Tremaine and Australian Offshore Services - [2000] AATA 526

DECISION AND REASONS FOR DECISION [2000] AATA 526

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1997/202

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GARY ELLIS TREMAINE
  Applicant
           And    AUSTRALIAN OFFSHORE SERVICES
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Senior Member Dr Y S Haslam, Member

Date28 June 2000
PlacePerth

Decision      The decision under review is affirmed.
  ...........(sgd S D Hotop).............
  Senior Member
CATCHWORDS
COMPENSATION – seafarers – applicant suffered bony injury to left foot and soft tissue injuries to neck and low back in course of employment with respondent in March 1994 – applicant underwent successful operation on left foot in June 1994 – applicant continued to complain of neck and low back pain – respondent terminated payment of compensation to applicant in respect of above injuries with effect from 1 March 1997 – whether as at 1 March 1997 applicant had fully recovered from effects of above injuries or continued to suffer from effects of any of such injuries.
Seafarers Rehabilitation and Compensation Act 1992 ss 3, 8, 26

REASONS FOR DECISION

28 June 2000 Associate Professor S D Hotop, Senior Member Dr Y S Haslam, Member

This is an application by Gary Ellis Tremaine ("the applicant") for review of a reviewable decision made by Australian Offshore Services ("the respondent"), dated 9 May 1997, which affirmed, on reconsideration, a determination made by the respondent, dated 24 February 1997, that compensation benefits being paid to the applicant in accordance with the provisions of the Seafarers Rehabilitation and Compensation Act 1992 ("the Act") be terminated with effect from 1 March 1997.
At the hearing the applicant was represented by Mr G Stubbs, solicitor, and the respondent was represented by Mr J Lenczner of counsel. The Tribunal had before it the documents ("T documents" – numbered T1-T38) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and various exhibits tendered by the applicant (numbered A1-A19) and by the respondent (numbered R1-R19). The applicant gave oral evidence and called the following witnesses: Ms P Hill, Dr A Harper, Dr R Goodheat, Dr L Cullen and Dr D Main. The respondent called the following witnesses: Mr J Bell, Dr J Silver, Dr J Kagi, Mr B McNicholl and Mr M Wardle.
The Factual Background
The relevant background facts, as found by the Tribunal on the basis of the T documents and about which there is no dispute between the parties, are as follows.
The applicant, who was born on 26 May 1950, was at all material times employed by the respondent and during March 1994 was employed as "Second Mate" on the vessel "Laga".
On or about 7 March 1994 the applicant suffered an injury to his left foot while at sea when a pelican hook fell onto his left foot.
On 18 March 1994 the applicant made an "incident report" in which he complained of lower back pain which he attributed to an earlier incident in which he felt "some minor back strain due to the lifting of shackles" and an incident on 18 March 1994 in which he aggravated that back strain when lifting and carrying fire extinguishers. (T3)
On 21 March 1994 the applicant made an "incident report" in which he complained that the pain experienced from the previous incident had "progressively worsened" and that he was experiencing a "numbing/tingling sensation throughout his back", a "tingling sensation" in his right leg from the thigh to the toes, and an "aching sensation" in the left arm through to the fingers. (T4)
On 22 March 1994 the applicant was examined by Dr A Mullins who diagnosed a soft tissue injury to the back, associated muscle spasm, and a possible fractured metatarsal of the left foot, and certified him as unfit for duty for a period of one week. (T5)
On 24 March 1994 Dr L Cullen issued a "First Medical Certificate" certifying the applicant as unfit for work for a period of 2 weeks. (T6)
The applicant submitted a claim for compensation under the Act, dated 29 March 1994, in which he claimed compensation in respect of a left foot injury, pain and numbness in the lower back, neck, left arm and right leg, and headaches, which were said to have occurred in incidents on 7 March 1994 (when a pelican hook dropped onto his left foot), 16 March 1994 (when he was working heavy gear on deck during recovery of cyclone mooring) and 18 March 1994 (when he was lifting and carrying fire extinguishers to different locations). (T7)
The respondent accepted liability to pay compensation to the applicant pursuant to the Act and the applicant was paid appropriate compensation benefits with effect from 22 March 1994.
The applicant was referred by the respondent to the Commonwealth Rehabilitation Service pursuant to the Act and progress reports were received during the period from October 1994 to September 1996. (T17, T18, T20, T22, T23, T25, T28 and T30)
During the period from April 1994 to February 1997 the applicant was referred to various specialist medical practitioners, including Mr M McCallum, Dr P Watson, Mr J Bell, Dr R Goodheart, Dr D Main and Dr J Silver, who subsequently provided reports in relation to the applicant's medical condition. (T10, T11, T12, T13, T14, T15, T16, T19, T21, T24, T26, T27, T29, T31, T32, T33 and T34)
On 24 February 1997 the respondent made a determination that compensation benefits presently being paid to the applicant pursuant to the Act would be terminated, effective from 1 March 1997. (T35)
By letter dated 6 March 1997 the applicant requested, pursuant to s78(2) of the Act, a reconsideration by the respondent of its decision dated 24 February 1997. (T36)
Pursuant to a request of the respondent, an officer of Comcare provided to the respondent a report, dated 6 May 1997, for the purpose of assisting the respondent in reconsidering the determination dated 24 February 1997. That report surveyed the abovementioned medical reports and concluded with a recommendation that the determination dated 24 February 1997 be affirmed. (T37)
On 9 May 1997 the respondent, after reconsidering its determination dated 24 February 1997, made a decision affirming that determination. (T38)
On 4 June 1997 the applicant lodged with the Tribunal an application for review of the respondent's decision dated 9 May 1997. (T1)
The Applicant's Evidence
The applicant tendered in evidence an affidavit sworn by him on 10 December 1998 (Exhibit A1) and he confirmed in his oral evidence that the contents of that affidavit are true and correct. In paragraphs 13-31 of that affidavit the applicant described the circumstances in which he sustained the relevant injuries in the course of his employment with the respondent as follows:
"13.On 7 March 1994 I suffered an injury to my left foot when a pelican hook fell on my foot (the first injury). I did not take time off work when this incident occurred and I worked through this period. I was not able to have any real treatment as we were at sea and it was merely a matter of putting up with the pain.
14.Because of my skills and varying qualifications I was able however to work elsewhere on the ship. The Respondent chose to keep me on board despite my injuries and indicated that it was preferable that I stayed rather than bring my opposite swing back early to replace me.
15.On 13 March 1994 I sustained a hearing injury (the second accident) when myself and four other crew members were trapped in the engine room during a fire emergency. The incident occurred as the engine room became decompressed as all the air vents were closed by crew on deck. It took three of us on the inside of the engine room kicking and pushing and three crew members on the outside of the engine room heaving to break the suction on the engine room door.
16.It was during this occurrence that because of the pressure of the inrush of air a 'screaming' sound similar to the sound of a jet engine occurred and damaged my hearing. This affected both ears but predominantly the left ear as the opening was to the left.
17.Whilst pushing on the door there were two crew members on the inside of the engine room door pushing and I got between them and leant against the handrail, behind us, and walked myself up the door, wedging myself between the handrail and door, with physical pressure of cranking one leg against the door and holding myself in a horizontal position and kicking at the door with my right leg, each kick slightly jarring the door to the open position. The other three crew members were on the outside pulling. As I kicked at the door my ear plugs dislodged from my ears.
18.If we had not opened the door we would have been exposed to Halogen gas. This would have killed us in a matter of seconds. It was a very frightening experience but we did not really think about this until a day or so afterwards. During the pushing and kicking on the door you could hear the other crew members on the outside shouting and we were aware of how serious our situation was.
19.My main concern during the period of trying to kick the engine room door open was not so much of the Halogen gas being activated but the vessel itself imploding. The vessel was an old ship on which just days before we had to concrete up a leaking cofferdam that had fractured through rust around a sea water intake.
20.All the air had been sucked out of the engine room and I had it in mind that we had recently concreted up one of the cofferdams and I was extremely anxious as to which seam in the engine room would be the first to burst under the vacuum inside and the pressure of the sea outside.
21.The engine room is below decks in the bowels of the ship approximately three metres below sea level.
22.On 16 March 1994 I sustained a lower back injury (the third accident). This accident occurred when I was lifting shackles and dragging the ends of 4" diameter winch cables across the deck. The lifting incident was during the recovery of the Number 5 Cyclone mooring.
23.We had accidentally snapped the pennant wire to the mooring on the day before and were ordered to recover the mooring 'poste haste' as there was a cyclone approaching Karratha/Dampier.
24.We had another vessel rounding the Nor-West Cape which required the mooring for one of the modules belonging to the Goodwynne A Oil Platform. I had just come off my watch which was from 12 to 4 and went onto the deck to assist the crew in the recovery operation of the mooring.
25.We managed to grapple the mooring approximately centre and we had to work the ship along the mooring to find the end so that we could re-attach a new pennant.
26.To attach the pennant I was required to be on deck instructing and assisting the crew until approximately 9.30 pm (2130 hours). During this period the crew had gone through two shifts and then the Master and I had to complete the operation. It was during this period I sustained the back injury.
27.The reason for the urgency of the operation was because of the approaching cyclone and the module being towed to the mooring prior to the cyclone hitting.
28.On 18 March 1994 I aggravated my back and neck injuries carrying fire extinguishers up and down stairways. This occurred as we were flat out during the last two week period and it was the cyclone season. We were endeavouring to get the Goodwynne A Platform completed in between the approaching cyclones.
29.Because of the incident with the fire in the engine room the ship was subject to an investigation. I was informed we had to have some of our fire extinguishers removed and serviced and replaced in case an inspection took place.
30.I was asked to go through the ship and round up any fire extinguishers that were out of date, or had been discharged and to have them on deck for the fire extinguisher serviceman who would meet the ship when we berthed in King Bay at Dampier.
31.During this period whilst I was bringing the fire extinguishers up and down stairways and delivering them to the fire extinguisher serviceman and taking back replacement fire extinguishers to their relevant positions that I aggravated my back and neck."

