Smith and Inco Ships Pty Ltd

[2011] AATA 800

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2011] AATA 800

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1151

GENERAL ADMINISTRATIVE DIVISION		)
Re		Dale Smith

Applicant

And Inco Ships Pty Ltd

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President
Dr I S Alexander, Member

Date14 November 2011

PlaceSydney

Decision

1. The Tribunal sets aside the deemed refusal of the Applicant's claim for compensation for permanent impairment and non-economic loss and substitutes a decision that, as a result of the injury, the Applicant has a 13% permanent impairment and a 41.33% degree of non-economic loss. As a consequence, the Respondent must pay the following compensation to the Applicant: pursuant to s 39 of the Seafarers Rehabilitation and Compensation Act 1992, $21,259.55 in respect of permanent impairment and, pursuant to s 41 of the Act, $16,658.66 in respect of non-economic loss (comprising $3,986.06 and $12,672.60), a total of $37,918.21.

2. The Respondent is to pay the Applicant's costs as agreed or assessed.

....................[sgd]..........................

Mr R P Handley   
  Deputy President

CATCHWORDS

COMPENSATION - non-economic loss – effect of pain – effect of suffering – loss of amenities – recreation and leisure activities – Tribunal determines assessment scores – decision under review set aside.

RELEVANT ACT

Seafarers Rehabilitation and Compensation Act 1992 ss 39, 41

REASONS FOR DECISION

14 November 2011 Mr R P Handley, Deputy President
Dr I S Alexander, Member

1.Dale Smith, the Applicant, has applied for the review of a deemed reconsideration decision refusing his claim for compensation for permanent impairment and non-economic loss.  The Respondent, Inco Ships Pty Ltd, has accepted liability to pay Mr Smith compensation under the Seafarers Rehabilitation and Compensation Act 1992 (the Act) and the parties are agreed that Mr Smith’s whole person impairment should be assessed at 13% for the purpose of his claim for lump sum compensation under s 39 of the Act. The only disagreement relates to the assessment of the degree of his non-economic loss for the purpose of his claim for lump sum compensation for non-economic loss under s 41 of the Act.

Background

2.Mr Smith was born in 1973 and is aged 38.  He is a qualified fitter and turner.  He worked as a rigger and production worker for Bluescope Steel at the Port Kembla Steelworks for about 15 years until 2009 when he was made redundant.  Two months later he commenced employment for Inco Ships as a seagoing fitter and turner, working on board the MV Goliath, which is a cement carrier.  He had previously been required to attend TAFE to attain a further qualification to enable him to work at sea.

3.On 10 October 2009, Mr Smith injured his back on board the Goliath while undoing bolts in the course of working on the mooring gear.  At that time, the Goliath was at sea en route from Devonport to Sydney.  As a result of the injury, Mr Smith developed lower back and left leg pain.  He has since had two micro-discectomies at L5/S1 together with other medical treatment, but continues to experience lower back pain and sciatic pain in his left leg.  He claims that this restricts his everyday activities.  Mr Smith has been ‘off work’ since the accident and is currently receiving weekly compensation payments.

Mr Smith’s Evidence

4.Mr Smith provided a statement dated 9 August 2011 and gave evidence at the hearing.  He has been in a de facto relationship since May 2011 and, with his former wife, shares the custody of his children who are aged 10 and 8. 

5.Mr Smith said he experiences a lot of stiffness.  He continues to suffer low grade pain in his lower back all the time, which is worse in cold weather or if he does anything too active or sits or stands for long periods.  About three or four times a week, his back goes into spasm.  When this happens, the pain takes his breath away and he has to kneel.  Each spasm lasts about 30 seconds but it “knocks me out” and he takes a while to recover.  Mr Smith said he also experiences pain in his left leg between his hip and his knee and between his ankle and his knee.  The pain is always present but it varies in intensity depending on what he does.

6.Mr Smith said hydrotherapy helped a bit and gave him temporary relief as did Pilates.  He did a 12 week Pilates course paid for by the workers compensation insurer but has not pursued this since the course ended.  He takes Nurofen “now and again” for pain relief but generally avoids taking medication because it makes him dopey and is liable to be addictive.

