Dorrans and CSR Shipping Group - [2002] AATA 648

DECISION AND REASONS FOR DECISION [2002] AATA 648

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/75,538,562

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GARTH DORRANS
  Applicant
           And    CSR SHIPPING GROUP
  Respondent

DECISION

Tribunal Dr EK Christie, Member

Date2 August 2002
PlaceBrisbane

Decision The Tribunal decides: (a) to affirm the reviewable decisions dated 17 January 2001 and 16 May 2001; and (b) to affirm the determination dated 24 January 2000. This means Mr Dorrans' applications are unsuccessful.

…..............(Sgnd)..................
EK Christie
MEMBER
CATCHWORDS
COMPENSATION – seafarers – incapacity for work – whether applicant suffered permanent incapacity because of injury to Achilles tendon in course of employment – credibility of witnesses

Seafarers' Rehabilitation and Compensation Act 1992 ss 39, 41
Administrative Appeals Tribunal Act 1975 s 3(3)

Briginshaw v Briginshaw (1938) 60 CLR 336
EMI (Australia) Ltd v Bes [1970] 2 NSWR 238

REASONS FOR DECISION

2 August 2002 Dr EK Christie, Member

This is an application by Garth Dorrans for a review of the following decisions:

(a)Q2001/75 (17 January 2001): Determinations dated 27 October and 7 November 2000 were reconsidered. Compensation benefits associated with Mr Dorrans' Seafarers' Rehabilitation and Compensation Act 1992 (SRCA) claim forms dated 31 May 1999 and 1 November 2000 were declined.
The following reasons were given:
"5.Accordingly, medical investigations conducted by the company have established that as of 27 October 2000:
·     you no longer suffer from an injury arising out of your employment with us, within the meaning of that term in the SRCA associated with the incident you describe in your claim form dated 1 November 2000 or otherwise;
·     you are not incapacitated for work as a result of the incident you describe in your claim form dated 1 November 2000 or otherwise; and
·     you no longer require medical treatment or rehabilitation as a result of the injury you describe in your claim form dated 1 November 2000 or otherwise." (T4 Folio 10, Exhibit 1)

(b)Q2001/538 (16 May 2001): Liability for compensation under sections 39 and 41 of the Seafarers' Rehabilitation and Compensation Act 1992 was denied.
The following reasons were given:
"After consideration of all the evidence, including medical reports of Dr Saxby, Dr Martin and Dr Yates, Comcare Officer Yvonne Peers expressed the view that in light of the determination ceasing liability and the decision of the Administrative Appeals Tribunal in the matter of Denison – Smith & Comcare (6 July 2000), that it was open to CSR to affirm the denial of permanent impairment compensation on the basis that it had been determined that there was no longer any liability in respect of any ankle injury." (T92, Folio 162)
(c)Q2001/562: In addition, Mr Dorrans asserts that the respondent had not responded to a request for reconsideration of the determination dated 24 January 2000 in which:
"liability for payments of compensation under the Seafarers Rehabilitation and Compensation Act 1992 (SRCA) in connection with the left foot injury you describe in your claim form dated 31 May 1999 is declined." (T42, Folio 81, Exhibit 2)
A request for reconsideration had been lodged on behalf of Mr Dorrans by the Australian Institute of Marine and Power Engineers on 21 February 2000 (T5, Folio 11; Exhibit 1).

At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 [Q2001/75 (Exhibit 1); Q2001/538 (Exhibit 2); Q2001/562 (Exhibit 3)] and the following exhibits:
·Exhibit 4             Report of Dr B Martin dated 7 May 2002
·Exhibit 5             Dispensing Book, "Kowulka"
·Exhibit 6             Medical Log, "Ormiston"
·Exhibit A            Report of Dr T Saxby dated 24 April 2002
·Exhibit B            Surveillance Video – 14, 15 January 2000