In his oral evidence the applicant described his initial symptoms following the abovementioned incidents as follows:
"Well, the problems, the most recognisable problems that I had was the lower – lower backache that felt – felt like somebody had hammered a wedge of- wedge of wood between my – I think sacroiliac joint and my backbone…
So it felt like, you know, I had this wedge of wood permanently wedged in my back and a burning sensation but sometimes the sensation would change to a cold wet sensation.
Where was the cold wet sensation ? --- Predominantly it was on my right buttock and down the outside muscle of my right leg and with that – that sensation it was a kind of fuzzy sensation on the surface of the skin, generally it was always above the knee but immediately after the injury it was right down – right down into my right foot. The pain from my lower back extended right across both sides of my back and right up under my shoulder blades and the second component of that was that I had a locking or like a lump in my – in my neck about the centre of my neck but more to the left side of my neck creating pain that extended up the back of my head and around both sides of my head to the temples and across the forehead. But that point at the centre of my neck where the – the prime spot seemed to be extended pain down under my shoulder blade and came out under my armpit here extended down to my elbow and – and that pain was as if it was against the bone and it was as somebody had frozen it. Now, the pain would disappear in my elbow and re-emerge on the top side of my lower arm and down into my fingers and depending on – depending on how I turned my head you could almost alternate which – which fingers the numbing sensation was in." (Transcript, p19)

The applicant said that Dr Mullins, whom he saw at Dampier on 22 March 1994, did not give him any treatment for his injuries but merely checked to make sure that he had access to Panadeine Forte painkillers from the ship's medical cabinet. He then returned to Perth and began seeing Dr L Cullen, his local general practitioner, on 24 March 1994.

