Kelk and OSM Australia Pty Ltd (Compensation)
[2024] AATA 913
•30 April 2024
Kelk and OSM Australia Pty Ltd (Compensation) [2024] AATA 913 (30 April 2024)
Division:GENERAL DIVISION
File Number(s): 2021/2959
Re:Shane Kelk
APPLICANT
OSM Australia Pty LtdAnd
RESPONDENT
DECISION
Tribunal:Member Lee Benjamin
Date:30 April 2024
Place:Brisbane
The decision under review is set aside and substituted as follows:
(a) The application for compensation regarding aggravation of pre-existing asymptomatic osteoarthritis of the right hip, and aggravation of pre-existing asymptomatic lumbar spine pathology is approved;
(b) The Applicant is assessed with an impairment of 14%;
(c) The Applicant is assessed with non-economic loss of 52%; and
(d) The Applicant’s claim for economic loss is to be assessed.
…..........................[SGD]...........................................
Member Lee Benjamin
Catchwords
COMPENSATION – Claim for compensation and permanent impairment and non-economic loss pursuant to Seafarers Rehabilitation and Compensation Act 1992 – where Applicant sustained injury during course of employment – where relevant conditions already in existence but asymptomatic prior to injury – whether conditions became symptomatic and caused incapacity for work – inconsistent medical and working histories provided to independent specialist doctors – where impairment consequence of injury – decision set aside and substituted.
Legislation
Seafarers’ Rehabilitation and Compensation Act 1992 (Cth)
Cases
Comcare v Sahu-Kahn [2007] FCA 15
Canute v Comcare [2005] HCA 299
Casarotto v Australian Postal Corporation (1989) ALR 406Tisdall v Webber [2011] FCAFC 76; (2011) 193 FCR 260
REASONS FOR DECISION
Member Lee Benjamin
30 April 2024
WHAT IS THIS DECISION ABOUT?
Mr Shane Kelk was employed by OSM Australia Pty Ltd [1] as a Chief Cook/ Chief Steward from 2017 to 2019. On 7 January 2019, Mr Kelk suffered a fall while working on the Geo Coal Seismic Vessel in the Bass Strait. He says that he subsequently suffered pain in his right hip and lower back, right arm right shoulder, right elbow, right hand and right wrist, as well as a “soft tissue injury”.[2] In January 2021, Mr Kelk filed a claim for (i) compensation; and (ii) permanent impairment and non-economic loss, both under the Seafarers’ Rehabilitation and Compensation Act 1992 (Cth) (the Act). Mr Kelk’s claim basis is that the fall aggravated pre-existing asymptomatic (a) right hip osteoarthritis; and (b) lumbar spine pathology, to become symptomatic and cause incapacity for work and impairment. For Mr Kelk to succeed in this application,[3] he must evidence that the fall has “in a material degree, substantially, considerably” resulted in his existing conditions producing incapacity and/or impairment. The question for the Tribunal therefore is whether sufficient, credible evidence so exists. I find that there is.
WHAT HAPPENED?
[1] OSM Australia Pty Ltd is the Respondent in Mr Kelk’s application.
[2] Exhibit 1, A2, p 45, para 6; R2, p 53, para 2.
[3] Mr Kelk seeks to overturn the deemed refusal of his reconsideration request dated 2 April 2021 by OSM Australia Pty Ltd.
Incident
On 7 January 2019 at 6.40pm, Mr Kelk slipped and fell while working[4] on the Geo Coal Seismic Vessel in the Bass Strait.[5]
[4] Mr Kelk was employed by the Respondent at all times material to this application.
[5] Exhibit 1, A2, p 45, para 3, 4, 6; exhibit 3, p 1, para 7.
Mr Kelk’s fall occurred whilst he was carrying food trays and walking through a hatch and stepping over an 18-inch storm step. As he did so and stepped onto the tiled area, he slipped. His body left the ground. He landed with his feet on one side of the step on his backside and right hip on the other side. He fell onto his right side injuring his hip, arm, hand, wrist, elbow, lower back, and soft tissue.[6]
[6] Exhibit 1, A2, p 45, para 8; p 46, para 13, 14, 15, 16, 17.
Mr Kelk fell at a location on the ship that was wet from a “known” condensation problem. This arose from refrigerated store doors being left open. Complaints in relation to safety issues had been raised regarding the refrigerated store and the tiled area’s slipperiness when wet. As a result of these complaints, the operator had put down some non-slip tape which was not suitable and failed. The tape had been taken up and removed and was yet to be replaced.[7]
[7] Exhibit 1, A2, p 46, paras 9-12.
Immediate aftermath
On 7 January 2019 at around 6.55pm, Mr Kelk’s fall was reported to Captain Leif Roset.[8]
[8] Exhibit 1, A2, p 45, para 7; exhibit 3, p 1, para 7.
On 7 January 2019 at around 7.00pm, Mr Kelk was assisted to the ship’s sick bay/hospital where he reported the fall to the ship’s doctor, Dr Dominika Sn Szot.[9] He told Dr Szot that he had strong pain in his right hip, lower back, right arm, right elbow, right shoulder, right hand and right wrist. He was prescribed analgesic medication:[10] Dr Szot’s notes state:
…complained of strong pain on the area he fell on mainly right hip and lower back area. The pain was intense 2.5/5 and radiating to the knee. Some area of right groin was slightly painful as well.[11]
…Lumbar spine – palpably tender soft tissue. Lumbar spine not tender.”[12]
[9] Exhibit 1, A2, p 46, para 19, exhibit 3, p 1, para 7.
[10] Exhibit 3, p 2, paras 19-20.
[11] Exhibit 1, A2, p 46, para 20.
[12] Respondent’s Closing Submissions, p 1, para 3.
On 8 January 2019 at around 2.00am, Mr Kelk attended Dr Szot for a further examination. Dr Szot’s notes state:
…has revealed full range of movement of both hips and significant decrease of the pain. At 3.30am the patient left hospital and went to cabin. At 6.00am the patient went to work. The pain was not significant anymore. Today the patient leaves the vessel with the rest of the crew. Recommended x-ray when on shore, avoid carrying weights and paracetamol in case of pain.[13]
[13] Exhibit 1, A2, p 46, para 21.
At the same time, Mr Kelk accepts that he had made no complaint of any lower back pain in that consultation.[14] Dr Szot’s only diagnosis was recorded as “contusion of the right hip due to fall”.[15]
[14] Respondent’s Closing Submissions, p 2, para 6.
[15] Respondent’s Closing Submissions, p 2, para 5.
Mr Kelk was offered to be helicoptered off the ship but he elected to go the next day on his usual helicopter.[16]
[16] Exhibit 1, A2, p 47, para 22.
On 8 January 2019 at 3.10pm, Mr Kelk received an email from the Respondent’s crewing manager, enquiring about his health after the subject fall. He replied as follows, “I am ok, no drama, no biggie … Im (sic) a tough old bugger … hehehe…”[17]
[17] Respondent’s Closing Submissions, p 2, para 7.
Mr Kelk accepts that, as at 8.00pm on 8 January 2019, he was not “feeling any severe symptoms”.[18]
[18] Respondent’s Closing Submissions, p 2, para 8.
He flew to Melbourne and then two days later flew to Queensland.[19]
[19] Exhibit 1, A2, p 47, para 23.
Travel to Philippines in January 2019
Mr Kelk travelled to the Philippines where he lives and saw a General Practitioner in the Philippines.[20]
[20] Exhibit 1, A2, p 47, para 24.
He says that the underwent x-rays and was later advised by his GP that there were no fractures. He says that he did not have an MRI/CT scan at this time because there are “limited medical facilities in the Philippines”.[21] He says he recalls developing bruising on his lower back on the right hand side a few days after the incident.[22] There is some photographic evidence of his right sided hip and lower back bruising.
[21] Exhibit 3, p 3, para 26.
[22] Exhibit 3, p 3, para 26-28.
Return to work in February 2019
From 19 February 2019 to 25 February 2019, Mr Kelk returned to work on board the Maersk Mariner and completed a swing.[23]
[23] Exhibit 1, A1, p 28.
Northbridge Medical Centre consultation in February 2019
On 28 February 2019, Mr Kelk attended an appointment with Dr Keith Anandacoomaraswamy at the Northbridge Medical Centre. The consultation record makes no mention of any back or right hip pain[24] but states:
Works as a seaman
Lives in the Philippines
…
Spot to cryo today on the neck[25]
[24] Transcript, 4 October 2022, p 26, line 35.
