Murray and Australian Offshore Solutions Pty Ltd (Compensation)
[2021] AATA 4750
•17 December 2021
Murray and Australian Offshore Solutions Pty Ltd (Compensation) [2021] AATA 4750 (17 December 2021)
Division:GENERAL DIVISION
File Number:2019/7725
Re:Jason Murray
APPLICANT
AndAustralian Offshore Solutions Pty Ltd
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:17 December 2021
Place:Brisbane
The Tribunal affirms the decision under review.
......................[SGD].........................
Member D Mitchell
CATCHWORD
COMPENSATION – accepted injury – left shoulder injury – decision to cease incapacity payments – whether applicant was incapacitated from undertaking pre injury work to the same rank or level – integrated rating – AMSA issued certification of fitness for duty – permanent reduction in range of movement – creditability of Applicant – decision under review affirmed
LEGISLATION
Seafarers’ Rehabilitation and Compensation Act 1992 (Cth)
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Budarick and Comcare [2000] AATA 673
Djuraj v Minister for Immigration & Multicultural Affairs [2001] FCA 986
Fell v Lloyd (1911) 13 CLR 230
Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640
Woodhouse v Comcare [2021] FCAFC 95
REASONS FOR DECISION
Member D Mitchell
17 December 2021
INTRODUCTION
Mr Jason Murray (the Applicant) is seeking review of a decision of the Respondent dated
6 November 2019.[1]
[1] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T44, pages 120-121, Reviewable Decision.
The reviewable decision[2] affirmed a determination dated 15 August 2019[3] to cease the Applicant’s weekly compensation payments on 21 August 2019 under section 31 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the Act). The determination was made on the basis that the Applicant had recovered from any injury, disability or incapacity he suffered as a result of the incident in the course of his employment on 20 March 2018 and he had capacity for pre-injury duties.[4]
[2] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T44, pages 120-121, Reviewable Decision.
[3] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T34, pages 99-101, Determination Decision.
[4] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T44, pages 120-121, Reviewable Decision and T3, pages 21-25, Respondent’s findings on material questions of fact.
CLAIMS HISTORY AND BACKGROUND
In March 2018, the Applicant was employed by the Respondent as a seafarer – integrated rating (integrated rating) on a 4 week, 12 hour a day on and 4 week off rostered arrangement. During the Applicant’s 4 weeks off, he undertook work as a plumber with Macladd Pty Ltd.[5]
[5] Exhibit 2, Respondent’s Hearing Book, HB1, Respondent’s Statement of Facts, Issues and Contentions, page 2, paragraphs 11-13.
On 20 March 2018, the Applicant completed a minor incident report in relation to an injury to his left shoulder that occurred while descending from the top bunk to the floor during his rest period.[6]
[6] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T4, pages 26-27, Minor Incident Report.
On 26 March 2018, the Applicant sought medical attention from Dr Yure Pavic who completed a Workcover WA form. Dr Pavic diagnosed a left shoulder dislocation and made the clinical finding of “tender left shoulder, decreased range of motion due to pain. Recommend MRI and x-ray to assess severity of injury prior to referral for further treatment.”[7]
[7] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T5, pages 28-29, WorkCover WA First Certificate of Capacity.
On 27 March 2018, the Applicant lodged a claim for workers’ compensation in relation to a left shoulder dislocation injury.[8] The Applicant’s claim for a left shoulder injury was accepted (accepted injury).
[8] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T6, pages 30-34, Claim for Workers’ Compensation.
On 10 April 2018, the Applicant underwent left shoulder stabilisation surgery with
Dr David Colvin, orthopaedic surgeon.[9]
[9] Exhibit 2, Respondent’s Hearing Book, HB18, Summons material from Dr Colvin, page 404.
The Applicant was medically classified as having no capacity for any work from 9 April 2018 to 15 April 2018.[10] From 16 April 2018, the Applicant’s capacity for work gradually increased.[11]
[10] Exhibit 2, Respondent’s Hearing Book, HB18, Supplementary T Documents, Summons documents from Dr Colvin, pages 407-408.
[11] Exhibit 2, Respondent’s Hearing Book, HB18, Supplementary T Documents, Summons documents from Dr Colvin, pages 407-408, 413-414, 419-420, 424-425, 428-429, 433-434, 438-439.
The Applicant was recommended to commence rehabilitation treatment which included physiotherapy and strengthening exercises from 18 May 2018.[12] On 29 June 2018, Dr Colvin wrote to the Applicant to emphasise how important it was that his rehabilitation remained on track.[13]
[12] Exhibit 2, Respondent’s Hearing Book, HB18, Supplementary T Documents, Summons documents from Dr Colvin, pages 416-417, 419-420, 422.
[13] Exhibit 2, Respondent’s Hearing Book, HB18, Supplementary T Documents, Summons documents from Dr Colvin, page 418.
From May 2018, the Applicant was provided with rehabilitation by Acumen Health, who were engaged to assist him with a return to work. Acumen Health’s return to work plans included finding the Applicant an appropriate work trial.[14]
[14] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T10, T11, T12, T13 and T14, pages 39-55, Documents from Acumen Health.
On 28 September 2018, Dr Colvin reported that the Applicant had turned the corner with his range of motion and that future improvements were expected over the following
6 months. Dr Colvin provided:[15]
.. at the end of the day he will have close to normal range of motion. Shoulder stabilisation surgery always produces some restriction which is intentional to prevent further dislocation.
…
There is a possibility that he may not be fit to return to his previous occupation at the end of the day and decision regarding retraining are best made early rather than at the last minute. I would support his retraining as a process operator ….
[15] Exhibit 2, Respondent’s Hearing Book, HB18, Supplementary T Documents, Summons documents from Dr Colvin, page 426.
In an email trail dated 9 November 2018, Acumen Health provided a summary of the Applicant’s rehabilitation since the end of June 2018, which relevantly included that:[16]
[16] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T16 and T17, pages 58-70, Email updates from Acumen Health.
· On 9 June 2018, Acumen Health commenced canvassing for a work trial.
· On 29 June 2018 the Applicant advised he wanted to complete a work trial with a friend.
· On 6 July 2018, Acumen Health advised the Applicant that his friend was unable to offer light duties.
· On 13 July 2018, Acumen Health obtained a work trial with Total Tools scheduled to commence on 23 July 2018.
· On 17 July 2018, the Applicant advised another friend (Macladd Pty Ltd) could offer a work trail and he wanted to cancel Total Tools.
· The work trial agreement was endorsed by Dr Colvin on 2 August 2018 and commenced on 6 August 2018.
· The Applicant was in Thailand between 15 August and 26 September 2018 attending a rehabilitation facility due to his declining mental health following the breakdown of his marriage.
· On 28 September 2018, the Applicant agreed to commence the work trial.
·
They were unable to contact the Applicant between 30 September 2018 and
10 October 2018. When the Applicant was contacted, he advised that he was struggling with his mental health following the specialist outcomes and had not re-commenced the work trial but agreed to do so.
· On 24 October 2018, the Applicant advised he had not commenced the work trial however could not provide a clear reason why.
· On 9 November 2018, the Applicant advised he had recommenced the work trial with his friend and had worked the past 2-weeks straight.
On 20 November 2018, Acumen Health noted:[17]
I spoke with [the Applicant] this morning for an update on how he is going and his feedback was that overall he is feeling a lot better both physically and mentally. He reported he is continuing his physiotherapy and home exercise program and has noticed a significant improvement in both range of movement and strength and is keen to hear what Dr Colvin's recommendations are around his work capacity at the next review on 10th December. [The Applicant] is continuing to participate in the work trial with his friend acting as the host employer. He is working 4-5 days a week depending on the host employers [sic] jobs for that day - some days are solely heavy physical labouring work which is beyond what he is capable of. [The Applicant] reported that mentally he is also feeling a lot better and is finding his sessions with the psychologist to be very beneficial and plans to continue these.
[17] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T18, page 61, Email from Acumen Health.
On 10 December 2018, Dr Colvin noted that the insurer had declined his recommendation of retraining and reported that he expected that the Applicant would be at or close to fit for his old job in April 2019 which would be 12 months post-surgery.[18]
[18] Exhibit 2, Respondent’s Hearing Book, HB18, Supplementary T Documents, Summons documents fromOn 29 March 2019, Dr Colvin reported that the Applicant had advised that he felt that his supervised exercise physiology sessions were starting to pay off and there had been some improvement in the last couple of weeks in his overall capacity. Dr Colvin reported that the Applicant could start a work trial with some overhead lifting in mid-May 2019 and would presently be fit for a work trial doing lifting up to bench level. Dr Colvin opined that the Applicant should be fit to return to his normal occupation by the end of June 2019 and that if that was not the case his restrictions would be permanent and he should move to looking at alternative occupations.[19]
[19] Exhibit 2, Respondent’s Hearing Book, HB18, Supplementary T Documents, Summons documents fromOn 26 March 2019, the Applicant attended a medical examination with Dr Yure Pavic, Occupational Physician.[20] In the resulting report dated 10 April 2019, Dr Pavic provided that:[21]
[the Applicant] reported that he was not suffering from any pain in the left shoulder and he was able to sleep on the left shoulder without significant concerns. He reported an occasional dull ache from the shoulder and also numbness to the front of the left shoulder.”
[20] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T25, pages 78-85, Report of Dr Pavic.
[21] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T25, pages 83-84, Report of Dr Pavic.
Dr Pavic reported that:[22]
· The Applicant had not fully recovered from the left shoulder injury as his strength had not plateaued and the range of movement had not plateaued based upon review by the exercise physiologist.
· It was reasonable that the Applicant would reach maximum medical improvement in 2-3 months’ time (being July 2019) but with residual impairment in external rotation.
· The Applicant had an excellent prognosis to return to work offshore with a strengthening program over the next 6-12 weeks (being July 2019).
[22] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T25, page 83, Report of Dr Pavic.
On 26 and 27 June 2019, the Applicant attained certificates to enter and work in confined spaces and work safely at heights.[23]
[23] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T26, page 86, Statement of Attainment – Work in confined spaces and T27, page 87, Statement of Attainment – Work safely at height.
