Hume and Total Marine Services Pty Ltd
[2004] AATA 1135
•20 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1135
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/190
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID ANDREW HUME Applicant
And
TOTAL MARINE SERVICES PTY LTD
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President Date29 October 2004
PlacePerth
Decision The Tribunal sets aside the deemed reviewable decision of the respondent and, in substitution therefor, decides that the respondent is liable, pursuant to ss 24 and 26(1) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”), to pay compensation to the applicant under the Act for a lower back injury sustained by him on 20 April 2001, and the amount of compensation that the respondent is liable to pay to the applicant from March 2002, in accordance with s 31 of the Act, is as follows:
· for the period from March 2002 to 31 December 2003 – pursuant to s 31(5)(d) of the Act, an amount that, when added to the amount that the applicant was able to earn during each week in suitable employment (as determined on the basis of the Tribunal’s finding set out in paragraph 93 of its Reasons for Decision herein) results in an amount equal to 90% of his “normal weekly earnings” (as defined in s 13 of the Act);
· for the period from 1 January 2004 onwards – pursuant to s 31(5)(f) of the Act, an amount that, when added to the amount that the applicant was able to earn during each week in suitable employment (as determined on the basis of the Tribunal’s finding set out in paragraph 93 of its Reasons for Decision herein) results in an amount equal to 100% of his “normal weekly earnings” (as defined in s 13 of the Act).
The Tribunal orders, pursuant to s 92(1) of the Act, that the respondent pay the costs of the applicant of these proceedings, such costs, in the absence of agreement between the parties as to the amount thereof, to be taxed by a District Registrar or a Deputy Registrar of the Tribunal in accordance with clause 6 of the Tribunal’s General Practice Direction dated 18 May 1998.
..............(sgd S D Hotop)...............
Deputy President
CATCHWORDS
COMPENSATION – seafarers – applicant employed by respondent on vessel – applicant sustained lower back injury in April 2001 while pulling shackle from under large hose on board vessel – applicant subsequently certified as fit for restricted duties – applicant received incapacity payments from respondent from April 2001 to March 2002 – applicant undertook rehabilitation program from May 2001 to February 2002 involving casual lecturing at TAFE college – applicant’s incapacity payments terminated by respondent in March 2002 – applicant worked as casual TAFE lecturer from March 2002 to December 2003 – applicant worked as full-time fixed term contract lecturer from January 2004 – respondent is liable to pay compensation to applicant for lower back injury – incapacity payments – amount of compensation – suitable employment – applicant’s normal weekly hours as TAFE lecturer – amount applicant able to earn in suitable employment – reviewable decision set aside.
Seafarers Rehabilitation and Compensation Act 1992 (Cth) s 3, s 8, s 13, s 24, s 26, s 31 and s 32
Esam v ASP Ship Management (1998) 87 FCR 82
Martin v Australian Postal Corporation (2000) 32 AAR 199
Telstra Corporation Ltd v Warner (1994) 20 AAR 259
REASONS FOR DECISION
29 October 2004 Associate Professor S D Hotop, Deputy President
Introduction
1. David Andrew Hume (“the applicant”) has applied to the Tribunal for review of a “reviewable decision” deemed to have been made on or about 21 May 2002, pursuant to s 79(6) of the Seafarers Rehabilitation and Compensation Act 1992(Cth) (“the Act”), by Total Marine Services Pty Ltd (“the respondent”). The effect of that deemed reviewable decision was that a determination of the respondent, dated 18 March 2002, to terminate incapacity payments which had been made to the applicant pursuant to s 31(2) of the Act, was affirmed.
2. At the hearing, the applicant was represented by Mr D Leask, solicitor, and the respondent was represented by Mr G Hancy of counsel. The Tribunal had before it the statement and accompanying documents (“T documents”) lodged on behalf of the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (Cth) and various exhibits tendered in evidence by the applicant (Exhibits A1-A31) and by the respondent (Exhibits R1-R15). Oral evidence was given by the applicant and by Maridel Hume, Walter Waterhouse, Peter Cook, Glenn Iles, Dr Richard Choong, Dr Peter Burke, Mr G Wayne Thomas and Neil Bevis (who were called by the applicant), and by Andrew Cartmel, Elaine Duncan, Bernard Unwin, Robert Friend and David Johnson (who were called by the respondent).
The Factual Background
3. The essential background facts, as found by the Tribunal on the basis of the T documents, are as follows.
4. The applicant, who was born on 22 July 1962, was at all material times employed by the respondent as an Integrated Rating on board the vessel “Total Provider”.
5. On 26 April 2001 a “Workers’ Compensation FIRST Medical Certificate” regarding the applicant was issued by Dr R Choong referring to an injury described by the applicant as having occurred on 19 April 2001 at sea “while pulling shackle from under large hose”. Dr Choong made a clinical finding of “lower back pain radiating into L buttock” and certified the applicant as totally unfit for work from 26 April 2001 to 28 April 2001 (inclusive). He referred the applicant for a CT scan. (T1A)
6. A CT scan report of Dr H Khoo, dated 27 April 2001, referred to a “central posterior and left paracentral disc protrusion at the L5/S1 level, deforming the anterior theca and also compromising the left S1 emerging nerve root”. (T2)
7. On 30 April 2001 a “Workers’ Compensation PROGRESS Medical Certificate” was issued by Dr Choong in which he certified that the applicant was totally unfit for work for a further 14 days and referred him to a specialist, Mr G Wayne Thomas. (T3)
8. The applicant submitted a claim for compensation, dated 1 May 2001, in respect of an injury described by him as lower back strain and said to have occurred on 20 April 2001 when he was pulling a shackle from an offtake hose on board the vessel “Total Provider” (T4). The applicant received workers’ compensation incapacity payments in respect of that injury from 26 April 2001 until March 2002 when they were terminated by the respondent.
9. A report of Mr G Wayne Thomas, Neurosurgeon, dated 2 May 2001, addressed to Dr R Choong stated as follows:
“Thanks for asking me to see this 38 year old seafarer who hurt his back handling a very heavy large industrial hose used for the transport of oil between vessels on 20th April 2001. He incurred the onset of the back pain during the activity and reported it to the master of the ship. A day or so later he joined another ship so that he could disembark at Darwin on 24th April 2001. The pain worsened and he saw yourself and a CT scan was performed. At this stage he has persisting left sided low back and posterior thigh and leg pain but has not noticed any numbness or tingling. He has been taking Pandeine Forte and Valium. His symptoms vary according to the level of physical activity that he attempts.
His health previously has been very good. He did not report any previous back problems. He does not smoke and drinks alcohol moderately.
On examination today he appeared to be in discomfort. Straight leg raising could be carried to 90 degrees on the right and 75 degrees on the left. There was reduced sensation to pinprick over the left lateral calf and side of foot but otherwise neurologically the findings were normal and he was tender to pressure over the low back in the midline. There was a mild restriction of forward flexion of the lumbar spine.
The CT scan has revealed the presence of a small to moderate central and left sided L5/S1 disc protrusion displacing the S1 nerve root on that side. It is certainly the cause of his current symptoms and no doubt he did injure his L5/S1 disc on 20th April 2001 in the manner described in the above.
At this stage I would recommend conservative management because of the short history and the smallish size of the disc protrusion. It is also reassuring that the neurological involvement is only mild. If however after the course of another three or four weeks his symptoms have not improved it may be necessary to reconsider the surgical option.”
(T5)
10.A report of Mr G Wayne Thomas, dated 31 May 2001, stated as follows:
“David represented today saying his symptoms have remained much the same although there might be a very slight lessening of the pain but this could be accounted for by the .fact that he has become far less active. If he tries to kick a football very gently with his nine-year-old son he will suffer for a few days. Sitting is particularly painful after a while although he has been trying to do some computer work at home and he has been lecturing for two and a half hours a week at TAFE.
I reviewed his CT scan which does show a small disc protrusion at L5/S1 displacing the S1 nerve root.
I have explained to David that only six weeks have passed since the time of his injury and as the disc protrusion is relatively small, I would much prefer to continue with conservative management at this time. Nevertheless I will arrange for him to undergo an MRI scan in the hope that this gives a better appreciation of the extent of disc injury and protrusion at L5/S1.
…”
(T9)
11. A MRI scan report of Dr T Nguyen, dated 19 June 2001, contained the following findings:
“1. Small left foraminal annulus tear at the L 4/5 level. This is associated with a broad-based left foraminal disc protrusion which is effacing the peri-neural fat and may be irritating the exiting left L4 nerve root. In addition, there is a small extruded fragment lying antero-superiorly within the left neural foramen.
2.Small broad-based central and left para-central disc protrusion at the L5/S1 level which does not appear to cause any neural impingement.”
(T12)
12.A report of Mr G Wayne Thomas, dated 28 June 2001, stated as follows:
David has continued much the same and he feels that rather than there being any improvement in his condition he has learnt to manage it better. He stringently avoids physical activities that might bring on the pain. If he drives a manual car this will readily aggravate his left leg pain which tends to spread mainly from the left lateral hip area along the leg towards the knee but not beyond the knee. He was able to do some training sessions for Total Marine over a 6½ hour period recently but was very sore at the end of this period. Sometimes sitting on an uncomfortable type of chair will very rapidly aggravate his pain.
I went over his MRI scan which was done on 19th June 2001 and this has revealed that the disc protrusion previously seen at L5/S1 has all but resolved completely. At the L4/5 level however there is the possibility of a significant foraminal narrowing due to disc bulging in that region. I look back at his original CT scan and this lesion was really apparent in that scan too.
I am very reluctant to advise any surgery in David’s case and have recommended that you try to arrange for him to undergo a course of hydrotherapy and swimming at a suitable facility in his area.
…”
(T14) A further report of Mr Thomas, dated 26 July 2001, stated as follows:
I reviewed David today and went over his most recent MRI scan again. As you know he did commence physiotherapy with Glenn Pesich after he saw me last time and this has been good and bad in the sense that he has enjoyed the hydrotherapy but found some of the physiotherapy aggravated his pain. I think he should continue with this but perhaps at a slightly slower pace so as not to aggravate his symptoms.
Once again I feel that surgical treatment is not likely to be helpful. I’ve also reached the point where I now believe it would be much more sensible for David to go into occupational health and safety work as he is now qualified in that area rather than risking his back by going back to seaman duties.