Evidence on behalf of the applicant was given at the hearing by Dr T Saxby and Mr Dorrans himself. Dr B Martin gave evidence on behalf of the respondent.
Evidence of Garth Dorrans, Applicant
Mr Dorrans was employed by CSR Shipping for about three to four years as a marine engineer.
He described his work on board CSR ships with some focus on access to the engine room via sets of steps, varying in number and steepness. He also described further difficulty climbing steps as being dependent on the weather and the rolling characteristics of different types of ships. He said that he would have to traverse steps to get to the engine room eight to ten times each half day.
Prior to the injury incurred following the accident at sea on 23 May 1999 he had no problem or injury to his left ankle.
Mr Dorrans said that the injury to his left ankle occurred on 23 May 1999 during extremely bad weather. He said that an alarm, at 3.40 am, had alerted him to an engine room problem. In traversing steps to the engine room, he lost balance as the ship rolled, resulting in him falling down the first set of steps. As a result of the fall, he could not carry out duties for the rest of the day.
CSR Shipping provided him with some rehabilitation for the injury. In late 1999, he worked at the CSR Concrete Testing Station, at Yatala, undertaking clerical type work.
Following a viewing of the surveillance video (Exhibit B), Mr Dorrans gave the following responses during his evidence-in-chief:

(a)He acknowledged that when he had entered Dr Yates' surgery on 14 January 2000 he had walked with a noticeable limp. His explanation for an absence of noticeable limp, when he subsequently left the surgery, was "that he did not know where he was" and "just wandered out".
(b)He confirmed that a rolled up object he was carrying to a storage room in a church hall, as shown on the surveillance video, was crepe rubber and that it was "very light".
(c)He acknowledged that he also carried plastic chairs and tables to the church hall, as shown on the surveillance video, but that they were "not heavy" and had not caused him too much difficulty in carrying them.

Mr Dorrans said that, following the video being taken, he was contacted by CSR Shipping and made aware of the video contents. As a result, he was told to return to sea on the MV "Kowulka". He sailed for Gladstone four days later. He said that he had difficulties carrying out the duties assigned to him on the MV "Kowulka" because of his ankle injury.
Mr Dorrans said that he next sailed on the MV "Ormiston" and aggravated his foot injury in a fall during a severe storm at sea on 20 July 2000. A third incident at sea occurred on 19 October 2000.
Mr Dorrans referred to a number of medical specialists that he had consulted over time, with respect to the treatment of his injury:

(a)He stated that he had not accepted Dr Okraglik's suggestion to use cortisone and instead opted for rehabilitation treatment provided by CSR.
(b)He said that he had accepted Dr Blackney's advice to wear an orthopaedic boot. He found that this boot had allowed the swelling to reduce and the pain to diminish. Acting on the advice of his physiotherapist, he ceased wearing this boot around October 2001 because of concern that his ankle might atrophy.

Mr Dorrans disagreed with the statement in Dr Martin's report that he had exaggerated his condition (T70, Folio 123) and said that his condition was "very painful". In addition, he could not recall saying to Dr Martin "that he simply does what he is told to do". In addition, he disagreed with the statement by Dr Martin that "he was not motivated towards recovery". Mr Dorrans said that he wished to return to sea – provided that he had recovered, so there would be no further problems at sea.
Mr Dorrans was then referred to a statement in Dr Martin's report that there was "an old scar on the skin overlying the left achilles tendon, 3 cm proximal to the point of insertion of the tendon" (T64, Folio 112). Mr Dorrans said that there had been no past surgery on his left ankle and that he could not recall the source of the scar.
Mr Dorrans said that the current condition of his left ankle was that he had pain in the area of the swelling following a soft tissue burning sensation – especially when walking a distance. Mr Dorrans stated that he could not return to his previous employment on ships because of the burning sensation and pain arising when he had to weight-bear on steps.
During cross-examination, Mr Dorrans agreed that he had not been employed since ceasing work with CSR Shipping in February 2001. However, he had actively looked for work since that time through employment placement firms and newspaper advertisements. He conceded that he had never been interviewed for any of the jobs for which he had applied.
Mr Dorrans stated that he only applied for work that he could undertake, on-shore, as a marine engineer. That is, where he would not be placed in situations involving climbing ladders and stairs or was required to push and crawl through confined spaces or have to climb up or over to manoeuvre large machinery or equipment.
During further cross-examination, Mr Dorrans gave the following responses:

(a)A description of the pain over the past three years as "very painful and a burning sensation. After I walk 150 – 200 metres I have to sit down. It's very painful".
(b)A concession that for "most of the time" he took no medication for pain in his left ankle and only took "Panadene Forte if it was really sore and the burning sensation really bad".
(c)Acknowledgment that in 1999 through 2000, 2001 and for 2002 he did not have any medication prescribed for pain relief for his left ankle; and
(d)On being referred to the medical log of the "Ormiston" which indicated that Mr Dorrans had only been given "Naprogesic" tablets on two occasions (18, 21 October 2000), he acknowledged that it was "quite possible" that those were the only two occasions that he had been given "Naprogesic" by any ship's officers whilst working with CSR Shipping since 1999.

Mr Dorrans' final responses to this line of questioning, during cross examination, were:

(a)Notwithstanding the nature of his left ankle injury, over the last three years the pain had not been such that he needed to constantly refer the problem to doctors or even a need for him to take prescribed medication for pain relief; and
(b)That the pain was still there even if he took medication as it did not result in the pain completely ceasing.

Mr Dorrans was then taken to Dr Webb's report (T15, Folio 38) and acknowledged that his left achilles tendon had not "snapped" from the fall in May 1999; also, that Dr Webb had told him that he had a partial tear of the tendon.
Mr Dorrans further acknowledged that he had physiotherapy for a period of about ten to twelve months after he ceased employment with CSR Shipping but, beyond that period, he could not afford to continue physiotherapy treatment. Mr Dorrans stated that since the physiotherapy ceased his ankle condition had got "slightly worse", which led to the burning sensation on the left side of his foot.
Mr Dorrans gave the following responses in cross-examination to statements contained in the reports of orthopaedic specialists:

(a)Dr B Martin (3 October 2000 - T64, Folio 113): Mr Dorrans disagreed that he was fit for normal duties at sea in October 2000, stating that he still had pain in his foot and pain walking up stairs. He also disagreed with Dr Martin's statement that he was "perpetuating the claim for disability" because his injury had improved to some extent but that it had not gone away completely.
(b)Dr B Martin (15 February 2001 – T86, Folio 152): Mr Dorrans disagreed with Dr Martin's statement that there was "no loss of movement" saying that he could not stretch his foot fully. Mr Dorrans further disagreed with Dr Martin's statement that "he will not actively dorsiflex his ankle" stating that Dr Martin did not ask him to do so and Dr Martin had "moved my foot where he wanted it"; and

(c)Dr T Saxby (24 April 2002 – Exhibit A): Mr Dorran disagreed with Dr Saxby's statement that [Dr Saxby] would have expected Mr Dorran's condition to have settled; Mr Dorran said that "this was not the case".

Finally, in cross-examination, Mr Dorrans agreed that he had not had any problems with his achilles tendon before the accident at sea in late May 1999. Mr Dorrans was then referred to the clinical notes for 6 May 1999 of Dr Geismann, his treating GP, where Dr Geismann referred to an "inflamed left Achilles tendon". Mr Dorrans conceded that he had turned his left ankle whilst bush walking, alone, at Binna Burra and had consulted Dr Geismann because his left ankle was a little swollen.
In response to a Tribunal question, Mr Dorrans stated that the burning sensation and pain associated with his left ankle did not occur intermittently, but occurred constantly.
Evidence of Dr T Saxby, Orthopaedic Surgeon
Dr Saxby referred to Mr Dorrans' condition as one in which he probably had a degenerative tendon and had an acute traumatic episode leading to a partial tear of the Achilles tendon. He said that in most cases, after a period of time, the problem resolves but there were some instances where this did not occur.
Dr Saxby described Mr Dorrans' condition as being "quite classic" in having a fluctuating course; there would be periods of time where it was better and other periods where it would not be so comfortable for him.
Dr Saxby acknowledged that because there were not a lot of clinical findings, then he relied on the credibility of the symptoms described to him by Mr Dorrans. Dr Saxby stated:
"As I said, I've got to take him at face value and report it as he tells me, rather than me saying it's true."

