Maher and Tidewater Port Jackson Marine Pty Ltd
[2000] AATA 610
•21 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 610
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T1999/40
GENERAL ADMINISTRATIVE DIVISION )
Re DANIEL JOSEPH MAHER
Applicant
And TIDEWATER PORT JACKSON MARINE PTY LTD
Respondent
DECISION
Tribunal Mr C P Webster (Senior Member) A/Prof. B W Davis AM (Part-time Member)
Date21 July 2000
PlaceHobart
Decision The Tribunal decides that the decision of the respondent of 20 January 1999 denying liability for the applicant's compensation claim dated 29 September 1998 under the Seafarers Rehabilitation and Compensation Act 1992 be set aside and substituted with a decision that the applicant's compensation claim under the Act be accepted.
[Sgd CP Webster]
Senior Member
CATCHWORDS
Compensation – whether or not an injury suffered by the employee arises "out of, or in the course of, that employment."
Seafarers Rehabilitation and Compensation Act 1992 – s.3
REASONS FOR DECISION
21 July 2000 Mr C P Webster (Senior Member) A/Prof. B W Davis AM (Part-time Member)
Issues
Daniel Joseph Maher ("the applicant") seeks a review of a decision of Tidewater Port Jackson Marine Pty Ltd ("the respondent") that liability for the applicant's workers compensation claim dated 19 September 1998 under the Seafarers Rehabilitation and Compensation Act 1992 should be denied.
The applicant alleges that on 19 September 1998 whilst on leave at his home in Latrobe in Tasmania he experienced spontaneous back pain which was causally related to a compensable injury that the applicant had suffered in the course of his employment with the respondent on 4 November 1997.
The respondent denies that any back pain suffered by the applicant following September 1998 relates to any previously compensable condition. The respondent argues that the applicant's back pain was not caused by the incident of 4 November 1997.
The issue to be determined by this Tribunal is whether the applicant's incapacity from 19 September 1998 arose "out of and in the course of his employment with the respondent".
EvidenceThe "T" documents were tendered into evidence. The applicant gave oral evidence at the hearing. His evidence was:-
That on 4 November 1997 while he was working for the respondent on the 'Ocean Bounty' as a storeman he suffered a "back strain" to the lower back whilst lifting boxes of stores.
On the following day the applicant was taken to Darwin for medical examination and treatment by Dr. Tracey. He was incapacitated for work until February 1998 when he received a full clearance to work. During the period of incapacity he received workers' compensation.
The applicant says that he first experienced a "tingling sensation in his right leg" in December 1997 and January 1998 which he associated with a hamstring type injury.
The applicant continued to fulfil his normal duties, but experienced a tingling and sharp pain intermittently in his right leg. He complained of this pain to a shipmate, Denis Taylor; to his de facto spouse Jeanette Harrison in telephone discussions; and to the medic on the "Ocean Bounty". As a result of that complaint to the medic, an entry was made in the incident logbook that the applicant was suffering pain in his back his right leg.
After his return to work in February 1998, the applicant had no medical treatment for his back or his right leg.
On 19 September 1998 the applicant was watching football on television. He tried to rise from his seat and felt severe pain across his back and down the right leg. As a result of the pain he was required to rest in bed. He consulted a physiotherapist, Brian O'Hearn, initially for pain relief and then consulted his general medical practitioner, Dr. Spick, shortly after.
The applicant was certified unfit for work and claimed workers' compensation after a telephone discussion with Mr Stuart Harrison, the claims manager for the respondent.
The applicant denied to the Tribunal that he had been involved in any strenuous physical activity preceding the injury of 19 September 1998. In particular he denied that the injury arose when he was gardening or shortly after such activities.
The applicant was cross-examined vigorously by experienced counsel, but did not alter the substance of his evidence given in examination in chief.
A number of witnesses were called as to the incident of 19 September 1998 when the applicant suffered pain when attempting to rise from a sitting position while watching television. Those witnesses were Mr. Terence Reid; Mr Alan John Lenowry and Ms Jeanette Harrison. All agreed, in essence, with the applicant's version of events.
Ms Jeanette Harrison, the de facto spouse of the applicant, also gave evidence of complaints by the applicant to her in January 1998, and thereafter that the was suffering pain in the back and his right leg as if he had pulled a muscle. She stated that neither she nor the applicant thought that the leg pain was associated with the applicant's injury of November 1997.
