Ryan and Swire Pacific Ship Management (Australia) Pty Ltd (Compensation) - [2020] AATA 2049

Ryan and Swire Pacific Ship Management (Australia) Pty Ltd (Compensation) [2020] AATA 2049 (1 July 2020)
Division:GENERAL DIVISION
File Number: 2019/0058
Re:Stephen Ryan
APPLICANT

Swire Pacific Ship Management (Australia) Pty LtdAnd
RESPONDENT

DECISION
Tribunal:Member M East
Date:1 July 2020
Place:Perth

The decision to refuse the Applicant’s claim for seafarers’ compensation is affirmed.
........................[sgd]................................................
Member M East
CATCHWORDS
COMPENSATION – seafarer’s rehabilitation and compensation – whether applicant’s ailment was ‘contributed to in a material degree’ by his employment with the respondent as an Integrated Rating on the vessel – meaning of ‘ailment’ considered – meaning of ‘contributed to’ considered – meaning of ‘in a material degree’ considered – decision under review affirmed
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act (Cth), No. 75 of 1988 Compilation prepared on 14 March 2007 – ss 4(1), 5B
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act2007 (Cth)
Seafarers, Rehabilitation and Compensation Act 1992 (Cth) – ss 3, 4(1) 8, 10(2), 26, 76, 78(5), 78(6), 79(1), 79(1)(b), 79(6)
CASES
Beer v Duracraft Pty Ltd [2004] WASCA 192
Briginshaw v Briginshaw
[1938] HCA 34; 60 CLR 336
[2005] FCAFC 262
[2006] FCA 840
(1976) 133 CLR 580
[1964] HCA 34

Comcare v Canute
Comcare v Sahu–Khan [2007] FCA 15
Coward v Military Compensation and Rehabilitation Service
Favelle Mort Pty Ltd v Murray
Federal Broom Co Pty Ltd v Semlitch
Jones v Dunkel (1959) 101 CLR 298
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Pollock v Wellington
(1996) 15 WAR 1
Re Raymond John Welsford and Commonwealth Banking Corporation [1984] AATA 95
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52
[1990] FCA 511
[2002] FCA 1464
[1987] FCA 484

Treloar, K.R. v Australian Telecommunications Commission
Weigand v Comcare Australia
Westgate, C.W. v Australian Telecommunications Commissions
SECONDARY MATERIALS
Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 (Cth)
Commonwealth, Parliamentary Debates, House of Representatives, 27 April 1988, 2191 (Brian Howe, Minister for Social Security)
REASONS FOR DECISION
Member M East
1 July 2020
HISTORY OF CLAIM

The Applicant is seeking review of a decision made by Swire Pacific Ship Management (Australia) Pty Ltd (the Respondent) to refuse his claim for seafarers’ compensation made for injuries allegedly sustained during the course of his employment with the Respondent as an A/B Integrated Rating.
By his claim form dated 18 September 2018, the Applicant claims that he has suffered ‘Severe multy [sic] level cervical disc disease with nerve entrapment’ to his ‘2,3,4 neck, lower back’ (T36, p83).
The Applicant alleges that the cause of his injury is due to his hard work as an able seaman over the course of 20 years of employment with the Respondent and/or specific incidents identified.
THE HEARING
The
application was heard by the Tribunal on 12 and 13 February 2020. The Applicant was represented by Mr David Bruns, Counsel, instructed by JDK Legal Services and the Respondent was represented by Mr Chris Rimmer, Counsel, instructed by

Sparke Helmore Lawyers.
At the hearing the Tribunal heard from the following witnesses:
·the Applicant;
·Mr Ross Bryson;
·Mr Barrie Slinger;
·Dr Thomas Nigel Jones;
·Dr William Michael Dewing; and
·Professor Jerzy Marian Sikorski.
The Tribunal had the following evidence before it:
·Statement of Facts, Issues and Contentions dated 1 October 2019 (Exhibit A1);
·Witness Statement of Applicant, Stephen James Ryan, dated 1 October 2019 (Exhibit A2);
·Witness Statement of Captain Theodore John Strockyj dated 27 May 2019 (Exhibit A3);
·Witness Statement of Ross Bryson dated 27 May 2019 (Exhibit A4);
·Witness Statement of Michael Corcoran dated 22 August 2019 (Exhibit A5);
·Briefing Letter to Mr Barrie Slinger dated 9 July 2019 (Exhibit A6);
·Medical Report of Mr Barrie Slinger dated 16 July 2019 (Exhibit A7);
·AMSA summaries relating to Applicant (Exhibit A8);
·Hearing Certificate dated 18 October 2019 (Exhibit A9);
·
List of Ships Masters – Intended to be read with the email chain contained in the

T-documents at T18 (Exhibit A10);
·Statement of Facts, Issues and Contentions 27 November 2019 (Exhibit R1);
·
Statement setting out findings on material questions of facts dated

4 February 2019 (Exhibit R2);
·Stephen Ryan transaction pay history (Exhibit R3);
·Briefing Letter to Professor Sikorski dated 24 October 2019 (Exhibit R4);
·Supplementary Medicolegal Report of Professor Sikorski dated 6 November 2019 (Exhibit R5);
·Independent Medicolegal Report of Professor Sikorski dated 31 May 2019 (Exhibit R6);
·Briefing Letter to Professor Sikorski dated 10 May 2019 (Exhibit R7);
·Index of medical documents provided by Professor Sikorski (Exhibit R8);
·Applicant’s service history (Exhibit R9);
·Hearing Certificate dated 6 February 2020 (Exhibit R10);
·Hearing certificate dated 17 October 2019 (Exhibit R11);
·Medical records from Bridgetown Medical Group (Exhibit R12);
·Medical Records from Bunbury Hospital (Exhibit R13);
·T-Docs (Exhibit R14); and
·Two-part bundle of documents (Exhibit R15).
ISSUES
Whether the Applicant sustained a spinal injury or disease during the course of his employment with the Respondent over a 20 year period; and
Whether the Applicant is entitled to compensation, medical and other related expenses in accordance with the Seafarers, Rehabilitation and Compensation Act 1992 (Cth)