The applicant was asked to describe the progress of his symptoms since 1994:
"Now, over the years since 1994 up until the present, what has been the progress, if you like, of your symptoms, have they got worse, have some improved? What is the situation as far as you're concerned? --- Well, initially the symptoms were severe. I suppose, the doctors gave me a pain gauge to work by and they – you know, zero is where you don't feel anything – any discomfort and 10 is – 10 is the point were tears – tears want to flow from your eyes and at that early stage I was riding around 9 – 10 all the time if I wasn't on painkillers and that went on for right up until I finished physio. Throughout that whole period I was on various painkillers and then when I finally got to see Dr David Main from the Pain Management Clinic they gradually – gradually worked me off of the painkillers by fitting me with acupuncture pins." (Transcript, p 20)

He added that he has regularly used acupuncture pins, almost on a daily basis, ever since and that these are now inserted by his partner, Ms P Hill.

As regards his present symptoms, the applicant said that, following an operation performed by Mr M McCallum, his left foot injury had virtually healed and that nowadays he only gets a bit of pain in the forward part of his heel from time to time, predominantly in cold weather. Asked to describe his main symptoms at the present time, the applicant's evidence was as follows:
"Well, my symptoms are that now I actually feel like I've got that lump of wedge of wood hammered between my sacroiliac and my spine at around the L4/5 level where the proximity to where those acupuncture pins were and I have from there – I have – my bottom feels like it's actually wet and I have a wet sensation down the outside of my calf muscle and a fuzzy sense - - -
PROF HOTOP: That's the – I think you were touching the right, the right calf? - - - Yes, my right calf muscle down to here, just a - - -
I'm not a medical person but that's the thigh, isn't it, rather than calf that you're - - - ?--- I'm sorry, I'm not a medical person either.
So the right thigh, you mean? - - - Right thigh, yes. Yes, it's – it's just – feels like it's wet, you know, I've come out of the water and it's a fuzzy – fuzzy sensation on the surface of the skin, that's – that pain that's in my back is – is extending from where the acupuncture pins were out to about – about that area there. So about the size of a – from the acupuncture pins, I suppose, about the size of a football, extending out and then I've got this slight grinding in my neck which is giving me a headache in the back of the neck right now and it's giving me a lump – lump under my armpit and an ache just to – just to – in this muscle here.
…
MR STUBBS: So it's in your left arm above the elbow? - - - Now, sometimes when – when my – now, I'm talking about my neck, my headache, that – sometimes that could only have been just a few days ago, that ache from my neck and under my shoulder blade would extend down into the whole of my arm as an ache and - - -
PROF HOTOP:   That's the left arm? - - - The left arm, yeah. Sometimes it extends into the fingers. It's not so much an ache when it extends into the fingers but rather just – just a numbing and it could be – it could be the middle finger, it could be the little finger or it could be the thumb. There just doesn't seem to be any set – set which finger it's in and I've had occasions where – where it's actually extended down into the thumb on my – on my right hand as well, on some occasions. When it's really severe, it extends down into my arm and that but it also extends from that point in my neck where I have the problem up around the outside of my head and it may – it seems to go up underneath the skull and it may go as far as, you know, in front of the ears but on really bad times it'll – it'll just, you know, encase the whole head. And with my lower back, when that's really bad it's – perhaps if I can maybe – if you understand a toothache, it's – you know, I prefer to think it's a – I've got a spear stuck in my back or a lump of wood, but sometimes when I think about it, I suppose, it's something similar to a toothache. To me a toothache is more localised whereas this pain is more spread when it's severe. Now, the pain itself is – is in that lower back area about the size of a football or something when it's really severe and from there it extends up to my left – my left shoulder blade and I find that the muscles on either side of my back are just – are just like wire, just like – they just – just go. Just go tight and just stay tight till – till I can get rid of it either with some sort of painkillers, acupuncture pins.
MR STUBBS: Okay. On a day to day basis, is the pain generally worse as the day progresses or what?- - - Yes.
What do you normally tend to do during the day? What's your normal day these days? - - -   These – these days I'd – I'd probably – this time of the year I'd be up probably around 4.40 – 4.40 – 4.30, somewhere around there. I'd probably just grab something to eat and I'd go and drive down to the beach. I'd actually drive to our other property and from there I would walk down to the beach and I would spend an hour – hour and a half walking up and back on the beach. Then I would come back home. On the way home I'd pick up the paper and from – from there I'd – once I got home I'd start reading the paper and somewhere between 8.30 and 9 am I – I find that I go and lay down again on the bed and then throughout the day I would probably – approximately in 3- hour intervals I would – I would find myself having to go and lay down just to manage the pain, to stop the pain in my lower back from building up too high because if I miss out on a day by not laying down, or even if I extend the gaps from approximately a three hour gap, if I extend it to 5 or 6 hours, the pain escalates. It just – you know, it really starts going up and I find that by not laying down, if I didn't lay down for a whole day, the next –the next day the pain level would be twice as much as it was the day before.
Are your movements restricted? That is, your bodily movements restricted as a result of the - the pain?- - - I don't really think my body movements are restricted inasmuch as that I can still move but I've got to watch – the main thing that I've got to watch is that I don't turn my head beyond a certain point because it's like a - it just binds – as soon as I turn it too far it just crunches and immediately it just – just sets off a shockwave through my neck and up into my head and down under my armpit.
Okay. In relation to your condition generally since the time you came off the boat to now, would you be – do you believe that you'd be able to go back to sea?- - - Well, I hate – I hate to say – I hate to say this, but – but now I believe I can't.
And what is it that makes you say that? Why is it?- - - I think the main reason that makes me say that is that I know that I've got to walk on – being on board a vessel, I've got to walk on hard decks. Just walking on any hard ground really aggravates my lower back. Then the thought of helping do the various chores, the manual chores on board ship, I just – I just wouldn't be able to assist in those duties. I wouldn't even be able to carry my own travel bag through the airport."   (Transcript, pp24 – 26)