Ms Harrison also gave evidence as to the substance of the telephone discussion which she heard between the applicant and Stuart Harrison when he initially advised the respondent of his injury. She confirmed the applicant's evidence that when he was asked what he was doing on leave, he stated words to the effect "nothing, just pottering around in the garden". She denied any suggestion that the applicant had said to Mr. Stuart Harrison that he injured himself whilst gardening.
Ms Harrison gave evidence that she kept a diary of events regarding the incident of 19 September 1998. Her diary was tendered into evidence, but its validity was questioned by the respondent's counsel.
Mr. Denis John Taylor gave oral evidence (by telephone) that he worked on the "Ocean Bounty" for 2 years with the applicant and that during that time he often complained of pain in his lower back, leg and shoulders. He also gave evidence that he had checked the medical incident book kept on the "Ocean Bounty", but was unable to find any record of complaint by the applicant of back pain and right leg pain between February 1998 to September 1998.
The only non-medical witness called on behalf of the respondent was Mr. Stuart Harrison, the claims manger of the respondent company. He gave evidence of the telephone discussion referred to in the evidence of the applicant and Ms Hasrrison, that occurred on 22 September 2998 between the applicant and Mr. Stuart Harrison. The relevant evidence given in cross-examination was as follows:_
" Mr. Gaggin: But it is clear, is it not, that at no stage did Mr. Maher tell you that he had suffered the injury gardening? --- That's correct.
In fact he told you on 22 September that he thought the injury in effect was a recurrence of the November '97 injury? --- I can't remember the words "recurrence of '97 injury" being mentioned. I just remember him telling me it was in the same part of his back.
In effect they were linked? --- There was a suggestion it was linked, yes.
So your best evidence today is that Mr. Maher had been doing some gardening on the weekend – that is your best evidence that he had been doing some gardening and then at a later stage had suffered back pain whilst watching the football? --- He had been doing some gardening, went inside to watch the football - - -
And suffered back pain whilst watching the football and I suggest it went a bit further than that – he suffered back pain whilst getting up whilst watching the football? --- There was just an onset of pain whilst in the chair watching the football.
Right. So again what I am suggesting to you is that there is no evidence whatsoever on your part that the injury sustained or the condition sustained on 19 September 1998 was caused by gardening? --- Nothing firm on that, no."
A number of medical witnesses gave oral evidence on behalf of the applicant, namely, Dr. Andrew Spick; Mr. Anthony Buzzard and Dr. John Sands.
Dr. Andrew Spick gave evidence that he had been treating the applicant since September 1998, and prior to that by another doctor in his practice. It was Dr. Spick's opinion based on the history given to him by the applicant (which the applicant had also given to the Tribunal) that in his opinion "there is not doubt that Mr. Maher's present condition relates to the incident at work and the injury in November 1997".
Dr. Spick agreed under cross-examination (as did all doctors who gave evidence) that his opinions were based on the history given to him.
Mr. Anthony Buzzard, a consulting surgeon, who first saw the applicant at the request of the respondent gave evidence. His report dated 7 November 1998 was part of the "T" documents. In his report Mr. Buzzard stated, at page 3:
"I think there is reasonable evidence that Mr. Maher suffered from a disc prolapse as a result of initial injury in November 1998 [sic] …."
and that
"Accepting the validity of the history the patient gave me today, I think it is reasonable to accept that the patient did suffer from a disc prolapse at work in late 1997, and is still suffering from problems as a result of that now."At page 4 of that report he stated:
"I think that in retrospect the patient probably did have some degree of right sciatica at that stage, accepting the validity of the history the patient has given me of involvement of his right leg from that time onwards".
Mr. Buzzard in his oral evidence, conceded that if the back pain following the injury of November 1997 lasted three weeks then he would expect that the injury suffered by the applicant at that time was likely to be a more serious injury than a back strain.
He concluded that, if the pain had lasted some weeks then apparently resolved and then within one month there was further back pain then this would be likely to be caused by a disc problem.
Mr. Buzzard agreed with the respondent's counsel that if the pain in the applicant's back in September 1998 did not occur spontaneously when the applicant rose from a couch, but after gardening, then the cause of that pain could be attributed to the gardening.
Mr. Buzzard agreed with the applicant's counsel that if the applicant's history was correct then there was likely to have been a prolapse in November 1997 which never resolved and then resulted in a further spontaneous prolapse in September 1998.