(the SRCA).
FACTS AND MEDICAL HISTORY
The Tribunal has reviewed the documents tendered and finds the following facts:
The Applicant was born in 1961 and is 59 years old. He is employed by the Respondent as an A/B Integrated Rating (able seaman).
The Applicant has worked as an able seaman for 38 years for the following companies:
·Lombardo Marine Group (9 December 1981 – 10 September 1986);
·Finbar International (1 October 1986 – 19 February 1993);
·Australian Offshore Services (8 April 1995 – 30 March 1996); and
·Swire Pacific Offshore (16 November 1996 – current)
Since April 2016 the Applicant has been on long service leave and leave without pay, although he is still employed by the Respondent.
The Applicant has worked on multiple vessels with the Respondent, including the Pacific Spear, Pacific Maple, Pacific Frontier and Pacific Rover.
On 18 September 2018, the Applicant lodged a ‘Claim for Worker’s Compensation’ under the SRCA with the Respondent (the claim), seeking compensation for lost wages and medical and related expenses for ‘severe multy [sic] level cervical disc disease with nerve entrapment’. The area of his body affected is ‘2,3,4 neck, lower back – as per report and x-rays’ (T36, pp81-85).
At paragraph 31 of the claim, the Applicant described the events leading to his injury or illness as follows:
Damage caused by many separate seemingly small incidents. Pacific Spear,
slid top/bottom on back and head. DK/accom STB stairway. Bad weather discussed with officer of watch.
Pacific Maple – bowthruster room. Moving cylinder head through water tight door manually. In lifting process smashed head heavily in an upward motion. Discussed with officer of watch o/n light duties.
Pacific Maple – feel [sic] heavily backwards on to steel brace on seating while retrieving Woodside FRC. Crane problems. Reported and discussed.
Frontier – night watch bad weather. Slipped on port DK/accom stairway from top/bottom. Back and neck heavily battered. Nearly over the wall. Discussed with O/W. Bad fall in cabin climbing from bunk during Cyclone x2 …Injured back and shoulder. Discussed O/W. Many incidents over 20 years. Worked through them. These injuries stand out in my memory due to the pain and healing factor.
On 9 October 2018, the Respondent made a determination declining the Applicant’s claim for seafarers’ compensation for his claimed injury on the basis that (T39, pp94-96):
Dr Jones, your treating general practitioners [sic] has confirmed that he supports your claim. However, we note that there is currently no other evidence supporting that the incidents referred to in your claim form either occurred or caused you any injury to your neck/back.
Considering the current evidence available to Swires, we are not satisfied your claimed injury arose out of, or in the course of, your employment with Swires.
As you have not suffered an injury as defined in the Act, your claim is declined.
(Original emphasis.)
On 29 October 2018, the Applicant requested an ‘extension for 60 days on My workers Compensation Determination’ which was taken by the Respondent to be a request for a reconsideration of the determination (T40, pp97-98).
Solicitors for the Respondent wrote to Comcare on 15 November 2018 requesting their assistance on the reconsideration (T41, pp99-103) and on 11 December 2018, Comcare provided their report (T42, pp104-106). In that report, the Comcare officer noted they had limited their advice to whether there was ‘sufficient medical and other evidence to support the determination’ (T42, p106).
The Comcare officer refers to s 10(2) of the SRCA which requires the employer to consider if an employee has suffered a disease whether or not the incidence of the disease is greater among people who have engaged in the employee’s type of employment than in those engaged in other employment. It further states that ‘[t]he link between employment and the onset of a disease is not taken to be limited to a specific incident, but rather to the duties performed by the employee’ (T42, p106).
The Comcare officer then stated (T42, p106):
I do not find that there is sufficient medical evidence to support the determination, regardless of whether or not the claimed condition is treated as a disease or not. The evidence is largely restricted to medical certificates which, while evidence that the employee suffers from the claimed condition, does not provide any information allowing the claimed condition to be considered separately from the possibility of constitutional, age related degeneration, or of the potential impact of the employee’s cancer diagnosis and treatment. In order to properly consider liability for the claimed condition the employer should undertake to gather additional evidence under s66 and s67 in order to ascertain the nature of the employee’s claimed condition, which will in turn provide more evidence of any link to employment that may exist, whether or not the injury is treated as a disease or injury simpliciter.
After receiving the recommendation from Comcare, the Respondent failed to comply with its obligation under ss 78(5) and (6) of the SRCA to proceed with the reconsideration. Section 79(1) says the reconsideration should have been completed within 60 days in the ordinary course (although s 79(1)(b) permits the Respondent to obtain more time which did not happen here). As a consequence, the Respondent is deemed under s 79(6) to have made a determination disallowing the claim at the end of the 60 day period.
Medical and Incident History
The Applicant completed several Accident/Incident Reports and Reports of Illness at work as outlined below.
On 13 March 1997, the Applicant reported suffering a cut above his right eye caused when lifting a dryer which slipped when he was carrying it at shoulder height. He said the dryer was “wet and hence slippery” (T4, pp20-21).
The Applicant was certified as unfit for work by his general practitioner (GP) from
25 September – 30 November 1998 due to ‘stress at work’ (T5, pp22-23)
In October 2002, the Applicant was certified as unfit for work for 10 days from 17 October 2002. No reason appears to have been given (T7, p24).
On 14 October 2003, the Applicant reported gastro and urinary problems related to his lithium disorder for which he received treatment in Singapore (T8, p25). The Tribunal notes the Applicant has suffered from bipolar disorder, for which he has taken lithium for many years.
On 19 January 2006, the Applicant reported ‘strained muscles’ to his ‘thigh, inner thigh and leg muscles’ caused by ‘Culmination of straining to hold on whilst water rushed up the deck and jumping into open skip to escape white water on deck’. There is reference in the report to ‘Weather picking up rapidly from 22kts to 30kts’ (T9, pp26-30).
The Applicant was certified as unfit for work from 10 July 2007 until 9 September 2007 by his GP with no reason given. In the final medical certificate, it states that he is ‘fit to resume normal duties’ after that date (T10-12, pp31-33).
On 19 April 2013, the Applicant’s GP provided a report to Dr Andrew Lill of his previous manic episodes, noting he ‘has been taking lithium since 1978’ with no relapses since that time (T13, p34).
The Applicant undertook an employment medical examination report in April 2015
(T14, pp35-40). In that document, the Applicant self-reported the following conditions (T41, p36):
·Bipolar disorder for which he takes lithium;
·Varicose vein right thigh;
·Neck pain, 1985, with the annotation ‘no pain’;
·Injury to back, ‘aged 10 → full recovery’; and
·Malaria
Apart from the noted historical neck and back pain there is no reference to any other neck or back issues.
The section completed by Dr Lill refers to the Applicant’s bipolar disorder, managed by lithium with no relapse. The doctor also refers to ‘mildly reduced rotation C-spine’. One other notation is a scar on the left forehead and right lower back as well as a reference to asymptomatic varicose veins. The Applicant is reported as having no other issues.
The Applicant had an X-ray of his lumbar and cervical spine on 16 January 2017 for a history of neck and lower back pain. The report notes (T15, p41):
Severe degenerative changes are observed predominantly involving the C4/C5 C5/C6 and C6/C7.
Severe left exiting foraminal stenosis at C5/C6.
Multilevel severe right exiting foraminal stenosis
And for the lumbar spine, it is reported that the Applicant suffers from mild degenerative grade 1 retrolisthesis of L3 over L4 with some evidence of intervertebral degenerative disc changes observed.
The comment at the conclusion of the report is (T15, p41):
Severe degenerative changes involving cervical spine and lumbar spine likely resulting in nerve root impingement. Further evaluation with CT cervical spine and lumbar spine may be considered. Mild anterior wedging of T12 and L1. Mild degenerative grade 1 retrolisthesis of L3/L4.
The Tribunal observes that the notation of ‘severe’ in the body of the report only related to the cervical spine, not the lumbar spine which reports ‘mild’ degenerative changes. In this respect, the conclusion in this report appears misleading.
On 19 January 2017, the Applicant’s GP certified him as unfit for work from 19 January to 19 February 2017 (T17, p43).
An email from Ms Simone Osten of Swire Pacific dated 23 January 2017 to the Applicant states, ‘We note that you have sent us a medical certificate stating you are unfit for work until 19/2/17. We hope you make a quick recovery’ (T19, p46).
The Applicant responded as follows (T19, p45):
Thanks Simone,
Unfortunalley this could be ongoing. I have been carrying these injuries for a considerable time. I was hoping that it had repaired itself over the last 9 months whilst on leave. I have taken Leave for this purpose a number of times.
In hindsight I shouldn’t have done those last couple of years .
Most of the skippers were aware of my injuries though I have always been able to perform my duties.
I Have persevered with it over the last few years and have always been able to rest up and i would feel a little better and then go back to work.
Last week i decided that i had enough of this pain that I have been enduring so i sought the doctor’s advice, i wish i have of approached him earlier.
I Had multiple X-rays taken and I have got a lot of Damage to my spine and my neck.
My Doctor has requested that i remove myself from this employment and find another where Physical Labour is not required.
From here i am not too sure what to do. Any advice from you would be appreciated.
I have never claimed sick leave or compo and i am not sure how it works.
At present i am in the belief that it goes into the hands of The Maritime super/Salary continuance/Insurance [sic]
Ms Osten responded on the same day as follows (T18, p44):
…In regards to a workers compensation claim, can you let me know which Masters were aware of your injury? I have no record on file that you had an injury on any of the vessels.
Unfortunately you are not eligible for salary continuance (Sick Pay) under the enterprise agreement. However, Swire Pacific Ship Management provides monthly premiums to Maritime Super for the Temporary Salary Continuance policy and it may be that you are entitled to payment under this cover. You will need to contact Maritime Super for more information on this matter.
The Applicant responded, ‘Thanks for the information on Salary Protection insurance.