…”.
(T20)
13. Meanwhile, in May 2001 the applicant was certified by Dr Choong as fit to return to work for restricted hours on restricted duties, and he was referred by Dr Choong to Active Injury Management for vocational rehabilitation assistance. A report of Ms Catherine Parker, Case Manager, Active Injury Management, dated 3 October 2001, addressed to Andrew Cartmel of “Working Life”, Rehabilitation Consultants, contained the following summary of the applicant’s current work status and rehabilitation plan:
“…
·In his report of 28 June 2001 Mr Thomas (Neurosurgeon) stated that the disc protrusion at L5/S1 had all but resolved, however he noted a possibility of significant foraminal narrowing due to disc bulging in the L4/5 region.
·Medical advice from Mr Hume's treating doctors, Dr Choong (General Practitioner) and Mr Thomas, has indicated that it would be inadvisable for Mr Hume to return to his pre-injury Integrated Rating (IR) duties, due to the risk of exacerbating his back condition.
·Further medical recommendations from Dr Martin (Registered Doctor for the Maritime Safety Authority) were sought from his review of Mr Hume in July 2001 at your request, acting on behalf of Total Marine Services, however you have advised that no report has been forwarded from Dr Martin at this stage. Dr Martin was to have provided expert opinion as to Mr Hume's fitness to return to sea.
·The current rehabilitation plan is to assist Mr Hume to return to work performing new duties, as per available medical advice. A position as a training officer is currently being pursued through a work trial placement.
·Mr Hume has completed the course requirements of a Bachelor of Science, Health Science (Health and Safety) and holds an Advanced Certificate of Marine Engineering, a Certificate of Marine Operations, Certificate IV in Assessment and Workplace Training, as well as having completed various industry safety and operational training courses. With his qualifications and experience Mr Hume has had a long-term goal of providing industry-based training and induction courses.
·As such Mr Hume has secured part-time paid employment independently with TAFE as a lecturer as well as performing alternate duties developing training materials and conducting induction courses for Total Marine Services. Mr Hume also undertook a 2-week job as a tutor for Swan Maritime Institute, which was coordinated by Active.
·I have subsequently arranged a graduated work trial placement for Mr Hume at Swan Maritime Institute for the purpose of work hardening and as an avenue for securing fuII-time paid employment, as noted in my progress report of 12 September 2001. Duties are lecturing and project work to develop training packages. Please see a copy of the program attached. I trust that the documentation provides an adequate explanation of the parameters of the program.
·Feedback from Bernie Unwin of Swan Maritime Institute is that there is a strong possibility of a permanent position becoming available for Mr Hume when the training packages he is developing are implemented.
…”. (original emphasis)
(T 28)
14. A report of Dr P Martin, dated 9 October 2001, addressed to Andrew Cartmel, referred to his examination of the applicant on 31 July 2001 and 4 October 2001 and concluded as follows:
“5. OPINION
5.1On direct questioning, Mr Hume advised that he had doubts that he could maintain a full time work capacity, with his current level of pain (including the proposed rehabilitation strategy). With the current rehabilitation plan, he has found it necessary to borrow a more suitable (ergonomic perspective) office chair. I recommended this be reviewed and, if necessary, appropriate action instituted, by the rehabilitation coordinator.
5.2Mr Hume has objectively confirmed multi-level disc degenerative disease. Given the the current symptomatology, I do not consider that he is presently fit to return to any form of sea going duty, regardless of task modification.
5.3.At six months, the need to continue with moderately strong analgesic medication cannot be ignored. In that regard, I strongly recommend that he be referred to an appropriate pain specialist to explore other non-operative interventions. The present level of pain and the need for analgesic control, will significantly compromise the rehabilitation process in any form (from both physical and psychological perspectives).
5.4. I believe it would also be appropriate to seek further input from Mr Thomas, given that it is now three months since his last review.”
(T29)
15. A report of Ms C Parker, Active Injury Management, dated 16 October 2001, summarised the current status of the applicant’s rehabilitation as follows:
“Mr Hume is currently completing a graded work trial program with Swan Maritime Institute. Mr Hume advises that there is flexibility in regard to performing some duties outside of the work place as required. I have reinforced with Mr Hume that one of the purposes of the work trial is to build a gradual tolerance and therefore keeping within the time frames of the program is required.
Mr Hume will commence lecturing at Fremantle TAFE on 25 October 2001.
Mr Hume is to be reviewed by Dr Alan Home (Occupational Physician) on 30 October 2001.
In discussion with Bernie Unwin (Work Trial Host Employer) he advised that if the training programs that Mr Hume is currently developing are implemented, there would be paid work available for Mr Hume running the courses.”
(T 31)
16. A report of Dr A Home, Consultant in Occupational Medicine, dated 30 October 2001, addressed to the respondent’s workers’ compensation insurer, referred to his examination of the applicant on 30 October 2001 and concluded as follows:
“Assessment
Mr Hume presents with a history of mechanical back pain relating to a workplace incident on 20 April 2001. Symptoms have improved and he describes only intermittent low back pain related to sustained modest physical activity, although he has avoided any heavy manual activity.
The initial diagnosis was that of an L5/S1 disc protrusion, although following MRI scanning an L4/5 disc protrusion was also considered. That is, there is some uncertainty as to the precise patho-anatomical diagnosis leading to his complaints of mechanical back pain since that time.
The examination of the thoraco-lumbar spine is relatively normal today and it is not possible to determine the precise patho-anatomical source of his previous midline pain and his current complaints of occasional activity-related lumbar and flank pain.
He describes further pain anteriorly in the region of the anterior superior iliac spine and today there is tenderness overlying the rectus femorus tendon. It is probable that he has an additional strain injury in that area. Again, he describes activity-related discomfort in this area, usually occuring for several hours each day after walking.
I do not believe there is any requirement for further neurosurgical review nor surgical treatment, noting his low level of symptoms and in the absence of a radicular component to his complaints.
Whilst it would seem sensible for him to continue exercise on a maintenance basis, there is no requirement for further hydrotherapy exercise for treatment of his complaints.
I note that his current analgesic intake is modest, at two to four Tramal tablets per day.
In answer to your specific questions:
a. I consider this man unfit for his pre-injury duties as a seaman.
b.I do consider that Mr Hume is fit for selected duties where this does not involve lifting weight over 15kg and with occasional lifting of more than 10kg. He is not fit to undertake heavy manual handling, noting his history of complaints over the last six months. It is doubtful that he will cope with work at sea at present.
c.There is uncertainty as to whether this man will recover sufficiently from his condition to resume his pre-injury duties. I believe there is a modest prospect, perhaps 20%, that he will recover sufficiently to resume those duties.
It is also noted that Mr Hume has prepared himself for work in the occupational health and safety area for five years. Having completed his studies he has now commenced rehabilitation toward that goal. The extent to which motivational factors may impair the clinical presentation of full recovery should be considered.
Furthermore, a return to his pre-accident duties will present a risk of further injury or a recurrence of more severe symptoms, should there be any aggravation of his known underlying disc disease. On that basis, rehabilitation to land-based work would be advised in this case.” (original emphasis)
(T32)
17. A letter dated 18 March 2002 from Mr R Meadowcroft, General Manager of the respondent, to the applicant stated as follows:
“We understand that you have effectively been working a full week lecturing at a TAFE College in respect of which you have been paid full wages. In addition that you work (in the expectation of eventually receiving payment and/or a full time position) with the Swan Maritime College. As you know you have also been undertaking teaching duties for us.
We are therefore of the opinion that your earning capacity is no longer impaired.
We have as you are aware been awaiting for some time for details and evidence of your rate of pay both at the TAFE College and the Swan Maritime College. Despite our repeated requests we have still not received the same.
In the circumstances given that you clearly have a retained earning capacity in excess of your earnings during your time at Total Marine Services, and given your failure to co-operate with us in assessing the level of your retained earning capacity we have no option but to terminate payments to you until such time as the information and documentation requested by us is provided.”
(Pt of Exhibit A7)
The Applicant’s Evidence
18. The applicant tendered in evidence a witness statement, dated 23 March 2003, as follows:
“1. I make this witness statement in respect of a back injury I sustained on 20 April 2001 in the course of my employment with Total Marine Services Pty Ltd on the MV ‘Total Provider’, a rig tender/support vessel operating out of Darwin in the Timor Sea (‘the accident’).
…
9. …in mid-1993, I went to the Australian Maritime College in Tasmania where I did the integrated ratings course which lasted for 6 months.
10. Once I qualified as an IR, I started work in the offshore sector and remained working there until I hurt my back on 20 April 2001.
11. As a result of having undertaken a wide range of training at TAFE, the Australian Maritime College and in the offshore industry, I was of the opinion that the training was not done particularly well. I therefore started doing a degree in occupational health and safety with Curtin University .
12. Also, I had always been the Occ Health & Safety rep, and a delegate, on the vessels on which I'd served and I felt that an occupational health and safety degree would be an asset to me and my employer.
13. The degree required me to undertake all the study myself and, apart from the first year, there was no tuition. I would submit written assignments which I would then have returned to me. I finished the degree in 2001.
14. The final part of my degree was in professional practice. I was asked by Jean Menzies, the programme manager of Fisheries in TAFE, to design and run an occupational health and safety marine module as part of the aquaculture programme - I did this and it formed part of my degree.
15. I played sport and had an active lifestyle in the same way as most people do. I rode motorcycles and, when I got back from the PhiIippines, I was part of the State championship Spirit 29 team.
16. Apart from breaking my arm a couple of times, I never had any injuries or illnesses of any note and always enjoyed good health.
17. Prior to the accident, I was unaware of ever having had any problem or predisposition with my back (or any other part of my body).
18. The accident occurred when I was attempting to free the transfer hose pick-up line which had become entangled around the hose.
19. We had lifted the hose into the shark jaws. I was trying to pull the pick-up line out from around the transfer hose when the vessel rolled - I momentarily lost my balance and, as a result, put a great deal more force into pulling the line than I had previously. I believe it was this sudden increase in the amount of force going to my back that caused the injury.
20. I was immediately aware of an excruciating stabbing pain. I was working with the skipper. I told him that I had hurt my back and I made an official report within haIf-an-hour.
21. I took about half-a-dozen Panadeine from the ship's medicine cabinet which dulled the pain.
22.At the time of the incident, I was normaIly working in the galley and only assisted on the deck as and when required.