Dr. Sands, a consultant physician in internal medicine, gave evidence and his report dated 7 September 1999 was tendered into evidence. In that report Dr. Sands agreed with the opinions of Mr. Buzzard. After stating the history relied upon by him at page 3 of his report, he states at page 4 of that report the following:-
"I think this fits quite comfortably with the thesis that he prolapsed his disc in November 1997, he had intermittent activity dependent symptoms since then, and he had a spontaneous exacerbation on the 19th September or thereabouts and a worsened one while having chiropractic treatment a few days later."
Dr. Wallis John Tracey, a medical practitioner, was the only medical witness who gave evidence on behalf of the respondent. His evidence was that he examined the applicant on one occasion only being on 6 November 1997. At that time there was no complaint by the applicant of sciatic pain. He diagnosed the applicant as having suffered acute low back pain.
Discussion of Evidence and Finding of FactThe Tribunal generally accepted the evidence of the applicant and his lay witnesses.
The applicant appeared to the Tribunal to be a truthful witness whose version of events remained unshaken to any material extent and whose evidence as largely supported by other witnesses.
The Tribunal accepts the applicant's evidence and finds as fact:-
(a)That on 4 November 1997 the applicant suffered a back injury. He was certified totally unfit for work for 3 weeks and returned to Tasmania. The applicant did not return to work for approximately 3 months.
(b)After his return to work, the applicant had intermittent pain in his back and intermittent tingling sensation and pain down the back of his right leg upon which he commented to his de facto spouse and to his shipmate, Mr. Taylor, throughout 1998.
(c)The applicant also advised the medic on the "Ocean Bounty" of his intermittent pain and tingling down his right leg which the applicant believed was recorded in the Medical Incident book, but was not in fact so recorded.
(d)The applicant did not require any medical treatment for his back or leg pain until September 1998.
(e)On 19 September 1998, the applicant when rising from a sitting position on a couch while watching television suffered severe pain in his low back. Prior to the sudden onset of low back pain, the applicant had not undertaken any strenuous activity.
The Tribunal has accepted the applicant's version of events upon which Mr. Buzzard; Dr. Sands and Dr. Spick have based their opinions. Their opinions are that the applicant suffered a prolapsed disc in November 1997; suffered intermittent activity dependent symptoms; and had a spontaneous exacerbation on 19 September 1998 which has incapacitated him since that date.
The only medical practitioner who suggested that the applicant had not suffered a disc prolapse was Dr. Tracey who considered that the applicant had merely suffered a back strain.
The Tribunal notes that Dr. Tracey only examined the applicant once and that at the time of making his diagnosis did not have the advantage of the full clinical picture which was only to emerge over the next twelve months.
Dr. Sands in his report states:
"Like Mr. Buzzard I think there is nothing wrong with Dr. Tracey's report as far as it goes. Indeed it would have been quite out of order for him to have jumped to a diagnosis of prolapsed disc on the basis of the information available to him at that time, and one does not rush every acute back pain off for MRI scanning and I believe that his diagnosis that most general practitioners would have made at that time under the circumstances.
Mr. Buzzard points out quite clearly that since that time one has had the opportunity to watch a developing clinical picture and to have seen the results of the MRI scan. Therefore there is really no argument between Dr. Trace and Mr. Buzzard as they both reporting appropriately in different clinical contexts."
The Tribunal therefore prefers the opinions of Mr. Buzzard; Dr. Sands and Dr. Spick to that of Dr. Tracey.
DeterminationIt follows from the Tribunal's findings of fact that the Tribunal considers that the pain suffered by the applicant on 19 September 1998 is the result of a disc prolapse suffered by the applicant on 4 November 1997 and that the incident of 4 November 1997 is the cause of the applicant's present incapacity.
The decision of the Tribunal is that the decision of the respondent of 20 January 1999 denying liability for the applicant's compensation claim dated 29 September 1998 under the Seafarers Rehabilitation and Compensation Act 1992 be set aside and substituted with a decision that the applicant's compensation claim dated 29 September 1998 under the Act be accepted.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)
A/Prof. B W Davis AM (Part-time Member)Signed: .....................................................................................
Personal AssistantDate/s of Hearing 14, 15 March 2000 19 June 2000
Date of Decision 21 July 2000
Counsel for the Applicant Mr A Gaggin - Jennings Elliott
Solicitor for the Applicant
Counsel for the Respondent Mr C McInnis
Solicitor for the Respondent Mr C Hall , Blake Dawson Waldron
0
0
0