Just under 40 years of going to sea does cause a fair amount of wear and tear on one’s body
’ (T18-T19, pp44-46).
The Applicant claimed Salary Continuance and as part of that claim his GP, Dr Thomas Nigel Jones, completed a report (T20, pp47-50). In that report he describes the Applicant’s condition as ‘severe neck pain + stiffness + parasthesiae [sic] in arms’.

He states there is no specific injury, ‘just years of manual work’ (T20, p47).
Dr Jones gives a diagnosis of ‘severe cervical degeneration and spinal stenosis’.
Dr Jones further said the condition ‘will not improve’ and the current symptoms are a

‘stiff sore neck’. As at 8 February 2017 when the report was completed, Dr Jones said he would ‘never’ be able to perform all of the duties of his usual occupation (T20, p48).

Dr Jones has also noted that the first date of total disablement causing the Applicant to be unfit for work was 19 January 2017.
The Applicant provided another medical certificate on 16 February 2017 certifying him as unfit until 17 March 2017, due to Lumbar Disc Disease. The Tribunal notes Dr Jones had previously referred to the Applicant as suffering from severe cervical degeneration
(T21, p51) (Emphasis added.).
The Applicant provided the certificate by email and said, ‘This is my second Doctors certificate and it’s my belief that I am entitled to Temporary salary continuance (Sick Pay) until income protection is approved. If this is not correct can you please explain why!’ (T22, p52).
Ms Nikki de Rijcke, HR Officer of Swire Pacific Ship Management, responded as follows (T22, p52):
Hi Steve,
Unfortunately you are not eligible for salary continuance (Sick Pay) under the enterprise agreement as you weren’t assigned to join a vessel..
You mentioned this is your second doctor’s certificate but I may have missed the first certificate, or have you sent this to Simone. Could you please send me a copy of the previous doctor’s certificate?
Your certificate states ‘Unfit to continue with his usual occupation’. Your previous email mentioned that he advised you to find employment elsewhere where Physical Labour is not required. Could you please ask your doctor to give us an advise of the extend of your injury and if alternative/fit for restricted duties is available as per previous email [sic]
The Applicant emailed Ms de Rijcke again on 21 February 2017 as follows (T23, p53):
Hello Nikki,
As I Haven’t heard back from you or Simone..I have paid you the courtesy of trying to explain my situation again.
As per our conversation 20/02/2017 My duty leave should have been suspended on the 19^th January 2017 when you received my first Dr’s certificate.
You stated on the 20/02/16 my duty leave will finish on the 22/02/2017 and I was due/scheduled to join the Pacific Centurion on the 23/02/2017.
I would have liked to have sorted all this out before my duty leave ceased as I do feel that the procedure is being stalled . Today is the 21/02/17.
I have asked to speak to the general manager, whom is Not available until Mal returns. Nikki asked me on 20/02/16 did i mind speaking to Simone if she called me to which i answered No problem.
To be honest I am unwell and feel that I shouldn’t have to battle for sick leave after my permanent position with Swire’s for over 20 years service. The Dr states that my injuries to my spine have been caused by years of manual work.
It is extremely unlikely that I will ever be gainfully employed in my current position. Both Doctor Jones and Doctor Dewing have the same opinion.
[sic]

The Applicant was certified as unfit for work until 28 April 2017 (T24, p54) and again until 30 June 2017. The cause of his incapacity was noted as ‘extensive cervical disc degeneration’ (T25, p55).
Dr William Michael Dewing completed a ‘Medical Attendant’s Statement (Progress Claim) Forming part of the Supplementary Report Form for Continuing Disablement’ on 23 June 2017 (T27, pp57-59). His diagnosis was ‘Cervical disc disease, with nerve entrapment’.

The objective criteria for the diagnosis was ‘reduced neck movement and x-ray evidence’ (T27, p57).
Dr Dewing reported the Applicant as being unable to drive, unable to rotate his head to look to the side and unable to lift or carry as reasons for his inability to perform the full duties of his usual occupation.
In July 2017, the Applicant was admitted to Bunbury Hospital with abdominal pain and examination and testing revealed the Applicant was suffering from appendicitis as well as a tumour on his appendix. Under cross-examination the Applicant said (Transcript, p23):
Oh, I had an appendectomy and they removed the cancer tumour, and then I had recovery period of a month, then I went to St John of God’s for 13 days and they removed a large portion of my stomach, my colon, small intestine and 36 lymph nodes. I then had a period of time off again.
…
[T]hen I started on my chemo about eight weeks after that which ran for six months. I had a double chemo. And (indistinct) nursed me through that and I worked through that and through that period I studied all up on the worker’s compensation and spoke to them in Canberra a lot and made the final decision, it was only a few days before I was – my time was up to submit the worker’s compensation claim. Which I still don’t really understand, to tell you the truth, but.
Counsel for the Applicant, Mr Bruns, after his examination-in-chief of the Applicant, stated (Transcript, p22):
I won’t take you further on that. Can I just say that, well, if my learned friend will allow me, it doesn’t explicitly say in your statement, but is it correct that eventually after exploring salary continuance and have you [sic] chemotherapy for your cancer, you made a worker’s compensation claim which has led to this case?
The Applicant responded saying ‘That’s correct. That would be correct. That’s what, what you call it, not Comcare – Seacare in Canberra, advised me to do’ (Transcript, p22).
On 31 July 2017, Dr Jones certified the Applicant as permanently unfit for work because of severe cervical disc degeneration, with the damage being caused by years of hard work as an able seaman (T30, p65).
A further Medical Attendant’s Statement completed by Dr Dewing on 28 August 2017 refers to the Applicant’s diagnoses of carcinoma of the colon and cervical disc disease. He certified him as unfit for work until February 2018 (T32, pp68-70) and a further report dated 15 September 2017 reported him as unable to perform his work duties indefinitely due to pain and stiffness in the cervical spine (T33, pp71-74).
Dr Jones on 26 October 2017 referred to the Applicant as suffering from severe disc degeneration cervical and nerve entrapment (T34, pp75-77) and on 9 August 2018 certified him as unfit until 9 February 2019 (T35, pp78-80).
On 18 September 2018, the Applicant submitted his claim for compensation for ‘severe multi-level cervical disc disease with nerve entrapment’ (T36, pp81-85). The Applicant also lodged a claim for permanent impairment and economic loss which has not been determined (T37, pp86-91).
With his claim form the Applicant provided a supporting statement (T38, pp92-93).

In that document he refers to the incidents that he thinks with hindsight caused damage to his spine. He said he forced to leave his position on the Pacific Rover due to lumbar disc disease (Emphasis added.). He said he could not perform his duties on deck and was put on light duties, ‘4/8 watch, for 2 swings prior to taking extended leave’ (T38, p92).
CONSIDERATION
The SRCA is an Act relating to rehabilitation and workers’ compensation for seafarers and certain other persons, and for related purposes.
Section 26 of the SRCA provides for compensation being payable if an employee suffers an injury that results in their death, incapacity for work or impairment.
‘Incapacity for work’ is defined in s 8 of the SRCA as a reference to an incapacity suffered by an employee as a result of an injury, being an incapacity to engage in any work, or an incapacity to engage in work as an employee at the same rank or level at which he or she was engaged in immediately before the injury.
Section 3 of the SRCA defines ‘injury’ as follows:
injury means:
(a)a disease; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, of in the course of the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include anything suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
Section 3 of the SRCA defines ‘disease’ as follows:
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or aggravation that was contributed to in a material degree by the employee’s employment.
Section 3 of the SRCA further defines ‘ailment’ as ‘any physical or mental ailment, disorder, defect of morbid condition (whether of sudden onset or gradual development)’.
Section 3 of the SRCA provides that an ‘employee’ has the meaning given by s 4 of the SRCA. Section 4(1) defines ‘employee’ as including a seafarer.
It is not in dispute and the parties have conceded that the Applicant at all material times was employed by the Respondent as an A/B Integrated Rating.
The Applicant contends that (A1, para 20):
The applicant has suffered an injury being an ailment or the aggravation of an ailment that was contributed to in a material degree by the employee’s employment .
The Respondent contends that (R1, para 19):
(a) The applicant did not sustain a spinal injury or disease during the course of his employment with the respondent over a 20-year period or at all;
(b) There is no record of the applicant being declared unfit for work due to a spinal injury or disease during the course of his employment with the respondent;
(c) There are no reports of a spinal injury or disease or symptoms or complaints during the course of his employment with the respondent despite the applicant being aware of the requirement to report injuries and had done so before and after the alleged neck and back injuries;
(d) The applicant has alleged work-related injuries between 1997 and 2007 but continued his duties with the respondent thereafter and did not suffer incapacity;
(e) The applicant was certified fit for full pre-injury duties in 2012 and it was not until 2016, with no work injuries since 2007 and the advancement of his significant underlying constitutional condition that he was placed on light duties;
(f) The applicant’s claimed condition is due to his underlying constitutional spinal condition of Forestier’s disorder and/or the impact of his cancer diagnosis and treatment and/or due to a non-work related neck fracture in 2008 and 2011 resulting in a natural fusion and/or a fall from a tree in 2012 and not his employment with the respondent.
The ultimate issue for determination by the Tribunal is whether the Respondent is liable to pay the Applicant seafarers’ compensation pursuant to the SRCA. This depends on whether the Applicant suffered an ‘injury’ that resulted in ‘incapacity for work’.
To determine this issue the Tribunal needs to consider:
(i)Whether the Applicant is suffering from an ‘ailment’ as defined in s3 of the SRCA;
(ii)
If yes, whether his ‘ailment’ was contributed to in a material degree by his employment with the Respondent (his ailment is a ‘disease’ as defined in