On 28 June 2019, Dr Colvin certified that the Applicant had full capacity for work from that date and provided that he should undertake a 7-10 day trial of his normal duties after which he would be reviewed. Dr Colvin reported that the Applicant would require regular work placements thereafter to develop work fitness.[24]
[24] Exhibit 2, Respondent’s Hearing Book, HB18, Supplementary T Documents, Summons documents from Dr Colvin, pages 441-442.
On 28 June 2019, the Applicant attended an ASMA medical with Dr Anne Durack and was based on the Applicant’s personal declaration, clinical examination and diagnostic test results recorded on the Medical Examination Report certified as being fit to undertake duties as an integrated rating. This certification provided that the Applicant was found to be fit and not suffering from a medical condition likely to be aggravated by, or to render him unfit for service at sea or likely to endanger the health of other person on board.[25]
[25] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T29, page 90, AMSA – Certificate of medical fitness.
The Respondent arranged for the Applicant to undertake a 7 to 10 day swing as a supernumerary integrated rating on an offshore vessel starting on 5 July 2019 providing that:[26]
… we propose he will join as a supernumerary as we are looking to give him 7-10 days in the offshore environment to refamiliarize him with offshore operations in a view to returning to full 4 on 4 off, or 5 on 5 off swings in the near future should everything go well.
[26] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T30, pages 91-92, Emails.
The Respondent contacted the vessels captain on 15 July 2019 to do a welfare check on how the Applicant was going and see if there were any issues. The Captain reported that the Applicant was doing well and there were no issues.[27]
[27] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T31, page 93, Email.
In email exchanges between 11 July 2018 and 30 July 2018, the Applicant sought clarification of his pay for the time he spent at sea, sought further job opportunities and provided that while he was on the vessel he was “doing a full irs job full 12 hr days (no light duties)”.[28]
[28] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T33, pages 95-98, Email correspondence with the Applicant.
On 15 August 2019, the Respondent determined to cease the Applicant’s weekly compensation payments on the basis that he had recovered from his left shoulder injury and had a proven capacity to undertake his pre-injury duties.[29]
[29] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T34, pages 99-101, Claim Determination.
On 30 August 2019, Dr Colvin certified that the Applicant had full capacity for work from that date and provided that he had some permanent impairment due to restricted range of motion. Dr Colvin provided:[30]
I have reviewed [the Applicant] today, now sixteen months post op from his left shoulder stabilisation surgery. [The Applicant] has recently been involved in a return to work trial but that trial did not involve all of his normal duties.
On examination, [the Applicant] continues to have some restrictions in his range of motion, particularly with abduction and external rotation. Those restrictions are now permanent. They would not prevent him from returning to his occupation but he does have a permanent impairment applicable to his injury.
….
[30] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T36, page 103, WorkCover WA Final Certificate of Capacity and T37, page 104, Report of Dr Colvin and HB 18, Supplementary T Documents, Summons documents from Dr Colvin, page 444.
On 11 September 2019, the Applicant made further inquiries to the Respondent about undertaking further swings on a vessel.[31]
[31] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T38, pages 105-106, Email correspondence with the Applicant.
On 12 September 2019, the Applicant sought an internal review of the Respondent’s determination made on 15 August 2019.[32]
[32] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T39, pages 107-108, Letter from Turner Freemen Lawyers.
On 24 September 2019, the Applicant made further inquiries to the Respondent about undertaking further work.[33]
[33] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T38, pages 105, Email correspondence with the Applicant.
On 26 September 2019, the Respondent sought assistance from Comcare in reconsidering the determination.[34]
[34] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T42, pages 111-115, Letter to Comcare.
On 15 October 2019, Comcare recommended that the determination be affirmed.[35]
[35] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T43, pages 116-119, Comcare Report.
On 6 November 2019, the Respondent affirmed the determination dated 15 August 2019, to cease the Applicant’s weekly compensation payments.[36]
[36] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T44, pages 120-121, Reviewable Decision.
On 26 November 2019, the Applicant sought review of the reconsideration decision by way of application to this Tribunal.[37]
[37] Exhibit 2, Respondent’s Hearing Book, HB2, T Documents, T1, pages 10-16, Application for Review of Decision.
On 21 January 2020, Dr Colvin reported that he had issued a final medical certificate indicating that the Applicant had reached maximum medical improvement and he was fit for full capacity at work on 30 August 2019. Dr Colvin reported that the Applicant’s left shoulder impairment was permanent and that no further surgical treatment or other medical investigations were indicated.[38]
[38] Exhibit 2, Respondent’s Hearing Book, HB5, Report of Dr Colvin, pages 130-133.
On 7 May 2020, the Applicant attended an independent medical examination with Associate Professor Paul Miniter, orthopaedic surgeon. In the resulting report dated 14 May 2020,[39] Associate Professor Miniter opined that:[40]
· The diagnosis appears to be an episode of shoulder instability as a result of the injury sustained on 20 March 2018.
· The Applicant, as far as he could determine, had fully recovered from the shoulder injury and was fit to perform his full duties as an integrated rating. However, recommended that an up-to-date MRI scan of the shoulder be obtained to determine the full state of play post-operatively.
· The prognosis is guarded as:
There appear to be motivational issues and the relatively troubled post-operative course with him attending drug rehabilitation and so on does place questions upon the levels of motivation and upon intrinsic factors which are associated with this as well as his depression and anxiety.
[39] Exhibit 2, Respondent’s Hearing Book, HB7, Report of Associate Professor Miniter, pages 142-150.
[40] Exhibit 2, Respondent’s Hearing Book, HB7, Report of Associate Professor Miniter, page 147-148.
On 1 June 2020, the Applicant underwent an independent medical examination by
Dr Alok Jhamb, orthopaedic surgeon who provided a report dated 3 June 2020.[41] Dr Jhamb opined that the Applicant’s left shoulder injury was stable and stationary and had reached maximal medical improvement. Dr Jhamb reported that:[42]
It is difficult to comment on [the Applicant’s] ability to meet his future occupational demands due to his [left] shoulder. Although he feels confident of returning to his previous working duties, he would require a Functional Capacity Evaluation. He has some limitation of motion.
[41] Exhibit 1, Applicant’s Bundle, B3, Report of Dr Jhamb, pages 10-16.
[42] Exhibit 1, Applicant’s Bundle, B3, Report of Dr Jhamb, page 15.
Dr Jhamb reported that he did not believe that the Applicant would be able to return to his previous level of work and would be at a significant disadvantage in the future for employment upon disclosure of his injury and limitation of motion.[43]
[43] Exhibit 1, Applicant’s Bundle, B3, Report of Dr Jhamb, page 15.
On 2 June 2020 the Applicant underwent an x-ray and CT scan.
On 5 August 2020, Associate Professor Miniter provided a supplementary report having been provided with the x-ray, CT scan and report of Dr Jhamb.[44] Associate Professor Miniter opined that:[45]
· The bone appeared to be uniting as expected.
· There were no obvious complications or adverse features.
· The Applicant had not fully recovered from the left shoulder injury, however enough time had passed for the injury to have stabilised.
· The Applicant was fit to perform his full-time duties as an integrated rating and has more than sufficient range of the shoulder, has power in the shoulder and has had no further episodes of instability.
[44] Exhibit 2, Respondent’s Hearing Book, HB9, Report of Associate Professor Miniter, pages 153-155.
[45] Exhibit 2, Respondent’s Hearing Book, HB9, Report of Associate Professor Miniter, page 154.
On 22 October 2020, Associate Professor Miniter provided a further supplementary report.[46] In which, he explained his comment in his previous supplementary report that the Applicant had not fully recovered from the surgery was made because the Applicant reported he has some persistent complaints. Associate Professor Miniter provided that from a functional point of view he agreed that the Applicant has made a good recovery and he believes that if there had been an injury in the workplace as the Applicant described, then he had recovered from that injury. Associate Professor Miniter reported that the Applicant was fit for full-time unrestricted activities as an integrated rating and to perform alternative employment duties.[47]
[46] Exhibit 2, Respondent’s Hearing Book, HB11, Report of Associate Professor Miniter, pages 158-160.
[47] Exhibit 2, Respondent’s Hearing Book, HB11, Report of Associate Professor Miniter, page 159.
On 17 February 2021, the Applicant attended an independent medical examination with
Dr Micah Perez, consultant occupational therapist who provided a report dated
5 March 2021.[48] Dr Perez reported that the results of her assessment indicated that the Applicant continued: [49]
to experience left shoulder pain and stiffness (referring into the upper arm), disrupted sleep, a poor pain pattern comprising of seven (7) ‘bad days’ per week, psychological sequalae (including mild depression and anxiety based on psychological screening), reduced left upper limb range of motion, and moderate pain interference in daily activities.
[48] Exhibit 1, Applicant’s Bundle, B5, Report of Dr Perez, pages 21-51.
[49] Exhibit 1, Applicant’s Bundle, B3, Report of Dr Perez, page 38.
Dr Perez opined that the Applicant no longer retained the strength capacity or functional tolerances for work as a plumber or integrated rating and that he would now be precluded from such occupations.[50]
[50] Exhibit 1, Applicant’s Bundle, B3, Report of Dr Perez, pages 30-31.
On 18 February 2021, the Applicant attended an independent medical examination with
Dr Peter Yu, occupational physician who provided a report dated 8 March 2021.[51] Dr Yu was asked to provide advice about the Applicant’s medical status and his ability to safely, consistently, effectively and durably perform all of the duties in environments inherently involved in an integrated rating’s (IR) role. Dr Yu opined that:[52]
· While the Applicant had not fully recovered from his left shoulder injury he had sufficiently clinically recovered and had sufficiently clinically low medical risk to regain full fitness to work as an IR.
· The Applicant’s pain and limited movement of the left shoulder does not inherently or substantially clinically increase his medical risk from its use to the maximal physically permissible extent. His shoulder has been repaired and is stable.
· The Applicant’s pain-related fear-avoidant behaviours are modifiable clinical prognostic factors, and are likely to improve with persistent employment of any kind.