Under cross-examination, the applicant acknowledged that, by October 1994, the symptoms in his foot had resolved and the referred pain and sensory symptoms down his right thigh had almost disappeared, as reported on 25 October 1994 by Ms A Armanasco, an occupational therapist with the Commonwealth Rehabilitation Service, who had been treating him (see T17). He also acknowledged that, prior to November 1995, his neck had recovered as a result of treatment at the Pain Management Clinic but he said that in that month he again began to experience neck pain and headaches. He was referred to a report, dated 17 November 1995, by Ms J Pow, an occupational therapist with the Commonwealth Rehabilitation Service, which recited that the applicant had "started experiencing neck pain and headaches again over the past two weeks … which he feels may be related to tension over the settlement of his father's affairs". (T28) He acknowledged that at that time he was experiencing tension in connection with the settlement of his late father's estate and that this could have caused him also to experience neck pain.
The applicant was referred to a general practitioner's clinical notes (Exhibit R4) which recorded that, on 12 October 1987, the applicant had sought treatment for low back pain and that 15 years prior thereto he had injured his back when picking up a bag of crayfish. The applicant said that he could not recall consulting a doctor about a back problem in 1987 but he acknowledged that he was engaged in crayfishing in 1972 and that he may have had an incident involving his lower back at that time. He said, however, that he could not remember any such incident involving his lower back; nor did he remember having physiotherapy thereafter for six months or seeing an orthopaedic surgeon (as recorded in the abovementioned clinical notes). He acknowledged that he had told the doctors who had examined and treated him since the incident in March 1994 on board the "Laga" that he did not have any history of back injury and that he had never had any back pain prior to that incident.
The Evidence of Ms P Hill
Ms P Hill told the Tribunal that she has been the applicant's partner for the last 12 years. An affidavit sworn by Ms Hill on 10 December 1998 was tendered in evidence (Exhibit A19). In that affidavit Ms Hill described their lifestyle before March 1994 and the effects of the relevant March 1994 incidents on the applicant and their lifestyle as follows:
"…
2.Before Gary sustained the injuries in the course of his employment with the Respondent he was an active and outgoing person.
3.Our lifestyle was one in which Gary frequently worked away but during the periods he was at home we were busy and went out socially for lunches and had a good lifestyle, going to movies, shows and spending time with friends. Gary always helped with the shopping and similar duties.
4.Gary went windsurfing and we had gone on snow skiing holidays and generally travelled during his periods onshore. Our lifestyle when he was onshore was busy as we only had limited periods of time when we could be together and carry out these activities.
5.From a business point of view I do not do much differently than I did before Gary's disability because my role was purely administrative. The businesses however are very much quieter now because of Gary's inability to take an active participating role.
6.I feel since Gary had his injuries I have become almost a full time live in nurse/carer.
7.The need to assist Gary because of his injuries has increased rather than decreased and I feel this is because initially after his accident he was taking large amounts of painkillers which hid most of his pain. Now that he is on lesser amounts of medication he is aware of his pain on a daily basis.
8.I feel that Gary's personality has altered because of his symptoms. He is much more subdued than prior to the disabilities.
9.Dr Main showed me how to insert the acupuncture pins and he gave me scissors and instructed me on the use of the pins.
10.I am required to insert acupuncture pins at intervals which depends on Gary's pain levels. The frequency of the use of the pins depends on the level of activity eg. when Gary has been walking on hard surfaces, attempted a physical chore or recently travelled to Perth, I have to insert acupuncture pins, or extra pins, because the pain for him is intolerable.
11.Walking on soft sand is something which does not aggravate his condition and we try to do this as frequently as possible.
12.In addition to inserting the acupuncture pins I massage Gary with either Tiger Balm or Deep Heat. I also prepare hot water bottles for him and give him Panadeine Forte and Disprin to take.
13.On the infrequent occasions when we do go out I drive as often as I can as driving does aggravate Gary's condition.
14.We tend to pick and choose where we go because of Gary's symptoms and sometimes we elect not to attend a particular function as we are aware that it will aggravate his symptoms. In fact I now tend to go to functions involving our daughter alone.
15.The reason that I tend to go to functions alone is that Gary prefers to stay at home where he can manage his pain in the comfort of his own home, and he is always concerned about losing bowel control.
16.I find it very irritating because my sleep is disturbed because Gary is very restless during the night because of back pain and he complains of ringing in his ears. This happens almost every night and he wakes up in the early hours of the morning and moves around. This awakens me and causes me concern as I worry how he can cope with so little sleep. I often feel that I get my best sleep when Gary leaves the bed at approximately 5.00 am.
17.Gary has always been a hard worker and he finds it impossible to do anything by way of work because of his pain level. We are now required to employ sub-contractors or local school boys to carry out maintenance on our house which Gary would have done prior to his disability. Basically he has gone from a fit and healthy man to at times, almost an invalid.
…".