7.Mr Smith said he can do some housework, but cannot do heavier work such as moving furniture or scrubbing the bath.  He can vacuum although sometimes this causes pain.  He can also barbecue food, but does not do any mowing or gardening (except watering) in order to avoid this causing him pain.  He finds the difficulty he experiences standing or sitting too long frustrating and this affects his social life.  His sexual relationship has also been adversely affected.  Mr Smith used to enjoy motorbike and pushbike riding but has not done this since the accident and cannot do this anymore.  He has sold his motorbike.  He used to do car and motorbike maintenance but, again, can no longer do this.  He used to go camping but has not been since the accident because of the difficulty he would have putting up a tent, chopping firewood etc.  He has stayed in a caravan once since the accident, but that was OK because it was an on-site caravan and had a proper bed.

8.Mr Smith was asked about how he spends his days.  He said he walks three or four times a week and can probably walk up to a kilometre.  He picks up his children from school and looks after them.  However, he has difficulty doing active things with them such as kicking a football or wrestling with them or picking them up.  He has been to the movies with them a couple of times but has difficulty sitting all the way through.  He also enjoys watching football – he supports the Dragons – and cricket and sometimes reads a book.  Asked about what he did the day before the hearing, Mr Smith said he drove a friend to see the doctor and brought him home again, and went to the shopping centre to buy some food for dinner.

9.Mr Smith said it concerns him that he does not do anything much.  He had planned to become an engineer in the maritime industry, perhaps in the offshore oil industry, which would have meant a higher income.  He is frustrated and upset that he “went from a great job to sitting around at home” – he thinks about this “a fair bit” and it makes him “a bit withdrawn”.  However, he acknowledged that he had not explored the possibility of other sorts of engineering work or studying for engineering qualifications, for example, at TAFE.

Issues

10.As noted above, the only disagreement between the parties relates to the assessment of the degree of Mr Smith’s non-economic loss for the purpose of his claim under s 41 of the Act.  This is the issue that the Tribunal must therefore determine.

11.Section 41 of the Act states:

(1)  If an injury to an employee results in a permanent impairment and compensation is payable for the injury under section 39, the employer is liable to pay additional compensation in accordance with this section to the employee for any non-economic loss suffered by the employee as a result of the injury or impairment.

(2)  The amount of compensation is an amount worked out using the formula:

where:

"Degree of permanent impairment" means the percentage finally determined under section 39 to be the degree of permanent impairment of the employee.

"Degree of non-economic loss" means the percentage determined under the approved Guide, by the employer, to be the degree of non-economic loss suffered by the employee.

12.The approved Guide is defined in s 3 as follows:

"approved Guide" means:

(a)  the document, prepared by the Authority in accordance with section 42 under the title 'Guide to the Assessment of the Degree of Permanent Impairment', that has been approved by the Minister and is for the time being in force; and

(b)  if an instrument varying the document has been approved by the Minister--that document as so varied.

13.The relevant Guide is the Guide to the Assessment of the Degree of Permanent Impairment, 2^nd edition 2006 (the Seacare Guide), which, in Division 2, also provides a Guide to the Assessment of Non-Economic Loss.  Division 2 provides for a Worksheet - Calculation including an assessment of the effect of the injury on the Applicant according to a number of tables in respect of each of which a score is attributed to the Applicant.  These tables address pain, suffering, loss of amenities (mobility, social relationships, and recreation and leisure activities), other loss, and loss of expectation of life.  Each score is adjusted by a factor of between 0.5 and 1.0 and the total score is then converted to a percentage according to the prescribed formula.

Submissions and Assessment

14.The Respondent relies on the assessment of non-economic loss made by Dr Thomas Silva, an orthopaedic surgeon, in a report dated 22 June 2011. Dr Silva assessed Mr Smith as having a total score of 4.6 using the Seacare Guide to the Assessment of Non-Economic Loss, which equates to a 31% degree of non-economic loss for the purpose of s 41. The Applicant claims a total score of 7.3, which equates to a 49% degree of non-economic loss. Dr Matthew Giblin, an orthopaedic surgeon who examined Mr Smith at the request of his solicitors, assessed Mr Smith’s whole person impairment for the purpose of s 39 of the Act, but did not make an assessment of his non-economic loss. Dr Giblin did, however, comment on the effect of Mr Smith’s disability on some of his everyday activities.

15.The Tribunal will consider the appropriate score that should be attributed to Mr Smith according to the tables relevant in his case.  The first table is concerned with the assessment of the effect of pain.  The Respondent, relying on Dr Silva’s assessment, contends that the appropriate score is 2 in respect of intermittent attacks of pain, not easily tolerated but short-lived, being pain that responds fairly readily to treatment (for example, analgesics, anti-inflammatory medications).  The Applicant contends that the assessment should be 3, episodes of pain more persistent, not easily tolerated, and treatment if available, of limited benefit.