Whilst acknowledging further investigative tests could be carried out, Dr Saxby stated that such tests would only show the disease. However, he would still rely on what Mr Dorrans told him as to how the condition affected him.

In terms of his assessment of Mr Dorrans' impairment, Dr Saxby said that was based on the history given to him by Mr Dorrans.
Dr Saxby gave the following responses in cross-examination:

(a)that Mr Dorrans' left and right achilles tendons, and the associated areas around them, were "effectively identical" except for a nodule on the left tendon;
(b)that if Mr Dorrans had walked in the way he had asserted over approximately the past 18 months (that is, to favour his left achilles tendon in a way that had him walking on his heel, avoiding weight on the ball of his left foot) there would be a significant degree of wasting in the left calf muscle if he were not using the muscle. Later, in re-examination, he said that the calf muscle was the muscle "that pushes you, gives you toe-off. You would need to be doing normal heel/toe walking to use it";
(c)that in his most recent examination of Mr Dorrans (Exhibit A, 24 April 2002), there was no evidence of wasting in the left calf muscle.

Evidence of Dr B Martin, Orthopaedic Surgeon

With respect to his assessment of Mr Dorrans' impairment, Dr Martin stated that he did not believe that Mr Dorrans was genuine in describing the pain he was feeling. He stated that, regardless of whether Mr Dorrans' performance was genuine or not, his clinical examinations and assessment of the extent of disability did not indicate that there was any loss of, or restricted, movement in Mr Dorrans' left ankle.
Dr Martin stated that he was surprised that Mr Dorrans had no recollection of a scar [a triangular scar about 1-2 cm long] on his left ankle. Dr Martin said that he suspected a direct relationship between the scar and Mr Dorrans' left achilles tendon condition. Dr Martin stated "it's certainly significant in that the tendon lies one or two millimetres under the skin so a scar of that nature, I think, is very likely or more likely than not … to be associated with some local injury to the tendon".
In response to a Tribunal question concerning the likelihood for Mr Dorrans' left achilles tendon disorder causing problems with walking up grades and steps, long distances as well as pain, Dr Martin responded by stating:

(a)That his objective clinical examination of Mr Dorrans was entirely normal. That Mr Dorrans' responses during light palpation of the achilles tendon region were "somewhat theatrical".
(b)The claim of Mr Dorrans that he could only walk flat-footed, because he could not put any weight on the ball of his foot because of severe pain in his achilles tendon, was not supported by any evidence of calf muscle wasting. For Mr Dorran to walk the way he claimed, there would have had to be significant calf muscle wasting.
(c)There was no organic basis for corroborating Mr Dorrans' claims for his high level of pain and disability. Consequently, he had raised the issue of "abnormal illness behaviour" in Mr Dorrans' case as there was no correlation between any identifiable organic pathology and Mr Dorrans' symptoms – a large component of which was pain. The presence of this behaviour, subconsciously, created difficulties for assessing Mr Dorrans' condition – particularly where reliance was placed on Mr Dorrans' responses.