Ms Hill was asked about skiing holidays and said that she and the applicant last went on a skiing holiday in 1996 or 1997. She said that she, the applicant and a school teacher took a group of about 10 school children (including a son of the applicant) to a New Zealand ski field where they spent about 7 days helping the children learn to ski. Asked whether they had been on any overseas trips since then, Ms Hill initially responded "Not that I can recall, no" but then recalled that they went to Bali with their daughter for about 2 weeks "a couple of years ago … over Christmas time". (Transcript, p579)
The Medical Evidence
Dr L Cullen
Dr Cullen has been the applicant's treating general practitioner since March 1994 and he told the Tribunal that he had seen the applicant approximately 30 times since then. Dr Cullen issued the First Medical Certificate on 24 March 1994 (T6) certifying the applicant as unfit for work by reason of injuries to his left foot and back sustained in the incidents on board the "Laga" in March 1994 and he issued a further 11 Progress Medical Certificates during the period from 9 April 1994 to 6 December 1996 (Exhibit A14) certifying that the applicant continued to be unfit for work. Dr Cullen prepared a medical report dated 17 September 1997 (Exhibit A12) in which he expressed agreement with the diagnosis, by various specialists who had examined the applicant, of a soft tissue injury to the applicant's neck and lower back sustained in March 1994 and stated that that the applicant "appears unfit for work as a ship's mate". In a subsequent medical report dated 19 January 1999 (Exhibit A13) Dr Cullen summarised his findings on examination of the applicant's neck and lower back and, as regards his capacity for employment, concluded:
"Patient would seem unfit for an active physical job due to restrictions in ability to walk much distance, unable to lift or carry objects and restricted mobility and agility. Patient would appear suitable for being self-employed in a sedentary job."

In his oral evidence Dr Cullen confirmed that, having discussed with the applicant the duties of a "first officer", he was of the opinion that the applicant was unfit to return to that occupation.

In cross-examination Dr Cullen agreed that a soft tissue injury – such as that diagnosed in relation to the applicant's neck and lower back as a result of the incidents on board the "Laga" in March 1994 – would normally be expected to improve. Dr Cullen noted, in the course of his examination of the applicant, that the applicant was "well-muscled" and "quite well built". He added:
"I thought physically that he was in fairly good shape apart from his posture which I thought was always very poor but physically he looked quite well nourished and quite strong". (Transcript, p 155)

Dr Cullen also agreed that the opinions expressed by him in his reports regarding the sorts of activities that the applicant can and cannot perform were based on the history and reports given to him by the applicant. He added:

"Each contact with the patient was based very much on his subjective … complaints and my objective findings were very much based on … how he walked and how he stood and so forth and my examination". (Transcript, p154)

In response to questions from the Tribunal Dr Cullen agreed that clinical notes made by a locum general practitioner on 12 October 1987 (before he took over the practice) appeared to indicate that the applicant had suffered an injury to his back 15 years earlier and had been referred to an orthopaedic surgeon and that his back had then been "good for years" but had "started to go bad over the last year". Dr Cullen added that those notes had caused him some concern because, when the applicant had consulted him on 24 March 1994 regarding a back injury sustained in the incident on board the "Laga", the applicant had told him that he had had no previous back problems.
Dr Cullen was also questioned about a comment in his report of 19 January 1999 (Exhibit A13) that the applicant remained standing throughout the consultation. Dr Cullen's response was as follows:
"He's always been like that. Any time he's come into my surgery he has stood up and moved around and jittered and been restless. I've never seen him sit down for a prolonged period of time.
Do you think that restlessness is due to pain or due to anxiety?- - - I think the latter. I think he is a very anxious chap and his body language to me has always exhibited, has always been of a sort of an anxious, rather distressed sort of tense character." (Transcript, p175)

Mr M McCallum

Mr M McCallum, orthopaedic surgeon, first saw the applicant on 29 April 1994 on a referral from Dr Cullen. Mr McCallum subsequently prepared a report dated 18 May 1994 (T10) which referred to tenderness over the "MTP joint" in the middle toe of the left foot and tenderness in the lumbo-sacral area, particularly over the L5/S1 facet joint areas and concluded that the applicant's "main problem" was that relating to his left middle toe and that arrangements had been made to explore that in the near future. On 28 June 1994 Mr McCallum reported on the results of a surgical exploration by him of the metatarso-phalangeal joint in the middle toe of the applicant's left foot involving the removal of a piece of loose bone. (T12) Mr McCallum subsequently referred the applicant to Mr P Watson, neurosurgeon, for investigation of his neck and lower back pain (Mr Watson's findings are referred to below).
More recently, Mr McCallum saw the applicant again on 17 December 1998 and prepared a report, dated 21 December 1998, addressed to the applicant's solicitors. (Exhibit R18) That report states:
"Present Complaints
(1)He told me he still had low back pain, pointing to the L4-5 level, mainly right-sided. This increases in intensity during the day when he gets a fuzzy sensation into his left buttock, left lateral thigh to just above his knee. He tells me that when this is really severe, he gets trouble with his bowels. The pain here can be relieved by acupuncture pins.
(2)He gets neck pain from about the C3-4 level radiating up into the occipital area. This varies in intensity. It can come around to his frontal area from the occipital area.
He is still complaining of a disturbed sleep pattern. He gets tinnitus in both ears and I understand he is still under the management of David Main.
On examination
On examination, he still looks fit and muscular. He has put on some weight. He walks with a rather ponderous gait. On forward flexion he flexes well but in the recovery, there is a reverse of the normal pattern of extension. On left lateral flexion he hinges at the L4-5 level. On right lateral flexion there is a block to lateral flexion at L4-5. I could detect no abnormal movement in the sacro-iliac joints on forward flexion. He stands with a poor posture with a flattened lumbar lordosis, a thoracic kyphosis, a protuberant abdomen, pronated feet and really an appalling stance. He can in fact correct all this very easily when instructed to do so. I think it should be heavily stressed on this man that his posture is very relevant to his pain. As can be seen on the X-rays of his lumbar spine, the bone to bone contact at the posterior ends of his facet joints I think is entirely due to this poor posture and in themselves can explain a fair amount of his pain.
Neurological examination of the legs revealed a normal femoral stretch test. Straight leg raising was 90-90 with a negative Leseque. Knee jerks, ankle jerks, plantars and sensation were all normal. There is no tenderness in either sciatic or femoral nerves. The only other comment I would make is that there is wasting in the L3-4 and L5-S1 area of multifidous.
Examination of the cervical spine showed a good range of movement, maybe slight loss of lateral rotation. There is generalised subjective tenderness throughout the cervical spine but no definite localised area. Looking at the CT, the surview confirms the lordosis in the lumbar area and confirms the changes in the facet joint of posterior joint contact. It would be very interesting to see a CT of his back when his lumbar spine is in a more normal posture.
Opinion
This man is a difficult one to assess. He looks fit, he stands in appalling posture and there is not a great deal of positive findings to explain his multiplicity of complaints. As far as I am concerned, the positive findings are at the L4-5 level where there could be some lateral instability, particularly to the left and there is also some reduced movement in the left sacro-iliac joint."