23. I continued to work in the galley although I was in a lot of pain.
24. I found it extremely difficult to sleep that night because of pain in my lower back caused by the movement of the boat.
25. I was due to finish my swing the next day. I was taken to Darwin in the MV ‘Swan Tide’ because my HUET (Helicopter Underwater Escape Training) [certificate] had run out and I was unable to go by helicopter. The journey to Darwin took 3 days and was extremely painful because of the motion of the vessel which was a rig tender.
26. In Darwin, I went to the airport and flew back down to Perth.
27. I didn't go to see a doctor in Darwin because, at that stage, I simply felt that I had pulled a muscle in my back which would recover spontaneously, and I wanted to get home.
28. When I got to Perth, I rang Dave Johnson, Total Marine's Health & Safety Officer. I told him that I had a sore back and how I had got it, but told him I thought it would recover enough for me to go back to work on my next swing.
29.I told Johnson that I was telling him about the injury and the fact that it had occurred on the vessel because, if it was still sore on the Monday (this was a Friday), I was going to see a doctor and I would tell the doctor that, as far as I was concerned, it was a workers' compensation case.
30.On the same day, I had a painful left side which I thought might be related to a kidney. I therefore went to see my GP (Dr Choong) and told him that I thought I had a problem with my kidney. He examined me and told me that I had a bad back and sent me for a CT scan the next morning.
31. The CT scan confirmed that I had a prolapsed disc at L5/S1. He therefore referred me to Mr Wayne Thomas for advice as to how the injury should be treated.
32. I saw Mr Wayne Thomas who advised me to treat the injury conservatively on the basis that there was some chance that it might recover on its own and that he was against surgery.
33. I have continued to manage the condition conservatively, taking pain killers (Tramal 150mg, Panadeine Forte and Valium) as prescribed by my GP, when required.
34.My back now feels pretty much the same as it did about a week after the accident. I wake up with a sore back and go to bed with a sore back and the level of pain during the day depends on the degree of my physical activity - the more I do, the more it hurts.
35.I have had to cease a lot of activities which I used to undertake, such as renovations around the house, kicking a football with my son, fishing from boats and working as a volunteer on the Hotham Valley railway.
36. I am due to see Mr Wayne Thomas on 7 March for advice as to how the condition might be managed in the future.
37. My rehabilitation has been coordinated by Active Injury Management.
38. I was referred to Active in May 2001 and Catherine Parker has been coordinating my case.
39. I had a long interview with Catherine when she took a full social, employment and medical history from me.
40. My physical rehabilitation was limited to some hydrotherapy. However, the swimming pool where I was doing hydrotherapy closed down and the physiotherapist indicated that he wanted to treat me in his rooms. This aggravated my back so much that I was unable to undertake any activities with Swan Maritime College which was then part of my rehabilitation programme.
41. I have not been recommended any further physical rehabilitation since then and can think of none that would be beneficial.
42.At a fairly early stage, Catherine Parker and I agreed that I would be suitably vocationally rehabilitated by concentrating on training and education. This was after Dr Phil Martin, in his capacity as Medical Inspector of Seamen, told me that I had a bad back and that, even if it recovered, the potential for further injury was such that he did not think he would be able to give me my biannual certificate of fitness.
43. I was content to concentrate on education and training because it was something in which I had an interest, qualifications and, I believe, an aptitude.
44. I was originally assisting Swan Maritime College in devising modules for their courses. I had known Bernie Unwin, the Principal of the College, for 10 years or so. He was trying to expand the College, which was fairly small-scale, into providing courses for the oil and gas industry. We discussed what I could bring to the College and agreed that I could start developing courses for training operatives in the offshore oil and gas industry.
45. I put this to Catherine Parker who said she thought it was a very good idea - she checked with Total Marine who agreed.
46.At the same time, I was doing some work with TAFE as a continuation of the course which I developed, as referred to at para 14 above. I was working there doing a 12-week course which involved me teaching about 3 hours a week.
47.I also ran a couple of training courses for Total Marine which were held either at Total Marine's offices or at various hotels, or the CFMEU Training Centre in Welshpool.
48. My rehabilitation went smoothly, apart from the odd occasion such as when I needed an ergonomic chair. I was told by Catherine Parker that, for some reason, it took 6 weeks before it was finally approved for payment by the insurer.
49. I eventually started working exclusively for TAFE. This seemed to me to be beneficial as Swan Maritime College was not developing in the way that had been planned and, as I needed to commit myself to either Swan or TAFE, I had no hesitation in going with TAFE.
50. Working for TAFE does not involve me working regular days. Some days, I'll only work 2 hours - some days, I'll work 12 hours, and there will be periods of a week or so when there won't be any lecturing at all.
51.I find that lecturing is physically demanding as I am required to be on my feet, and if, for example, I have to go out in a small boat on Fishing Boat Harbour, it aggravates my back injury.
52. I have been working for TAFE as a casual.
53. It has been suggested by the insurance company that I should be working in better remunerated employment. Having considered the matter long and hard, I am unaware of any employment in which I could be earning more than I am at the moment. If I was aware of such employment, I would attempt to obtain the same as the period of time I have spent off work since April 2001 has been at great financial cost to myself.
54. I have applied for work with a number of different organisations, including Occupational Health & Safety Officer with BHP and IFAP.
55. I am aware of the fact that, around the time that the insurance company stopped making payments to me, Total Marine employed an assistant to their Occupational Health & Safety Manager, but the job was not offered to me. Similarly, when David Johnson resigned, I was not offered his job, even though I was better qualified than he was.”
(Exhibit A1)
19. The applicant also tendered in evidence a supplementary witness statement, dated 27 January 2004, as follows:
“1.Since injuring my back in April 2001, I have applied for a number of employment positions.
2. I am unable to recall the details of all the positions for which I applied, but those in respect of which I still have documentation are as follows:
(a)Sound Personnel: I applied for the position of Safety Manager on 18 June 2001. I annex hereto as ‘DAH-1’ a copy of my email to Sound Personnel dated 18 June 2001 together with the CV which was attached. ‘DAH-2’ is a true copy of Sound Personnel’s letter to me dated 22 June 2001. I do not recall how I was notified of the result of my application, but I was not offered an interview or employment for the position of Safety Manager or any other job. ‘DAH-3’ are true copies of emails between myself and Sound Personnel in relation to my entry on their database.
(b) On 15 June 2001, I sent an email to the Education Department requesting application form and job description for the position of Safety Management Systems Co-ordinator which I had seen advertised. Annexed as ‘DAH-4’ is a true copy of my email of 15 June 2001. I do not have a copy of my letter of application as the computer hard drive on which it was stored was destroyed by a lightning strike.
(c) In mid-July 2001, I saw that Boat Torque had advertised for an Occupational Health & Safety Manager. I telephoned Boat Torque to enquire as to the level of salary that was being offered. To the best of my recollection, I was advised that the salary was approximately $30,000.00 per annum. As I did not consider this was an appropriate salary, I did not pursue the application. Annexure ‘DAH-5’ is a true copy of my email of 16 July 2001 to Boat Torque. …
(d) On 16 July 2001, I sent an email to Phil Perciville, an OH&S manager at Woodside Petroleum. I knew Mr Perciville from my work with Total Marine and the purpose of my enquiry was to investigate possible employment options. Annexure ‘DAH-6’ is a true copy of my email to Mr Perciville of 16 July 2001. Nothing came of that enquiry.
(e) On 17 July 2001, I sent an email to Clare Davy, the Managing Director and principal consultant of the International Petroleum School. I had made contact with Ms Davy through her internet site and the purpose of my enquiry was to establish whether I could obtain work providing training in the oil and gas industry. Copies of the exchange of emails between myself and Ms Davy are annexed hereto as ‘DAH-7’.
(f)On 1 September 2001, there was an advertisement in ‘The West Australian’ for an HSE Adviser for BHP Billiton. I submitted an application for that position but was not shortlisted. Annexure ‘DAH-8’ is a true copy of BHP Billiton’s letter of 16 October 2001 advising me that I had not made their shortlist.
(g)In late October or early November 2001, I saw an advertisement in ‘The West Australian’ for an Occupational Safety & Health Consultant for the Industrial Foundation for Accident Prevention. I submitted an application for that position but was unsuccessful. Annexure ‘DAH-9’ are copies of the advertisement and letters to myself from IFAP, respectively dated 7 and 22 November 2001. I have not received any contact from IFAP since their letter of 22 November 2001.
(h) On 14 October 2003, I submitted an application to Fremantle Ports for the position of Safety Adviser with the Marine & Technical Services Division of Fremantle Ports. Annexed hereto as ‘DAH-10’ is a true copy of my application form together with a covering letter, and annexure addressing the selection criteria, and my resume. I did not obtain an interview for the position. Annexure ‘DAH-11’ is a true copy of Fremantle Port's letter of 5 December 2003 advising me that my application had been unsuccessful.
3. I have been offered a fixed-term contract as a Lecturer - Maritime with Challenger TAFE, Fremantle Campus, for the period 1 January 2004 - 31 December 2004.
4. Annexed hereto as ‘DAH-12’ is a true copy of Challenger TAFE’s letter of 17 December 2003 which sets out the conditions of the offer.
5. Annexed hereto as ‘DAH-13’ is a true copy of a letter from Challenger TAFE dated 21 January 2004 indicating my salary is $49,480.00.
6. I have accepted the offer as I know from the work I have already undertaken at Challenger TAFE that the job is within my physical capabilities, and this is the first job offer I have received in response to the various applications I have submitted since I injured my back in April 2001.
7. I am concerned that, if I had not accepted this offer and was unable to find employment elsewhere, my family and I would suffer severe financial consequences.
8. All the positions for which I have submitted applications came to my attention as a result of my own efforts. I have received no suggestion from Active Injury Management or Total Marine Services that I might consider applying for any position, or that the work that I was undertaking for Challenger TAFE was not the most suitable employment that was available to me in the light of my training, experience and physical limitations.
9. I annexe as ‘DAH-I4’ a printout recording my visits to Warnbro Aquatic Centre for the period 5 May to 12 December 2003. On each of the dates shown I attended for hydrotherapy.
10. Annexures ‘DAH-15’ and ‘DAH-16’, respectively, are my income tax returns for the years ended 30 June 2002 and 2003.”
(Exhibit A26)
20. In his oral evidence-in-chief the applicant confirmed that the contents of his abovementioned witness statements are true and correct.