[25] Exhibit 3, p 2; Transcript, 4 October 2022, p 26, lines 27-29.
Return to work in March 2019
On 1 March 2019, Mr Kelk undertook work on board the Maersk Mariner and completed a further swing ending 29 March 2019. [26]
[26] Exhibit 1, A1, p 30.
Mr Kelk says he was in pain while working for Maersk, and was taking 4 or 5 Moxicon a day. He says the pain got worse the longer he was at sea:
I found that in the period of time from the fall that I had progressively increasing pain involving my lower back and right hip, right leg and numbness in my right foot. I had been experiencing this pain from the time of the accident…I stopped seeking work because of the pain.[27]
[27] Exhibit 3, p 3, para 35-36.
Northbridge Medical Centre consultation in March 2019
On 30 March 2019, Mr Kelk attended an appointment with Dr Kang Gui Koh at Northbridge Medical Centre. The consultation record states: “wait list hip operation. Right hip osteoarthritis.”[28] Mr Kelk says that Dr Koh’s diagnosis that he had “right hip osteoarthritis” was the first time he had received such diagnosis.[29]
[28] Exhibit 1, A2, p 47, para 29.
[29] Exhibit 3, p 3, para 29.
Family First Medical Centre consultation in July 2019
On 1 July 2019, Mr Kelk attended Dr Dewan Feroze at Family First Medical Centre. The consultation record states:
Shane needs script. Lives in Philippines. Works for Australian Navy. Normally fill scrip in Perth. Visiting family here. take [Meloxocam for osteoarthritis of hip] [sic]. [30]
[30] Exhibit 1, A2, p 47, para 30.
Family First Medical Centre consultation in November 2019
On 15 November 2019, Mr Kelk attended Dr Sarita Gurung at Family First Medical Centre whose notes reveal:
…he is here requesting script for Xarelto used to treat and prevent blood clots, he said he had DVT 6 months ago and was started on Xarelto in Perth.[31]
[31] Exhibit 1, A2, p 48, para 37.
Eli Waters Family Practice consultation in January & February 2020
On 20 January 2020, Mr Kelk attended Dr Shahnur Rahman at Eli Waters Family Practice whose notes reveal:
“New patient to clinic
Took detailed history with time
Known medical conditions – chronic back and hip pain On regular meds – Mobic? 15mg
Not taking opioids for work drug tests
Accidental injury 1 year back – low back and right hip pain – not improving – obvious limited range of movement on bending forward.[32]
[32] Respondent’s Closing Submissions, p 6, para 16(12).
On 21 January 2020, Mr Kelk attended Bayside Radiology for an x-ray of the lumbar spine and x-ray of the right hip. Following these x-rays, he was advised that:
·there was no fracture in the lumbar spine, but that there was mild degenerative disc disease;
·there was no fracture or dislocation, but that there was osteoarthritic changes.[33]
[33] Exhibit 3, p 4, paras 41-43.
On 24 January 2020, Mr Kelk attended Eli Waters Family Practice whose notes reveal:
…enhanced primary care program under Medicare. Referred to Bay Osteopathy and Injury Rehab. Referred to Healthy Lifestyles Australia.[34]
[34] Exhibit 1, A2, p 48, para 43.
On 24 January 2020, Mr Kelk attended Dr Shahnur Rahman at Eli Waters Family Practice whose notes reveal:
…chronic pain, low back/mid back/right hip. Suffering more than 12 months. Accidental injury 1 year ago.[35]
[35] Exhibit 1, A2, p 48, para 44.
On 14 February 2020, Mr Kelk attended Dr Shahnur Rahman at Eli Waters Family Practice whose notes reveal "[L]etter to Dr Rahman from Bay Osteopathy. Diagnosis RHS hip osteoarthritis."[36]
[36] Exhibit 1, A2, p 48, para 45.
Return to work in February 2020
From February 2020, Mr Kelk obtained employment with the Respondent for six months based in seismic work in the Bass Strait, and had completed three “swings” for the periods 15 February 2020 to 16 March 2020, 14 April 2020 to 18 May 2020 and 18 June 2020 to 16 July 2020.[37] However, Mr Kelk says that in mid-2020, he ceased employment due to his pain being unable to be controlled.[38]
[37] Exhibit 1, A2, p 48, para 46; Respondent’s Closing Submissions, p 7, para 16(13).
[38] Exhibit 1, A2, p 49, para 47.
Eli Waters Family & Craignish Practice consultations in August to January 2021
On 3 August 2020, Mr Kelk attended Dr Shahur Rahman at Eli Waters Family Practice whose notes reveal "chronic pain is getting worse. Referral to Hervey Bay Hospital".[39]
[39] Exhibit 1, A2, p 49, para 51.
On 6 August 2020, Mr Kelk attended Dr Shahur Rahman at Eli Waters Family Practice whose notes reveal "[L]etter to Dr Rahman from Wide Bay Hospital confirming referral for client as category 3 (non-urgent)". [40]
[40] Exhibit 1, A2, p 49, para 52.
On 7 October 2020, Mr Kelk attended Dr Shahur Rahman at Eli Waters Family Practice whose notes reveal "issues with lower back, right sided sciatic pain and also with hip issue".[41]
[41] Exhibit 1, A2, p 49, para 53.
On 12 October 2020, Mr Kelk attended Bayside Radiology for CT Lumbar Spine without Contrast whose notes reveal "there is a prominent right paracentral disc extrusion with superior migration at L4/5, compressing on the right traversing L5 nerve root, likely the cause for the patient's symptoms. Multilevel mild thecal sac narrowing is noted. Mild facet arthropathy is noted at L3/4. L4/5 and L5/S1 levels".[42]
[42] Exhibit 1, A2, p 49, para 54.
On 25 October 2020, Mr Kelk attended Dr Shahur Rahman at Eli Waters Family Practice whose notes reveal "Follow up after issue with lower back and also right hip explained medication and also cortisone".[43]
[43] Exhibit 1, A2, p 49, para 55.
On 1 November 2020, Mr Kelk attended Dr Shahur Rahman at Eli Waters Family Practice whose notes reveal "Long consult. Multiple issues. DVA claim paperwork done after reviewing all 4 health conditions".[44]
[44] Exhibit 1, A2, p 49, para 56.
On 8 November 2020, Mr Kelk attended Dr Shahur Rahman at Eli Waters Family Practice whose notes reveal:
"medicinal cannabis information session. Patient keen for medicinal cannabis for chronic health condition. Osteoarthritis moderate to marked osteoarthritis changes. Soft tissue inflammation hip and right knee. Chronic condition for more than several years and not responding to previous treatment with traditional registered medications. A detail discussion on pros and cons, possible unwanted effects, possible medication interactions and different types of medical cannabis (CBD and THC) products availability in Australia. Patient should not be legally driving or operating heavy machines and also these may affect patient's judgement capabilities for psychoactive nature. Side effect/medication interaction change is high with THC dominant products".[45]
[45] Exhibit 1, A2, p 49-50, para 57.
On 12 November 2020, Mr Kelk attended Dr Shahur Rahman at Craignish Medical Practice whose notes reveal:
"Certificate of Capacity for Work, first see for condition 20/05/2020, L5 nerve root compression (right), multilevel thical sac narrowing mild facet joint arthropathy L3/L4, L4/L5 and L5/S1. No capacity for work for right hip and back pain. Work related fall over right hip and spine".[46]
[46] Exhibit 1, A2, p 50, para 58.
Dr Shahur Rahman of Eli Waters Family Practice also states the following in their notes:
"WorkCover related. Injury 2019 at work. With all documents and photographs. Patient still having significant pain. Advised for specialist review if no improvement. No capacity for work next 3 months".[47]
[47] Exhibit 1, A2, p 50, para 59.
On 2 December 2020, Mr Kelk attended Dr Shahur Rahman at Eli Waters Family Practice whose notes reveal "3rd session regarding medicinal cannabis treatment for patient's chronic condition".[48]
[48] Exhibit 1, A2, p 50, para 60.
On 3 December 2020, Mr Kelk attended Dr Shahur Rahman at Eli Waters Family Practice whose notes reveal "Feeling not well with pains and is starting cannabis oil this week".[49]
[49] Exhibit 1, A2, p 49, para 61.