s 3 of the SRCA and is therefore an ‘injury’.)
(iii)If yes, did his ‘ailment’ result in ‘incapacity for work’.
Evidence before the Tribunal
In addition to the documentary evidence admitted into evidence as exhibits, the Tribunal also received oral evidence from the Applicant and four medical witnesses. Mr Ross Bryson submitted a witness statement and was briefly cross-examined by the Respondent.
The Applicant provided a sworn witness statement (A2). In addition to the incidents he reported as contributing to his conditions, the Applicant referred to a fall out of a tree in February 2012 (A2, para 18). He said he was trimming a large tree with a chainsaw and fell out of the tree between one to two metres high. He said he fell onto his feet and hurt his ankles. He further said ‘My back was a bit tender but this did not stop me from travelling overseas shortly after and going back to work. I had an X-ray which did not show any damage. The medical advice I received following this incident was simply to rest up’.
In the additional bundle of documents tendered by the Respondent (R15),

copies of summonsed medical records of the Applicant were provided. Included in these were those of the Bridgetown Medical Group. At page 188 of the bundle are admission notes from Bridgetown Hospital where the Applicant presented after falling from the tree.

The notes indicate the incident occurred on 3 March 2012 at 11:00am. He presented to the hospital at 7:00pm and states he ‘Fell 3m from a tree branch’. It states he has been walking around since then but is now complaining of lower back pain in the L1/L2, bilaterally extending into both loins. It reports left heel pain ‘when weight bearing’,

which started at 12.30.
The following day the Applicant reported to Bunbury Hospital with the presenting problem of ‘Injury – back/spine-lower/lumbar and both feet fell from tree 3 m landing in feet.
C/O lower back tenderness and pain left foot ankle and heel. Nil C/O altered sensation’ (R15, p189).
The diagnosis was injury and sprain/strain and lower limb – foot. The report refers to pain in the left heel and stiff back. It also stated there was no thoracic or lumbar spine tenderness, no pelvic, hip or sacroiliac joint tenderness, but tender over the medial, malleolus and heel (R15, p189).
In cross-examination Mr Rimmer questioned the Applicant whether he had fallen one to two metres as he stated or whether it was three metres as reported in the medical reports (Transcript, p29). The Tribunal considers the contemporaneous evidence contained in the medical reports as a more accurate record of the circumstances of the fall than the Applicant’s recollection several years later. The Tribunal therefore finds that the Applicant most likely did fall three metres out of a tree. Mr Rimmer continued to cross-examine the Applicant as to whether he was continuing to suffer from back pain until late June 2012. He referred to the medical report dated 30 April 2012 which reported his back was tender over the left lumbar area (Transcript, p33).
Mr Rimmer questioned the Applicant whether Dr Jones’ report of ‘“Fell out of the tree. Lithium carbonate. It’s a script. Sent to Bridgetown in Bunbury, X-ray ankle, still an ache over left kidney. Urine (indistinct), movement’s good, not tender locally, (indistinct)”’

was correct. Mr Rimmer specifically queried whether the reference to ache over left kidney referred to the Applicant’s lower left back. The Applicant disagreed and said it may have been ‘over lithium or anything or urine’ (Transcript, p34 referring to R15, p80).
Mr Rimmer referred the Applicant to his consultation with Mr Slinger in July 2019 when he reported the fall from the tree only impacted his lower legs and ankles and questioned why he did not refer to pain in his lower back. The Applicant responded, ‘I honestly only – that was the only problem I had with it, I don’t know all the rest of it’. I’ve forgotten about that because I didn’t really – don’t remember it, to tell you the truth but I remember that, you know, the ankle bit…’ (Transcript, pp34-35)
The Tribunal accepts the Applicant’s evidence in this regard. It finds the Applicant did have a three metre fall out of a tree in 2012 which impacted him in his feet and his ankles. Whilst he complained of lumbar pain initially, the Tribunal is not satisfied that reference to pain over the ‘left kidney’ reported in his GP’s notes in July 2012 was a reference to pain in the left lower lumbar back. The Tribunal further accepts his explanation of the history provided to Mr Slinger.
The Tribunal concludes that the fall out of the tree in 2012 is of no relevance in the determination of the Applicant’s claim and whether it made any contribution to the Applicant’s medical conditions.
In 2008, the Applicant consulted Dr Jones with a complaint of chest pain. Dr Jones had his back and shoulders X-rayed and told him that the issue was with his upper spine and neck. The Applicant said ‘Yes, that was when we discovered that I – you know, the start of when I, you know, realised I had a bit of a problem’ (Transcript, p35).
Mr Rimmer referred to the report of ‘Imaging the South, Diagnostic Imaging Specialists’ dated 20 February 2008. He noted the report referred to a ‘past history of neck fracture’ (R15, p76).
Mr Rimmer questioned the Applicant whether that history would have come from the Applicant. Under cross-examination, the Applicant categorically denied having ever suffered a neck fracture. He responded ‘Well, I’m saying that anyway, I don’t think so,
you know, I don’t run around telling everyone I have a fractured bloody neck’
(Transcript, p38)
The Tribunal notes the report states that the previous fracture site is not clearly identified. The reason for the referral is recorded as ‘New parathesiae ulnar distribution right arm’. The report found: ‘Mild to moderate narrowing of C4/C5 and C5/C6 foramina on the right due to uncovertebral osteophyte formation; Mild to moderate narrowing of C5/C6 foramina on the left due to uncovertebral osteophyte formation; Mild spondylotic change C5/C5 and moderate spondylotic change C5/C6 and C6/C7’ (R15, p76).
Mr Rimmer referred the Applicant to his medical records from Bridgetown Medical Group which preceded the referral for imaging. The medical notes record ‘parasthesia ulna distribution from R axilla to (illegible). Said he had a neck # after being hit in a Thai (illegible)’ (R15, p73).
Under cross-examination the Applicant could not recall giving that information to his doctor and did not agree with the proposition that the information must have come from him for the doctor to record (Transcript, p40).
The Tribunal is sympathetic to problems caused by the passage of time but also places greater weight on contemporaneous medical evidence recorded at the time than an individual’s recollection of a conversation more than 10 years ago.
The Tribunal therefore accepts that the Applicant more likely than not did tell his doctor that he suffered a neck fracture after being in a fight in Thailand, however, based on the radiological evidence at that time, considers it is of minimal impact clinically. That is,

the radiology report noted no evidence of a previous fracture, indicating that any fracture had resolved without scarring.
The Applicant was taken through his witness statement with dates compared to those in his payslips (R15, p581-2). Specifically, reference was made to the Applicant’s account of previous incidents whilst at sea (Transcript p42). Firstly, in February 2005 when the Applicant said he fell whilst on Pacific Conqueror his pay records did not reflect time taken off after that incident. Secondly, the incident in March 2007 when he fell out of his bunk during a cyclone did not result in him taking time off work. Mr Rimmer referred to the Applicant’s witness statement where he said he broke his ribs but the Applicant said he was unable to go to the doctor because it was 14 days before they went back to port (Transcript, p45). In his evidence, the Applicant clarified what he said, ‘I heavily bruised them, broken them might’ve been a bit – but they were heavily – heavily damaged’.