· The Applicant is fit to perform full-time duties as an IR, and is fit to engage in rehabilitation and training.
· What the Applicant reported being able to do and being unable to do (regarding weight of manual handling) is part of his medical history, is effort dependent and is a non-independently-verifiable examination finding.
· What the Applicant reported being unable to manually handle is clinically inconsistent with what he medically should be able to do with low medical risk, noting the evidence of his recovery from his treating surgeon’s records and the regulator’s certificate.
[51] Exhibit 2, Respondent’s Hearing Book, HB13, Report of Dr Yu, pages 169-193.
[52] Exhibit 2, Respondent’s Hearing Book, HB13, Report of Dr Yu, page 188.
The Applicant provided a statement dated 9 August 2021 outlining the events leading up to the injury sustained on 20 March 2018 and the treatment that followed.[53] In relation to his return to work, the Applicant provided:[54]
[53] Exhibit 1, Applicant’s Bundle, B6, Applicant’s Statement, pages 52-57.
[54] Exhibit 1, Applicant’s Bundle, B6, Applicant’s Statement, page 55-56.
51.I was unsuccessful in securing any similar work following the incident due to my shoulder injury and subsequent surgery.
52.I did not work from the date of incident until 17 July 2019.
53.Around 17 July 2019 I performed duties during one swing on a vessel offshore as a work trial.
54.This swing lasted 11 days.
55.I was on board as a supernumerary and did not perform any integrated rating duties.
56.During this swing I could not perform all duties required of me.
57.I could not lift the pilot ladder, nor could I lift the paint tins.
58.I had to high pressure wash the deck as part of my role and in doing so I could not hold the hose for long periods of time, requiring me to stop and start this task.
59.After this swing I was unable to secure any similar work until December 2020, as a result of my injuries.
60.On 26 December 2020 I commenced alternative full-time work as a process operator for Hillgrove Mines.
61.I obtained this work as I knew someone who also worked at the site.
62.On 15 May 2021 I resigned from this position as I could no longer perform the duties that were requested of me as a result of my injuries.
63.Particularly, I could no longer perform the digging tasks required due to pain, nor could I continue to operate the machine valves as I was expected to.
64.I am currently not working.
65.Prior to sustaining my injuries I also had a second job working as a plumber which I could not return to as a result of my injury.
66.I continue to suffer from a constant mild ache in the left shoulder, clicking in the shoulder, together with numbness at the surgery scar site.
In a further statement dated 11 August 2021,[55] the Applicant provided as a result of having been shown further documents in relation to the AMSA medical appointment on
[55] Exhibit 1, Applicant’s Bundle, B7, Applicant’s Statement, pages 58-60.
28 June 2019 and in response to other material before the Tribunal:[56]
[56] Exhibit 1, Applicant’s Bundle, B7, Applicant’s Statement pages 58-60.
3. I remember that AMSA medical appointment. It was part of the process of me trying to get back to work and get back out to sea. That was the next step in my rehab.
4. As part of trying to get back to sea, I went and got my certification for working at heights and working in confined spaces. These are certifications that you have to do regularly every year or two. Each certification is mostly classroom theory and then you go to do a practical assessment, but it is not demanding and there are no difficult physical demands. I am told that my certificates from June 2019 are at documents "T26" and "T27".
5. Then on 28 June 2019, I went to see my treating specialist Dr Colvin. He recommended that I do a work trial and then review how things went. I am told that Dr Colvin's medical certificate of 28 June 2019 is document "T28".
6. That same day, after seeing Dr Colvin, I went straight to the AMSA medical appointment at Sonic Health near Perth Airport. This was arranged so that I could go for the work trial suggested by Dr Colvin. I recall Dr Anne Durack being an older lady.7. I have looked at the documents at attachment "A". In the "MEDICAL EXAMINATION REPORT" under "PART A-TO BE COMPLETED BY APPLICANT", the handwriting in uppercase is my handwriting and my signature is next to the date of28/6/2019. However the other handwriting (darker and in cursive) is not my handwriting and was not on the document when I signed it.
8. I have looked at the "MEDICAL EXAMINATION REPORT" under "PART B - TO BE COMPLETED BY MEDICAL INSPECTOR''. This is the first time I have seen this completed document. In the section about "MUSCULOSKELETAL" it has some handwritten comments:
(a) L Shoulder full ROM - I remember the doctor getting me to move my arm around. I was determined to do everything I could to get through that medical and be able to go and do the work trial. I wanted to get back to sea.
(b) Push ups - I do remember the doctor asking me to do push-ups. I believe I did 2 and she said that was enough.
(c) No issues - I probably did not complain of issues at that time. I was not working at the time and I wanted to get through the medical and get out to sea to do the work trial.9. I remember being anxious at the AMSA medical. The doctor had to lay me down to relax to pass my blood pressure test because I was so anxious.
10. I have been through a number of AMSA medicals previously. My recollection is that these assessments are not difficult to pass. You have to swing your arms, step up and down from a box, do a couple of push-ups, and things like that.
11. Unless I had an AMSA clearance, I would not have been allowed to go to sea even just for a work trial. I don't know how else you can try to get back to work without one.
…
13. When I went to sea in July 2019 for the work trial, it was not like a normal swing. The first thing is that it was for only 11 days rather than the full 28 day normal swing. I also went to sea as a supernumerary, meaning I was an extra person over and above what they would normally have. I also remember that the back deck of that boat was closed during that swing because explosives were being used, so some of the things an IR would normally do didn't need to be done.
14. There were not a lot of duties required of me during the work trial, but I did what was asked of me. At paragraph 55 of my 9 August 2021 statement it says I did not perform any IR duties, but that is not quite right. Paragraphs 56 to 58 of that first statement mention some of the duties. I did not do any painting. I remember I did some greasing as part of planned maintenance, some hosing as mentioned, and assisting by monitoring and being ready to activate emergency switches when helicopters were coming in. These were duties that an IR could be expected to do, but I did not do any heavy duties only what was asked of me.
15. I have been shown an email from 17 July 2019 which I am told is part of document ''T33". The email is about what pay I should have received for my swing in July 2019, and one thing that I said in that email was: "i was only out there for a short time i was doing a full irs job full 12 hr days (no light duties) ... ''. I did believe I was doing the full 12 hour role of an IR in doing the duties asked of me. Looking back, it probably was not right to say "no light duties" but at that time I was just trying to explain that I was entitled to full pay for my work.
16. In an email a week or so later (which lam told is part of document '"T33"), I asked AOS if I would be going back to sea because I still need to do a full swing to get the surgeons clearance ... ". l still wanted to see if l could get back to my normal work.
17. My shoulder still has the problems I have already explained. I loved my IR work so would go back if l could, but I don't see how l can do the heavy duties required of an IR through the course of a 28 day swing at sea.
ISSUES
The primary issue before the Tribunal is whether the Applicant is entitled to compensation in relation to the accepted injury pursuant to section 31 of the Act. In considering this issue the Tribunal must consider whether the Applicant is incapacitated to engage in any work or to engage in work as an integrated rating as a result of the accepted injury.
THE LAW
The Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the Act) provides a comprehensive scheme in relation to rehabilitation and workers’ compensation for seafarers, trainees and other designated persons. The Act is closely modelled on the provisions contained in the Safety, Rehabilitation and Compensation Act 1988 (Cth).
Section 26 of the Act provides that the Respondent is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.
An injury is defined in section 3 of the Act to include a disease suffered by an employee or an injury other than a disease or an aggravation thereof. Specifically, section 3 defines “injury” to mean:
(a) a disease; or
(b) an injury (other than a disease) suffered by an employee, that is 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), that is 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.
Once liability for a condition is accepted under section 26 of the Act, payment of compensation in relation to incapacity for work may be available to the injured person.
Section 31 of the Act provides that compensation is payable to an employee who is incapacitated for work as a result of an injury and provides the relevant calculation methods of any such compensation.
Section 8 of the Act provides that a reference in the 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.
EVIDENCE PROVIDED AT HEARING
Applicant’s Evidence
At Hearing the Applicant gave evidence under oath and confirmed his name, date of birth and that his written statements dated 9 August 2021 and 11 August 2021 were true and correct to the best of his knowledge.[57]
[57] Transcript, pages 9-10.
On cross-examination, the Applicant:[58]
[58] Transcript, pages 10-41.
·Was taken to the clinical records of his general practitioner’s practice and confirmed he understood that what was being inferred was that what is recorded in the clinical records is information that he has given to the doctor during the course of the examination.
·Confirmed that he recalled telling the doctor on 10 January 2014 that he had been suffering from anxiety disorder in the past and that a script for Pristiq was prescribed on that day.
·Confirmed that as at 30 December 2013 he had been suffering an anxiety disorder in the past for which he had been prescribed the drug Pristiq, which is a drug for the treatment of what is called “major depressive disorder”.
·Confirmed that he recalled telling the doctor on 8 November 2014 that he had been feeling depressed and angry in the past few months as there were some issues in respect of child support arrears.
·Confirmed that the doctor’s notes that at that time he was not sleeping well at night and was given advice to see a counsellor was correct.
·Confirmed that he did not see a counsellor at that time because he was going back to work from the next Monday.
·Confirmed that at the appointment on 8 November 2014, the reason for the visit was depression and his medication was changed from Pristiq to Zoloft which is a medication he had been prescribed for the treatment of depression and that he was at the time also prescribed a medication called Zoton to treat his gastro-oesophageal reflux disorder.
·Confirmed that the doctor’s notes of 17 March 2015 which referred to him having been to Brazil were correct, he had been there on a visit to see his wife and that a doctor there gave him Quetiapine as he was not sleeping and it had good effect.
·Agreed that Quetiapine is a medication for the treatment of mood disorders.
·Said that he got that medication in Brazil because someone had spiked his drink and he had hallucinations for nearly three days and went to see a doctor who prescribed him that medication.
·Confirmed that on 14 May 2015 he saw a doctor in respect of an anxiety disorder was prescribed Seroquel which is another type of medication that is meant to treat depression.