On 4 January 2021, Mr Kelk attended Dr Shahur Rahman at Eli Waters Family Practice whose notes reveal "Current medical cannabis product. Plan to continue on same meds. Review in one month".[50]
[50] Exhibit 1, A2, p 49, para 62.
Mr Kelk’s heart attack in June 2021
On 7 June 2021 to 23 June 2021, Mr Kelk was hospitalised at Prince Charles Hospital as he underwent a triple coronary artery bypass due to a heart attack.[51]
[51] Exhibit 1, A2, p 50, para 63.
Eli Waters Family Practice consultations in July 2021
On 29 July 2021, Mr Kelk attended Dr Shahur Rahman at Eli Waters Family Practice whose notes reveal "to complete MLC TPD Medical Statement".[52]
[52] Exhibit 1, A2, p 50, para 64.
Medico legal assessment by Dr Greg Gillett (Orthopaedic Surgeon) in August 2021
On 24 August 2021, Mr Kelk attended an “independent medico legal assessment” with Dr Greg Gillett, Orthopaedic Surgeon.[53] Dr Gillet opined:
a. [Mr Kelk] has persistent issues with right hip, right lower back pain and radiation of pain which goes down his right leg involving the thigh, lateral calf towards the ankle area. The pain is progressively getting worse. The appellant has issues with bending, lifting and sitting with the lower back issues and issues associated with movement of the right hip.
b. He has groin pain and lateral thigh and hip pain.
c. Movement is stiff in the right hip.
d. There is electricity that shoots down the leg. The longer he is on his leg the worse it is.
e. He also has some right medial elbow pain and some right thumb pain. Lifting affects those areas.
f. [D]iagnosis is aggravation of pre-existing asymptomatic osteoarthritis of the right hip, aggravation of pre-existing lumbar spine symptomatology, soft tissue injury to right elbow and soft tissue injury to right wrist and thumb.
g. 14 % whole person impairment.
h. A total hip replacement has also been recommended at a cost of $30,000.00 but that was going to occur regardless of this accident.[54]
[53] Exhibit 1, A2, p 50, para 65.
[54] Exhibit 1, A2, p 51, para 66.
Medico legal assessment by Dr Simon Journeaux (Orthopaedic Surgeon) in March 2021 and August 2021
On 2 March 2021, Mr Kelk was reviewed by Dr Simon Journeaux, an “independent orthopaedic surgeon,” at the Respondent’s request. According to the Respondent, Dr Journeaux advised:[55]
the claimant complained of pain in his neck, lumbar spine and right hip. Mr Journeaux found that the claimant was unfit for work due to his right hip osteoarthritis and symptomatic lumbosacral spine degeneration. Mr Journeaux stated that on the balance of probabilities, the claimant’s right hip and lumbar spine complaints were the result of the claimant’s underlying degenerative conditions and not materially contributed to by an incident in the course of his employment on 7 January 2019. Further, he said the claimant’s recent onset of neck pain relates wholly to the natural history of cervical spondylosis and was not contributed to by his employment with the employer.
[55] Exhibit 1, A3, p 54, para 14.
On 26 August 2021, according to the Respondent, Dr Journeaux further opined that: [56]
the claimant did not suffer any whole person impairment as a result of an injury in the course of his employment and considered any incapacity suffered by the claimant was the result of his pre-existing conditions only.
[56] Exhibit 1, A3, p 54, para 15.
Pre-existing conditions
Both Dr Journeaux and Dr Gillett agree that Mr Kelk suffers from long-term constitutional and degenerative conditions of both his right hip and lumbar spine. Further, they both consider that these conditions predate by some time the fall on 7 January 2019.[57]
[57] Respondent’s Closing Submissions, p 3, para 12.
Mr Kelk’s workers’ compensation and impairment claims
By way of applications dated 17 December 2020,[58] Mr Kelk made a claim for compensation in which he alleged that he sustained injuries to his lower back, right hip, right arm, elbow, hand and wrist, and a ‘soft tissue injury’ in the course of his employment on 7 January 2019.[59]
[58] The claims were filed on 4 January 2021.
[59] Exhibit 1, A3, p 54, para 12.
By way of applications dated 17 December 2020,[60] Mr Kelk also made a claim for permanent impairment and non- economic loss pursuant to the Act alleging he had suffered injuries to his “lower back, right hip, right side of body.” [61]
[60] The claims were filed on 4 January 2021.
[61] Exhibit 1, A3, p 54, para 13.
WHAT QUESTIONS NEED TO BE ANSWERED?
Mr Kelk will be entitled to compensation[62] if he had an “injury” that:
(a)arose out of, or in the course of, the employment; or
(b)was “aggravated” out of, or in the course of, the employment;
and further results in:
(c)incapacity for work; and/ or alternatively
(d)impairment.[63]
[62] The Act provides at section 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.
[63] Applicant’s Closing Submissions, p 2, para 4.
The Act defines “injury” at section 3 as:
(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;
but does not include anything suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
Further, the Act provides at section 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.
The Act defines "aggravation" at section 3, as including “acceleration or recurrence.”
In Casarotto v Australian Postal Corporation[64] it was held that “aggravation” and “acceleration”:[65]
...connotes the hastening of the normal underlying disease, which, if not invariably, will usually in any event be a progressive one.
[64] (1989) ALR 406.
[65] Applicant’s Closing Submissions, p 2, para 6.
The causational test for a “disease” in the Act and/or an “aggravation of a disease” is as follows:
“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.
In Comcare v Sahu-Kahn,[66] Finn J considered the causational test as it then applied in the Act prior to the 2009 amendments in light of the High Court decision in Canute v Comcare.[67] In this regard, Finn J noted that a contribution in a material degree means:[68]
…in a material degree, substantially, considerably.
[66] [2007] FCA 15.
[67] [2005] HCA 299.
[68] Respondent’s Closing Submissions, p 11, para 28.
The Tribunal must answer the following questions in this application:
(a)Did Mr Kelk suffer injuries as defined by the Act?
(b)Did Mr Kelk’s injuries arise out of or during the course of his employment?
(c)Did Mr Kelk’s suffer incapacity for work; and/or alternatively, impairment as a consequence of those injuries?
It is not customary to speak of an onus of proof in Tribunal proceedings. The Tribunal’s role is to carefully evaluate what the evidence adduced actually supports, or not, as the case may be. This underlies the point that there must be “a body of evidence which might, reasonably, sustain” the inference or fact found,[69] to a standard of proof that is on the balance of probabilities.
[69] Tisdall v Webber [2011] FCAFC 76; (2011) 193 FCR 260 at [127].
Ultimately, Mr Kelk must be able to point to evidence which safely establishes that the fall in January 2019 has “in a material degree, substantially, considerably” resulted in aggravation of his pre-existing asymptomatic (i) right hip osteoarthritis, and (ii) lumbar spine pathology, becoming such that it has now led to him experiencing incapacity for work or impairment.
WHAT ARE THE ANSWERS TO THE QUESTIONS?
In my view (and I find that), there is sufficient, credible evidence that:
(a)Mr Kelk suffered injuries as defined by the Act, namely aggravation of pre-existing asymptomatic osteoarthritis of the right hip, and aggravation of pre-existing asymptomatic lumbar spine pathology;
(b)Mr Kelk’s injuries arise out of or during the course of his employment; and
(c)Mr Kelk suffered incapacity for work; and impairment as a consequence of those injuries.
Overall, I am satisfied that there is sufficient, credible evidence which establishes that Mr Kelk’s fall resulted in aggravation of his pre-existing asymptomatic (i) right hip osteoarthritis, and (ii) lumbar spine pathology, becoming such that it has now led to him experiencing incapacity for work and impairment.
WHY ARE THEY THE ANSWERS TO THOSE QUESTIONS?
As a preliminary matter, I will say something about the witness evidence in this matter.
The Respondent has made much of the accuracy and completeness (or lack thereof, as the case maybe) in contemporaneous clinical note and medical records. The Respondent says that this reflects Mr Kelk’s apparent self-reporting of his medical history and symptomology (among other matters) to a range of health professionals, including to Dr Gillet and Dr Journeaux. In particular, the Respondent says that there are inconsistencies in Mr Kelk’s account and reporting to various doctors. In saying so, the Respondent is inviting the Tribunal to view Mr Kelk’s credit and reliability in an unfavourable light. For the reasons set out below, I respectfully decline the Respondent’s invitation.