21. The applicant said that he still experiences pain symptoms as a result of his lower back injury but that they have stabilised over the last 18 months and are generally much less severe than they were immediately after the injury occurred. He said that the degree of back pain that he experiences varies according to the activities that he undertakes and that he is willing to put up with a certain level of pain in order to “live a life of some quality” which includes working. He added that, with the use of pain-killers (namely, “Tramal” and “Panadeine Forte”), he is “able to function at a moderate level”. He referred to his present occupation of lecturing and said that, although it “hurts”, it is “quite good in a lot of respects” in that he is able to change his posture at will (standing, walking, sitting) and call a break whenever he feels like it. He said that, in addition to taking pain-killing medication, he also wears a back brace when he has to sit for any long period of time.
22. The applicant said that up until December 2003 he was employed by challenger TAFE, South Fremantle, as a lecturer on a casual basis and, in that capacity, he worked for as many hours as were made available to him, ranging from 46-47 hours per week in some weeks to “absolutely zero” in other weeks. He said that, as a casual lecturer, he was only paid for the time he was lecturing, and not for any time spent in class preparation, marking and the like, but he acknowledged that the hourly rate of pay for a casual lecturer probably included a component for the time necessarily spent in preparation. He said that normal full-time working hours for a TAFE lecturer under the relevant certified agreement are 37.5 hours per week, comprising 23 hours of lecturing and the remainder devoted to preparation, marking and the like. Accordingly, he reasoned that a casual lecturer who lectured for 23 hours per week, and was paid at the casual lecturer’s rate for 23 hours per week, was, in effect, working full-time and receiving approximately the same weekly remuneration (not including leave entitlements etc) as a full-time lecturer. He applicant tendered in evidence a bundle of Pay Advice slips in relation to his employment as a casual lecturer at Challenger TAFE during the period from June 2001 to November 2003 (Exhibits A2 and A5).
23. The applicant also tendered in evidence (Exhibit A8) a copy of an advertisement for 4 full-time Lecturing Positions at Challenger TAFE which was published in The West Australian newspaper in November 2003. According to that advertisement, all positions were to be initially offered on a 12-month fixed term contract, with the possibility of appointment for further terms or a permanent appointment thereafter. He said that he applied for one of those positions. As stated in paras 3-6 of his supplementary witness statement (Exhibit A26), his application was successful and he was offered a fixed term contract for the period 1 January-31 December 2004 which he accepted (his commencement salary being $49,480.00 per annum).
24. In cross-examination the applicant acknowledged that it was his idea to work at Swan Maritime Institute and at Challenger TAFE for the purposes of his rehabilitation programme, and that he did not explore any other rehabilitation employment options with Catherine Parker of Active Injury Management or Andrew Cartmel of Working Life.
25. The applicant said that he intended to continue working as a lecturer until he received a “better job offer”. He said that he had applied (unsuccessfully) for other jobs, and added that the range of jobs that he is able to apply for is limited because he is unable to work on offshore vessels without a current HUET certificate (allowing him to be transported by helicopter to and from offshore vessels) and because of the effect of the movement of such vessels on his back condition. He added that, because of his back condition, he is unfit to undertake the practical component of the course requirements for the issue of a HUET certificate, and that Dr Choong (his general practitioner) had certified to that effect (see Exhibit A15 referred to in paragraph 36 below). He denied that the only reason that he does not have a current HUET certificate is that he does not want to undertake the course requirements and obtain such a certificate because he does not wish to work offshore. He acknowledged, however, that in his own mind he had ruled out working offshore.
26. The applicant denied that he would be capable of working as an offshore rig training and safety coordinator, but agreed that he would be able to work as a consultant to offshore manning and oil companies or as an occupational health and safety adviser.
The Evidence of the Applicant’s Witnesses
Maridel Hume
27. Mrs Hume confirmed that she had made a witness statement, dated 20 August 2003, and that its contents are true. The contents of that statement, which was tendered in evidence, are as follows:
“1. I am married to David Hume, the applicant. We were married on 22 July 1989. We have 2 children now aged 11 and 13.
2.Dave and I have always discussed our individual plans and our plans for the family.
3. When the Howard government was elected to power in 1996, Dave thought that there was a possibility that the maritime industry might be affected in such a way as to make his employment less certain.
4. Dave therefore told me that he intended to try and obtain some qualifications so that, if his job became uncertain, he would be able to find work elsewhere.
5. Dave therefore started studying for a degree in occupational health and safety. He was doing two subjects per semester.
6.Dave told me that he wanted to continue working as an integrated rating, if possible. It suited our situation for Dave to continue working as an integrated rating because the pay was reasonable and, although he was away at sea for 4 weeks at a time, he and I enjoyed the 4 weeks leave he had between swings.
7. We have always planned our finances carefully and, by the time that Dave had injured his back on 19 April 2001, we had our own home at 4 St Ettiene Gardens, Port Kennedy, which was mortgaged to St George Bank.
8.At that time, Dave had also purchased two investment properties which were in his name for tax purposes. We also still owned (and had rented) our previous residence at La Manche Avenue, a house that we built and finished (garden, floors, tiling, curtains etc).
9. As far as I was aware, Dave had no plans to leave the seafaring industry voluntarily, as at 19 April 2001.
10. Dave and I had discussed his using the degree qualification to do consulting work with Total Marine as well as working as an integrated rating. We had also discussed him stopping working as an integrated rating but had decided that, unless he was able to earn at least as much as he was earning on the ‘Sedco 702’ ( approximately $2,500.00 per fortnight nett), as well as the related superannuation, health insurance and security benefits, there was no point in him giving up work as an integrated rating.
11.At that stage, I had no intention of working. Dave and I had agreed that I would not undertake paid work as his employment was sufficient for our needs.
12.Before hurting his back on 19 April 2001, Dave was a fit, active man. Although he did not play any organised sport, he used to enjoy kicking a football with our son. He helped at the Hotham Valley Railway and he spent a lot of time working on and about the house and garden.
13. We moved in to 4 St Ettiene Gardens in July 2000 and had to do a lot of work because we had built the house and when we moved in there was no garden, no floor coverings, no driveway.
14. We did as much of this work as we could by ourselves, as we had done previously at La Manche Ave. However, we were only able to complete the driveway before Dave hurt his back and, as a consequence, the work involved in laying out and planting the garden has been done by myself and my son who was then aged 9.
15.I was unaware of Dave ever having had any problems with his back prior to hurting it on 19 April 2001. Apart from an ankle injury which he sustained in or about 1998, I am not aware of Dave ever having suffered any injuries.
16. The back injury Dave sustained on 19 April 2001 has made a big difference to the family. Since Dave's compensation payments were stopped, we have had a reduced income and, because the amount of work he has from TAFE varies, that income is unpredictable.
17. I have started working for Care Option as a carer for aged people. I work, on average, about 60 hours per fortnight, for which I am paid between $12.50 -$16.00 per hour, depending on when I work.
18. Dave has had to sell both investment properties because we don't have the income to service the loans and he is physically unable to maintain them as he did before he hurt his back.
19. We have not been able to take a holiday since Dave's compensation payments were stopped. In January 2002, the children and I visited my sister for a month and Dave stayed at home so that he could continue his rehabilitation and do any available work.
20. Dave has been unable to undertake any further work on the house since April 2001. The house is still unfinished in that there are no floor coverings for the children’s bedrooms or upstairs and, apart from blinds in my son’s bedroom, the front rooms which face the road, and the games room, and secondhand curtains in my daughter's bedroom, there are no window treatments in the house.
21. Since April 2001, I have had to do more work around the house and garden because Dave cannot help as he used to. Dave suffers from back pain all the time, the intensity depending on what he has been doing.
22. I recall that, on Dave's birthday (and our wedding anniversary) on 22 July this year, Dave had been working at TAFE and had a very sore back. As a result, he took Panadeine Forte and was so drowsy that, not only did we not go out that evening, but he didn't eat anything when I brought home takeaway food.
23. Whereas previously we had a fulfilling relationship, we are now just living from day to day without any sense of enjoyment from each other's company or from life generally.
24.Because of our difficult financial position since Dave's compensation payments were stopped, I have discussed with Dave whether or not he can earn more than he is currently earning with TAFE.
25. I am keen that he increases his income for a number of reasons. Firstly, I would like to regain a sense of financial security which we had before he hurt his back and to make some progress with our life.
26. Secondly, I do not want to work as much as I have to at the moment. Before Dave's compensation payments were terminated, I was only working 15 hours a week. This enabled me to remain at least partially involved with my children's school where I helped with the canteen, the library, covering books, and was there to watch the children with their school activities and sports. Now, because I work almost full-time, I have had to stop these activities which I am very unhappy about.
27. I know that Dave has applied for a couple of jobs with BHP, IFAP and Sound Personnel, but he didn't even obtain an interview for any of these jobs, even though he made no mention of having a bad back.
28.I know that Dave reads the employment section of The West Australian every Saturday, looking for work, but he has not been able to identify any suitable positions.
29.Dave takes Tramal (150mg) at breakfast time and then takes Panadeine Forte just before lunch. He often has two Panadine Forte when he gets home from work and, depending on how painful his back is, he will take up to two Valium at night time (10 mg).
30.Prior to hurting his back in April 2001, he used to take no medication at all.
31.Dave has never been a heavy drinker but has reduced the amount he drinks since he hurt his back as he finds that the medication makes him drowsy and drink does not mix with the medication.
32.Dave has become noticeably irritable with myself and with the children after he hurt his back, and this has increased since his compensation payments were stopped because of the financial uncertainty that we under. Whereas previously we enjoyed a good relationship, now we row frequently.”
(Exhibit A11)
Walter Waterhouse
28. Mr Waterhouse confirmed that he had made a witness statement, dated 2 July 2003, and that its contents are true and correct. The contents of that statement, which was tendered in evidence, are as follows:
“1.I am a Director of the Challenger College of TAFE at 1 Fleet Street, Fremantle. I have been a Director since 1991.
2. I have worked for Challenger TAFE for 12 years. I am currently responsible for a range of maritime programmes, including fishing, aquaculture, maritime operations, marine engineering and the aquaculture development unit.