·Confirmed that he had seen the doctor on 26 November 2015 in respect of an anxiety disorder and that he had told the doctor that there would be no work for the following two months and that was stressful as he would have no income and that that doctor again prescribed him Seroquel and Zoton.
·Confirmed that his mental health illness predated the first entry in the medical records made in December 2013.
·When taken to a pre-employment health questionnaire he completed in relation to his position with the Respondent, confirmed that he had signed the form on 5 May 2016 and had as part of that form declared that the information he set out in the questionnaire was truthful and that there was no misleading answer or omissions, further that he understood that if he was employed and it was subsequently established that he had been misleading or untruthful, he may be terminated from the employment.
·Confirmed that that the answers to the questions on the questionnaire were recorded from the information he provided.
·Agreed that the answer of “No” to the question “Have you ever had any mental health issue requiring medication or counselling” was not right. He gave that answer due to embarrassment, he does not like talking about it.
·Agreed that nevertheless he was called upon to make truthful answers in respect of the medical examination.
·When asked about his illicit drug use at that time, after being warned in respect of the privilege against self-incrimination chose to answer the questions put to him.
·Confirmed that at the time he was giving the answers to the questionnaire the answers he was giving in relation to his mental health were false.
·Agreed that his answers in relation to not having ever had a problem with anxiety or panic attacks or insomnia were deliberately false answers.
·When asked whether it was a situation where he saw an advantage for himself in making those false answers, said no it was more that he did not want anyone to know.
·Agreed that there was a further advantage to him as well by making the false answers as he knew that it enhanced or improved his chances of keeping his job. He understood that if he had answered those questions truthfully there might have been a further investigation into his previous mental health history.
·Confirmed that on 10 September 2016 there was a reference in the general practitioner records to pain in the left upper arm due to a bite, but that it was not pain it was a bite.
·Confirmed that on 4 May 2017 the general practitioner’s note indicated that he was still suffering from a range of mental health symptoms at that time.
·Confirmed he saw a general practitioner on 29 March 2018 in relation to his left shoulder dislocation which occurred when he reached out with his left arm to steady himself on the bedside table as he got down from an upper bunk.
·Confirmed he went on to have surgery with Dr Colvin on 10 April 2018 after which there was a complication that healed itself and he had some capacity for work on
28 January 2018 to 1 January 2019 at his pre-injury hours, with limitations in relation to lifting,·Confirmed that Acumen Health had tried to get him work trials and that he had told them he wanted to complete a work trial with a friend which was endorsed by Dr Colvin on 2 August 2018.
·Said, that he went to Thailand for two weeks at that time for treatment for his illicit drug use that started after the operation.
·Confirmed he had not disclosed that treatment to his general practitioner.
·Said that he went to Thailand for the treatment as it was too expensive here.
·Agreed that the rehabilitation notes also referred to his marriage breakdown as a reason he went to Thailand.
·Said that the rehabilitation note reference to not being able to find him between
30 September and 10 October 2018 was because he was still in Thailand.·Said, when put to him that the documents said that he went to Thailand on
15 August and did not come back until 26 September that he could not say where he was then, as he did not know.·When asked if the record that said:
When finally contacted he advised his mental health was struggling, following specialist outcomes, and he had not recommenced the work trial.
was correct, said that he did not recommence the work trial because he could not do the job.
·Said, that the rehabilitation note which records his mental health was struggling, was referring to his marriage breakdown and all that sort of thing.
·When asked about the Acumen Health email on 9 November 2018 that provided that he had called and advised that he had recommenced the work trial with his friend and had worked the past two weeks straight was correct, said that was not correct, he was not working.
·Confirmed that the friend he was doing the work trial for was Mr Macladd who runs the plumbing business and the work he was engaged in was replacing water metres, which is basically digging up water metres, disconnecting them and installing a new one, which was work he had been doing since 2016.
·Said he did not recall telling Acumen Health that he had recommenced the work trial and had worked the past two weeks straight, but that if he did say that it “was just to keep him away from [him] – stop bugging [him], [he] suppose[s].”
·When it was put to him that Acumen Health was trying to rehabilitate him and that what he told them was true and correct, otherwise he would not have said it, said yes.
·When asked whether he had worked the past two weeks straight at that time was right, said that he could not remember the dates, he worked until Macladd Pty Ltd could not have him there anymore because he was a hindrance and he could not do the job.
·When asked whether on 20 November 2018 he told Acumen Health that he was feeling better and that there had been a significant improvement in both range of movement and strength in respect of his shoulder, said that he would have told them that he was feeling better but he would not have said it all like that but if they wrote it down it was a fair reflection of what he said to them.
·Confirmed that at that time he told Acumen Health that he was working four or five days a week.
·Confirmed that he also at that time told Acumen Health that he was seeing a psychologist and as a result he was mentally feeling better.
·When referred to the consultation notes of his general practitioner made on
29 January 2019 which provided that he reported that his mood had been getting worse and that was quite different to what he had told Acumen Health on
20 November 2019 and asked whether that was because the condition had gotten worse between November and January or whether he was telling Acumen Health untruths to get them off his back, said “Yes, I didn’t want him to know”.·Confirmed he appreciated that Acumen Health were trying to get him back into the workforce.
·Agreed that the AMSA certificate that was issued as a result of an assessment he underwent with Dr Durack certified him as being fit to return to sea and to resume duties as an integrated rating.
·Confirmed that he did not say anything to Dr Durack to indicate that he would have any difficulties with performing his work as an integrated rating because he was desperate to try and get back to work and if he did not have an AMSA medical he would not have been able to do the work trial.
·Confirmed that he signed the AMSA medical report and that in response to the question:
Are you aware of any circumstances regarding your health which may interfere with the satisfactory discharge of the duties of your designated position/occupation?
answered “No”.
·When put to him that without any shadow of a doubt that was another deliberate untruth perpetuated by him, agreed it was.
·Agreed that on the same day Dr Colvin certified him as fit to undertake a work trial of his normal integrated rating duties.
·Said that the work trial did not go very well as there was basically nothing to do. He did not get to test his shoulder because there was no physical work as the ship was basically shut down.
·Agreed that in the medical certificate from his general practitioner dated
29 July 2019 certifying him unwell with a severe skin infection that there was no mention of any shoulder problems.·When referred to the email trails between 12 and 17 July 2019 and where he had written he was doing a full IR’s job, being full 12 hour days, no light duties, agreed that he was trying to convey the fact that he had been doing full duties for 12 hours a day with no light duties but that he performed the duties that he needed to perform. When put to him that is not what his email said, he said he was trying to get the full pay, it was not a lie, he was doing everything he was asked to do onboard.
·Confirmed that there were no issues while he was on the work trial.
·When taken back to the general practitioner notes from 24 July 2019, 29 July 2019, 12 August 2019, 26 August 2019, which were after he had completed the offshore work trial and put to him that there were no mention of complaints of any shoulder symptoms as there were none, agreed that there was no mention however, said that his shoulder symptoms were constant.
·Confirmed he saw Dr Colvin on 30 August 2019 and that he was aware that he had certified him as fit for full capacity from that date with some permanent impairment due to restricted range of motion.
·When asked whether he was aware that Dr Colvin was writing that he had some restrictions which were now permanent, but would not prevent him from returning to his occupation and whether he thought that was untrue, said: “It was basically that, ‘I can’t keep you on, we need to finish this claim’, really, so I wasn’t going to get any better than I was and – yes, that was the end of it.”
·When asked if his evidence to the Tribunal was, that, at that time he was unfit for work as an integrated rating, said yes.
·Agreed that there were a couple of times where it had been pointed out that assertions he had made were to the absolute contrary of the actual position.
·When put to him that he had told lie after lie regarding his capacity, said not in relation to his shoulder.
·When it was suggested to him that he knew he was on incapacity benefits and was being paid his salary minus some deductions, said yes but that was until 15 August 2019.
·When referred to emails he had written in September 2019 seeking work, said of course he was as he is broke.
·When put to him that at that time though he was saying that he was fit for work, said: “No, not really. No. Because – I’d never had the opportunity to do the work, so I didn’t know.”
·When put to him that he was proposing to say, when he was asking for work that he was fit for work as he knew that Dr Durack and Dr Colvin had certified him as fit for his old job, said that yes he wanted to get back to work.
·When put to him that he would not have been making that representation if he did not think he could do the work, said yes, he was attesting to the fact in the emails that he was trying to be fit and ready to go back to work.
·When taken to the general practitioner notes from 17 September 2019 where no mention was made of a complaint of any shoulder symptoms and it was suggested that the reason for that was because there was not any problem with his shoulder at that time, said that was not true, there was nothing they could do about it.
·When taken to the general practitioner notes from 27 September 2019 which provided he reported his mood was well with mirtazapine, confirmed that was another medication to treat depression.
·Based on those notes confirmed that he had done a two week rigging course which included a lot of theory and a bit of practical work, slinging up some loads, a bit of crane work that required the use of his left shoulder.
·Confirmed he reported to the general practitioner that had caused an exacerbation to his left shoulder but did not require any analgesia and had improved.
·When put to him that in looking through the general practitioner medical records the entry on 27 September 2019 was the first time he had raised any shoulder symptoms with his general practitioner since 15 August 2018 despite having told Dr Jhamb and Ms Perez the occupational therapist that he had continual left shoulder pain seven days a week which caused him not to sleep, said he was dealing with Dr Colvin about his shoulder.
·When taken to the general practitioner notes made on 3 December 2019 and asked about the note that he had been to a kickboxing camp in Thailand, said it was not a kickboxing camp, it was a fitness/wellbeing camp, he was there as he was severely overweight. There were activities of kickboxing there, but he said that was not what he was doing.
·He was in Thailand for 6 weeks, jogging, cycling, walking, dieting and skipping.
·When asked why he would describe the camp as a kickboxing camp to his general practitioner if that is not what he was doing, said he accepted that he had told the general practitioner that, because that is mainly what it was for, but was not what he was doing while there.
·Confirmed the doctor’s notes that he had further bad anxiety attacks whilst in Thailand.
·Said that those sorts of symptoms had been afflicting him from well before the dislocation incident in April 2018 but had gotten worse.