It suffices for me to say now that I had the benefit of receiving written and oral evidence from Mr Kelk. I was also able to observe Mr Kelk, including during very comprehensive and spirited cross-examination by the Respondent’s counsel. Overall, I formed a positive view of Mr Kelk and found him to be a witness of credit.
I also formed an equally positive view of Dr Gillet and Dr Journeaux, both of whom presented as very experienced, highly competent, and compelling medical experts.
Did Mr Kelk suffer an injury as defined by the Act?
There is no dispute between the parties that Mr Kelk suffered the fall in January 2019. There is also, as I have already said, no dispute that Mr Kelk has long-term constitutional and degenerative conditions of both his right hip and lumbar spine. Both conditions are to be regarded as a “disease” within the meaning of Act.[70]
[70] Respondent’s Closing Submissions, p 10, para 25.
Mr Kelk says that, subsequent to the fall, he suffered “severe” pain[71] in his right hip and lower back, right shoulder, right elbow and right wrist. His evidence was that his “pains have only been alleviated by taking fairly strong painkillers”.[72] The relevant pain and resultant impacts may be summarised as follows:
·He was in pain while working for Maersk as a cook for a one week period from 19 February 2019, and a four week period from 1 March 2019, and took 4-5 Moxicon each day for the same. He says his “pain got worse the longer [he] was at sea”.[73]
·He experienced “progressively increasing pain involving my lower back and right hip … [since] the time of the accident”.[74]
·He “stopped seeking work because of the pain”[75] for a period of nine months.[76]
·He was in “increasing pain” while working as a chief cook/chief steward on four swings over the period of late 2019 to mid July 2020, and took was “using anti-inflammatory medication 5 times a day for pain relief so [he] could continue with [his] work duties. The pain was constant.”[77]
·He had to “cease employment as a result of [his] pain being uncontrollable” in mid-2020.[78] He was “taking a lot of anti-inflammatory medication at this stage”. [79] He was “taking four Mobic tablets per day to get [him] through the day.” [80]
·He continued “to experience pain and discomfort [in his] back, right hip and right leg, and numbness in [his] right foot on a daily basis”.[81]
[71] Transcript, 4 October 2022, p 21, lines 40-41.
[72] Transcript, 4 October 2022, p 21, lines 42-43.
[73] Exhibit 3, p 3, paras 33-34.
[74] Exhibit 3, p 3, para 35.
[75] Exhibit 3, p 3, para 36.
[76] Transcript, 2 May 2023, p 6, lines 8-9.
[77] Exhibit 3, p 4, para 39.
[78] Exhibit 3, p 4, para 46.
[79] Exhibit 3, p 5, para 47.
[80] Exhibit 3, p 5, para 49.
[81] Exhibit 3, p 6, para 66.
Mr Kelk contends that it is not for him to show that his right hip osteoarthritis (as the injury) was not present at the time of the fall, but rather to show that the fall accelerated any incapacity for work and, or alternatively, impairment resulting from the injury.[82] The Respondent separately contends that this proposition is incorrect as before one can adjudicate as to whether any incapacity or impairment has arisen, it has to be shown just what compensable aggravation has been established by the evidence. The Respondent says that this is in conformity with the principles which flow from Canute v Comcare.[83]
[82] Applicant’s Closing Submissions, p 2, para 7.
[83] Respondent’s Closing Submissions, p 11, para 29.
Mr Kelk says that, prior to the fall, he had not suffered pain in his right hip and lower back, right shoulder, right elbow and right wrist. Indeed, Mr Kelk contends that the uncontroverted evidence is that he was working without impairment prior to the fall.[84] He also says that there is no such probative evidence regarding any symptomology prior to the fall.[85]
[84] Applicant’s Reply Submissions, p 1, para 5.
[85] Applicant’s Closing Submissions, p 4, para 18.
The Respondent submits that:
For the applicant, the principal planks of his case are that the alleged persistent lower back and right hip pain and symptoms only appeared after the 7th January and thereafter prompted him to take “nine months off because of pain” and when he did work, he was only able to do so by resorting to strong pain killers.
All of these allegations are set out in a statement which was signed by the Applicant as late as the 2nd October 2022. The Respondent will draw the Tribunal’s attention to not only contemporaneous medical records, but also the earlier histories given to both Dr Journeaux and Dr Gillett as not being supportive of the Applicant’s present claims. Further, the cross-examination of Dr Gillett revealed there were important facets of the Applicant’s present account which were not given to him in the course of his assessment of 24th August 2021.
It will be submitted by the Respondent that these inconsistencies of the Applicant’s account of what occurred after the 7th January 2019 are so manifest and damning, the Tribunal would have difficulty accepting the Applicant’s account unless it be supported by some other evidence. No other such evidence is available to fulfill that role.[86]
[86] Respondent’s Closing Submissions, p 3, paras 13-14, p 4, para 15.
The Respondent’s submissions set out some 18 aspects of Mr Kelk’s evidence which they say are “quite damning” of Mr Kelk’s account of what happened after the fall.[87] To my mind however, I find these aspects to be generally explainable or otherwise adequately dealt with by Mr Kelk in submissions and/or evidence.
[87] The Respondent’s 18 contentions are extracted from the Respondent’s Closing Submissions, p 4-7, para 16.
First, between 19 February 2019 and 25 February 2019, Mr Kelk returned to work and completed a swing. Under cross-examination, Mr Kelk agreed with the proposition that he was not “suffering any symptoms that prevented [him] from undertaking that work”[88] during that period.
[88] Transcript, 4 October 2022, p 26, lines 6-9.
Second, on 28 February 2019, Mr Kelk consulted a general practitioner at the Northbridge Medical Centre. The consultation note is silent in regards to any hip or lower back symptoms or seeking any medication for such symptoms. Under cross-examination, Mr Kelk was asked to explain why there was no mention of the suffering of any right hip or lower back pain. Mr Kelk said that “maybe at the time of the visit [to the doctor], I wasn’t [suffering any pain” “[on] that particular visit..”.[89] The Respondent says the answers given by Mr Kelk in cross-examination are “simply risible.”
[89] Transcript 4 October 2022, p 26, lines 35-45; p 27, lines 1-4.
Third, between 1 March 2019 and 29 March 2019, Mr Kelk completed a one month swing. Mr Kelk conceded that he was able to go back to work and complete that swing during the period.[90]
[90] Transcript 4 October 2022, p 27, lines 6-14.
Fourth, on 30 March 2019: Mr Kelk consulted another general practitioner at the Northbridge Medical Centre. The note records: “wait list hip operation”.[91] Under cross-examination, Mr Kelk said that he had “never had a hip operation…” and had “never been on a wait list for a hip operation.” Mr Kelk categorically denied that he told the doctor that he was on a waitlist for a hip operation. He said that he had “no idea” why the doctor made a note about a hip operation.[92] Mr Kelk’s evidence was that it was the doctor who advised him that he had right hip osteoarthritis. He says that he “had never been told about that diagnosis previously.”[93]
[91] Exhibit 2, p 2.
[92] Transcript 4 October 2022, p 27, lines 16-29.
[93] Exhibit 3, p 3, para 29.
The Respondent says that it is not tenable for Mr Kelk to suggest, as he does in paragraph 29 of his statement, that this was the first time he had been told about right hip osteoarthritis. The Respondent further says that Mr Kelk’s denial in cross-examination that he told the doctor about being on a wait list is “simply not acceptable”. In response, Mr Kelk says that while “the Respondent makes much of the medical record of consultation on 30 March 2019, [the Tribunal should] be reluctant to place weight on that evidence as [Mr Kelk] denies being on such a waitlist, and more telling, has not had a right hip replacement as at the date of hearing.[94]
[94] Applicant’s Reply Submissions, p 1, para 1.
Fifth, Dr Journeaux gave evidence that being on a wait list would indicate that right hip symptoms had been present for some time as there would have been previous medical assessments taking place prior to Mr Kelk being placed on such a waiting list. Mr Kelk’s evidence is that he has never been on a wait list.