3. Each of the programmes are run by one of two programme managers. I am responsible for setting up each of the programmes and arranging for funding and teaching staff.
4. David Hume has been working at Challenger TAFE since 16 May 2001 as a casual teacher. I cannot and have not been able to offer him work as a full-time employee because there is insufficient work available.
5. If the work available was sufficient to justify employing him on a full-time basis, I would have no hesitation as he is a conscientious and effective teacher.
6.Were David to be offered full-time work, he would receive a salary in the range of $40,000-$50,000 pa.
7.I annexe hereto as ‘WKW-1’ a true copy of an advertisement which appeared in ‘The West Australian’ on 13 July 2002 for a full-time Marine Operations lecturer.
8.This is the type of position which David Hume might be offered if there was sufficient work to require the appointment of a full-time lecturer, and he was successful at interview.
9.The position was filled by the person who was already fulfilling that role.
10.David has told me that he is willing to work as many hours as he can and he always undertakes as much work as we are able to offer him.
11.Under the terms of the relevant certified agreement, a full week of teaching is 37.5 hours, comprising 23 hours lecturing, 10 hours non-teaching duties and 4.5 hours professional duties.”
(Exhibit A12)
Peter Cook
29. Mr Cook confirmed that he had made a witness statement in July 2003 and that its contents are true and correct. The contents of that statement, which was tendered in evidence, are as follows:
“1. I am Project Manager for Tenix and have been so since 6 May 2002.
2.Prior to commencing work for Tenix, I was the Program Manager - Maritime at Challenger TAFE at 1 Fleet Street, Fremantle.
3.Part of my responsibility as Program Manager was the engagement and supervision of David Hume, who worked for Challenger TAFE as a casual lecturer.
4.I recall having a conversation with David Hume when we discussed the fact that he had been undertaking work for Swan Maritime College.
5.I told David that I was concerned about him working for Swan Maritime College at the same time as he was working for Challenger TAFE. My concerns were twofold.
6. Firstly, I was keen to preserve Challenger TAFE's intellectual property in relation to its course material.
7. Secondly, I was concerned that, if David was working for Swan Maritime College, he would not have the flexibility to respond to Challenger TAFE’s requirements should our course programs change.
8. Essentially, I wanted David to have the flexibility [to] come in at short notice, if necessary.
9. Further, at that time, Challenger TAFE was developing an Integrated Rating training programme and I felt that the College needed the flexibility outlined in par 8 as the College felt that David Hume was to be an important member of the lecturing [staff].
10. These aforementioned issues were brought to my attention and discussed by Neil Bevis, another lecturer at the College, although I cannot remember the date on which the conversation took place.”
(Exhibit A13)
Neil Bevis
30. Mr Bevis confirmed that he had made a witness statement, dated 8 July 2003, and that its contents are true and correct. The contents of that statement, which was tendered in evidence, are as follows:
“1.I am employed by Challenger TAFE as a Lecturer in their marine operations section.
2.I have been engaged in that capacity on contract since April 2002.
3.I also worked for Challenger TAFE on a full-time basis from 1980 until I resigned in February 2001.
4.Following my resignation in February 2001, I performed part-time casual lecturing in the Marine Section at C
hallenger TAFE.
5.In the course of my lecturing at Challenger TAFE, I have had contact with David Hume who was lecturing on a casual basis.
6.I recollect that David Hume was, or had been, undertaking some lecturing work for Swan Marine (sic) Institute. I recall being told by Peter Cook, who was then the Program Manager of the Marine Operations Section, that if David Hume was to be undertaking lecturing for Challenger TAFE, he should not be working for Swan Maritime Institute at the same time.”
(Exhibit A22)
Glenn Iles
31. Mr Iles said that he is Training and Systems Manager of ERG Training, an organisation which has been providing emergency response skills training to the oil and gas mining and industrial sector since 1995. He confirmed that the applicant had attended a HUET training course conducted by ERG Training in 1999, and that he had, by letter dated 4 July 2003, responded to questions asked of him by the applicant’s solicitors regarding the issue of a HUET certificate to the applicant following his completion of that course. The contents of that letter, which (together with enclosures) was tendered in evidence, are as follows:
“…
(a) David Hume was issued with a Helicopter Underwater Escape Training certificate on the 26th of March 1999. …
(b)David Hume’s certificate expired on the 26th of March 2001. Under Western Australian legislation the course is only valid for 2 years.
(c)Medical requirements to complete HUET and Sea Survival training in 1999 were based on fitness to work in an offshore environment. David Hume presented an AMSA medical, which stated he was fit to be employed in accordance with Marine Orders Part 9. In 1999 this type of medical was seen as sufficient to allow the individual to undertake HUET and Sea Survival Training (copy of medical attached).
Revision of the training standard in 2001-2002 and advances in national and international industry practice has led to a higher standard of medical examination being required for participation in HUET and Sea Survival Courses (ERG’s Current Medical Template and Medical Declaration is attached).”
Mr Iles said that ERG’s practice is to provide the relevant medical practitioner with a description of the skills and activities that the person will be required to perform and undertake during training and then leave it to the medical practitioner to determine whether the person is capable of performing those skills and activities. Unless the medical practitioner certified that the person was fit to undertake the training, the person would not be permitted to do so.
Dr Richard Choong
32. Dr Choong said that he has been practising as a general practitioner for 10 years and that he is generally familiar with the workers’ compensation system, 8-10% of his patient load comprising workers’ compensation claimants. He also said that he is the Chair of the Workers’ Compensation Committee of the Australian Medical Association and was involved in the preparation of the recently published Medical Practitioners’ Guide for Workers’ Compensation in the State “Workcover” scheme.
33. Dr Choong said that the applicant had been a patient at his medical practice since September 1999. He said that, prior to 26 April 2001, the applicant had attended on 2 occasions – namely, on 7 September 1999 regarding a finger injury, and on 9 September 2000 regarding tenderness in the ribcage.
34. Dr Choong said that the applicant next attended his surgery on 26 April 2001, presenting with lower back pain, and complained of the following symptoms:
“he was unable to sit upright, pain was radiating to his left buttock, … getting worse over the previous 7 days”.
He added that the applicant gave a history of his pulling at a shackle or a very heavy hose and immediately feeling lower back pain when at sea on 19 April 2001. He confirmed that he then issued a first medical certificate, referred him for an x-ray and CT scan of his lumbar spine, and prescribed analgesic medications. As regards rehabilitation, Dr Choong said that he accepted that, in the case of a back injury, this “could take some time” and he commenced the rehabilitation process “quite quickly” by referring the applicant to Active Injury Management, a rehabilitation provider, on 7 May 2001 – that is, about 3 weeks after the injury occurred – and he thereafter continued to be involved in the applicant’s rehabilitation.
35. Dr Choong confirmed that, after 26 April 2001, he saw the applicant, in relation to his back injury, on the following dates: 30 April, 7 May, 15 May, 22 May, 29 May, 18 June, 29 June, 17 July, 15 August, 7 September, 9 November, and 13 December in 2001; 23 January, 22 February, 4 April, 10 May, 24 June, 9 August and 20 November in 2002; and 13 January, 13 March, 22 May, 1 July, 7 July, 9 September, and, finally, on 24 November 2003. He said that on each of those occasions he issued a progress medical certificate to the effect that the applicant was fit for restricted duties, including, sedentary duties and minimal weight lifting.
36. Dr Choong confirmed that he provided a report dated 9 July 2003 to the applicant’s solicitors regarding the applicant’s fitness, or unfitness, to undertake HUET training and to be transported by vessel to an offshore workplace. He said that he had never undertaken a HUET training course himself but that he is regularly required to examine patients for the purpose of approving, or not approving, their undertaking HUET training courses. Asked to describe his understanding of the practical requirements of a HUET training course, Dr Choong responded:
“My understanding of the course is they strap you into a simulated helicopter, flip you upside down, plunge you into a cold pool of water and ask you to take off the seat belt, punch through the door and get out of the helicopter. There is also, I believe, some divers in the pool to ensure that there is a level of safety.”
(Transcript, p 130) Dr Choong’s report of 9 July 2003, which was tendered in evidence, states as follows:
“…
i.We would be grateful if you would confirm whether or not you consider Mr Hume to be medically fit to undergo HUET training.
On review of the medical specification form for attendance at HELICOPTER UNDERWATER ESCAPE AND AVIATION SEA SURVIVAL, I am concerned with the level of mobility, flexibility and fitness that Mr Hume would require to undertake to complete this training course. Specifically highlighting the ‘physical profile of the course’:
· pulling and pushing;
· mobility, strength, dexterity, awkward positions;
· exposed to movements of the back; and
· sustaining awkward positions of trunk, neck and arms.
Based on the physical requirements of the course I do not believe that Mr Hume is fit to safely undertake the HELICOPTER UNDERWATER ESCAPE AND AVIATION SEA SURVIVAL training course. His current medical condition limits his strength, flexibility and mobility in his lower back and as such he does not fulfil the basic requirements set out by ERG training for those persons undertaking the course.
ii.We would also be grateful if you would confirm whether or not you believe Mr Hume to be fit to be transported to an offshore workplace by a vessel, bearing in mind the variety of sea conditions.
I do not believe that Mr Hume is fit to be transported to an offshore workplace by a vessel, the reasons for this is that Mr Hume would be exposed to the unpredictability of sea and weather conditions and the corresponding vessel movements. This would significantly increase his risk of both an aggravation and exacerbation to his lower back injury. As stated above Mr Hume’s lower back does not have the strength, flexibility or mobility and as such he would be unable to appropriately or safely brace himself during any adverse sea conditions that he may experience while travelling by vessel to an offshore workplace.
…”
(Exhibit A15) In his oral evidence Dr Choong confirmed the opinions expressed in his report of 9 July 2003 as follows:
“Now, your report of 9 July 2003 says that based on the physical requirements of the course you don’t believe that Mr Hume is fit to safely undertake the HUET training? --- No, that’s correct, I don’t believe he is fit to undertake the safety aspects.
Is there any doubt in your mind about that? --- No, from a safety point of view.
The second question addressed whether or not Mr Hume was fit to be transported to offshore workplaces by vessel. You have given a negative response there, you don’t believe he is; what is the reason for that? --- My understanding of sea conditions is limited, not being a sailor, but in ideal conditions I am sure anyone could be transported anywhere by boat, however, in adverse conditions, I think with the rolling and tossing that I’ve personally experienced in a limited capacity I didn’t believe that Mr Hume would be able to brace himself and there was a huge potential to exacerbate his injury.”