16.In our view, the appropriate score is 2.  Mr Smith’s evidence is that he has constant low grade pain and severe spasms three or four times a week which last about 30 seconds but leave him debilitated.  He sometimes takes Nurofen for pain relief but prefers to avoid medication because of its effect on him.  Dr Giblin reported that “Pain killers give him moderate relief from pain, but he doesn’t take them on a regular basis.”  Dr Silva also referred to Mr Smith suffering residual pain in the back.  Having seen Mr Smith and heard him give evidence, the Tribunal considers that there may be a psychological aspect of Mr Smith’s pain that may require further investigation.

17.The second table is concerned with the assessment of the effect of suffering.  The Respondent relies on Dr Silva’s assessment of 0, there being “No symptoms of mental distress experienced.”  The Applicant contends that the appropriate score is 2, in respect of “Distinct symptoms of mental distress which are episodic in nature. Activities reduced during such episodes.  Recovers quickly after episodes.”

18.We agree with the Applicant that the appropriate score is 2.  Mr Smith’s evidence – that he does not do much and often sits at home ruminating and is “a bit withdrawn” – appears to indicate that he has psychological problems (and that he needs assistance in addressing these). 

19.The next three tables concern loss of amenities.  With regard to the tables assessing the effect on Mr Smith’s mobility and on his social relationships, the parties agree with a score of 2 on mobility and 1 on social relationships which the Tribunal considers appropriate.  The parties do not, however, agree on the assessment according to the table on recreation and leisure activities.  The Applicant contends that the appropriate score is 5, being “Unable to undertake any pre-injury recreation and leisure activities.”  Mr Menary, for the Applicant, referred to Mr Smith’s evidence that he cannot ride a pushbike or motorbike and can no longer go camping, and that, generally, his activities have been significantly curtailed by his injury.  The Respondent relies on Dr Silva’s score of 3, Mr Smith being “Unable to continue with pre-injury level of activity.  Alternative activity possible.”  Mr Parker, for the Respondent, noted Mr Smith’s evidence that he had not tried to undertake activities such as riding his pushbike or gardening since the accident. 

20.In the Tribunal’s view, an appropriate score is 4, in respect of “Range of pre-injury activities greatly reduced.  Needs some assistance to participate in pre-injury recreation and leisure activities.”  We accept Mr Smith’s evidence that he can no longer undertake activities such as bike or motorbike riding and bush camping which, because they involve travelling over rough surfaces would be liable to jar his back and cause him pain.  We also accept that he cannot undertake other strenuous activities such as playing football.  We note Dr Silva’s opinion that Mr Smith has “Residual pain and stiffness in the back imposing restrictions on heavy lifting and frequent bending.”  Similarly, Dr Giblin stated that Mr Smith “has problems with activities that involve repetitive bending and heavy lifting, such as cleaning toilets, moving the furniture, mowing the lawn, gardening etc” and that “he no longer plays touch football”. 

21.According to the Seacare Guide Worksheet – Calculation, once the scores attributed to the effect on Mr Smith by the Tribunal have been adjusted according to the required factors, the total of the scores is 6.2.  Following the required steps to convert this total to a percentage results in a percentage non-economic loss of 41.33%. 

Decision

22.The Tribunal sets aside the deemed refusal of the Applicant’s claim for compensation for permanent impairment and non-economic loss and substitutes a decision that, as a result of the injury, the Applicant has a 13% permanent impairment and a 41.33% degree of non-economic loss. As a consequence, the Respondent must pay the following compensation to the Applicant: pursuant to s 39 of the Seafarers Rehabilitation and Compensation Act 1992, $21,259.55 in respect of permanent impairment and, pursuant to s 41 of the Act, $16,658.66 in respect of non-economic loss (comprising $3,986.06 and $12,672.60), a total of $37,918.21.

23.The Respondent is to pay the Applicant’s costs as agreed or assessed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President and Dr I S Alexander, Member

Signed:         ...........[sgd].....................................................................
  C. Taylor, Associate

Date/s of Hearing  8 November 2011
Date of Decision  14 November 2011
Counsel for the Applicant         P Menary
Solicitor for the Applicant          A Mills, W.G McNally Jones Staff
Counsel for the Respondent     G Parker
Solicitor for the Respondent     A Jessep, HWL Ebsworth