Sixth, the Respondent contends that Dr Gillett’s evidence about this consultation note is “quite telling.” The Respondent says that Dr Gillett’s report makes “reference to the need to find contemporaneous medical records which might verify Mr Kelk’s account of lower back and hip pain and symptoms.” The Respondent highlights that in re-examination, Dr Gillett was asked by Mr Kelk’s counsel as to whether this consultation note caused him “to change his opinion”. Dr Gillett replied that this consultation note was “a pivotal document in relation to a situation as to whether he had symptoms prior to the fall and whether he had symptoms only after the fall … unless he was in a private practice somewhere, he would be likely to have been seen in the period of time from January [2019] to March [2019] and then be placed on a wait list”. The Respondent says that Mr Kelk has produced no evidence to demonstrate that he was in a “private practice somewhere” after 7 January 2019. In reply, Mr Kelk contends that Dr Gillett was aware of this entry when reporting on Mr Kelk on 24 August 2021.[95] In any case, Dr Gillett’s evidence appears to be that no conclusions about symptoms can be drawn from the same:
MR O’BRIEN: …is it possible for you to say whether or not [Mr Kelk] was experiencing symptoms prior to the fall on [7] January 2019? Are you able to say anything about that?
DR GILLETT: No, I can’t say that that’s the case at all. You can infer things, but you can’t say that that’s the case…[96]
[95] Applicant’s Reply Submissions, p 1, para 3.
[96] Transcript, 2 May 2023, p 12, lines 34-38.
Seventh, on Mr Kelk’s account, it was after this swing finished on 29 March 2019 that hip and lower back pain forced him to take nine months off. The Respondent contends that the “falsity of that claim is readily exposed by what [Mr Kelk] told Dr Gillett in this regard, who recorded “[H]e remained in the Philippines where his family live (wife and five children) for a number of months as the contract of OSM was cancelled.”” That is to say that, according to Dr Gillett, Mr Kelk did not disclose his subsequent swings to Dr Gillett. Further in his evidence, Dr Gillett stated [Mr Kelk] had never told him that he had “a nine month history of leaving work on account of bad pain”. In re-examination, however, Dr Gillett indicated that the differences in reported and actual work histories does not change his opinion.[97]
[97] Transcript, 2 May 2023, p 11, lines 41-46; p 12, lines 1-18.
Eighth, on 27 June 2019, Mr Kelk consults his general practitioner at the Family First Medical Centre. The consultation note does not record any complaints of lower back or hip pain. In extensive cross-examination, Mr Kelk was asked to explain why there is “no mention whatsoever” of “suffering pain and symptoms in [his] right hip and lower back”:
MR CLARK: Can you explain that?
MR KELK: … [T]he Family health centre here is basically for medically DVA recommendation for skin lesion, skin cancer. So I suffer from cancer, DCCs, melanomas, and I was given the particular practice as being the best practice in that area, near where my mother lived, and when I was back in Australia waiting for a ship I’d go there on a regular basis and they would excise my face, my back, my chest, all over. It’s specifically used as a skin cancer clinic.
MR CLARK: Okay, I accept all that, okay? But you’re there seeing a doctor, aren’t you?
MR KELK: Sir, yes.
MR CLARK: At a time when you’re - as I understand your evidence, you’re suffering pain in your right hip and lower back?
MR KELK: When you book in to this clinic, you’re booked in as a skin cancer patient. If you want to see a doctor you have to go to a separate part of that particular clinic.
MR CLARK: All right. Okay. Well, you went to the clinic. You’re suffering - do you agree with me - right hip and lower back pain; is that right?
MR KELK: Yes.
MR CLARK: But you haven’t raised it with any of these doctors, have you?
MR KELK: It was not my intention on the day. My intention on the time was to have things excised or they then tell you when you got to come back and have something redone again as a check-up, specifically for skin cancers.
MR CLARK: Mr Kelk, I accept what you say about your skin conditions, but here you are visiting a doctor. You’re suffering right hip pain and lower back pain?
MR KELK: Yes, sir.
MR CLARK: You don’t raise it and, moreover, you don’t even raise it to the point of wanting them to write out a script for medication to alleviate that pain?
MR KELK: They won’t.
MR CLARK: Why not?
MR KELK: I’ve just explained. Specifically when you book in there, you book in for anything to do with skin problems, cancer, skin lesions, whatever, and surgery. I was there for surgery.
MR CLARK: Well, okay. You’re at the doctor’s surgery, okay? What was stopping you from saying, ‘Look, I’ve got pretty severe hip and lower back pain at the moment. Can I see someone about that and get a script for some painkillers?’?
MR KELK: If you want to book in for skin surgery, you get skin surgery. If you ask for something else, you have to re-book and see another doctor in another part of the clinic; do you understand?
MR CLARK: Well, why not do that, then, as you say?
MR KELK: Because at the time I was there to get skin cancers removed.
MR CLARK: Are you being serious?
MR KELK: I hope so. It’s a life-threatening condition.
MR CLARK: Well, I just don’t understand - I’m struggling to understand (indistinct) the question. Okay, I accept what you say. Just let me finish the question. I accept what you say about, you know, you’re there to get a skin condition attended to, but you’re at a doctor’s surgery. You’re suffering, from what you’ve described, pain in your right hip and in your lower back. You don’t raise it, nor do you ask for a script for medication?
MR KELK: I would’ve been probably right for medication.[98]
[98] Transcript, 4 October 2022, p 28, lines 40-46; p 29, lines 1-47.
Ninth, on 1 July 2019, Mr Kelk consulted the same general practice again. The clinical note reads: “Tale (sic) Meloxin for O/A of his hip”. The Respondent says that the content of this note together with that of 30 March 2019 is more suggestive of a long-term issue with his hip which predates 7 January 2019. Mr Kelk submits that in fact he is in “furious agreement that he had degenerative disease in his right hip prior to the fall.”[99] Mr Kelk also says that the Respondent’s submissions around Mr Kelk’s symptomology arising from this impairment clouds the issue before the Tribunal, namely, whether the fall aggravated, or accelerated, that impairment. Mr Kelk contends that “it is impairment and not symptomology that gives rise to a right to compensation, and that uncontroverted evidence is that the Applicant was working without impairment prior to the fall.[100]
[99] Applicant’s Reply Submissions, p 1, para 4.
[100] Applicant’s Reply Submissions, p 1, para 5.
Tenth, further consultations took place at the Family First Medical Practice on 27 August 2019, 3 September 2019, 10 September 2019, 17 September 2019 and 15 November 2019. The Respondent says that “there is no mention of any further complaints of hip or lower back symptoms in any of these consultation notes.” In cross-examination, Mr Kelk was questioned in a similar vein to the earlier 27 June 2019 consultation:
MR CLARK: Well, once again, can I pose the question: why wouldn’t you mention it if you were suffering the severe pain?
MR KELK: I may have already had enough meds with me.[101]
…
MR CLARK: It defies belief that if you were suffering the symptoms as badly as what you say you were, that you would fail to tell the doctors about it. What do you say to that?
MR KELK: No, I probably had enough medication at the time.[102]
[101] Transcript, 4 October 2022, p 31, lines 19-21.
[102] Transcript, 4 October 2022, p 35, lines 37-39.
Eleventh, between 13 December 2019 and 14 January 2020: Mr Kelk undertook a swing as chief cook on Seismic. Mr Kelk’s evidence was that “increasing pain was occurring” and he was using “anti-inflammatory medication 5 times a day for pain relief so [he] could continue with [his] work duties. The pain was constant.”[103]
[103] Exhibit 3, p 4, para 39.
Twelfth, on 20 January 2020: Mr Kelk attended upon Dr Rahman at the Eli Waters Clinic. The clinical note records inter alia:
New patient to clinic. Took detailed history with time. Known medical conditions – chronic back and hip pain On regular meds – Mobic? 15mg Not taking opioids for work drug tests. Accidental injury 1 year back – low back and right hip pain – not improving – obvious limited range of movement on bending forward.”
The Respondent contends that it is remarkable that Mr Kelk would raise the above complaints for the first time at this stage and not in any of the earlier numerous general practitioner consultations. Under cross-examination, Mr Kelk’s evidence was a little unclear as to whether the 20 January 2020 consultation was the first time that he had raised with a doctor his pain in the context of the fall:
MR CLARK: … do you agree with me that this is the first time that you have mentioned anything referral to what happened back - what, just over 12 months earlier. Isn’t that so?
MR KELK: Yes.
MR CLARK: You have seen how many doctors in the 12 months prior to that?
MR KELK: Did you miss the Mobic prescription on that last visit there that you showed me from the family medical centre?
MR CLARK: Do you agree with me that you have seen a lot of doctors in 2019?