·When it was put to him that the problem had been an issue of availability of work, said not just through the Respondent, he had applied to many different companies, not just in maritime but also in mining.
·When asked if he had represented to all of those companies that he was fit and able to do offshore mariner’s work, said not to the mining companies. As soon as they see a gap in your resume, and you tell them you have been on workers’ compensation and broke your shoulder you do not get a call back.
·When put to him that the important issue was that he obviously thought he was fit enough for the work and was taken to emails he had written seeking roles offshore, in one on 16 January 2020 he said “If anything comes up, please let me know. I’m ready to go”, he said he wrote the emails as he was desperate to get back to work.
·When asked whether he agreed that he was clearly representing himself as being physically fit for work, said yes, he was hoping he would be.
Medical evidence
The written medical evidence before the Tribunal is relevantly summarised above in the section headed Claim History and Background, or is otherwise set out below as part of the oral evidence provided at Hearing.
Dr Micah Perez, occupational therapist
At Hearing Dr Perez gave evidence by telephone under affirmation.[59] Dr Perez confirmed her name and qualifications and that she prepared a report in relation to the Applicant dated 5 March 2021 which to the best of her belief and knowledge to the extent it states matters of facts, that those facts are true and correct and to the extent that it expressed opinions they are opinions that she genuinely formed and held.[60]
[59] Transcript, pages 44-49.
[60] Transcript, pages 44-45.
Dr Perez told the Tribunal that she had since preparing her report had an opportunity to review the report of Dr Yu dated 8 March 2021 and the statements of the Applicant dated 9 and
11 August 2021 and that nothing arising from the report or statements caused her to revise or alter her opinions.[61][61] Transcript, page 45.
On cross-examination, Dr Perez:[62]
[62] Transcript, pages 45-49.
· Confirmed she is not medically qualified.
· When taken through her method of assessment confirmed that:
o Firstly, she refers to self-reported symptoms of pain, functional deficits and effective treatments.
o In this matter she was relying on what the Applicant told her in relation to systems and pain and that those reports were truthful.
o Then she conducts a number of tests to see how the person performs in those tests in front of her, she makes objective findings.
o Then she makes subjective observations in relation to the physical tests the person performs in front of her.
o In that method there is a heavy reliance placed upon what the person actually says and demonstrates to her.
· Confirmed she examined the Applicant on 17 February 2021 and on that day he complained of constant aching pain and stiffness in the left shoulder and that there was numbness over the surgical scarring.
· Confirmed that the Applicant told her that his left shoulder pain would be exacerbated by sustained and repetitive left upper limb movement away from the trunk, not only overhead, but sideways and also stretching below waist level.
· Confirmed that the Applicant told her that there were psychological sequalae and that he was suffering disrupted sleep and what she called poor pain pattern consisting of seven bad days per week.
· Said when she asks about pain patterns, it gives her insight into the last week, up to the last four weeks before her assessment. At that time the Applicant reported every day was a bad day because of pain.
· Confirmed that it was a fair description to say that from what the Applicant described to her he was fairly significantly disabled by his shoulder problems.
· When asked whether that was the history and the notion that she took onboard in conducting her assessment, said that her opinion was based on her assessment results.
· Confirmed that any objective assessment she did was necessarily predicated upon what the Applicant said and demonstrated to her in the assessment.
· When put to her that she did not have the medical qualifications to look into the physiology, the injury, the surgery and his post-surgery progress, said her expertise is not medical it is as an occupational therapist. She looks at functional capacity which is different from physiology and is different from medical considerations.
· Said she was aware that the Applicant had underwent an assessment by
Dr Durack and that based on what he told her and how she assessed him, she had considered him fit for work as an integrated rating and that Dr Colvin the Applicant’s treating orthopaedic surgeon had issued him with a final medical certificate indicating that he had reached maximum medical improvement and that he was fit for full capacity at work.· Agreed that it was fair to say that there was a substantial difference between what was presented to her and what was presented to Dr Durack and Dr Colvin, however that she would say the medical assessment is very different from a functional occupational therapy assessment.
· When asked if she accepts that a medical assessment brings a further important dimension to looking at the Applicant’s clinical presentation by sheer depth of the extra medical expertise that is brought to bear, said she accepts that medical opinion and medical assessment is necessary and also adds to that, but that a functional assessment of someone’s capacity is important as well.
Dr Alok Jhamb, orthopaedic surgeon
At Hearing Dr Jhamb gave evidence by telephone under affirmation.[63] Dr Jhamb confirmed his name and qualifications and that he prepared a report in relation to the Applicant dated 3 June 2020 which to the best of his belief and knowledge to the extent it states matters of facts, that those facts are true and correct and to the extent that it expresses opinions they are opinions that he genuinely formed and held.[64]
[63] Transcript, pages 50-57.
[64] Transcript, page 50.
Dr Jhamb told the Tribunal that he had, since preparing his report had an opportunity to review the report of Dr Yu dated 8 March 2021 and that nothing arising from the report or statements caused her to revise or alter his opinion.[65]
[65] Transcript, page 51.
On cross-examination, Dr Jhamb:[66]
[66] Transcript, pages 51-56.
· Confirmed he examined the Applicant on 1 June 2020 and that the Applicant had said that his shoulder was always sore and that he had a constant mild ache which can be worse after mobilising. That there was some numbness at the site of the operation scar and that there was no night pain in his shoulder unless he rolls onto it.
· Confirmed that was the extent of the history the Applicant had given him in respect of any interruption to his sleep.
· Said, he could not recall the Applicant giving him a history that was suggestive of a poor pain pattern consisting of seven bad days in relation to ongoing left arm dysfunction, left shoulder pain exacerbation, etc.
· Said that the Applicant had told him he was suffering anxiety and depression and that he was now taking anti-anxiety mediation and sleeping tablets however, he did not recall him mentioning that he also suffered with them prior to the injury.
· Said that the Applicant had told him that he previously worked as a plumber but did not feel he could do that work again as he would not be able to climb under houses.
· Said the Applicant had not told him that he had sought certification and achieved it in respect of establishing an ability to work in confined spaces.
· Agreed that in answering questions in his report about the contribution of the Applicant’s work-related injuries to his incapacity to work and whether they were likely to continue into the future, that he could not answer the questions in full until he had seen a functional capacity evaluation.
· Said he was not aware that the applicant was assessed by Dr Durack on
28 June 2019 and he was issued an AMSA safety certificate passing him fit to undertake work as an integrated rating.· Said he could not recall whether he was aware that on 30 August 2019,
Dr Colvin, the surgeon who performed the surgery in April 2018 had certified the Applicant as fit to return to his normal duties as an integrated rating.· When taken to Dr Yu’s report and the matters that Dr Yu considered in formulating his opinion and asked whether he considered them to be relevant factors that might be utilised in forming an opinion in relation to the Applicant, said:
o He agreed that clinical evidence from Dr Colvin’s records, the Applicant’s substantial progress and recovery to date were relevant.
o He agreed that the radiological evidence of substantial radiologically satisfactory recovery following left shoulder surgery which correlates closely with Dr Colvin’s recorded clinical findings were relevant.
o He agreed that the fact that Dr Durack on behalf of the regulator, AMSA certified the Applicant as “Fit and is not suffering from a medical condition likely to be aggravated by or to render him/her unfit for service at se or likely to endanger the health of other persons onboard” was relevant.
o He agreed that the fact that Dr Yu’s examination of the Applicant only found a mild 1-centimetre muscle atrophy of the left arm was relevant.
o Confirmed that muscle atrophy may indicated disuse of a limb or a muscle group or possibly a palsy and can be indicative of some underlying pathology of some sort and weakness as well.
o He would not give the opinion that the “Mild muscle atrophy of the left arm, limitations in left shoulder movements, complaints of pain and pain-related fear of ordinary behaviours do not clinically increase his medical risk at or capacity for an IR’s duties or environments”.
o He disagrees that fear avoidant behaviours do not clinically increase, but agrees it may be relevant for someone who wants to use it as relevant.
Associate Professor Paul Miniter, orthopaedic surgeon
At Hearing Associate Professor Miniter gave evidence by telephone under affirmation.[67] Associate Professor Miniter confirmed his name and qualifications and that he performed a telehealth assessment of the Applicant on 7 May 2020 who had an occupational physician present with him to assist with the assessment and as a consequence he prepared a report in relation to the Applicant dated 14 May 2020 as well as two subsequent reports dated
5 August 2020 and 22 October 2020. Associate Professor Miniter confirmed that the contents of those reports are true and correct to the best of his ability and that there was nothing in those reports that he wanted to alter or delete.[68][67] Transcript, pages 61-76.
[68] Transcript, pages 61-62.
Associate Professor Miniter explained the findings of the 26 March 2018 MRI report, specifically in relation to denervation of the teres minor muscle and a small un-displaced Bankart lesion and of the original post-operative concerns that led to further surgery.[69]
[69] Transcript, pages 62-63.
Associate Professor Miniter told the Tribunal that:[70]
· Ingesting illegal substances should not have a direct effect on the actual surgery itself but may have an effect on the patient’s ability to cooperate and/or progress in a normal fashion.
· The physical examination of the Applicant showed that his range of motion was all but normal and more than sufficient to allow him functional range.
· In relation to his findings in respect to the CT scan performed on 2 June 2020 that the nature of the surgery that was performed involved taking a piece of bone which is called the coracoid process and then transplanting that bone into the front of the shoulder joint. Having been positioned in that respect it is then fixed in place by one or sometimes two screws and are reliant upon the bone healing to the other bone to maintain its position and have its effect upon his shoulder stability. So, the idea of the CT scan is to make sure that the bone has healed, which it had, and that there were no issues with screws which, in orthopaedic terms can of course become loose, prominent, break, et cetera.
· Neither the CT scan nor the x-ray performed on 2 June 2020 reveal any findings which might in any way reflect ongoing problems with the shoulder.