The Tribunal finds there is insufficient evidence to conclude the Applicant actually suffered broken ribs at that time.
Mr Rimmer further suggested to the Applicant that he never sought medical treatment from 1997 to 2008 and then not until 2016 ‘notwithstanding your recollection contained in your witness statements of the incidents which you say damaged your spine’. He said (Transcript, p46):
Well, I’m going to suggest to you that the only time that you complained of back pain to your doctors at Bridgetown was the entries that I’ve already taken you to which is after you fell out of the tree. Okay. There are no other complaints of back pain before 2016, do you agree with that?
Mr Rimmer stated (Transcript, p47):
Can I suggest to you that the reason there’s no reference to any work-related back pain in your GP records or neck pain before 2016 is because the incidents that you now recall and that are referred to in your witness statement actually didn’t happen?
To which the Applicant responded, ‘No, that’s incorrect’.
Mr Rimmer further said, ‘Okay. Or at least they didn’t happen to cause you anything like the pain that you now say they did?’ To which the Applicant responded,

‘No, that’s incorrect’ (Transcript, p47).
Mr Rimmer questioned the Applicant about his apparent reluctance to make any incident reports unless they involved blood. He specifically referred to incidents in 1996 through to 2007 where there are complaints of amongst other things, sprained thighs, gastro-urinary problems and depression caused by bullying. He also referred to the employment medical examination undertaken in April 2015 (T4, pp35-40). As noted at paragraph [30] of this decision, apart from a reference to neck pain in 1985 and an injury to his back aged 10, there is no other reference to neck and/or back pain. He referred the Applicant to his declaration in that document where he answered ‘no’ 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?’ (T14, p36).

The Applicant’s response was that he ‘must have ticked the wrong box, mate, because I do – I am aware of that and I did assist him with what went on’ (Transcript, p59).
Mr Rimmer proposed to the Applicant that it was only after all other leave options had been exhausted and the Applicant was unable to pursue a salary continuance claim that he brought this compensation claim. The Applicant responded that when he was told he needed to show more than just years of hard work as an able seaman he thought about the worst incidences that had happened that could have caused the problems in his back (Transcript, pp61-62).
The Applicant also gave evidence that when he went off work in April 2016 it was because he was suffering back and sciatic pain. The Tribunal questioned the Applicant as to the nature of this pain and he described it as ‘knife like’ (Transcript, p70) in his right and left leg. He said he treated it with his own exercises because the physiotherapist would not treat him. The Tribunal understood the Applicant to be referring to lower back pain (Transcript, p70).
The Tribunal has considered the documentary evidence submitted in support of the Applicant’s claim of incidents occurring at sea that caused his injury.
In addition to the incidents noted at paragraph [15] of this decision, in his witness statement the Applicant refers to and explains three incidents contributing to his condition.

The first incident took place on 5 February 2005 on the Pacific Conqueror when the Applicant was on deck replacing a wire by spooling a deck hook. He said he lost his footing and fell heavily on the deck on top of an endless chain that was laying on the deck. He said his Captain, Theodore John Strockyj, could verify this incident (A2, paras 59-61).

A witness statement of Captain Strockyj dated 27 May 2019 was admitted into evidence as Exhibit A3 and he was not required for cross-examination. Captain Strockyj confirmed the Applicant’s recount of events and said that he could clearly remember the Applicant’s back being heavily bruised and he struggled to carry his bag off the ship. He said the incident was not logged due to ‘the rush, quick handover and crew change’ (A3, paras

17-19).
The next incident took place on the Pacific Frontier in March 2007. The Applicant said he was getting out of his bunk during a cyclone and hit his rib cage on the corner of the desk and fell onto his back. He further said he hit a metal handle on his back. He sustained broken ribs and was on light duties. (A2, paras 62-69). (Note, this was referred to in the Applicant’s claim form as well).
The third incident was on the Pacific Rover during April 2016 where the Applicant said he was in significant pain. He said he reported his symptoms to the vessel master and visited the doctor on board. He said it was witnessed by the second mate, Mr Michael Corcoran.

He was put on ‘old man watch’ (A2, para 73). He described no specific incident at that point but pain which was constantly increasing and becoming harder to bear.
Mr Corcoran’s statement dated 22 August 2019 was admitted into evidence as Exhibit A5 and he was not required for cross-examination. Mr Corcoran in his statement said that the Applicant was ‘in pain in his lower back’ (para 6). He further said that both he and the vessel master advised him to visit the doctor and leave the vessel (para 7). He attested to the Applicant’s honesty, competency and good work ethic (para 11).
Mr Ross Alan Bryson also provided a witness statement dated 27 May 2019 which was admitted into evidence as Exhibit A4. He worked with the Applicant on the Pacific Maple. He gave his account of the incident where the Applicant hit his head on a door frame.

He said the Applicant complained about having a sore neck for months after the incident. He also stated that ‘Working on a boat, it is an unstable platform, it is dangerous, and you constantly get knocked over’.
Both of the Applicant’s GPs from his family medical practice were called to give evidence and be cross-examined.
The Tribunal has considered the oral and documentary evidence provided to it by the Applicant, his supporting witnesses and his treating GPs. Considered in conjunction with the rather robust cross-examination by Mr Rimmer, the Tribunal is satisfied that the events which the Applicant contends may have led to him developing his spinal condition did happen. The Tribunal is persuaded that the incidents most likely did cause him episodes of some pain and discomfort. The Tribunal has no reason to conclude that the Applicant was not truthful in his evidence. Having said that, however, due to the passage of time, there are no doubt some errors in his recall of events. In addition to this is his declaration at T14, pp35-40 on his employment medical and the notation by the doctor that he has a ‘mildly reduced rotation C-spine’. Furthermore, there is very little record of back and neck pain prior to 2016 when he stopped actively working. The Tribunal is inclined to place more weight on contemporaneous medical and employment records that were available during the history of the Applicant’s employment, rather than a recall of events many years down the track in assessing the severity and frequency of prior injuries.
The Tribunal further finds that the Applicant’s fall from the tree when he was using a chainsaw and his suggested neck fracture both have no relevance in the determination of this claim.
Dr Jones and Dr Dewing – Bridgetown Medical Group Practice
Dr Jones, a retired GP from Bridgetown Medical Group practice, attended the Tribunal by telephone to give evidence. He said he started seeing the Applicant in March 2004.