MR KELK: I have.
…
MR CLARK: This is the first time you have mentioned anything referrable to the incident back in January 2019?
MR KELK: I can’t remember. I don’t remember.[104]
[104] Transcript, 4 October 2022, p 32, lines 13-29.
Thirteenth, between 15 February 2020 and 16 March 2020, 14 April 2020 and 18 May 2020 and 18 June 2020 to 16 July 2020: the Respondent says that “in spite of the complaints of lower back and hip pain referred to above, Mr Kelk was still able to complete three swings of approximately one month’s duration each.” In response, Mr Kelk again says that increasing pain was occurring and [he] was using anti-inflammatory medication five times a day for pain relief so [he] could continue with [his] work duties.”[105]
[105] Exhibit 3, p 4, para 39.
Fourteenth, between 2 and 8 June 2020, and prior to commencing the last swing on 18 June, Mr Kelk consulted Dr Rahman again. According to the Respondent, these consultation notes are silent on any lower back or hip joint pain/symptoms. Under cross-examination, while Mr Kelk accepted that the clinical notes do not mention any severe right hip or lower back pain, he notes that he was taking strong painkiller at the times:
MR CLARK: ...there is no mention of any severe right hip or lower back pain, is there? Do you agree with that, or not?
MR KELK: There is no mention, no.
MR CLARK: The reason is that you weren’t suffering the pain or taking the high-level painkillers, isn’t that so?
MR KELK: They are recorded down here as Mobic capsules.[106]
[106] Transcript, 4 October 2022, p 33, lines 11-16.
Fifteenth, on 29 July 2020: after having completed the last swing Mr Kelk again consulted Dr Rahman. The Respondent says the consultation note is also silent on any hip or lower back complaints.
Sixteenth, on 3 August 2020, Mr Kelk raises “chronic hip pain” only with Dr Rahman.
Seventeenth, on 7 October 2020, Mr Kelk raises both hip and lower back issues with Dr Rahman. Under cross-examination, it was put to Mr Kelk that his was the first occasion that he raised lower back pain with Dr Rahman. Mr Kelk did not accept that proposition.[107]
[107] Transcript, 4 October 2022, p 34, lines 31-36.
Eighteenth, on 8 November 2020: Mr Kelk consulted Dr Rahman regarding the prospect of “medicinal cannabis for chronic health conditions”. The clinical records inter alia state:
Chronic moderate to severe pain, specially to the lower back, Neck, Shoulders, Knees & Small joints & muscles in a background of diagnosed Osteoarthritis (O/A) – Moderate to marked osteoarthritic changes Soft tissue inflammation – HIP, Knee (Rt) …
Chronic condition for more than several years & not responding to previous treatment with traditional registered medications.
Overall, Mr Kelk contends the Respondent’s submissions regarding his medical records not disclosing pain in his right hip and lower back were all satisfactorily dealt with during cross- examination.[108] I accept Mr Kelk’s submissions.
[108] Applicant's Reply Submissions, p 1, para 6.
I accept Mr Kelk’s evidence that he needed to be, and was, regularly medicated with painkillers over the relevant periods. I accept that Mr Kelk was obtaining such medication from a variety of sources in Australia and overseas, reflecting the fact that Mr Kelk was in and out of Australia:
MR CLARK: Well, where had you got the medication from then? Where had you got the medication from?
MR KELK: I don’t know what I had on that particular day, how much I had left, sir.
MR CLARK: Well, where had you got it from, though, because - tell us where so we can find in these medical records where you’d been prescribed this medication?...
MR KELK: I think there was also the Dr Rahman I get my scripts from, when I was in Australia. If not, I get them from overseas.
MR CLARK: So you say you were getting it from Dr Rahman at Eli Waters?
MR KELK: Correct.
MR CLARK: I see. All right. So you had no need ‑ ‑ ‑?
MR KELK: At that particular time, sir - excuse me, sir. At that particular time I don’t know if I was, but because I’m in and out of Australia, and I get my medication where I can, when I can.
MR CLARK: Okay. So you can show us your medical records from the Philippines which will verify your claim in respect of getting these painkilling drugs prescribed there; is that right?
MR KELK: Well, I suppose I can get them for you…
MR CLARK: Well, you don’t even seem sure that you were getting them from the doctors in the Philippines anyway?
MR KELK: Because I get pain meds or you get your meds wherever you can get them when you’re at sea. If I were to have been getting 12 months prescription, which I get it under a special Aboriginal care sector of the medical supply - we’re allowed to get up to 12 months’ supply.[109]
[109] Transcript, 4 October 2022, p 30, lines 1-29.
I also accept Mr Kelk’s evidence as to why he did not raise complaints of hip or lower back symptoms with doctors, as set out extensively above. In this regard, I reject the Respondent’s proposition that Mr Kelk ought to have raised his pain and hip or lower back symptoms with every doctor he visited over the relevant periods. As a matter of common sense, it is unrealistic to expect a general practitioner to request, or for a patient (such as Mr Kelk) to provide, a full medical history at each and every medical consultation. This is especially the case in circumstances where Mr Kelk’s doctors’ visits were for specific purposes such as obtaining cholesterol medication and skin cancer checks/removals.
Separately, the Respondent notes that in Mr Kelk’s statement, he “unequivocally asserts” that “he had to cease work in mid-2020 … as a result of [his] pain being uncontrollable”. The Respondent says that, “[Mr Kelk’s] assertion is simply not reflected in the contemporaneous clinical notes when one would reasonably have expected it to have been present.[110] The Respondent is right to identity that the contemporaneous medical records do not reflect Mr Kelk complaining about “uncontrollable” pain. However, I accept Mr Kelk’s evidence that he was indeed suffering “uncontrollable” pain during the relevant periods and “had to cease work in mid-2020.” While the Respondent may have, even reasonably, expected Mr Kelk to behave in a particular way, the evidence before me is that he did not behave in that way.
[110] Respondent’s Closing Submissions, p 7, para 17.
The Respondent made a similar submission, and drew attention in cross-examination, in relation to Mr Kelk’s lack of reporting of his pain symptoms to his employers, including the Respondent, following the fall and further swings. In particular, the Respondent’s counsel took Mr Kelk to an email exchange between Mr Kelk and the Respondent’s crewing manager mentioned in paragraph 10 above, which had occurred soon after the fall:
MR CLARK: There is an email exchange between yourself and Renee Hester, who is the crewing manager at OSM. Do you see that?
MR KELK: Yes.
MR CLARK: Ms Hester wrote to you at 3.10 pm. I won’t read it out, “Sorry to hear of your fall yesterday, hope you are okay, etc., etc.” Okay?
MR KELK: Yes.
MR CLARK: You replied, “I am okay. No drama. No biggie. I am a tough old bugger. Hey hey hey.” That’s your reply?
MR KELK: Yes.[111]
[111] Transcript, 4 October 2022, p 25, lines 21-29.
In re-examination, Mr Kelk’s counsel raised the “no pain” reporting to employers point by reference to the implications for Mr Kelk of doing so:
MR O’BRIEN: What would have happened if you’d told Renee that you were in pain in your back, hip, shoulder, elbow and wrist because of the fall?
MR KELK: OSM were a labour hire company, they would have sacked me on the spot. I would never have gotten another job with them, and then the overflow form that would have been that their crewing officers get in touch with other crewing officers who get in touch with other crew - and you’d become black listed. And I’ve got a wife and five kids.[112]
[112] Transcript, 4 October 2022, p 36, lines 40-46.
Mr Kelk’s evidence was that he is a “tough old bugger” and that “[he] had kept working and putting up with the pain to support [his] wife and five children.”[113] I accept Mr Kelk’s evidence. I am satisfied that Mr Kelk needed to work to support his large family, and that complaining about his pain to his employers, may have adversely impacted his ability to obtain and retain employment.
[113] Exhibit 3, p 5, para 48.
During the hearing, the question of whether the COVID-19 pandemic impacted Mr Kelk’s capacity to work was raised. In particular, Mr Kelk conceded, during cross-examination, that the Covid situation curtailed both his employment opportunities and the ability to travel from the Philippines to Brisbane to secure employment.[114] In his reply submissions, Mr Kelk says that the Respondent’s submissions regarding the effect of the COVID-19 pandemic “can be disregarded.”[115] He says that his evidence is that he was “unable to work due to pain arising from the fall, regardless to whether the OSM contract was to continue or not.”[116] I accept Mr Kelk’s submission and evidence in this regard.