· The normal expected time of recovery from the surgery performed on the Applicant would include having surgery on one day (going home that afternoon or the next morning), being in a sling for between two and six week (more likely six weeks), beginning a range of motion program with a physiotherapist during that time and probably back at all normal duties by 3 months and certainly every duty by four months. This applies to someone of 50 years of age in the absence of any other serious pathology, which to his knowledge was not present in the Applicant.
[70] Transcript, pages 62-66.
On cross-examination, Associate Professor Miniter:[71]
[71] Transcript, pages 66-75.
· When asked if someone who had a shoulder dislocation injury a surgical procedure like that performed on the Applicant would tend to make the shoulder then more vulnerable to future dislocations, said that it depends upon the actual pathology that was present in the first instance and whilst remote there is still a possibility of further dislocations.
· Noted that the Applicant has not had any further dislocations.
· Said that future dislocations would be quite remote and unlikely.
· Said:
Normally if you have another dislocation in a situation such as this, it would either be a traumatic dislocation so if he fell over heavily and abducted his arm it could happen. But the other thing would be if he were involved in something like a sporting event such as a skiing accident or, you know, a tough football incident where he feel over. But generally speaking the performance of normal duties very unusual.
· Confirmed he had considered the AMSA standards.
· Confirmed he had taken into account in forming his opinion that the Applicant had an AMSA assessment and a final work trial, being a 12 day period onboard ship during which time he performed all of his duties with effortless ease.
· Confirmed that there would be some degree of restriction in abduction which would be consistent with the time of injury and surgery in this case.
· Said that the reason in his first supplementary report he had reported that the Applicant was not fully recovered from the left shoulder injury was because he had told him that he had not fully recovered.
· Said that nobody in any profession or in the Applicant’s age group should be performing repetitive at or above shoulder activities which is why he made the comment that he would not place any restrictions on the Applicant’s ability to work other than perhaps the restriction that he is not performing repetitive at or above shoulder activities.
· Said that the Applicant lifting a 20 kilogram drum of paint above shoulder height is repetitive in the sense of over and over within the hour but several times a day would be acceptable.
· When taken to the AMSA standards where it says that painful spinal or shoulder movements with or without limitation in range of strength present a high risk and asked whether he accepts that as a general proposition, said that it was particularly non-specific. He noted that the Applicant had been through the AMSA assessment and so he presumed that the examiner was satisfied.
· Said at the time he saw the Applicant his main issue was stiffness not a painful shoulder movement and he did not think that limitation in range of strength applies to the Applicant, he has more than sufficient range of motion, strength and coordination and he has proven that by demonstrating his physical activities.
· Said he was referring to the Applicant having demonstrated his physical abilities in the AMSA assessment.
· When referred to the AMSA standard where it says:
Where there is any doubt about mobility or other musculoskeletal issues, the medical inspector should arrange for an AMSA functional assessment.
said that to his knowledge he had not seen such a functional assessment but had seen that the Applicant had been based by the inspector.
· When asked whether he took into consideration that seafarers must be medically fit to perform their normal duties correctly and to be able to respond to emergency situations, said absolutely.
· When asked whether he took into consideration the table in the AMSA standards that relate to the work of an integrated rating, relevantly the physical requirements, including being required to reach and work overhead, lifting from deck to overhead to load vessels and small craft, climbing vessels’ rope ladders three metres in rough seas, climbing steel rung ladders on towers up to 30 metres, said yes.
· Explained that in his report he suggested that if he was the Applicant’s treating practitioner the only time he would be placing restrictions on him was if he felt he could delineate either a complication from surgery or some serendipitous finding which would prevent him from returning to a normal function. That is why he recommended that there should have been an MRI scan after the surgery. If an MRI scan had been done the whole matter would be much clearer because he would be able to give a definitive opinion as to whether the Applicant was or was not fit based on objective information.
· When asked whether the logical conclusion is then that without the MRI scan he could not be definitive, said:
It’s contributory. I mean, I wouldn’t expect this man to have any long-term complications or restriction in a meaningful capacity. I mean, the surgery itself is designed to restore stability; it’s done that. Unless there is a major coexistent problem that is related to his original injury, I fail to see why he should be give any restrictions. I mean, if he was my patient I would give him no restrictions and to be honest with you, you know, to do so unfairly compromises his ability to enter the workforce and he should only be given restrictions if such restrictions are warranted based on objective information.
· When asked if that objective information would be an MRI, said:
It would be contributory. You would have seen this in my reports. I have been consistent in my – you know, the reason I made this comment is that, you know, in the absence of any such information there should be no reason for this man to have any long-term restrictions and I believe he’s fulfilled those requirements in a physical sense by going through an AMSA assessment and the AMSA assessment is quite onerous and quite difficult to achieve. So I think it’s unlikely that there would be any problems of this nature but I did say that to be utterly confident of this an MRI scan would be very helpful. I don’t expect to find anything on the scan, I don’t think there will be anything serious to identify.
· Confirmed that he would not place on restrictions on the Applicant’s ability to work as an integrated rating.
Dr Anne Durack, medical practitioner
At Hearing Dr Durack gave evidence by telephone under affirmation.[72] Dr Durack confirmed her name and qualifications, which includes having practiced as a medial practitioner for just over fifty years and that for the last 20 odd years has been listed that the WA go-to person for Sonic Health Plus AMSA. She has trained AMSA doctors and is listed on the work instructions as a regional medical officer for AMSA.[73]
[72] Transcript, pages 77-82.
[73] Transcript, page 77.
Dr Durack confirmed that she conducted an assessment on 28 June 2019 in respect of the Applicant and that she has no specific recollection of that particular assessment, however relies on her clinical notes.[74]
[74] Transcript, page 77.
Dr Durack told the Tribunal:[75]
[75] Transcript, pages 78-80.
· That she considered the fact that the Applicant was cleared for a work trial by his treating surgeon was the single most important piece of information
· Where there are issues like the Applicant’s it is her practice to discuss with the examinee whether he has any ongoing anxieties or hesitations about a return to full work duties.
· She confirmed that there was no indication that the Applicant was uncertain about his fitness for work.
· Confirmed that the physical examination was completely normal with a full range of movement and that she made an assessment of the Applicant’s strength by recording that he could perform push-ups without difficulty.
· The Applicant ticked the no box on the form in relation to the question about whether he had previously had anxiety or depression.
· If someone ticked yes to anxiety or depression she would have asked further questions.
· The importance of whether a person is suffering anxiety or depression when conducting these kinds of assessments depends on history. She would ask had they been treated, were they treated by a psychiatrist or just the GP, had they been on medication and gauge whether there were any ongoing issues.
· Confirmed that there was nothing that the Applicant said to her which indicated any potential difficulties in performing the tasks that would be an integrated rating.
· Confirmed she is aware of the AMSA criteria in relation to musculoskeletal matters.
· Confirmed that she had recorded “Left shoulder full range of motion” as she had conducted a range of motion test with him.
· Confirmed she would have made the Applicant do at least two push ups in front of her. She views this as targeted examination, because of the issue with the Applicant’s shoulder there is a bit of extra emphasis on making sure that she can tick that he has no restrictions, all joint movements are in the normal range and pain-free and also keeping in mind that integrated ratings do a fair bit of lifting and overhead work.
On cross-examination, Dr Durack when asked whether she was aware that the surgeon recommended that the Applicant undertake a 7 to 10 day trial of normal duties and review results and if not would that have been important information, said, she was not aware of that and it would not necessarily be important information as managing the injury is a separate issue. Her assessment is not related to managing the workers’ compensation injury, it is purely an assessment of fitness. [76]
[76] Transcript, page 81.
Dr Durack told the Tribunal that if the Applicant had advised her of the period of the work trial that she would have recorded it.[77]
Dr Peter Yu, occupational physician
[77] Transcript, page 82.
At Hearing Dr Yu gave evidence by telephone under affirmation.[78] Dr Yu confirmed his name and qualifications and that he examined the Applicant on 18 February 2021 and prepared a report as a result dated 8 March 2021.[79]
[78] Transcript, pages 83-92.
[79] Transcript, page 84.
Dr Yu told the Tribunal that other than one paragraph on page 20 of his report that otherwise the content of the report was true and correct and there was nothing else he wanted to alter or delete. [80]
[80] Transcript, page 84.
At Hearing, Dr Yu:
· Confirmed that he was given a lot of documentary material in respect of the Applicant and he had regard to that material.
· Confirmed he took a lengthy history from the Applicant directly which was reflected in his report.
· Confirmed he took details from the Applicant about what he said his current status was and that he conducted an examination of the Applicant looking at his neck, upper back, lower back, the nerve related systems of the arm and his shoulders.
· Confirmed he looked at the medical scans, treatment providers information as well as the summary of his duties in respect of his Hillgrove Gold Mine employment and at the standards from the AMSA guide.
· Said that the clinical evidence from Dr Colvin’s records of the Applicant’s substantial clinical progress and recovery to date was quite high in the hierarchy of importance and that the radiological evidence of substantial radiologically satisfactory recovery following left shoulder surgery was crucial to the extent that it was consistent with Dr Colvin’s findings.
· Confirmed he considered Dr Durack’s assessment on behalf of AMSA.
· Said that the significance of his examination which found that the Applicant had only a mild, one centimetre, muscle atrophy of the left arm was that it assisted him to assess the objective part of the Applicant’s current clinical status. If the muscle atrophy had have been more significant then it could have possibly indicated much more than that.
· Said that the Applicant’s mild muscle atrophy was not clinically significant so far as his integrated rating duties were concerned as it was not to an extent where he would find that there is a clear medical basis for him to disagree with the medical prognosis that Dr Durack indicated on the certificate of medical fitness.
On cross-examination, Dr Yu:[81]
· Explained that where in his report he had written that “the movement of which led to palpable crepitations” when he examined the Applicant what he meant was that it was a sandpapery like feeling, so when he put his hand on the Applicant’s shoulder there was like a grating kind of feeling that he could detect objectively.
· Confirmed he took the Applicant’s range of movement test results into consideration when answering questions about work capacity.
· Confirmed that to regularly and safely do the work of an integrated rating a person requires normal unrestricted use of both shoulders.