In 2008 he requested an X-ray because of complaints of chest pain and numbness down one arm. He said he was ‘rather dismayed to see how bad his cervical spine was, and we hadn’t really mentioned neck pain at that stage’ (Transcript, p95). The Tribunal notes that the Applicant claims his neck and back were troubling him from 1997 (Transcript, p56), although it appears he has made no mention of this to Dr Jones.
Dr Jones said he did not see him again for awhile. He refers to X-rays taken in December 2012 but cannot remember what happened to them (Transcript, p95). In Exhibit R15 at page 192 there is a copy of a radiology report from Imagingpartners dated 10 December 2012. That refers to ‘Trauma’ in the clinical notes and makes the following finding:
Degenerative change is present throughout the cervical spine affecting both intervertebral and apophyseal joints. There is disc narrowing and bony reaction.
There are some uncovertebral joint osteophytes. As result there is a little midcervical neural foramen narrowing. There are small bilateral cervical ribs. There are no other specific features.
There is reference to a medical review by Dr Pollard at this time. It appears the Tribunal was not provided with a copy of this report. Dr Jones then saw him again in January 2017. At that stage he said the Applicant had made complaints of back and neck pain for years before then.
Mr Bruns posed the following question: ‘On what basis do you consider that it’s his employment which has left him with that condition?’ and Dr Jones responded, ‘I can’t guarantee that’s what’s caused back problem, his neck problems, but I imagine working as an able seaman for 20 years, he would’ve been suffering many minor injuries, which I think is quite likely the cause of his neck problem’ (Transcript, p97).
In cross-examination, Mr Rimmer asked whether degeneration could be constitutional or just age-related and that trauma is just one of the possible causes of degeneration within the spine. Dr Jones agreed with that but also said the Applicant had an unusual degree of degeneration. He also agreed that he was not aware of any specific injuries to the Applicant’s back or neck when he was working (Transcript, p102). He reiterated that his service with the Respondent for 20 years could have contributed to the condition but also noted that the Applicant had worked as a seafarer for 20 years prior to this time and also maintained a large property during his swings off being at sea. In referring to the possible diagnosis of Forestier’s disease or hyperostotic spondyloarthropathy, Dr Jones said he had not considered whether the Applicant suffered from it (Transcript, p104).
Dr Dewing from the same medical practice was also called to give evidence and be cross-examined by telephone.
Dr Dewing said that he believed he had known the Applicant since the early 1990’s.

He restated his opinion that the Applicant is ‘permanently incapacitated for work now due to severe degenerative disc disease in lumbar and cervical spine as a consequence of heavy physical work for Swire Pacific for the past 20 years’ (Transcript, p109).
In cross-examination Mr Rimmer again referred to the Applicant’s prior work as an able seaman for 20 years before starting with the Respondent. Dr Dewing agreed that from 2008 – 2016, the Applicant predominantly saw Dr Jones. Mr Rimmer referred to the lack of notes in Dr Dewing’s medical records of back or neck problems. Dr Dewing’s response was ‘My recollection is that the neck was always a problem and although most of those tests we sent him off for were organised by Dr Jones as I see, I think his neck pain was always an issue and I don’t think that we can conclude that just because neck pain hasn’t been – or back pain hasn’t been mentioned in the typewritten records that it didn’t come up in the conversation. No I don’t believe we can conclude that. Neither Dr Jones or myself are efficient typists and will – certainly our records tend to be abbreviated as a consequence’. Mr Rimmer further asked, ‘That if the neck pain was such that Mr Ryan required some medical treatment or indeed, to be certified unfit for work,
you are quite likely to have recorded that in the notes aren’t you?’ Dr Dewing responded

‘Quite likely’ (Transcript, p113).
Under cross-examination Dr Dewing agreed that he did not certify the Applicant as being unfit for his work by reason of any back or neck pain until after 2016 (Transcript, p114).
Dr Dewing further agreed that degenerative disc disease can occur without having had trauma or insults to the spine. He also agreed that he was not aware of any spinal fractures or disc injury during the course of the Applicant’s employment with the Respondent.
When asked about a diagnosis of Forestier’s disease Dr Dewing’s opinion was that he would defer to specialist opinion in using that term, but he did not find the label helpful (Transcript, p115). He stated ‘I think his cervical disc disease can be perfectly satisfactorily explained by wear and tear processes. Whether you want to call that Forestier’s disease or anything else, it doesn’t really help in terms of treatment or management. So it’s not something that – it’s not a label that I use’ (Transcript, p115).
Mr Rimmer referred to the maintenance the Applicant undertook on his property and asked whether that could just as easily have contributed to or caused disc degenerative cervical disc disease as diagnosed. Dr Dewing’s response was ‘I’d prefer to think not.
It’s what I do every weekend on my 200 acres. So I’m reluctant to accept that his farm work caused it when the work he described at sea was substantially heavier but we have to concede it can be contributory’ (Transcript, p116).
In response to Mr Rimmer’s questioning (Transcript, p116):
Isn’t it the case Dr Dewing that the best or the most that can be really said in circumstances where Mr Ryan was not certified unfit for work by you for back or neck pain at any stage before April 2016 and where there’s no evidence of which you’re aware of any spinal fractures or disc injuries of any kind and in circumstances in where on your evidence, both Forestier’s disease and degenerative disc disease are present in the population whether or not there’s been trauma. The best we can really do is say there’s a possibility that his work as an able seaman caused or contributed to the cervical – or the degenerative disc disease.
Dr Dewing responded, ‘Somewhere between possibility and probability, yes’ (Transcript, p116).
In re-examination Dr Dewing said, ‘I adhere to my view that the work he did as a seaman was consistent with being responsible for his cervical and lumbar disc disease, yes.’ (Transcript, p117).
The Tribunal notes that the Applicant has been a patient of the Bridgetown Medical Group practice for many years with a continuity of care. This is more helpful to the Tribunal than a situation where an employee has consulted many different medical practices over the course of many years.
In this matter however, the Tribunal must give more weight to the written medical records of both Drs Jones and Dewing in assessing whether there were any incidents and/or complaints of neck and/or back pain that could lead it to conclude that employment may have made a material contribution to the development of the ailment. The Tribunal has thoroughly examined the oral evidence of both doctors as well as their handwritten and typed notes and is unable to conclude that there were any events of sufficient severity that they initiated further investigation or required any treatment. Furthermore, prior to 2016, there were no complaints at all of back and/or neck pain except for an incidental finding following investigation for complaints of chest pain.
Mr Slinger, Orthopaedic Surgeon
Mr Slinger examined the Applicant on 16 July 2019 and prepared a medico-legal report of the same date (A7).
Two briefing letters for Mr Slinger were also filed with the Tribunal (A6).
In his report Mr Slinger states (A7, pp1-5):
The work was undertaken commonly in rough weather and it was not uncommon to have various injuries during each shift over the years, as a result of slips or falls, particularly in relation to steps.
HISTORY OF INJURY
The symptoms of the neck and back became apparent in or about 1997,
and Mr Ryan does emphasise that throughout the time he was working with Swire he had numerous incidents and falls, with bruises, sprains and strains of various parts, particularly to the neck and back.
In particular, he recalls on occasions periods of leave away from work, varying from three months to nine months at various times, which allowed him to convalesce, recover and resolve his symptoms.
In 1997 he had an injury to his neck, having after [sic] losing his footing and falling down a stairwell, and was aware of pain in the neck from the incident which he reported.
A further incident in 2000, when he was moving through a narrow door and struck his head on the frame of that metal door, following which he experienced pain in the neck, which continued for some months, again reporting that to the captain.
In 2002-2003 he was assisting to manage an FRC, he lost his footing and struck his back on a steel bar, following which he had pain in the back for some period of time.
In 2003-2004 again, he lost his footing down steps, tripped, hit his head and back on the stairs and was forced over the side of the boat, managing to remain on the boat by holding tightly to the boat until the wave pushed him back into position.
A further incident occurred in February 2005 again, he lost his footing, fell heavily on the deck, with severe bruising to the back.
In March 2007 he lost his footing in rough seas, struck his ribcage against a corner of a desk, fell back, striking the metal handle of the drawer against his back.
That was associated with two broken ribs and further pain in the back.
In February 2012 he fell from a tree, but that was an injury to the lower limbs and ankles, which subsequently resolved.
In December 2012 he had a medical examination with Dr John Pollard, which included x-rays of the cervical spine and lumbar spine, and he was certified fit for full employment.
In April 2016 he was aware of continuous pain whilst performing his normal duties and was advised to light duties for the rest of the swing, which was the 4.00pm to 8.00pm shift, which was lighter work than the other shifts.
In 2016 he had persistent and continuous pain in both the neck and the back and was placed on light duties for two swings, then took 150 days of accrued leave, together with 30 days long service leave, which he increased to 300 days leave, and then when he requested a further six months leave without pay, he was informed that he would be entitled to three months leave without pay, and then he would need to resign.
Since that time he has not resigned but has not returned to work.
…