[114] Respondent’s Closing Submissions, p 7-8, para 17.
[115] Applicant’s Reply Submissions, p 2, para 8.
[116] Applicant’s Reply Submissions, p 2, para 8.
Finally, the Respondent also says that Mr Kelk’s credit and reliability is also called into question by Mr Kelk’s historical failure to report a right knee injury, that was the subject of a compensation claim with the Department of Veterans Affairs, in the course of various Australian Maritime Safety Authority medicals. That injury was said to have arisen in May 1973 during Mr Kelk’s Royal Australian Navy service.[117] In cross-examination, Mr Kelk did not dispute that he did not declare that he suffered pain and numbness in his right knee since May 1973. Mr Kelk was asked by Mr Clark why this was the case. Mr Kelk’s response was that “I didn’t realise I had to” and “[I]t doesn’t state on the [Australian Maritime Safety Authority] medical that I had to”.[118] This matter was not addressed in Mr Kelk’s submissions-in-reply. I accept Mr Kelk’s evidence that he did not recognise that such disclosure was required given that the Australian Maritime Safety Authority did not specifically call for such data.
[117] Respondent’s Closing Submissions, p 8, para 18.
[118] Transcript, 4 October 2022, p 23, lines 39-43.
Expert medical evidence
Dr Gillet provided evidence for Mr Kelk and Dr Journeaux for the Respondent. A summary of their opinions is set out in paragraph 42 to 45 above.
In his submission, Mr Kelk says that Dr Gillet’s evidence, by way of report,[119] was that the fall caused (relevantly):
·aggravation of pre-existing asymptomatic osteoarthritis of the right hip; and
·aggravation of pre-existing (asymptomatic) lumbar spine pathology.[120]
[119] Exhibit 1, B11, p 95, para 1.
[120] Applicant’s Closing Submissions, p 3, para 10.
Mr Kelk also contends that Dr Gillet gave further evidence by way of report[121] that:
In my view [Mr Kelk] would have reached the same degree of impairment regarding his right hip had the incident [the fall] not happened, and in general terms the incident [the fall] has just accelerated the process and he has got symptomatology at an earlier time by a period of 2 to 3 years of what was going to happen.[122]
[121] Exhibit 1, B11, p 96, para 6.
[122] Applicant’s Closing Submissions, p 3, para 11.
Mr Kelk submits that Dr Gillet’s evidence fits with the definition of “aggravation” from Casarotto “hand in glove.”[123]
[123] Applicant’s Closing Submissions, p 3, para 12.
The Respondent does not appear to take serious issue with Dr Gillet’s opinion but rather seeks to attack Mr Kelk’s credit and reliability.[124] In this regard, the Respondent notes:
1. [Mr Kelk] did not tell Dr Gillett that he was able to complete two swings of work soon after the fall from 19th to 25th February and 1st to 29th March 2019.
2. [Mr Kelk] did not give a history of having taken a nine month break from work on account of lower back and hip pain.
3. [Mr Kelk] did not tell Dr Gillett about undertaking the three swings of work each of a month’s duration in that period from February to July 2020.[125]
[124] I have already addressed the question of Mr Kelk’s credit earlier in this decision.
[125] Respondent’s Closing Submissions, p 9, para 23.
A further submission made by the Respondent is that Dr Gillett’s evidence notes the desirability of seeking contemporaneous records to verify Mr Kelk’s account of symptoms closely referrable to the fall in January 2019.[126] While I accept that this is Dr Gillett’s evidence, ultimately, I am required to consider what is actually before me in evidence.
[126] Respondent’s Closing Submissions, p 9, para 24.
As I understand the Respondent’s position, there does not appear to be a suggestion that, even with the facts identified above, that Dr Gillett’s opinion would change. At the same time, there does not appear to be any serious suggestion that Dr Gillett’s evidence is defective, and otherwise incapable of being relied upon by the Tribunal.
Mr Kelk contends that the Tribunal would prefer the evidence of Dr Gillett to that of Dr Journeaux for two reasons[127] around Dr Journeaux’s knowledge and understanding of Mr Kelk’s working and medical histories.
[127] Applicant’s Closing Submissions, p 3, para 13.
First, Mr Kelk submits that Dr Journeaux’s opinion was based (in part) on Mr Kelk, from the time of the fall, “working normally until mid-June 2020”. Under cross-examination, Dr Journeaux was taken to his report and to Mr Kelk’s evidence. Dr Journeaux conceded the difference in the fact patterns:
MR O’BRIEN: You’d agree with me, wouldn’t you, that from the time of the subject fall Mr Kelk has worked for one week from 19 February, four weeks from 1 March, stopped seeking working because of pain, and has then resumed work on 13 December 2019; do you accept that?
DR JOURNEAUX: I accept all that he’s written.
MR O’BRIEN: Could I now ask you to take up your main report, this is the report at page T76, Member, it’s the report dated 8 March 2021?
DR JOURNEAUX: Yes, I’m there, Mr O’Brien.
MR O’BRIEN: If we go to paragraph 13 you will see that on page 4 of the report?
DR JOURNEAUX: Yes, I’ve got that.
MR O’BRIEN: Under the heading of “Case history” and “Treatment of injuries” you’ve reported:
Subsequent to this date -
That being the date of the fall -
He continued working normally until mid‑June 2020.
MR O’BRIEN: Do you see that?
DR JOURNEAUX: I do.
MR O’BRIEN: You accept that that’s very different from the statement of Mr Kelk that he tendered to this tribunal, do you accept that?
DR JOURNEAUX: I accept they’re different.
MR O’BRIEN: If we go to paragraph 13 you will see that on page 4 of the report?
DR JOURNEAUX: Yes, I’ve got that.
MR O’BRIEN: Under the heading of “Case history” and “Treatment of injuries” you’ve reported:
Subsequent to this date -
MR O’BRIEN: That being the date of the fall -
He continued working normally until mid‑June 2020.
MR O’BRIEN: Do you see that?
DR JOURNEAUX: I do.
MR O’BRIEN: You accept that that’s very different from the statement of Mr Kelk that he tendered to this tribunal, do you accept that?
DR JOURNEAUX: I accept they’re different.
MR O’BRIEN: If we now turn to paragraph 20 of your report from page 5?
DR JOURNEAUX: Yes.
MR O’BRIEN: Under the heading, “Effects on employment” you note that the claimant, Mr Kelk, would appear to have been able to work normally up until June 2020 after which time he has been unable to work. Again that’s very different from the statement Mr Kelk gave this tribunal, isn’t it?
DR JOURNEAUX: Yes.[128]
[128] Transcript, 23 January 2023, p 8, lines 31-47; p 9, lines 1-16.
Second, Mr Kelk submits Dr Journeaux’s opinion was based (in part) on Mr Kelk only seeking treatment for his right hip after “18 months or so” which was not the case. Under cross-examination, Dr Journeaux was taken to his report and to Mr Kelk’s evidence. Dr Journeaux again conceded the difference in fact patterns:
MR O’BRIEN: Doctor, you’ll see there you note that Mr Kelk only sought treatment some 18 months or so following the injurious events, which supports your conclusion in the section above, do you see that?
DR JOURNEAUX: I do.
MR O’BRIEN: Could I now ask you to go back to the written statement of Mr Kelk?
DR JOURNEAUX: Yes, I’m on that, Mr O’Brien.
MR O’BRIEN: If we turn to paragraph 19; do you have paragraph 19?
DR JOURNEAUX: Yes, I’ve got that.
MR O’BRIEN: Do you see there Mr Kelk gives evidence that on the day of the fall he attended Dr Szot, do you see that?
DR JOURNEAUX: I do.
MR O’BRIEN: If we go to paragraph 21 do you see there Mr Kelk again attended on Dr Szot on 8 January?
DR JOURNEAUX: I do.
MR O’BRIEN: If we go to paragraph 25 do you see there that Mr Kelk attended a general practitioner when he returned to the Philippines?
DR JOURNEAUX: I see what he’s written there.
MR O’BRIEN: Go to paragraph 29, do you see there that Mr Kelk give evidence that on 30 March 2019 he attended Dr Koh, do you see that?
DR JOURNEAUX: I do.
MR O’BRIEN: Again at paragraph 30?
DR JOURNEAUX: I see that.