· Said that he stands by his opinion that the Applicant had not fully recovered from his left shoulder injury of the subject injury but that he has sufficiently clinically recovered and has sufficiently clinically low medical risk to regain full fitness to work as an integrated rating.
· Agreed that when he examined the Applicant he did not demonstrate normal unrestricted use of the left shoulder, which is one consideration when assessing whether the Applicant could use his left shoulder in a normal unrestricted way.
· Agreed that when assessing someone’s capacity and fitness to return to work it is relevant to take into account the hours of work in terms of the length of each day of work.
· Said his understanding was that he understood the Applicant’s work to be a seven-day swing relying on the information provided by the Applicant.
[81] Transcript, pages 86-91.
On re-examination, Dr Yu said that whether the Applicant did a three-week or four week swing would not change the answer he gave in his report. [82]
PARTIES CONTENTIONS
[82] Transcript, pages 91-92.
Applicant’s Contentions
At Hearing the Applicant’s Counsel handed up a written outline of submissions, of which were consistent with those delivered orally.[83]
[83] Applicant’s Outline of Submissions, dated 18 August 2021, pages 1-10.
The Applicant submitted that the present matter related to a decision to cease entitlements and as such it brings into play what the Federal Court has referred to as the Respondent’s need to persuade the Tribunal of the circumstances which justify that cessation. The Applicant submitted this is particularly relevant because if there are gaps, if there are doubts or uncertainties in the evidence, those are matters that make it more difficult to be satisfied that there is no incapacity and so matters that ultimately assist the Applicant’s case.[84]
[84] Transcript, page 94.
The Applicant’s counsel contended that there had been a vigorous attack on the Applicant’s credibility. However he made some frank concessions in giving evidence, he has not been upfront in all of the forms that he has filled in, nor with information that he provided at certain times. However, that does not mean that he is dishonest about everything. It would be a substantial finding to make if the Tribunal were to conclude that the Applicant is being dishonest in respect of his complaints of pain and restriction that he has given in relation to his left shoulder. It was contended that would not only mean that the Applicant has been dishonest to the Tribunal, but it would mean that there had been a sustained and concerted effort at dishonesty across multiple attendances and multiple time periods because there are records through the time of the Applicant complaining of his shoulder problem.[85]
[85] Transcript, page 95.
The Applicant further contended that similarly, if the suggestion is that during the work trial swing of 11-odd days in July 2019 that the Applicant in fact did heavy full normal integrated rating duties, it would be a big step to take to find that he had been dishonest about that because there is the contemporaneous note made by Dr Colvin that the Applicant reported to him that it was not the full duties. There is no direct evidence of what duties the Applicant did aside from his own evidence.[86]
[86] Transcript, page 95.
The Applicant contended that the Tribunal should accept that there is a continuing degree of pain and restriction in his left shoulder.
The Applicant contended that the evidence of Associate Professor Miniter which included that following the Applicant’s type of injury and the particular surgery there is an increased risk of reinjury from either traumatic force or potentially from, in particular working above shoulder height with weight. These are activities that the Applicant would need to do as an integrated rating, which creates some doubt about whether one could be satisfied that there is no loss of capacity at all.[87] The Applicant further contended that although Associate Professor Miniter did not expect to find anything on an MRI post-surgery its absence raises an element of doubt.[88]
[87] Transcript, pages 95-96.
[88] Transcript, page 96.
The Applicant contended that as Dr Durack did not consider the length of the swing to be relevant that the reliance on her report by Associate Professor Miniter and Dr Yu places doubt on there being no loss of capacity.[89]
[89] Transcript, page 96.
The Applicant contended that Dr Yu’s objective finding of crepitation and the fact that he accepted that restricted range of movement is relevant to considering work capacity, creates some doubt as to his conclusion that there is no loss of capacity.[90]
[90] Transcript, page 96.
The Applicant contended that Dr Colvin’s assessment in June 2019 speaks for itself.
Dr Colvin’s recommendation was for a 7 to 10 day trial of normal duties, followed by a review and a regular work placement thereafter to develop work fitness. The Applicant contended that such recommendations are not clear evidence upon which to find the absence of any section 8(b) incapacity especially where Dr Durack did not have the details of Dr Colvin’s recommendation and in any event for her purposes was not considering the length of swings.[91][91] Transcript, page 97.
The Applicant contended that the most compelling evidence is that of Dr Perez and that while she is not a medical practitioner, that is really her strength, she is the only witness to have performed a full functional capacity evaluation. Dr Jhamb indicated he thought that is what was really needed to have any confidence about the Applicant’s ability to return to work as an integrated rating was a functional assessment, which is in line with the AMSA standard.[92]
[92] Transcript, page 97.
The Applicant contended that while it depends on a degree to her subjective reporting,
Dr Perez explained that there is an element of objective assessment. The Applicant contended that whether the Tribunal is prepared to accept Dr Perez’s opinion in full or not, it creates substantial difficulty in being able to conclude that there is no incapacity, and that the Applicant can immediately return to sea as an integrated rating on full hours and full duties.[93][93] Transcript, page 97.
The Applicant contended that his case is that he is incapacitated for the particular level of work that he was doing at the time of injury.
Respondent’s Contentions
The Respondent contended that the issue at hand was whether or not the Applicant was fit to perform his usual duties/work at the same level. The Respondent submitted that there was no denying, and even their medical witnesses can see that there are limitations of movement and potentially some discomfort in the Applicant’s shoulder but that this is not sufficient to justify him being classified as being unfit for work as an integrated rating, being his pre-injury duties.[94]
[94] Transcript, page 98.
The Respondent submitted that the mere fact that liability was accepted for an injury does not mean that benefits that flow thereafter in respect of medical expenses being paid, and incapacity payments being paid are set in stone and are going to continue forever. In applying the principles outlined in Woodhouse v Comcare [2021] FCAFC 95, the Respondent contended that people do recover from diseases just as they do from injuries and that they recover from workplace injuries and diseases.[95]
[95] Transcript, page 99.
The Respondent contended that the evidence provided by Dr Jhamb in his report of
3 June 2019 was not inconsistent with what Dr Colvin, Associate Professor Miniter andDr Yu were prepared to accept. The Respondent further contended that to the extent that Dr Perez conducted a functional capacity evaluation, Dr Jhamb was not shown her report, nor was there any evidence from Dr Jhamb as to what conclusions he may have drawn from that report. Further there was no justification given by Dr Jhamb as to why he had stated that he believed that the Applicant would not be able to return to his previous level of work, the only justification could have been consideration of the functional capacity evaluation and that simply has not taken place.[96][96] Transcript, page 100.
The Respondent contended that Associate Professor Miniter and Dr Yu do make note of this and that there has been no evidence of any specific finding in respect of the Applicant’s left shoulder which might explain any ongoing incapacity.[97]
[97] Transcript, page 100.
The Respondent contended that the case put to the Tribunal by the Applicant is the based purely on his self-report and his complaint of symptoms. In a nutshell, all of the evidence from Dr Jhamb and Dr Perez (who is not qualified to make any diagnoses) is predicated upon the Applicant’s self-report. The Respondent contended that such reliance upon the Applicant’s self-report necessarily puts his credit and reliability to the forefront.[98]
[98] Transcript, page 100.
The Respondent contended that while Dr Perez purported to say that she conducted some sort of objective testing at the end of the day she conceded that most of her findings were predicated upon what the Applicant said and demonstrated to her. The Respondent submitted that Dr Perez does not have the medical expertise to be able to say, in respect of these findings there is a potential medical issue here, that there may be some pathology in the shoulder which may well explain what he is complaining of.[99]
[99] Transcript, page 101.
The Respondent contended that the unfortunate thing for the Applicant’s submission, that there had been a large-scale assault on his credit and reliability is, that, it is there to be seen quite easily in the material:[100]
[100] Transcript, pages 101-103
· The GP records upon which the Applicant was cross-examined show it was well established that he had a long-standing psychiatric illness for which he had been prescribed all manner of antipsychotic or antidepressant medication for.
· There was a pre-employment medical conducted in May 2016 for his employment with the Respondent in which he specifically disavowed any past psychiatric illness.
· Further, he only disclosed the medication he was prescribed as being Zoton which was for gastro-oesophageal reflux.
· While the Applicant says he is embarrassed by it, that may be so, however these are important matters when you are assessing someone’s ability to go on board a ship for 28 days at a time and be able to perform in difficult circumstances.
· There is in the ASMA document a specific reference to the importance of psychiatric history being disclosed.
· Further, there is section 10(7) of the Act whereby if the Applicant was to apply for compensation in respect of any psychiatric condition arising from his work, he would not be entitled to that compensation on the basis of his answers in the pre-employment medical.
· The GP records make ample reference to further psychiatric issues after the subject incident, which is a continuation of the same, it is not as if there is a fresh outbreak or whatever of those issues by reference to the shoulder dislocation in March of 2018.
· He was taken to his emails regarding having worked for two weeks straight and that all was going well to the rehabilitation provider.
· He did not disclose to Dr Durack his past psychiatric illnesses and she gave evidence as to how important that was. It is contended that if it was the case that he was so disabled at that stage by his shoulder why did he not tell Dr Durack that, especially given the circumstances at that stage were that he was still receiving incapacity payments.
· The Applicant said via email that he was doing a full integrated rating job, a full 12 hours, no light duties, the attempt to walk away from that is fairly feeble.
· There is evidence where the Applicant is writing to the Respondent and others making himself available for work as an integrated rating, the inference of which can only be that he considers himself fit enough to do the work.
· The Applicant’s response in relation to his trip to Thailand in comparison to what was recorded by his general practitioner was beyond belief.
The Respondent contended that the important issue is not that the Applicant told lies it is the question of where those lies go. The Respondent asked whether it is unfair to make the assessment of the Applicant that he is prepared to say anything at any particular time if he perceives it is in his own self-interest. The Respondent contended that it is as simple as that, the conclusion is inescapable.[101]
[101] Transcript, page 103.