(Transcript, pp130-131)
37. In cross-examination, Dr Choong agreed that the applicant’s back symptoms had improved substantially since April 2001. He said that there had not been a vast change in his symptoms in recent times and he believed that his symptoms had now stabilised.
38. Dr Choong also agreed that it had never been his view that the applicant was totally incapacitated for work; rather, he considered that the applicant was “fit for lighter work”. He agreed that, on the assumption that the applicant was fit to undertake HUET training, he could work offshore as an occupational health and safety consultant to offshore manning and oil companies.
39. As regards the physical aspects of undertaking HUET training, Dr Choong accepted that the applicant has the capacity to “pull and push”, to “bend”, and to “move his body”, and probably also the capacity to “put his body in awkward positions” but, he added (as regards the lastmentioned capacity), he would not like him to do that. Finally, asked whether there was any HUET physical activity requirement that the applicant could not perform, Dr Choong said that he was not sure that the applicant could push open a helicopter door underwater. He added that while he was sure that the applicant could push a trolley around a supermarket, he was “not quite sure that he could push-start his car”.
40. In re-examination, Dr Choong was asked to comment on the outcome of the applicant’s rehabilitation process. He commented as follows:
“This has been a successful rehabilitation process. I am happy I was guided by one of the initial letters from Mr Thomas that said that it would be sensible for David to go back into occupational health and safety work rather than risking his back by going back to seamen duties. …David had skills which we could tap rather than re-training, formally re-training, he actually went ahead and identified his own job, which is highly commendable, and he was successfully redeployed … towards full-time duties. The rehabilitation provider concurred with me and ceased rehabilitation once he reached that level, he had been returned to work.”
(Transcript, pp149-150)
Dr Peter Burke
41. Dr Burke said that he is a medical practitioner and that, as an Australian Maritime Safety Authority (AMSA) approved medical examiner, he from time to time issues certificates of medical fitness in respect of seafarers.
42. Dr Burke confirmed that he saw the applicant on 7 July 2003 for the purpose of certification of his medical fitness for AMSA. He said that, on that occasion, the applicant:
“gave a history, supported by other documentation, of long-standing back pain and reported that he had chronic back pain which caused him to be unable to perform many tasks, including climbing stairs, climbing ladders, sitting for any long periods of time and, on top of that, reported in terms of prescribed medications taken regularly- three medications which were potentially sedating in Tramadol, Panadeine Forte and Diazepam.”
(Transcript, p152) He confirmed that he then issued an AMSA Certificate of Medical Fitness certifying the applicant as unfit for deck department duties and engine department duties, and commenting as follows:
“Reports chronic back pain which causes inability to climb stairs, climb ladders, sit for long periods, and requires daily self-administration of potentially sedating analgesic medication.”
That certificate was tendered in evidence (Exhibit A17).
43. In cross-examination, Dr Burke acknowledged that he did not conduct a clinical examination of the applicant, and that he issued the abovementioned certificate on the basis of the history given by the applicant and information provided by the applicant, including a report of Mr G W Thomas, Neurosurgeon, dated 7 March 2003 (set out in paragraph 45 below).
Mr G Wayne Thomas
44. Mr Thomas said that he has practised as a neurosurgeon for 22 years. He confirmed that he first saw the applicant, on a referral from Dr R Choong, on 2 May 2001. He also confirmed that he had made various reports regarding the applicant to Dr Choong dated 2 May 2001, 31 May 2001, 28 June 2001 and 26 July 2001 (set out in paragraphs 9-12 above), and a report to Mr G Pesich, Physiotherapist, dated 26 July 2001, as follows:
“Thanks for your letter regarding David Hume. I believe physiotherapy and hydrotherapy will benefit him. David however brought to my attention that some of the therapeutic measures that you have carried out on him have aggravated the pain at times and perhaps it would be advisable to modify his treatment to avoid this sort of flare up of his back and left leg symptoms.
I won’t be reviewing him automatically from now on but will be available to see him if and when the need arises. His ongoing treatment will be in the hands of Dr Richard Choong.”
(Exhibit A 19) Mr Pesich’s referral letter, dated 24 July 2001, stated as follows:
“Thank you for reviewing David Hume.
I have seen David in my rooms on the 9th July, where I initially met him. On this initial assessment, David reported an incident on the 20th April where he sustained a lumbar injury by a pulling nature. He reported symptoms on the left lower lumbar area radiating into his left buttock. He showed poor intervertebral movements on active extension, and poor lower abdominal control.
David seems keen on active rehab, and has now been in the pool on 2 occasions. I think David would benefit from some further work on top of the pool sessions with pilates and lower abdominal stabilising exercises.
If you have any queries about his management please don’t hesitate to get in contact with me. I would like to start on this active rehab to work on David’s endurance and control.
…”
(Exhibit A18)
45. Two more recent reports of Mr Thomas were also tendered in evidence. A report of Mr Thomas, dated 7 March 2003, to the applicant’s solicitors states as follows:
“I write in reply to your letter of 4th March 2003 about Mr David Hume whom I have just seen today in my rooms. I first met Mr David Hume on 2nd May 2001. He had been referred to me by Dr Richard Choong his general practitioner at the Port Kennedy Medical Centre. On that day Mr Hume informed me that his normal employment was as a seaman. He informed me that on 20th April 2001 he had injured his back handling a very heavy large industrial hose. In the few days following the injury the pain worsened and his general practitioner had arranged for a CT scan to be done. At the time that I saw him on 2nd May 2001 he was complaining of left sided low back and posterior thigh and leg pain without any numbness or tingling. His symptoms had varied according to the level of physical activity that he attempted at the time.
When I examined Mr Hume on 2nd May 2001 he appeared to be in discomfort. Straight leg raising could be carried to 90 degrees on the right and 75 degrees on the left. There was reduced sensation to pinprick over the left lateral calf and side of foot. He was tender to firm pressure over the low back in the midline and there was a mild restriction of forward flexion at the lumbar spine.
The CT scan which Dr Richard Choong had organized prior to my seeing Mr Hume revealed the presence of a small to moderate sized central and left sided L5/S1 disc protrusion displacing the S1 nerve root on the left. This was completely consistent with the cause of his symptoms at that time and I was in no doubt that he had injured his L5/S1 disc on 20th April 2001 in the manner that he described to me.
I recommended conservative treatment expecting that his symptoms would resolve with the passage of time.
I have seen him however on numerous occasions since then including 31st May 2001, 28th June 2001, 26th July 2001 and 8th February 2002.
When I saw him on the last occasion on 8th February 2002 he reported very slight changes in that the element of localised back pain was not troubling him so much anymore but most of the pain was radiating from a point near the anterior superior iliac along the front of the left thigh. He reported that the more physically active he was the more his symptoms would trouble him. He at that time was taking Tramal as well as Panadeine Forte.
By that time Mr Hume had undergone an MRI scan in mid 2001. This investigation had revealed a small left foraminal annulus tear at the L4/5 level with a broad based left foraminal disc protrusion extending towards the exiting left L4 nerve root with the potential to involve it. It also showed a small broad based central and left paracentral disc protrusion at the L5/S1 level not appearing to cause any neural impingement.
On reviewing him today I inquired as to his current level of symptomatology. He informed me that there had really been no change since I saw him a year ago. He continues with pain that is always present in the left flank spreading into the left thigh. When I inquired as to whether the pain was on the front or the back of the thigh he reported that it feels as though it's within the leg near the bone. It is not associated with pins and needles or numbness. He wakes with pain and the pain continues throughout the day and he goes to bed with pain at night. The level of pain varies through the day with mild to severe depending on physical activity. He has been working as a TAFE lecturer all last year. His employment is as a casual lecturer but at times he has been called upon to lecture up to 44 hours per week (the normal hours of lecturing for full-time lecturer are about 23 hours per week). It has varied however and sometimes he has not done any lecturing during a week and on other occasions it has varied up to 44 hours per week. The average number of hours that he has worked as a TAFE lecturer last year is about 23 or 24 hours.
He is therefore manifestly capable of the work the he now does as a TAFE lecturer although at times this is at the expense of a certain level of aggravation of his underlying symptomatology of left flank and leg pain. He will typically be very tired and in some pain at the end of a working day and does have to regularly rely on analgesics such as Tramal and occasionally Panadeine Forte and often will take Valium to help with sleep.
The exact diagnosis of his injury is slightly complicated because the original injury as I have stated in the above which was evident when I saw him for the first time on 2nd May 2001 was an L5/S1 disc protrusion causing displacement of the left S1 nerve root. Subsequent scans have revealed the presence also of an L4/5 disc lesion and in some ways this would correlate better with the ongoing pain that he now experiences in the left thigh especially the way he described things when I saw him last year whereby the pain spread along the front of the thigh. That would be consistent with the L4/5 lesion rather than the L5/S1 lesion for which he originally saw me on 2nd May 2001.
I have always considered the possibility of whether he would be a candidate for surgical treatment whenever I have seen him but have never felt that this would be in his best interest and have always recommended a conservative approach. His progress however has been very disappointing and I can say that he really has not improved at all in the few years since onset of his symptoms. Therefore the prognosis is very uncertain and judging by what has happened so far it is likely that he will continue with significant symptoms to those that are now for the foreseeable future.
I would agree with Dr Phil Martin who has already seen him and reported on his condition that he would not be fit for the work of a seaman because of the more physical nature of that form of employment.
The clinical examination that I conducted on Mr Hume today revealed no specific features. He was tender around the low back especially a little to the left around the midline at the L5/S1 level. He demonstrated a reasonably good range of lumbar spinal movement although did complain of some discomfort whilst carrying out this movement.
To summarise he does have evidence that he definitely injured his L5/S1 disc in the incident which occurred at work on 20th April 2001. He continues with significant symptomatology which does affect his daily life, both his work and his quality of life apart from work. This is likely to continue in the foreseeable future and he will most likely have to continue to take medications in the future to the same extent that he now does. He is fit for the work that he now does as a TAFE lecturer and this is consistent with his condition, education, training and experience. He is not fit for his prior work as a seaman and is not likely to become fit for such work in the future.
His condition has stabilised such that it would be reasonable to consider settlement of his claim.”