MR O’BRIEN: He’s attended Dr Ferrose on 1 July 2019?
DR JOURNEAUX: I can see that, yes.
MR O’BRIEN: If we then turn to paragraph 40 on 20 January 2020, Mr Kelk attended on Dr Raman, do you see that?
DR JOURNEAUX: I do.
MR O’BRIEN: Paragraph 44 on 24 January 2020 Mr Kelk has attended again upon Dr Raman, do you see that?
DR JOURNEAUX: I do.
MR O’BRIEN: Then paragraph 45 on 14 February 2020 Mr Kelk has again attended on Dr Raman, do you see that?
DR JOURNEAUX: I do.
MR O’BRIEN: If we come back to your report at paragraph 2(d) on page 10, it’s not correct to say that Mr Kelk only sought treatment some 18 months or so after the event, is it?
DR JOURNEAUX: No, that’s true.
MR O’BRIEN: And in fact you’ve relied on that, on Mr Kelk not seeking treatment for some 18 months to support your conclusion, haven’t you?
DR JOURNEAUX: I have.[129]
[129] Transcript, 23 January 2023, p 9, lines 37-47; p 10, lines 1-30.
The Respondent challenges the foundations of Mr Kelk’s submissions that Dr Journeaux misunderstood that: (1) Mr Kelk was working normally until mid-June 2020, and (2) Mr Kelk only sought treatment for his right hip after “18 months or so”.[130] The Respondent says there is no valid basis for Mr Kelk’s position on the two issues.
[130] Respondent’s Closing Submissions, p 8, para 19.
The Respondent points out that, firstly, the above propositions of fact are what Mr Kelk told Dr Journeaux in his consultation on 2 March 2021.[131]
[131] Respondent’s Closing Submissions, p 9, para 20.
Secondly, the Respondent says that these “factual assertions do closely align with what the contemporaneous records reveal.” To the extent that there is any difference between what Mr Kelk told Dr Journeaux and what he now asserts in his recent statement of 2 October 2022, “this difference of account reflects adversely upon the Applicant’s credit and reliability and not in respect to Dr Journeaux’s opinions.”[132]
[132] Respondent’s Closing Submissions, p 9, para 21.
Thirdly, the Respondent stresses that Dr Journeaux gave evidence – that by putting the Applicant’s self-report to one side – in his clinical judgment the subject fall was not likely to cause “any permanent problems for his right hip and lumbosacral spine”.[133] This issue was explored in re-examination:
MR CLARK: Let’s come back then to your clinical experience, if there had been a fall, and you’re aware of the circumstances of a fall, okay?
DR JOURNEAUX: I am.
MR CLARK: Putting the history to one side, what do you say to the prospect that that fall would have caused significant long term permanent problems for his right hip, and his lumbosacral spine?
DR JOURNEAUX: Well the evidence does not point to that, happening.
MR CLARK: Okay. When you say the evidence, what are you referring to?
DR JOURNEAUX: So when I undertake a medical assessment you essentially are undertaking a causation analysis of what went on, in other words, the history or mechanism of injury. You then take into account contemporaneous documentation, and he certainly saw the ship’s doctor, and I’ve had access to those records, so that certainly happened. So an event occurred, and he did sustain injury. Then you look at what happened in the ensuing weeks and months after that, and that will then give you a way for assessing whether there was a permanent, if you like, worsening of symptoms, or whether, in fact, he actually made a significant recovery, thereafter. So you’re looking at contemporaneous records in the weeks and months following the accident.[134]
[133] Respondent’s Closing Submissions, p 9, para 22.
[134] Transcript, 23 January 2023, p 16, lines 1-19.
Mr Kelk contends that, given Dr Journeaux’s reliance on an “incorrect history” for his opinion, the Tribunal should be “very reluctant to rely on his evidence.”[135] Under cross-examination, Dr Journeaux appeared to concede as much:
MR O’BRIEN: Now, Doctor, it’s fair to say, isn’t it, that some patients that you would see are better historians than other patients, is that fair?
DR JOURNEAUX: That’s fair.
MR O’BRIEN: And you’d agree with me, wouldn’t you, that your opinion, generally speaking, will be based on the history the patients give you, would you agree with that?
DR JOURNEAUX: Partially I agree with you.
MR O’BRIEN: And you’d agree with me, wouldn’t you, that your opinion, where it is in part based on that history, will only be as reliable as the history that the patient gave you, is that fair?
DR JOURNEAUX: As I indicated, the history is part of the opinion, it’s not the whole opinion.
MR O’BRIEN: Yes, and where your opinion is in part based on that history, the opinion will only be as reliable as the history that the patient gave you, is that fair?
DR JOURNEAUX: Yes, that’s fair.[136]
[135] Applicant’s Closing Submissions, p 4, para 14.
[136] Transcript, 23 January 2023, p 7, lines 29-44.
In looking holistically at the evidence of Dr Gillet and Dr Journeaux, and taking into account the parties’ submissions, I prefer Dr Gillet’s evidence for the reasons proffered by Mr Kelk. In reaching this conclusion, I mean no criticism of Dr Journeaux whatsoever. The simple fact of the matter is that Dr Journeaux relied on an incomplete working and medical history that was provided by Mr Kelk. Despite the Respondent urging me to make an adverse finding as to Mr Kelk’s credit and reliability in this regard, I respectfully decline to do so.
Summary
I am of the view and find that Mr Kelk suffered injuries within the meaning of the Act, namely aggravation of pre-existing asymptomatic osteoarthritis of the right hip, and aggravation of pre-existing asymptomatic lumbar spine pathology.
Did Mr Kelk’s injuries arise out of or during the course of his employment?
There is no dispute between the parties that Mr Kelk was employed at all times material to this application. In light of my finding that Mr Kelk suffered injuries as defined by the Act, I find that Mr Kelk’s injuries were “aggravated” out of, or in the course of, the employment with the Respondent.
Did Mr Kelk suffer incapacity for work; and/or alternatively, impairment as a consequence of those injuries?
In my view, the evidence safely establishes that the fall has “in a material degree, substantially, considerably” resulted in his previously degenerative condition becoming such that it has led Mr Kelk to experience incapacity for work and impairment.
Mr Kelk contends that he has impairment as a consequence of the injuries. He particularised the same as follows:
(d) had pain while working during these periods, and the pain got worse the longer he worked;
(e) stopped working after the four week swing because of the pain;
(f) returned to work 13 December 2019, and ceased work on 16 July 2020;
(g) was in constant pain during [the above] period, with increasing pain the longer he worked;
(h) ceased work because of the pain; and
(i) continues to experience pain and discomfort in his back, right hip, right leg and numbness in his right foot;[137]
[137] Applicant’s Closing Submissions, p 3, para 8.
Mr Kelk contends, and I accept, that I can adopt Dr Gillett’s assessment of impairment and non-economic loss with a “degree of comfort.”[138]
[138] Applicant’s Closing Submissions, p 5, para 21.
Dr Gillett assessed:
(a)an impairment of 14%; and
(b)non-economic loss of 52%.[139]
[139] Exhibit 1, B11, p 7; Applicant’s Closing Submissions, p 5, para 20.
DECISION
The decision under review is set aside and substituted as follows:
(a)The application for compensation regarding aggravation of pre-existing asymptomatic osteoarthritis of the right hip, and aggravation of pre-existing asymptomatic lumbar spine pathology is approved;
(b)The Applicant is assessed with an impairment of 14%;
(c)The Applicant is assessed with non-economic loss of 52%; and
(d)The Applicant’s claim for economic loss is to be assessed.
I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.
...............[SGD]....................
Associate
Dated: 30 April 2024
Date of Decision: 30 April 2024
Dates of Hearing: 4 October 2022, 23 January 2023, and 2 May 2023
Representatives for Applicant: Mr Travis O’Brien of Counsel
Ms Kate Harris (Turner Freeman Lawyers)
Representatives for Respondent: Mr Charles Clark of Counsel
Mr Stephen Svirac (Sparke Helmore Lawyers)
ANNEXURE 1 – EXHIBIT REGISTER
EXHIBIT
PARTY
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
1 Joint
Joint Hearing Book
(Pages 1-270)Various 21 September 2022 2 A
Patient Health Summary – Northbridge Medical Centre 22 January 2021 4 October 2022 3 A
Statement of the Applicant 2 October 2022 4 October 2022
0
3
0