Mr P Watson

Mr P Watson, neurosurgeon, made a report dated 22 October 1994 (T16) to Mr McCallum concerning the applicant in which he stated:
"Clinical examination revealed some very slight reduction of cervical spine movement but really no hard neurological signs in either of the upper limbs and well preserved reflexes. There was nothing to suggest radicular compression. The low back is tender on the right hand side over L4/5 and L5/S1 but neurological examination of the limbs again is normal.
I have reviewed his myelogram and CT scan findings of both the cervical and lumbar spine area and it has not really shown any area of radicular compression of the cervical spine. I think my next step in investigating Gary would be to get some EMG and nerve conduction studies done of the left arm to see whether this helps cast any more light on the diagnosis."

In a follow-up report dated 7 December 1994 (T19) Mr Watson confirmed that he had arranged an EMG study of the applicant which showed "only very minimal evidence of C8 nerve root on the left" and stated that he had asked that the applicant be reviewed by Dr R Goodheart who had conducted the EMG study.
Dr R Goodheart

Dr R Goodheart, neurologist, gave oral evidence. He confirmed that he had prepared various reports in relation to the applicant. In his first report to Mr Watson, dated 9 December 1994 (Exhibit A6), Dr Goodheart recited the history as given to him by the applicant and summarised his findings on examination and conclusions as follows:
"On examination today his heart rate was 72/minute and blood pressure was 130/80. There were no carotid nor cranial bruits. The visual fields were full and fundoscopy was normal. The remainder of the cranial nerve examination was within normal limits. There was a limited range of neck movement particularly extension and lateral flexion to both sides. He was tender over the right cervical spine at the C7 level. There was no focal muscle wasting in the upper limbs and the deep tendon reflexes were quite symmetrical. His power was also strong throughout. The sensory examination could not be faulted. Abdominal reflexes were intact. In the lower limbs tone was normal and again the deep tendon reflexes were symmetrical with bilateral flexor plantar response. There was no sensory loss and his power was strong.
As you know I found some minor irritation perhaps at the C7 or C8 level with the EMG study recently. I did look at his cervical spine and lumbosacral myelograms today. Somewhat surprisingly no abnormality is seen at the C7/T1 level on the post-myelogram CT.
I think it is most likely that Mr Tremaine is describing continued soft tissue discomfort. His symptoms in the left arm and right leg are radicular in nature but there are no particular signs on the current neurological examination. There are no definite radiological features of nerve root compression."

Dr Goodheart reviewed the applicant on 17 January 1995 and made a report dated 17 January 1995 (Exhibit A7) to Mr Watson. In a comprehensive report dated 20 March 1995 (T24) to the respondent, Dr Goodheart summarised the results of that review and a subsequent MR examination as follows:
"On my subsequent review on17th January, 1995 there had been little change in his symptomatology. During the Christmas new year period he reduced the number of physiotherapy visits and this did correspond with a mild improvement in left arm symptoms. There was no change on the examination. I did go on to repeat the neurophysiological studies. There had been no significant change since the initial study of 29th November, 1994. In particular the cervical paraspinous muscles did not show denervation change. Denervation change in the cervical paraspinous muscles would be an indicator of nerve root irritation.
I have noted the previous reports of neck and lower back x-rays including the myelogram series. Mr Tremaine underwent cervical spine MR examination on the 14th March, 1995. No particular nerve root compression was seen at the lower cervical spine levels. There was some evidence of disc movement at C5/6 with some degenerative change at the level above."

In a report dated 21 March 1995 (Exhibit A8) to Mr Watson, Dr Goodheart summarised his findings on examination of the applicant as follows:
"On examination today his range of neck and lower back movements remain unchanged. The deep tendon reflexes were relatively symmetrical on the upper limbs and I could not detect any focal weakness. The right ankle jerk is somewhat depressed but the plantar response was flexor bilaterally. There was no focal weakness nor sensory change in the lower limbs.
His recent cervical MR scan does not show particular compression of nerve roots at any one level. However the majority of the degenerative changes are in the mid to upper cervical region. There is no definite evidence of cervical cord compression.
I feel that we are obliged to pursue similar investigations at lumbosacral level. I will perform EMG and nerve conduction studies in the near future and will check his lumbosacral CT scan on next review. It may be wise to proceed to myelography or (if available) lumbosacral MR scanning in the near future if his lower back symptoms persist. I will keep you informed."