(Exhibit A20) A report of Mr Thomas, dated 4 December 2003, to the respondent’s solicitors states as follows:
“I write in reply to your letter of 24 July 2003 and will respond to the matters raised in that letter point by point.
1. Are the findings shown on the CT scan of 27 April 2001 and the MRI scan of 19 June 2001, copies of which are enclosed for your ease of reference, necessarily evidence of traumatic injury rather than degenerative change?
First of all in relation to the CT scan done on Mr David Hume on the 27 April 2001 the main finding was of a central posterior and left paracentral disc protrusion at the L5/S1 level deforming the anterior theca and also compromising the left S1 emerging nerve root. Although in the specific comment about L5/S1 before the final comment was made in the report the radiologist Dr Khoo referred to some end plate lipping which would indicate a degree or chronic degenerative change, the presence of the disc protrusion, as described, is an indication of trauma rather than degenerative change.
The MRI scan was reported as indicating a small left foraminal annulus tear at the L4/5 level associated with a broad based left foraminal disc protrusion which is effacing the peri-neural fat and maybe irritating the exiting left L4 nerve root. In addition there is a small extruded fragment lying antero superiorly within the left neural foramen. A small broad based central and para-central disc protrusion at the L5/S1 level was identified which did not appear to cause any neural impingement. Both of these entities, the one at L4/5 and the one at L5/S1, are caused by trauma rather than degenerative change.
2. If the answer to 1 above is in the affirmative, please identify which of the findings are necessarily evidence of traumatic injury arising rather than degenerative change and please identify which are more consistent with degenerative change.
I believe this is covered in 1 above.
3. Could some of the findings on the CT scan and MRI scan be asymptomatic or are they necessarily productive of pain?
Such findings as were reported on the CT scan of the 27 April 2001 and the MRI scan of the 19 June 2001, both of the lumbosacral spine on Mr David Hume, could be asymptomatic and not necessarily productive of pain. Of course such findings always have to be interpreted in the context of the clinical problem posed. In the case of Mr David Hume his initial pain was in the low back, left buttock and posterior thigh and this would be consistent with the L5/S1 disc lesion. He subsequently developed anterior thigh pain which would be consistent with the lesion shown at L4/5.
4. Did Mr Hume suffer any pathological change as a result of the accident on 20 April 2001, and if so, please describe the same and advise how that injury was causative?
It is conceivable that Mr David Hume did suffer a left foraminal disc protrusion at L4/5 and a central and left sided disc protrusion at L5/S1 as a result of the accident on the 20 April 2001. Such injuries are quite compatible with the mechanism of injury that Mr Hume described whereby he was handling a very large industrial hose used for the transport of oil between vessels on the day of the injury.
5. In your view has there been any recovery or improvement in Mr Hume’s original injury, and if so, please specify the degree of improvement?
I believe he has improved as compared with the way things were at the outset soon after the injury but it is difficult to quantify the improvement and he certainly continues to have significant levels of symptomatic complaint.
6. Having regard to the objective signs, in your experience would you have expected Mr Hume to have recovered from the original injury or for his condition to have improved, and if so, when? We would appreciate it if you would respond to this question based upon objective evidence, rather than Mr Hume’s subjective complaints of pain.
76. Mr Johnson confirmed that he had discussed with the applicant the possibility of his working for Diamond Offshore (his present employer). His evidence continued:
“What would it actually involve him doing? --- Okay, okay, basically it’s a safety supervisor’s position that was available at that time. It is shore based, in Perth, with the requirement to travel to offshore facilities, the company’s offshore facilities. Longest stay on the rig would probably be about three or four days at a time.
And whilst on - - -? --- It's probably about a sixty-forty split, about 60 per cent of your time's spent onshore, 40 per cent offshore due to the number of rigs under his control.
And can you give the Tribunal a general idea about what would be involved whilst offshore, what would he actually physically be required to do? --- Okay, the first physical requirement again is to get on to the rig, okay, that would mean either travelling by helicopter or travelling by vessel and again, each individual is assessed as to whether or not they are medically fit to do that. On the rig itself his role would mainly be in the form of auditing systems and checking safety systems and providing assistance to senior management on the rig to implement those systems and improve the safety management system.
And in terms of where he would do that on the rig, would he be located in an office somewhere? --- Whilst he is on the rig I would say 70 per cent of his time would be spent in the accommodation area, okay, and 30 per cent would be outside the accommodation meaning he could be on the drill floor, he could be in the sack room, he could be around the rig, just checking on various items but actually performing tasks as such, physical tasks in regards to the operating of the rig, he would not get involved in that.
No, I understand that. And the rigs, you said that they are pretty large structures, do all the operations take place on one level? --- No, there would be a requirement to go up and down stairs as such.
Right. So if Mr Hume had a back condition which interfered with his ability to climb stairs would that be something that would detract from his suitability for working with your company? --- That would depend on his pre-employment medical, medical assessment.”
(Transcript, p261) Mr Johnson said, however, that there was presently no position available for the applicant with Diamond Offshore.
The Legislation
77. The relevant provisions of the Act are as follows:
“3 In this Act, unless the contrary intention appears:
…
‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
...
‘disease’ means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment;
…
‘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;
...
‘injury’ means:
(a)a disease; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
…
‘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 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.
…
13(1) For the purposes of this Act, if an employee who is a seafarer suffers an injury, the employee's normal weekly earnings are an amount equal to the amount payable weekly to the employee by way of salary under the contract of employment that applied to his or her employment immediately before the injury happened.
…
24 The liability of an employer to pay compensation to a person under this Act is the liability of the employer to pay the amount or amounts that the employer determines, in accordance with this Act, to be payable to the person.
…
26(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(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.
31(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.
31(3) If the employee is a seafarer, the compensation payable under subsection (2) is payable for each of the first 45 weeks (whether consecutive or otherwise) after the date on which the seafarer is left on shore at, or returned to, his or her proper return port.
31(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.
31(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
(b) if the employee is employed for 25% or less of his or her normal weekly hours during that week – an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings; or
(c) if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week – an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings; or
(d) if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week – an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings; or
(e) if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week – an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 95% of his or her normal weekly earnings; or
(f) if the employee is employed for 100% of his or her normal weekly hours during that week – an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings.
…
31(14) For the purposes of this section the normal weekly hours of an employee who is not employed on a ship are:
(a)if the award, determination or certified agreement that applies to the employee specifies the normal weekly hours of an employee—those hours; or
(b)in any other case – 38 hours.
…
32 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”.
Consideration and Findings
Is the respondent liable to pay compensation to the applicant under the Act?
78. Pursuant to ss 24 and 26(1) of the Act, the respondent will be liable to pay compensation to the applicant in accordance with the Act if the applicant has suffered an “injury” resulting in (relevantly) his “incapacity for work”, or “impairment”.
Has the applicant suffered an injury?
79. On the basis of the applicant’s evidence (which the Tribunal accepts) and of the medical evidence (which is entirely consistent), the Tribunal finds that the applicant, on 20 April 2001 while employed by the respondent on board the vessel “Total Provider”, suffered an injury (as defined in s 3 of the Act), being a “disease” in the form of a lower back ailment that was contributed to in a material degree by his employment with the respondent.
Has the applicant’s lower back injury resulted in his incapacity for work, or impairment?
80. On the basis of the applicant’s evidence and the medical evidence, the Tribunal finds that the applicant’s lower back injury resulted in “impairment”, as defined in s 3 of the Act.
81. As regards “incapacity for work” (as defined in s 8 of the Act), the Tribunal finds, on the basis of the applicant’s evidence and the medical evidence, that the applicant’s lower back injury resulted initially in total incapacity for work (within the meaning of s 8(a) of the Act) for a period of approximately 14 days immediately after that injury was sustained, and thereafter has resulted in partial incapacity for work (within the meaning of s 8(b) of the Act), and that such partial incapacity for work is presently continuing.
The respondent is liable to pay compensation to the applicant under the Act
82. It follows from the findings set out in paragraphs 79-81 above that the respondent is, and continues to be, liable to pay compensation to the applicant under the Act in respect of his lower back injury.
What is the amount of compensation that the respondent is liable to pay to the applicant in accordance with s 31 of the Act?
83. As previously mentioned (see paragraph 8 above), the applicant was in receipt of incapacity payments from the respondent pursuant to s 31 of the Act from 26 April 2001 to March 2002, and there is no dispute between the parties regarding the quantum of those payments. Accordingly, in determining the amount of compensation that the respondent is liable to pay to the applicant in accordance with s 31 of the Act, the Tribunal will confine its attention to the period from March 2002 to date.
Which occupations constitute “suitable employment” in the applicant’s case?
84. Having regard to the evidence in this case – in particular, the applicant’s evidence, his curriculum vitae (Exhibit R13), and the labour market research reports of Ms E Duncan (Exhibits R5-R8 – set out in paragraphs 58-61 above) – the Tribunal is satisfied that “suitable employment” (as defined in s 3 of the Act), in which the applicant might be able to earn remuneration, includes the following occupations:
·offshore rig training and safety coordinator;
·consultant to offshore manning and oil companies;
·occupational health and safety manager;
·occupational health and safety officer/adviser;
·training and development officer;
·TAFE lecturer.
In which of those occupations constituting “suitable employment” is the applicant “able to earn” remuneration (for the purposes of s 31 of the Act)?
85. For the purpose of determining in which of the abovementioned occupations the applicant is “able to earn” remuneration, 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 at the relevant time will also be a material consideration: Esam v ASP Ship Management (1998) 87 FCR 82 at 86.
86. As regards the applicant’s physical capacity (his mental capacity not being in issue) to undertake the abovementioned occupations, the Tribunal finds, on the basis of the whole of the evidence before it, that, as from March 2002, the applicant has been able to undertake, on a full-time basis, each of the following occupations:
·consultant to offshore manning and oil companies;
·occupational health and safety manager;
·occupational health and safety officer/adviser;
·training and development officer;
·TAFE lecturer.
The Tribunal also finds, primarily on the basis of the expert evidence of Mr G W Thomas, that, as from November 2002, the applicant has been fit to undertake a HUET course, and to climb and descend stairs and ladders without difficulty (provided that he is not required to do so very frequently per day), and that, accordingly, he has, from that date, also been able to undertake, on a full-time basis, the following occupation:
·offshore rig training and safety coordinator
subject to the proviso that the relevant offshore work is performed exclusively on a stable rig platform and that transport to and from that rig platform is by helicopter.
