorised Person” training course provided by Transport Forum WA Inc and he was awarded a Statement of Attainment dated 31 August 2006 and was licensed to operate as a WA “Accredited Pilot/Authorised Person”.
90. There is some evidence before the Tribunal regarding the income which may be earned by working as an accredited pilot. In his report of 3 May 2006 Mr Brandis stated that his labour market research had indicated that accredited pilots are employed as subcontractors and are paid approximately $1.00 per kilometre travelled, and that this “equates to approximately $1,000.00 per week or approximately $50,000 per annum”. The Tribunal understands and accepts that the abovementioned amounts are gross amounts and do not take account of operating costs such as fuel expenses, vehicle maintenance costs and insurance premiums.
91. There is, however, another matter which the Tribunal considers to be relevant for the purpose of determining the amount per week that the applicant is able to earn as an accredited pilot, and to which the Tribunal, in accordance with s 32(g) of the Act, must have regard. That matter is the undisputed necessity to have access to an appropriate pilot vehicle which is equipped with the necessary signage, lights, radios and safety gear (see T15, pp 54-56).
92.
In an e-mail message sent by Mr Brandis to the respondent’s insurer (and copied to the respondent and its solicitors) on 22 May 2006 (T18), it was stated that it was “evident” from his market research that, in order to be a pilot operator, a
4-wheel drive vehicle (approximate cost $30,000-$40,000) equipped with the necessary lights and signage (set-up costs $5,000-$6,000) is required. The Tribunal notes that Mr Brandis was not questioned by the respondent in relation to that matter in cross-examination.
93. On the basis of the applicant’s evidence (which in this respect was not contradicted by the respondent), the Tribunal finds that the applicant:
· does not possess, or otherwise have access to, a vehicle which is, or may be modified so as to be, appropriate to be used as a pilot vehicle; and
· has not had since 27 September 2006, and does not presently have, the financial means to acquire a vehicle which is appropriate to be used as a pilot vehicle.
94. Having regard to the abovementioned considerations, namely, that:
· the applicant cannot operate as an accredited pilot without access to an appropriate pilot vehicle;
· the applicant does not possess, or otherwise have access to, an appropriate pilot vehicle; and
· the applicant has not had since 27 September 2006, and does not presently have, the financial means to acquire an appropriate pilot vehicle;
the Tribunal is satisfied that, notwithstanding that the occupation of accredited pilot is “suitable employment” for the applicant, by reason of the abovementioned considerations the applicant has since 27 September 2006 not been able, and is presently not able, to earn any amount per week in that occupation, for the purposes of s 31 of the Act.
95. As regards each of the other abovementioned occupations which, the Tribunal has found, constitute “suitable employment” for the applicant, namely:
· café/general store manager/assistant;
· delicatessen/lunch bar assistant;
· kitchenhand;
there is no evidence before the Tribunal regarding either the actual availability of such employment to the applicant or the amount per week that the applicant would be able to earn in such employment if it were available to him.
Finding
96. Having regard to all relevant matters in this case, the Tribunal, on the basis of the evidence before it:
· finds that from 27 September 2006 the applicant has not been, and is presently not, “able to earn” any amount per week in employment as an accredited pilot (being “suitable employment”) for the purposes of s 31 of the Act;
· is unable to find that from 27 September 2006 the applicant has been, and is presently, “able to earn” any amount per week in other “suitable employment” for the purposes of s 31 of the Act.
97.
The Tribunal concludes, therefore, that, from 27 September 2006, compensation has been, and is presently, payable to the applicant, pursuant to
s 31(5)(a) of the Act, on the basis that the amount per week that the applicant was, and is, “able to earn… in suitable employment” is nil.
Decision
Application No W 200500375
98. The Tribunal affirms the deemed reviewable decision of the respondent.
Application No W 200600387
99. The Tribunal sets aside the deemed reviewable decision of the respondent and, in substitution therefor, decides that as at, and from, 27 September 2006 the respondent has been liable, and is presently liable, pursuant to s 31(5)(a) of the Act, to pay compensation to the applicant in an amount per week determined on the basis that the amount per week that the applicant is “able to earn… in suitable employment” is nil.
100. Either party may make an application in relation to the costs of the proceedings in Application No W 200600387 within 14 days of the date of this decision. If no such application is made, the Tribunal orders, pursuant to s 92 of the Act, that the respondent pay the applicant’s costs of the proceedings in Application No W 200600387.
I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member
Signed: .................(Miss Y Maker)............................
AssociateDate of Hearing 13 February 2007
Date of Last Written Submissions 27 April 2007
Date of Decision 10 May 2007
Counsel for the Applicant Mr D Leask
Solicitor for the Applicant Leask & Co
Counsel for the Respondent Mr J Wallace
Solicitor for the Respondent Sparke Helmore
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