In a follow-up report dated 31 March 1995 (Exhibit A9) to Mr Watson, Dr Goodheart stated:

"Mr Tremaine continues to have a number of symptoms without definite signs of neurological impairment. In the last week he has continued to experience predominantly right lumbosacral pain with some radiation into the right buttock region.
I performed neurophysiological studies today. The results are summarised in the accompanying report. There was no evidence of acute radiculopathy at lumbosacral level. I also repeated the needle examination at the cervical level and there has been no development of neuropathic change.
A CT scan of the lumbosacral spine on the 27th March, 1995 was basically unchanged since the previous study in May of 1994. There was no particular foraminal narrowing.
I feel that the majority of Mr Tremaine's symptoms remain at soft tissue level. Despite his late start with a rehabilitation programme, it seems that his active physiotherapy has exacerbated his symptoms on at least two occasions. His appropriate treatment remains the judicious use of rest and exercise."

Finally, Dr Goodheart made a report dated 5 January 1999 (Exhibit A10) to the applicant's solicitors which, after reciting the previous history relating to the applicant, continued:
"Mr Tremaine was reviewed on the 5th January, 1999. Over a period of three and a half years he had continued to be troubled by neck and lower back symptoms. I was told that he was troubled by daily lower back pain. Generally this pain would range from forty to fifty percent of maximal but could increase to seventy to eighty percent of maximal if he was unable to rest. The pain was described as being central but also experienced off to the right lower back region. There was some radiation of pain into the right buttock with an associated 'wet feeling'. There could be pain over the right lateral thigh. Occasionally the pain would radiate through the leg and into the foot.
Mr Tremaine continued to experience a dull constant neck ache. Occasionally there could be a sharp 'crunching' component to pain. This pain would radiate from the neck through the occipital regions to the frontal head regions. Mr Tremaine described associated muscle contraction headache. Pain could also radiate from the neck into the left arm. The distribution of this pain suggested irritation of the left C7 nerve root.
Mr Tremaine had found some benefit through pain management techniques including chiropractic and acupuncture treatments. I was told that activities such as walking on hard floors would exacerbate his lower back symptoms. On a daily basis he was still requiring two to four periods of bed rest. He could require periods of rest of ten minutes to two hours duration.
The examination on the 5th January, 1999 showed his heart rate to be 72/minute and blood pressure was 120/80. I found the visual fields to be full and the optic discs were normal. The remainder of the cranial nerve function was within normal limits. There was a marked limitation of neck movement particularly lateral flexion to both sides. There was tenderness over the lower cervical spine. I could not detect any focal muscle wasting nor weakness in the upper limbs and the deep tendon reflexes were symmetrical. In the lower limbs I found the muscle bulk, power and reflexes to be symmetrical. There was no consistent sensory loss.
I did note that Mr Tremaine had undergone lumbosacral spine x-rays in January of 1998. No interval change had been detected.
At the time of my most recent review, it was my opinion that Mr Tremaine continued to experience symptoms which could be explained, predominantly, on the basis of soft tissue injury. He was describing soft tissue symptoms in relation to his cervical spine. These symptoms were still associated with muscle contraction headaches. Although there was some radiation of pain into the left arm I could not find definite evidence of nerve root irritation. I did not feel that there was any scope for surgical intervention at the cervical spine level.
In addition, Mr Tremaine was describing predominantly soft tissue symptoms in the lower back. I did not find specific clinical evidence of nerve root irritation at the lumbosacral region. However, I felt that he was intermittently irritating the lateral cutaneous nerve of the right thigh. This accounted for his intermittent symptoms of pain and paraesthesia over the right lateral thigh region. I did not feel that surgical intervention was indicated.
Overall I felt that it was most appropriate that Mr Tremaine continue to manage his symptoms with the appropriate use of rest and exercise.
Given the nature of the ongoing symptoms and his need for frequent periods of rest, I felt that Mr Tremaine was unfit for full-time work activity of any nature. I felt that he would be fit for part-time work activity which was home based. This would allow frequent periods of rest. I am not aware of part-time work outside of the home which would accommodate frequent and variable periods of rest."

In cross-examination, Dr Goodheart agreed that the usual tendency is for soft tissue injuries in the neck and lower back to get better rather than worse, but he added that they can get worse. He said that his diagnosis of a patient is based on the history, the examination and the investigations but he acknowledged that he does not generally attempt to test the genuineness of a patient's complaints and he does not do any "detective work". As regards the opinion, expressed in his report of 5 January 1999, that the applicant is unfit for full-time work, Dr Goodheart's evidence was as follows:
"--- I think that he's got pain – he's telling us he's got pain, he is going to do what he feels he can do.
So you say that he shouldn't go and work, for instance, on a ship – or you would say that? - - - I think I've said - - -
Because you gave him the restriction you said that - - -? - - - I've said that with the history that I have, with the history of his complaints and how he deals with them, I was told that he needed frequent periods of rest.
Correct? - - - I was told recently that he needs to lie down for X minutes every – three or four times a day, I think I have that written down.
That's right? - - - And under those circumstances I've drawn the conclusion that he would not be able to return to work as a ship's – whatever, and I don't know of any work other than home work – work at home, that would accommodate that sort of treatment.
And if he said to you: look, I have some pain in my lower back and I have some pain in my neck but I feel fit enough to go back and work on a ship, you wouldn't disagree with that either, presumably? - - - No." (Transcript, p142)