87. As regards the actual availability (having regard to the state of the labour market) of each of the abovementioned occupations to the applicant, the Tribunal, on the basis of the labour market research reports of Ms E Duncan (Exhibits R5-R8), finds that the employment availability regarding each of the following occupations:
·occupational health and safety manager
·occupational health and safety officer/adviser
·training and development officer
was “very good” (the highest rating given by Ms Duncan) as at, and from, February 2002. The Tribunal notes (in contrast) that, according to Ms Duncan’s reports, the employment availability regarding the occupation of TAFE lecturer was rated as “average” as at February 2002 with “moderate” employment growth expected to 2007-2008.
What is the amount of remuneration that the applicant is able to earn in “suitable employment”?
88. Section 32 of the Act requires the Tribunal, in determining, for the purposes of s 31, the amount that the applicant is able to earn in suitable employment, to have regard to the relevant matters referred to in paras (a)-(g) of s 32. It is common ground that paras (b), (c) and (d) of s 32 are not applicable in this case. The respondent submitted, however, that paras (e) and (f) of s 32 are applicable because, although there were forms of “suitable employment” which the applicant had sought, there were other forms of “suitable employment” that he had not sought – more specifically, forms of suitable employment which attract a substantially higher rate of remuneration than the occupation of TAFE lecturer which he has chosen to undertake. The Tribunal does not accept the respondent’s submission. On the basis of the applicant’s evidence (see his supplementary witness statement set out in paragraph 19 above), the Tribunal finds that the applicant has sought suitable employment – and, indeed, has obtained suitable employment as a TAFE lecturer – and that, by reason of that finding alone, paras (e) and (f) of s 32 are also not applicable in this case. In the Tribunal’s opinion, however, the question whether there were other, more highly remunerated, forms of suitable employment which have not been sought by the applicant is a relevant consideration within para (g) of s 32.
89. As regards para (a) of s 32 of the Act, there is evidence before the Tribunal regarding the amount that the applicant has earned in employment from March 2002 onwards as a lecturer at Challenger TAFE, initially as a casual lecturer, paid on an hourly basis according to the number of lecturing hours worked, until 31 December 2003, and, from 1 January 2004, as a full-time fixed term contract lecturer paid a commencement salary of $49,480.00 per annum (or $1,896.99 per fortnight).
90. Having regard to all relevant considerations in this case, the Tribunal finds, on the basis of Ms Duncan’s labour market research reports (Exhibits R5-R8), that the amounts of remuneration that the applicant has been able to earn in the below-mentioned occupations (constituting “suitable employment” for him) – other than the occupation of TAFE lecturer – from March 2002 fall within the following ranges:
·occupational health and safety manager – $60,000-$85,000 per annum;
·occupational health and safety officer/adviser – $50,000-$65,000 per annum;
·training and development officer – $60,000-$75,000 per annum;
·occupational health and safety consultant (self-employed) – $400-$500 per day (for presentation of training package).
91. The Tribunal accepts (as submitted by the applicant) that, as Ms Duncan has never met the applicant, her abovementioned labour market research reports do not take account of the applicant’s personal characteristics or attributes but rather (as she herself acknowledged in her oral evidence) contain general information about possible vocational options that are available to a person with the applicant’s training, qualifications and employment experience. The Tribunal, however, regards Ms Duncan’s reports as providing valuable guidance in relation to the general availability of “suitable employment” (and its remuneration) in this case and it has accordingly attached great weight to, and based its relevant findings on, those reports.
92. The Tribunal, furthermore, notes the applicant’s evidence that he has sought “suitable employment” in the occupational health and safety area, but without success (see para 2 of his supplementary witness statement set out in paragraph 19 above). The Tribunal accepts the applicant’s evidence regarding his having sought “suitable employment” in the area of occupational health and safety but that evidence, in the Tribunal’s opinion, does not indicate that the applicant has actively sought such employment – indeed, it appears from his evidence that he has made only one such job application in the relevant period from March 2002, namely, an application for the position of “Safety Advisor” with Fremantle Ports in October 2003.
93. Having regard to the evidence before it and the relevant considerations referred to above, the Tribunal regards it as reasonable to determine that the amount that the applicant has been “able to earn in suitable employment”, for the purposes of s 31 of the Act, from March 2002, is $60,000 per annum (being the minimum remuneration for each of the occupations of occupational health and safety manager, and training and development officer, and in the upper half of the range of remuneration for the occupation of occupational health and safety officer/adviser, according to Ms Duncan’s reports), plus the normal salary increments applicable to such occupations since March 2002.
Which provisions of s 31(5) of the Act are applicable?
94. The final substantive matter to be determined by the Tribunal is: in respect of the period from March 2002, which paragraphs of s 31(5) of the Act are applicable in the circumstances of the applicant’s case?
95. According to the evidence before the Tribunal:
· for the period from March 2002 to 31 December 2003, the applicant was employed by Challenger TAFE as a lecturer on a casual basis and was paid at the casual hourly rate of pay for each hour of lecturing worked;
· for the period from 1 January 2004, the applicant has been, and continues to be, employed by Challenger TAFE as a fixed term contract lecturer on a full-time basis, with a commencement salary of $49,480.00 per annum ($1,896.99 per fortnight).
96. As regards the period from 1 January 2004 and continuing, the applicant has been, and is, employed for 100% of his “normal weekly hours” (as defined in s 31(14) of the Act), and, accordingly, para (f) of s 31(5) of the Act is the applicable provision.
97. As regards the period from March 2002 to 31 December 2003, the position is more problematic. It is common ground that, throughout that period, the applicant worked as a casual lecturer at Challenger TAFE for, on average, approximately 23 hours per week. The applicant submitted that that constituted 100% of his normal weekly hours because, under clause 31 of the Challenger TAFE Lecturers Certified Agreement 2000, full-time hours of work (namely, 37.5 hours per week) normally include 23 lecturing hours (the balance of 14.5 hours being devoted to non-teaching and other professional duties). The respondent, on the other hand, submitted that “normal weekly hours” under the abovementioned certified agreement comprise 37.5 hours and that, by working (on average) 23 casual lecturing hours per week, the applicant was employed (on average) for approximately 61% of his normal weekly hours and that, accordingly, s 31(5)(d) of the Act is the applicable provision.
98. The Tribunal does not accept the applicant’s submission. According to the relevant certified agreement, whereas a “permanent lecturer” or a “fixed term contract lecturer” may be “employed full time (37.5 hours per week) or part-time (less than 37.5 hours per week)”, and is paid a full-time salary or a pro-rata proportion thereof, respectively (see clauses 15, 16 and 18), a “casual lecturer” is “employed by the hour” and is “entitled solely to the casual hourly rate of pay for each hour of lecturing worked” (see clause 17). It follows, in the Tribunal’s opinion, that whereas that certified agreement specifies the normal weekly hours of a permanent lecturer and of a fixed term contract lecturer (namely, 37.5 hours), it does not specify the normal weekly hours of a casual lecturer. In those circumstances, for the purposes of s 31 of the Act, the “normal weekly hours” of the applicant, when he worked as a casual lecturer at Challenger TAFE, were those specified in para (b) of s 31(14) of the Act – namely, 38 hours.
99. The Tribunal finds, therefore, that, for the period from March 2002 to 31 December 2003 when the applicant worked as a “casual lecturer” at Challenger TAFE for (on average) 23 hours per week, he was employed (on average) for approximately 61% of his “normal weekly hours” (as defined in s 31(14)(b) of the Act) and that, accordingly, para (d) of s 31(5) of the Act is the applicable provision.
100. It follows from the Tribunal’s findings set out in paragraphs 96 and 99 above that the Tribunal also finds that, in respect of the period from March 2002, the amount of compensation that the respondent is liable to pay to the applicant in accordance with s 31 of the Act is as follows:
· for the period from March 2002 to 31 December 2003 – pursuant to s 31(5)(d) of the Act, an amount that, when added to the amount that the applicant was able to earn during each week in suitable employment (as determined on the basis of the Tribunal’s finding set out in paragraph 93 above) results in an amount equal to 90% of his “normal weekly earnings” (as defined in s 13 of the Act);
· for the period from 1 January 2004 onwards – pursuant to s 31(5)(f) of the Act, an amount that, when added to the amount that the applicant was able to earn during each week in suitable employment (as determined on the basis of the Tribunal’s finding set out in paragraph 93 above) results in an amount equal to 100% of his “normal weekly earnings” (as defined in s 13 of the Act).
Decision
101. For the above reasons the Tribunal sets aside the deemed reviewable decision of the respondent and, in substitution therefor, decides that the respondent is liable, pursuant to ss 24 and 26(1) of the Act, to pay compensation to the applicant under the Act for a lower back injury sustained by him on 20 April 2001, and the amount of compensation that the respondent is liable to pay to the applicant from March 2002, in accordance with s 31 of the Act, is as follows:
·for the period from March 2002 to 31 December 2003 – pursuant to s 31(5)(d) of the Act, an amount that, when added to the amount that the applicant was able to earn during each week in suitable employment (as determined on the basis of the Tribunal’s finding set out in paragraph 93 above) results in an amount equal to 90% of his “normal weekly earnings” (as defined in s 13 of the Act);
·for the period from 1 January 2004 onwards – pursuant to s 31(5)(f) of the Act, an amount that, when added to the amount that the applicant was able to earn during each week in suitable employment (as determined on the basis of the Tribunal’s finding set out in paragraph 93 above) results in an amount equal to 100% of his “normal weekly earnings” (as defined in s 13 of the Act).
102. The Tribunal orders, pursuant to s 92(1) of the Act, that the respondent pay the costs of the applicant of these proceedings, such costs, in the absence of agreement between the parties as to the amount thereof, to be taxed by a District Registrar or a Deputy Registrar of the Tribunal in accordance with clause 6 of the Tribunal’s General Practice Direction dated 18 May 1998.
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Signed: ..............(sgd V Wong).................................
AssociateDates of Hearing 9 July, 8-11 December 2003, 9 January, 18 February 2004
Date of Decision 29 October 2004
Counsel for the Applicant Mr D Leask
Solicitor for the Applicant Leask & Co
Counsel for the Respondent Mr G Hancy
Solicitor for the Respondent Cocks Macnish
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