PRESENT
…
Pain persists in the neck, on a scale of 0-10 constant at 4, and increasing at times to 6 or 7. Pain is aggravated by movement, which is restricted, or maintaining his head in one position, when driving, looking behind, he has to turn his whole body, as he does when he was working looking up at the crane, or even when drinking, he has to move his whole body.
In the back, symptoms are of a constant 4 or 5/10, standing for prolonged periods is an aggravation, but he does find that standing in a straight position is less aggravating, and he has difficulty standing from a sitting position.
Sitting tolerance, as in the drive from Bunbury to Perth, he had to move out of the vehicle twice, and is careful with bending, having to kneel to put on his shoes and socks. Walking tolerance has been reduced around his 120 acre block, and he uses a four wheel drive motor vehicle (ATV) effectively as a wheel chair to mobilise around his property.
…
EXAMINATION
…
In the cervical spine there is no tenderness, movements were grossly restricted, with extension to a few degrees, the remainder of the movements to less than a third of the expected range, with the exception of lateral flexion, which was limited to a quarter of the expected range.
At the shoulders movements into elevation were limited, because of pain in the cervical spine, and with dressing and undressing he had difficulty removing his shirt.
In the thoracolumbar spine tenderness was present in the lower lumbar segments and to either side of the midline, movements were restricted with forward bending, fingers reaching to upper third of the tibia, extension to a quarter, lateral flexion a third, rotation three quarter of the expected range.
Straight leg raising was limited to 70° because of pain in the back.
Deep tendon reflexes were present and symmetrical and there was sensory impairment in the lower limbs, particularly over the feet, which was not formally examined but related to the intercurrent neuropathy related to his chemotherapy.
Standing on heels and toes was accomplished with difficulty, particularly on the right, crouching was to half the expected range, and he was able to kneel,
albeit with discomfort, whilst gait was normal.
Mr Slinger gave his diagnosis as follows (A7, p6):
The diagnosis is that of degenerative disease of the cervical and lumbar spine, and there are features in the lumbar spine which are suggestive of Forestier [sic] disease or hyperostotic spondyloathropathy.
On the history provided, I believe that his symptomatology was initiated and maintained by his various accidents at work, and that those injuries have contributed significantly to the development of his degenerative changes in the back as well as the so called spondyloarthropathy. (Emphasis added.)
Mr Slinger states that the Applicant’s symptoms would not be the ‘same in the absence of the heavy nature of his duties with Swires’ (A7, p7). His opinion was that the Applicant was unfit to return to any form of employment and that he was permanently impaired.
In summary therefore, with respect to the cervical spine, Mr Slinger has opined that the Applicant suffers from degenerative disease and that the various accidents at work have initiated and contributed significantly to the development of those degenerative changes.
With respect to the lumbar spine, Mr Slinger says the symptoms are suggestive of Forestier’s disease and the same factors initiated and contributed significantly to the development of this condition.
Mr Rimmer cross-examined Mr Slinger. In response to the question ‘If someone takes three to nine months off work to convalesce, it suggests a serious injury, and it suggests something that they would seek medical treatment for’, Mr Slinger responded ‘And I’m saying to you, I hadn’t said that he took that time off because of the severity of symptoms. He just told me he took time off, and incidentally perhaps, his symptoms improved.
In other words, he didn’t tell me that he had severe symptoms. He didn’t tell me that he required medical treatment, or, as you say, sought it. So, the answer to your question is,
it may have been his symptom was sufficiently minor not to require medical treatment’. (Transcript, p76)
Mr Rimmer asked Mr Slinger about the impact maintaining his property would have on the Applicant’s conditions. Mr Slinger’s response was that ‘I wouldn’t say that was very heavy. It’s physical activity, moderately heavy’ (Transcript, p79).
Mr Rimmer questioned Mr Slinger about the diagnosis of Forestier’s disease in the lumbar spine. Mr Slinger responded, ‘It’s otherwise known as diffused idiopathic skeletal hyperostotic arthropathy. Spondyloarthropathy is not a word I agree with, but it – it means the same things, and it means calcification, ossification of the ligaments and the muscle and the ligament attachments to the bone, both in the spine and also in peripheral joints, and the consequence of it is it stiffens the – the area in which it’s involved, particularly in the spine’. (Transcript, p79). Mr Slinger said approximately 10 per cent of people over the age of 50 have it and ‘The majority of them do not have symptoms, and there is an argument as to what causes symptoms; is it inflammatory, metabolic, environmental, traumatic, and there’s no particular answer, no particular reason, it just happens in a lot of cases. I must say I’ve never treated anybody with this condition; I’ve seen it, but in my capacity as a spinal surgeon, nobody ever came to me with symptoms; backache,
sure but not that I recognised as relating to this, so it’s – it’s a common enough thing of
10 percent, but it’s pretty uncommon to have any significant symptoms, unless you’ve provoked it, and we believe because of a stiffness in the spine, you lose the elasticity, as you’ve just said, and you’re more prone to micro fractures and ligamentous injuries, because you can’t bend and straighten as you would normally’ (Transcript, pp79-80).

Fourthly, if the Tribunal considers the argument that the Applicant’s conditions arose simply because of the nature of daily activities on a ship, there is a lack of evidence as to what activities specifically could have caused his conditions. It seems there is a general acceptance amongst the witnesses that life at sea is very tough and demanding.

That said, no evidence was led as to what those conditions were typically like. It was open to the Applicant to lead that evidence but he did not do so. In the absence of such evidence the Tribunal is not able to form its own conclusions as to what it was like.
The Tribunal acknowledges that the rules of evidence do not apply, however in order for it to be satisfied as to certain things occurring, evidence needs to be led. The basis upon which those conditions could then lead to the development of the condition from a medical perspective then needs to be provided. If we were to compare a matter which was claiming for a psychological injury arising out of ‘stress’ at work, a mere statement that the job was ‘stressful’ would be insufficient. The Tribunal would require evidence of incidents that occurred that preferably were independently corroborated and/or verified. Similarly,

a broad statement that the conditions at sea should be accepted as ‘heavy physical work’ is insufficient for the Tribunal to be satisfied factually (Transcript, p110; R15, p270).

If there was a general acceptance of difficult conditions for seafarers it would inevitably lead to a situation where claims could be made without any independent evidence as to what caused the disease. The Tribunal also notes that there is a specific provision in the SRCA (s 10(2)) which deals with specific diseases that are accepted as materially contributed to by employment. Comcare in its advice (R14, p106) suggested further investigation by the Respondent which was not undertaken and no evidence was led at the hearing to support a finding under that section.
The Tribunal notes that the Applicant has detailed several incidents during his service that he has identified as having a causative effect on the development of his disease. Due to the lack of contemporaneous medical or other evidence concerning any pain supposedly suffered by the Applicant as a result of these incidents, over a very long period of time, the Tribunal is not prepared to accept that these contributed to the Applicant’s disease materially or otherwise. It was not advanced by the Applicant that these events were indicative of what conditions were like at sea and therefore could be used as evidence of his working conditions. The Tribunal notes that some of these incidents were corroborated by independent evidence from other witnesses such as Mr Bryson.

The Tribunal has earlier noted it is not discounting the Applicant’s recount of various events during his employment. What it is saying is that there is simply no evidence from either his employer that was formally recorded or from his medical practitioners to indicate the degree of severity that he contends he suffered.
In addition to its concerns about the histories recounted to the specialists which have been used as the bases of their opinions, the Tribunal is unable to conclude a clear basis for causation. Professor Sikorski attributed 50% to the Applicant’s work and 50% to his degenerative condition but had ‘no scientific basis’ for doing so (R6, p15). Mr Slinger in his report gave a diagnosis of degenerative disease of the cervical and lumbar spine with features in the lumbar spine suggestive of Forestier’s disease. He concluded that based ‘On the history provided’ (A7, p6) that the symptomatology was initiated and maintained by the accidents at work and they contributed to the development of his degenerative changes and the Forestier’s disease. His opinion was that the Applicant’s symptoms would not be the same in the absence of the ‘heavy nature of his duties with Swires’

(A7, p7). Under cross-examination Mr Slinger said all males of a certain age will have degenerative disease in their back (Transcript, p81). In relation to Forestier’s disease he stated the basis of his opinion was that the symptoms commenced while he was working and therefore he drew the necessary link between employment and the condition. He also said that was relevant to the degenerative disc disease.
Professor Sikorski has diagnosed the Applicant with Forestier’s disease in the cervical, thoracic and lumbar spine. At best his opinion is that the injuries described by the Applicant ‘could well have’ (R6, p12) contributed to the development and severity of his condition. In his subsequent opinion when he attributes 50% of the Applicant’s disability to his work he does so on the basis of the ‘demands of his employment’. He specifically states however that he has ‘no scientific basis’ for forming that conclusion (R6, p15).
Both specialists’ opinions are predicated on the history provided to them by the Applicant and the parties’ representatives and a general acceptance of conditions at sea.