In respect to re-examination on these issues by Mr Hamlyn-Harris, Dr Martin stated:

(a)Mr Dorrans did not have any calf wasting; that Mr Dorrans could not possibly be walking the way he claimed for eighteen months or more ("flat-footed"), being unable to put any weight through the ball of his foot at any time because of extreme pain, and not have calf muscle wasting;
(b)that a circumferential discrepancy of around three centimetres was indicative of calf muscle wasting; and
(c)an earlier examination of Mr Dorrans indicated a one centimetre difference but on the last consultation (7 May 2002) both calf muscles were exactly the same (44cm) and he had noted in his report that "Mr Dorrans has well developed calf muscles".
Statutory Framework

The relevant provisions under the Seafarers' Rehabilitation and Compensation Act 1992, with respect to the first two applications for review [Q2001/75 and Q2001/538] are sections 39 and 41.
"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.
…
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. …"
With respect to the third application for review [Q2001/562], subsection 3(3) of the Administrative Appeals Tribunal Act 1975 defines "decision" to include, inter alia, "making, suspending, revoking or refusing to make an order or determination".
Contentions and Submissions of the Parties
Mr Hamlyn-Harris submitted that Mr Dorrans was a credible witness. He had answered questions in a straightforward and honest way and his responses to questions "did not appear to be contrived in any way".
Mr Hamlyn-Harris, by reference to the early reports of Dr Yates and Dr Saxby, described Mr Dorrans' condition as "fluctuating" and the fluctuating nature of his condition was relevant to the issue of credit. He contended that inconsistency in the way Mr Dorrans presented himself for medical examination, at different times, might be related to the fluctuating nature of his condition.

With respect to the video evidence and the credit issue, it was Mr Hamlyn-Harris' contention that "the appearance [of Mr Dorrans] on the video is consistent with his own explanation that it was a light roll of foam for going underneath mats in the church hall". In addition, that the fields of views in the view did not give a clear and unobstructed view of Mr Dorrans' legs to evaluate the pattern or method of walking adopted.
Mr Hamlyn-Harris contended that the injury to Mr Dorrans' left achilles tendon had been incurred out of, or in the course of, his employment with the respondent; the condition was there and was observable. Moreover, that compensation was payable because Mr Dorrans' employment with the respondent had made a material contribution to his injury.
Mr Hamlyn-Harris submitted that the weight of the medical evidence indicated that the cause of Mr Dorrans' left achilles tendon injury was the incident on 23 May 1999. Accordingly, it was difficult to see how any conclusion could be made that the scar on his left ankle was somehow associated with Mr Dorrans' achilles tendon injury. It was his contention that a "much more reasonable explanation for the scar" was that it happened some time in the past and that Mr Dorrans could not recall how it had happened.
In terms of incapacity, Mr Hamlyn-Harris contended that because of Mr Dorrans' injury to his left achilles tendon, he could no longer engage in work as an employee at the same rank or level at which he was engaged immediately before the injury happened. It was clear on the evidence before the Tribunal that Mr Dorrans had made reasonable and appropriate efforts to find alternative employment.
Mr Hamlyn-Harris concluded with the submission that the injury to Mr Dorrans' left achilles tendon was a permanent incapacity and referred to the report of Dr Saxby (Exhibit B, 24 April 2002) where he stated:
"I believe the prognosis is poor for this gentleman. I do not believe that further medical treatment would alter his condition."
Mr Harrison submitted that Mr Dorrans had no continuing incapacity. The question of whether Mr Dorrans had an ongoing disability was directly related to credibility issues on the evidence before the Tribunal. For example, from the time Mr Dorrans' employment was terminated, he had not been able to walk on the ball of his foot. However, it was significant that there had been no significant calf muscle wasting in his left foot. Accordingly, it was Mr Harrison's contention that the lack of wasting was a negative, objective sign that "contraindicates an ability to believe Mr Dorrans on the issue of how he is forced to walk". Moreover, Dr Saxby's evidence indicated that both ankles were identical.