The Respondent contended that the evidence of Dr Durack should be accepted as she is the local regional director for AMSA and took her task seriously. She focused on the Applicant’s shoulder because that was the nominated potential problem area. She has done plenty of these assessments in the past, the Applicant did not tell her there were any problems, she had the clearance provided by Dr Colvin and it was on this basis that she assessed the Applicant as being fit to return to his full duties.[102]
[102] Transcript, page 103.
The Respondent contended that while Dr Colvin had in certifying the Applicant fit for the work trial, indicated that further assessment would then be undertaken and that assessment occurred on 30 August 2019, where Dr Colvin provided the opinion that the Applicant did have some permanent impairment due to restricted range of motion. However, Dr Colvin certified him as being fit for full capacity for work having examined him that day. Dr Colvin further confirmed his opinion in the report of 21 January 2020.[103]
[103] Transcript, pages 103-104.
The Respondent contended that Dr Yu’s assessment was comprehensive and speaks for itself and nothing in the Applicant’s cross-examination weakened in any way his findings.[104]
[104] Transcript, pages 104-105.
The Respondent contended that all of their doctors concede that there is a diminution of movement in the Applicant’s shoulder and there may be some complaints of stiffness, however they factored all of those things in and determined they would not inhibit the Applicant from returning to his usual job.[105]
[105] Transcript, pages 106-107.
The Respondent’s contentions were summarised as follows:[106]
[106] Exhibit 2, Respondent’s Hearing Book, HB1, Respondent’s Statement of Facts, Issues and Contentions, page 5, paragraph 52.
(a)
The Applicant has recovered from the left shoulder injury sustained on
20 March 2018 and had done so by at least June 2019.
(b)The Applicant is fit for pre-injury duties and has been since at least June 2019 and has proven his capacity for pre-injury duties.
(c)There is no evidence that the Applicant is incapacitated for work.
(d)If the Applicant does have an incapacity for work (which is disputed) it is not as a result of an injury on 20 March 2018.
CONSIDERATION
The Tribunal notes that the Applicant has not sought to advance an argument that he was incapacitated to work at all, rather he is contending that as a result of his accepted left shoulder injury he has an incapacity for work as an integrated rating, which was what he was engaged as immediately before the injury occurred. As such the Tribunal is concerned only with whether the Applicant was from 15 August 2019 entitled to receive compensation pursuant to section 31 of the Act due to an incapacity for work as described in section 8(b) of the Act. Based on the evidence before it the Tribunal is satisfied that the Applicant did not have an incapacity to engage in any work as a result of his accepted injury.
While the expert medical evidence before the Tribunal provides a divergence in relation to the Applicant’s overall capacity to engage in work as an integrated rating, there is a meeting of minds in some regard. It is accepted by the Applicant and Respondent that as a whole the expert medical witnesses all agree that as a result of the accepted condition, the Applicant has a reduced range of motion/movement and experiences at times pain and stiffness in his left shoulder.
To that extent based on the evidence before it, the Tribunal accepts that the Applicant’s range of movement in relation to his left shoulder is reduced, as is expected as a result of the surgery he underwent in April 2018 and that he has since continued to experience pain and stiffness in that shoulder.
This does not however mean that the Applicant is automatically incapacitated from engaging in work as an integrated rating to the same rank and level as that at which he did so before the injury occurred in March 2018.
There was much conjecture in relation to the credibility of the Applicant and as such the reliability of his evidence before the Tribunal and perhaps even more importantly his reporting to the medical practitioners of whom provided reports that are before the Tribunal and/or gave evidence directly to the Tribunal.
The Applicant, while acknowledging that he had not been entirely truthful in the past in relation to disclosing his previous and ongoing psychological difficulties (due to embarrassment and a wish not to jeopardise his employment) and that he did not tell
Dr Durack about his pain and restrictions during the June 2019 AMSA assessment, put to the Tribunal that does not of itself mean that he was lying about the pain and restriction in his shoulder. The Applicant submitted that it is a fallacy to reason that the mere fact that a person has been shown to have lied about something means the opposite of what the person says must be true.[107]
[107] Applicant’s Outline of Submissions, pages 4-5, paragraphs 23-24 having reference to Fell v Lloyd (1911) 13 CLR 230 at 241; Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694 and Djuraj v Minister for Immigration & Multicultural Affairs [2001] FCA 986 at [30].
The Applicant further submitted that care needs to be exercised in making findings that amount to substantial dishonesty, making reference to the decision in Budarick and Comcare [2000] AATA 673 at [37] where the Tribunal said a finding that the Applicant can in fact use his shoulder to its full range of motion without pain “would necessarily involve … finding that the Applicant is in effect a malingerer. Such a finding should not be easily made.”[108]
[108] Applicant’s Outline of Submissions, page 5, paragraph 25.
The Applicant submitted that the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 are relevant.[109]
[109] Applicant’s Outline of Submissions, page 5, paragraph 26.
The Respondent on the other hand contended that the evidence before the Tribunal can only lead to the conclusion that the Applicant is prepared to say anything at any particular time if he perceives it is in his own self-interest.
In considering the evidence before it as a whole and in particular in light of the evidence given by the Applicant at Hearing, noting he appeared in person, the Tribunal rejects the reliability of the Applicant’s evidence as a whole in relation to his work capacity.[110] The picture painted by the evidence before the Tribunal shows that the Applicant had routinely left out relevant information when completing work related health forms, or when dealing with medical practitioners, for an overall self-serving purpose. The gravity of such conduct should not go unrecognised given the kind of work and the environment in which the role of an integrated rating is undertaken in. Further, the Tribunal considers that the Applicant by his conduct has impeded his treatment and recovery. His treating practitioners were not presented with the full picture of his clinical needs and constraints.
[110] Noting that persuasion that the Applicant’s evidence should be relied upon cannot be found independently of any belief in its reality nor should satisfaction of that evidence be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 as per Dixon J (as he then was).
As such the Tribunal is not satisfied that the work trial undertaken by the Applicant in July 2019 was not of a nature that tested his capacity for the integrated rating role. The fact that Dr Colvin’s report of 30 August 2019 makes reference to the Applicant not having been able to undertake all the normal duties of an integrated rating, is in the Tribunal’s view of no bearing as it was made as a result of the Applicant’s self-reporting.
The Applicant’s evidence at Hearing and in his written statements is contradictory to the way in which he held himself out to be work-ready when seeking to be paid for the work trial, secure further work, appease the rehabilitation workers or obtain AMSA certification.
Given these findings, the Tribunal must look even more closely at the medical evidence before it to determine objectively whether the Applicant had from August 2019 an incapacity to engage in work as an integrated rating as a result of his accepted left shoulder injury.
The Applicant contended that the Tribunal should prefer the evidence of Dr Jhamb and
Dr Perez such that the Applicant was incapacitated from undertaking the work of an integrated rating. Further, the evidence of Associate Professor Miniter, and Drs Durack and Yu should be considered not clear enough for the Tribunal to be without doubt that the Applicant has no loss of capacity. The Tribunal does not accept that proposition.
Having had the benefit of having heard evidence from the collective medical experts and having reviewed their reports together with the large volume of summonsed material, the Tribunal accepts and agrees with the contention of the Respondent that Associate Professor Miniter and Dr Yu took into consideration the permanent restriction in range of movement and occasions of pain and stiffness in the Applicant’s left shoulder in reaching their opinions that the Applicant was not incapacitated from undertaking the full duties of an integrated rating, their opinion was that the existence of such things did not alter that fact.
It should also be noted that Dr Colvin as the Applicant’s treating surgeon certified that he had full capacity to undertake the work trial on 28 June 2019 subject to further review, such review was then undertaken on 30 August 2019. At which time, Dr Colvin provided a final certificate of capacity stating that the Applicant had full capacity from that date to undertake his preinjury employment. As such the Tribunal considers it was reasonable for Dr Durack to rely on Dr Colvin’s initial certification in conjunction with her examination of the Applicant, in which he indicated he had no constraints that would prevent him from undertaking the role of an integrated rating. The sum of medical evidence indicates that it was appropriate for the opinion of Dr Colvin to be relied upon in the subsequent medical reports.
In considering the evidence before it from Dr Perez and Dr Yu in relation to functional capacity of the Applicant, the Tribunal prefers that of Dr Yu. Dr Yu is medically qualified and in providing his report and evidence did so from the basis of not only considering the Applicant’s self-reports but also considering the medical evidence, including the expected outcome of the surgery undertaken by the Applicant together with his examination of the Applicant.
Both Dr Yu and Associate Professor Miniter did not alter their opinion under cross-examination. The Tribunal considers that they were able to explain why, despite acknowledging that the Applicant has a permanent reduction in range of motion, that, that of itself did and does not alter his capacity for work as an integrated rating. Nor does his accepted injury significantly increase his risk of reinjury in undertaking such work.
As such, in circumstances where the Applicant’s evidence is unreliable and based on the evidence before it, the Tribunal is left with no doubt that the Applicant was not incapacitated as a result of the accepted injury from undertaking the work of an integrated rating at the same rank or level that he did so prior to the March 2018 injury from at least 15 August 2019 being the date of the Respondent’s initial determination.
The Tribunal notes that the determination to cease periodic payments under section 31 of the Act was made with effect from 21 August 2019 which was shortly prior to Dr Colvin providing final clearance that the Applicant had full capacity for work as an integrated rating. The Tribunal however considers that the final date of Dr Colvin’s clearance bears no importance on the date of which periodic payments were ceased as it is arguable that such entitlement ended on 28 June 2019, being the date the Applicant was certified by Dr Colvin to have capacity to undertake a work trial of his pre-injury work and by Dr Durack as being fit pursuant to the ASMA requirements to under that work.
CONCLUSION
Based on the evidence before the Tribunal, and for the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 120 (one-hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
.......................[SGD]..............................
Associate
Dated: 17 December 2021
Date of Hearing: 16, 17 & 18 August 2021 Counsel for the Applicant:
Solicitor for the Applicant:
Counsel for the Respondent:
Solicitor for the Respondent:
Mr Matthew Black
Ms Kate Harris
Turner Freeman Lawyers
Mr Charles Clark
Ms Sue Wilkinson
Sparke Helmore Lawyers
Dr Colvin, pages 430.
Dr Colvin, page 436.
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