Both specialists also note the absence of any particular injury that had independent verification by way of imaging.
The Tribunal considers that the medical evidence, at best, raises a possibility as to the causation of the Applicant’s current conditions. The reality is that the Applicant suffers from a condition of unknown aetiology, which based on the contemporaneous medical evidence available prior to 2016 was asymptomatic. If there had been reference in his medical records to ongoing and continuing back pain over the course of the years which caused the Applicant incapacity, the Tribunal may have been more sympathetic to his argument.
The hearing proceeded with evidence being led as to cervical and lumbar disease.

The Tribunal accepts there is disease in the lumbar spine as evidenced radiologically, however the Applicant made no claim that he was incapacitated by that condition prior to these proceedings. Aside from one reference in the radiological report of 16 January 2017 (T15, p41) which incorrectly states he has severe degenerative changes in the lumbar spine and the correlating medical certificate by Dr Jones (T21, p51) which refers to lumbar disc disease there is no prior reference to lumbar disc disease. Professor Sikorski, in his report (R6) refers to those X-rays and identifies Forestier’s disease in the lumbar spine.
Both specialists have identified that the Applicant was exposed to heavy physical work during his years of employment as an able seaman, and that ‘certainly’ (Professor Sikorski) and ‘it was not uncommon’ (Mr Slinger) for the Applicant to have various injuries during his shifts over the years, as a result of slips or falls. Professor Sikorski specifically notes that no injuries were significant enough to require medical treatment or loss of time off work (Refer to Transcript, p76).
Mr Slinger, accepting the accidents as told by the Applicant said that he believed that

‘his symptomatology was initiated and maintained by his various accidents at work,
and that those injuries have contributed significantly to the development of his degenerative changes in the back, as well as the so called spondyloarthropathy’ (A7, p6).
The Tribunal notes however, that there are no reports of symptoms at any time prior to 2016. Of course, a specialist will rely heavily on a history provided to them by the patient, however, for the reasons given above, the Tribunal does not accept that the Applicant suffered symptoms of any severity which warranted time off work, investigation or medication.
In closing submissions, Mr Rimmer referred to the medical evidence and said as follows (Transcript, p150):
The evidence of – my friend has made some observations about the evidence of Professor Sikorski. I think, as with the reports or certificates of Mr Slinger,
Dr Dewing and Dr Jones, you can’t just look at those in isolation, you need to consider the oral evidence as well, obviously. His evidence was – and you need to read both reports together – his evidence was that the progression of the disease was – in his oral evidence – was that the progression of the disease was inevitable and not necessarily related to – or could occur in the absence of heavy work and he also expressed or gave evidence that, in coming to the opinion that he reached, he was reliant on the history given to him by the claimant and in that regard – and this is where, if I might say so, I don’t think there’s a proper basis for the separation of what are semi core issues and peripheral issues, because of course, for the experts opinions to be accepted, the underlying facts or assumptions upon which they’re based, need to be established and Pollock v Wellington is authority for that and the Court of Appeal in Department of Education v Azmitia, a year or two ago, affirmed the application of Pollock v Wellington in a tribunal such as this one. In that case, it was Workcover.
Pollock v Wellington (1996) 15 WAR 1 concerned a common law claim for personal injuries which was subject to the technical rules of evidence. Anderson J stated that before an expert medical opinion can be of any value, the facts upon which it is founded must be proved by admissible evidence and the opinion must be founded on those facts. The opinion must be comprehensible and the conclusions reached must be rationally based.
His Honour further said (at [4]):
Such an opinion is manifestly groundless unless the medical expert knows all the relevant facts. In a case such as the present, those facts would include what relevant physical actions or functions are involved in operating the particular machine, how much effort is required to perform each function, and at what rate and over what period of time the relevant functions have to be performed. So far as it appears these facts were not known to the doctors and they were not asked to base their opinions on any assumption as to the facts. The opinions were therefore wholly devoid of the basic facts necessary to sustain them.
In Beer v Duracraft Pty Ltd [2004] WASCA 192, Her Honour McLure J noted:
[80] In many cases there is not an exact correlation between the facts proven in evidence and the facts relied upon by the medical practitioner upon which his or her opinion is based. The role of the decision maker is to examine any variation between the two in order to assess whether any unproven fact relied on by the medical practitioner or any omission from the material given to him or her renders the opinion inadmissible or of no weight.
In this matter the opinions of both Mr Slinger and Professor Sikorski rely wholly on the self-reporting by the Applicant with some radiological evidence. Both doctors have noted the lack of any incident reports and/or radiological imaging that would have helped them in their opinion as to causation.
For the reasons stated by the Tribunal in the course of this decision, the Tribunal is unable to accept that the conditions reported by the Applicant as the likely cause of his ailments are as severe as he has stated. In considering the Tribunal’s role in comparing the ‘unproven facts’ relied upon by the medical practitioners with the contemporaneous medical and employment records the Tribunal finds that the factual basis for the formation of the specialists’ opinions is insufficient to accord any weight to those opinions.
Accordingly, the Tribunal finds that it is unable to be satisfied on the balance of probabilities that the Applicant’s employment caused a material contribution to the development of his ailments.
If the Tribunal had reached the alternative conclusion (which, for reasons given above,

it is unable to do) and should have been satisfied that the factual basis for the specialist's’ opinions was sufficient, the Tribunal is still unable to conclude that the Applicant’s employment caused a material contribution to his ailments. Firstly, the Applicant has worked as an able seaman for 40 years. The effects of his earlier employment cannot be discounted.
Professor Sikorski in his report states that he has ‘no scientific basis’ for forming his conclusion (R6, p15). Dr Dewing, at best, says it is ‘[s]omewhere between possibility and probability’ that employment contributed (Transcript, p116) and Mr Slinger, whilst saying it was ‘probable’ that there was a connection, said he was ‘basing that on a general opinion that heavy manual work, heavy physical work with associated injuries are more likely to cause backache and neckache’ (Transcript, p83).
At best, the Tribunal has been presented with a hypothesis as to causation. It may have been the natural effects of degeneration; it may have been an inflammatory disease,

or it may have been both. Work may have instigated or accelerated the condition and that work includes 20 years with another employer. What is clear is that not only is there a variety of diagnoses, there is also a variety of contributing factors. The Tribunal needs to be satisfied as to the causal connection. Once the contribution is established, the extent of that contribution is less important. Having carefully considered all the medical evidence available in this matter The Tribunal is unable to conclude on the balance of probabilities that the Applicant’s employment with the Respondent contributed to the contraction, acceleration or aggravation of the Applicant’s ailments.

DECISION
For the reasons above, the Tribunal affirms the decision of the Respondent to refuse the Applicant’s claim for seafarers’ compensation.

I certify that the preceding (two-hundred and seventy-six) paragraphs are a true copy of the reasons for the decision herein of Member M East

.......................[sgd].................................................
Associate
Dated: 1 July 2020

Dates of hearing: 12, 13 February 2020

Counsel for the Applicant: Mr David Bruns

Solicitors for the Applicant: JDK Legal

Counsel for the Respondent: Mr Chris Rimmer

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	12, 13 February 2020
Counsel for the Applicant:	Mr David Bruns
Solicitors for the Applicant:	JDK Legal
Counsel for the Respondent:	Mr Chris Rimmer
Solicitors for the Respondent:	Sparke Helmore Lawyers