A further credit issue was the fact that Mr Dorrans had continued to suffer for three years from the symptoms and pain associated with his left achilles tendon condition but at no stage was there a need to resort to pain medication – prescription or otherwise.
It was Mr Harrison's contention that the nature of Mr Dorrans' injury was so "inconsequential" that if there had been an aggravation of the injury and incapacity followed, that period had come to an end. That is, all incapacity ceased on 27 October 2000.
Beyond this time there was no "demonstrable, objectively assessable pathology" to support a case for permanent incapacity. Furthermore, Mr Harrison contended that in assessing the extent of impairment, reliance would have to be placed on the description provided by Mr Dorrans. Both Dr Saxby and Dr Martin had provided opinion evidence on this point, with Dr Martin expanding into the implications for assessment of the extent of impairment.
Consideration of the Issues
The central issue for the Tribunal to decide is whether Mr Dorrans' "left Achilles tendon disorder" (that is, left achilles tendonopathy or tendonitis) occurred for some closed period following the accidents at sea or, alternatively, whether it represents a permanent impairment.
The resolution of this issue is essentially a factual issue as it will be dependent on the Tribunal's evaluation of the medical opinion evidence. Submissions made by Counsel on the application of this evidence reflects, to some extent, different interpretations of the same information. Furthermore, the evidence before the Tribunal indicates that credibility and inconsistencies in the evidence before the Tribunal are also determinants in deciding the three applications for review.
The Tribunal has carefully considered the contentions and submissions and factual evidence before the Tribunal in relation to the civil standard of proof as described by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, 362.
"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality….it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
The Tribunal firstly considers the medical opinion evidence and then considers the question of inconsistencies in Mr Dorrans' evidence. Based on these findings, the Tribunal proceeds to determine the issue whether Mr Dorrans' "left Achilles tendon disorder" has been proved to the "reasonable satisfaction of the Tribunal" to be a permanent impairment.
Dr Martin's report (Exhibit 4, 7 May 2002) refers to Mr Dorrans' presentation for examination. In particular, the continuation of the opinion on the inconsistency between the organic pathology and the cause of the disability:
· "There are inconsistencies which provide a strong suggestion that Mr Dorrans, when assessed, is contriving his appearance of apparent significant disability with respect to ambulation on level surfaces, on slopes, and on steps. Mr Dorrans asserts that it is impossible for him to take any weight through the ball of his left foot because of pulling and burning pain in the region of his left heel. Therefore, he states that he is always forced to walk flat-footed, with the leg turned externally in order to minimise this alleged pain. In my presence, Mr Dorrans would not exert any downward pressure through the ball of his foot as in walking normally, standing up on his toes, squatting, ascending and descending steps in conventional fashion. The fact that Mr Dorrans has well-developed calf musculature on the left side, equivalent to that which is observed on the right side, with no wasting of the left calf on circumferential measurement, is not consistent with his assertions." (page 5)
and
· "It is possible to demonstrate a normal range of movement in the left ankle and in the left subtalar joint but Mr Dorrans exhibits significant pain behaviour during these movements, even when no tension is placed on the Achilles tendon, and he also responds in a somewhat excessive and bizarre fashion when the areas of alleged tenderness are likely palpated." (page 5)
Dr Saxby's report (Exhibit A – 24 April 2002) contains the following observations:

"This gentleman has a degenerative condition of his achilles tendon and one would normally see this as a constitutional problem, that is to say it is related to factors of the patient rather than any external factors. This gentleman does give a history of injury and this may exacerbate his problems but one would have expected that his condition should have settled.
Therefore, in most likelihood this gentleman's current incapacity has gone beyond the course one would have expected from the injury described." (page 2)
and
"As regards to your client's capacity for future employment. I am surprised that this gentleman is unable to carry out his previous duties but one would expect him to be capable of work in the future. He may have difficulties with jobs that do require him to climb ladders or stand for prolonged periods but as I said, it is most unusual for this condition to give such disabling symptoms." (page 2)

Earlier, Dr Saxby had stated "the only way of measuring this gentleman's state is to take it on face value of the symptoms he describes" (T78, Folio 137; 9 November 2000).
Next the Tribunal considers the extent of inconsistencies in Mr Dorrans' evidence and makes the following conclusions:

(a)The issue of Mr Dorrans' description of his gait, together with pain problems when he had to weight-bear is inconsistent with the video surveillance of him entering and leaving Dr Yates' surgery and his capacity to carry objects which, in themselves, would pose some weight-bearing impacts – given the additional needs imposed for balance and movement (paragraphs 9, 15).
(b)Moreover, Mr Dorrans' description of his gait and weight-bearing problems is inconsistent with both Dr Saxby and Dr Martin's objective opinions of calf muscle wasting in Mr Dorrans' circumstances (paragraphs 29, 32(b), 33).
(c)Mr Dorrans' description of the extent of pain over the past three years associated with movement, his evidence that his ankle condition had become slightly worse since physiotherapy ceased (paragraph 21) and the burning sensation and pain occurring constantly (paragraph 24), seems inconsistent with the lack of prescribed medication to alleviate pain (paragraph 18); and
(d)Mr Dorrans' description of the burning sensation and pain in his left ankle associated with walking that occurred constantly, not intermittently (paragraph 24), is inconsistent with Dr Saxby's opinion as to the fluctuating nature of the condition (paragraph 26); and
(e)Mr Dorrans' evidence that he had no problem or injury to his left ankle prior to the accident at sea is difficult to reconcile with other evidence he gave (paragraphs 6, 23). Moreover, the question of the source of the scar on his left ankle creates further uncertainty given Dr Martin's opinion evidence of the possible association between the scar and Mr Dorrans' "left Achilles tendon disorder" (paragraph 31).

The Tribunal finds that the inconsistencies in Mr Dorrans' evidence contribute to "inexact proofs" and "indefinite testimony" that limit the weight that may be attributed to Mr Dorrans' evidence.
In contrast to Mr Dorrans' evidence, the Tribunal accepts the opinion evidence of Dr Martin as representing an objective, impartial assessment of Mr Dorrans' "left Achilles tendon disorder" as it integrates clinical examination with objective pathology, and identifies areas of concern where diagnosis and assessment of the extent of impairment is reliant on the description of symptoms given by Mr Dorrans. These areas of concern are clearly significant in the determination of each of the three applications for review. Furthermore, Dr Martin's observations on calf muscle wastage in Mr Dorrans' circumstances are corroborated by the evidence of Dr Saxby (paragraphs 29, 32, 33).
Next the Tribunal considers the above findings in the context of Dr Saxby's observations that he relied on the symptoms given to him by Mr Dorrans at "face value" (paragraph 27) and both Dr Saxby's and Dr Martin's comments relating to the difficulties, from a medical perspective, associated with relying on Mr Dorrans' responses in assessing the degree of impairment (paragraphs 28, 30, 32(a) and (c)).
The Tribunal concludes that the inconsistencies in Mr Dorrans' evidence are such that the Tribunal can make no other finding than any aggravation of an injury or, alternatively, a trauma causing an injury to Mr Dorrans' left achilles tendon was such that liability ended on 27 October 2000. In addition, the incapacity that followed from such aggravation or trauma ended on 27 October 2000.
Mr Dorrans is not entitled to compensation for permanent impairment beyond 27 October 2000 as such a fact cannot be supported by the weight of the medical expert evidence and the inconsistencies in Mr Dorrans' evidence (see EMI (Australia) Ltd v Bes [1970] 2 NSWR 238). The Tribunal concludes that there is an "inherent unlikelihood of an occurrence of a given description" viz. a connection between the incidents at sea and a permanent impairment associated with Mr Dorrans' "left Achilles tendon disorder" (see Briginshaw v Briginshaw) [Tribunal emphasis].
For all of the above reasons, the Tribunal decides:

(a)to affirm the reviewable decisions dated 17 January 2001 and 16 May 2001; and
(b)to affirm the determination dated 24 January 2000.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed:         Sarah Oliver
  Associate
Date/s of Hearing  18, 19 June 2002
Date of Decision  2 August 2002
Counsel for the Applicant        Mr S Hamlyn-Harris
Solicitor for the Applicant         Messrs Maurice Blackburn Cashman
Counsel for the Respondent    Mr I Harrison, SC
Solicitor for the Respondent    Messrs Blake Dawson Waldron, Sydney