Dr D Main

Dr D Main told the Tribunal that he is a general practitioner with a particular interest in the management of pain disorders and an interest in herbal medicine. He confirmed that he had been treating the applicant since early 1995 and that he had prepared various medical reports regarding the applicant's condition.
In a report dated 19 May 1995 (T27) to Dr Cullen, Dr Main recited the history, summarised the clinical and radiological findings and expressed his opinion regarding the applicant's condition as follows:
"In light of the above clinical and radiological findings it is my opinion that Mr Tremaine is suffering from widespread post-strain/overuse injuries affecting two regions:
1.Upper back/cervicobrachial segments.
Findings within this region are well within the spectrum of myofascial pain syndrome. Response to treatment on review supports this, despite the presence of radiological cervical spine degenerative changes.
2.Lumbar.
Findings in this region suggest the presence of a nociceptive focus possibly involving the L4/5 disc with secondary myofascial pain relating to surrounding soft tissue structures like the posterior longitudinal ligament.
He has been commenced on a treatment programme along conservative lines involving myofascial therapy, Acupuncture, use of a TENS Unit, chloro-flouromethane muscle release and supportive lumbar bracing.
On review to date he has shown a rapid response to treatment with near complete resolution of neck, upper back and arm symptoms and an early improvement in pain response in the lumbosacral area.
His overall prognosis in regard to the upper segment pain is excellent, but the lower segment at this stage remains guarded and will depend on his response to continuing treatment."

In a report dated 29 April 1996 (T29), to a workers' compensation insurer, Dr Main essentially repeated the summary of the clinical and radiological findings contained in the abovementioned report of 19 May 1995 and expressed his opinion regarding the applicant's condition and work capacity as follows:

"In the light of these clinical and radiological findings it is my opinion that Mr Tremaine has sustained traumatic strain injuries affecting two regions.
1.Upper back/cervicobrachial area. Findings within this region are well within the spectrum of a myofascial pain syndrome.
2.Lumbar. Findings in this region are similarly suggestive of soft tissue pain involving deep paravertebral musculature.

Treatment has consisted of a conservative programme involving acupuncture, trigger point therapy, use of a TENS unit, laser therapy, lumbar paravertebral fasciotomy and lumbar bracing. He has had complete response of his upper segment pain and arm symptoms and is now free of symptoms in this region. In the lumbar spine his response has also been good, although not complete. Prior to treatment he experienced frequent, severe pain with faecal incontinence, pain level 9 to 10. His current pain is managed well, usually maintained below level 5 out of 10.
Mr Tremaine's prognosis for a return to work in his previous capacity as a ship's master is poor. Likewise, it is my opinion that he will not in future be fit for any work of a heavy nature, or which involves bending, lifting or straining.
He is fit for light clerical or administrative work that does not require prolonged sitting or driving…".

Dr Main provided a report dated 19 August 1996 (T31) to Dr Cullen as follows:
"Mr Tremaine has been attending for continuing problems related to his workplace accident of last year (sic).
His problems remain:
1.Low back pain;
2.Upper back and shoulder girdle pain on the left;
3.Bilateral tinnitus and mild left sided hearing loss.
Low back pain remains his major disability. His pain is managed well and varies now between levels of 2 and 5 out of 10. He has had further acupuncture courses and continues to use a TENS unit.
It is clear he will suffer some long term disablement from the injury. He is unable to engage in work of a heavy nature, or work involving bending, lifting or straining. Furthermore, he suffers an exacerbation of pain with sitting for more than 20-30 minutes.
His upper back and shoulder pain causes infrequent problems only and is not disabling.
…".

Dr Main prepared a report dated 19 November 1997 (Exhibit A16) for the applicant's solicitors. That report recited the history of the applicant's work-related injuries in March 1994, summarised his subsequent medical treatment and continued:
"Mr Tremaine gave a detailed written history of his current symptoms.
These are as follows:
1.Tinnitus
He complains of constant bilateral tinnitus. He describes awaking each morning between 1.30 and 2.30 am with 'loud ringing/screaming in my ears which prevents me from returning to sleep.' He notes difficulty in discerning conversations if background noise is present.
2.Back pain
He states that back pain is continuously present. This is described as 'like I have a wedge of wood or a blunt spear hammered into my low back'. This pain is exacerbated by certain postures, and is worse with activity. He has a sitting tolerance of 30 minutes, but prefers not to sit at all. For instance, he performs all paperwork whilst standing at his raised desk, and only sits if well supported by cushions, or when driving. His standing tolerance when stationary is 5 minutes. He experiences exacerbation of pain when walking on hard ground, when carrying objects over 3-5 kg, and when lifting over 10-15 kg in weight. Any activity that causes jarring results in exacerbation of pain. He has episodic severe exacerbations of pain resulting in faecal incontinence, and this occurs on average every ten days. Pain is centred on the low lumbar area, more so on the right side, and is associated with a feeling of numbness and tingling in his right buttock and lateral right thigh….
3.Function
He reports severe limitation in his functional capacity. He is unable to engage in many of his pre-injury activities in both vocational and recreational capacity. He cannot perform physical activities in relation to his farm or quarry. He is limited to light clerical or administrative work in his businesses, and he does all his desk work at a high bench whilst standing. He states that he now employs subcontractors to do the work that he once did. He cannot scuba dive or windsurf. He walks in waist to chest deep water, and swims gentle breast stroke or overarm for a limited time in summer to maintain some physical condition. He continues to use a number of aids in day to day life including back supports in both his vehicles, dental splint, back braces, and orthotic appliances in his footwear. He continues to take Naprosyn, Panadeine forte, paracetamol and Indocid suppositories for pain, as well as amitriptyline at bed-time. Furthermore he reports that his 'concentration now is shocking' and that he has had to forgo study for higher qualifications because of his inability to concentrate. He also suffers from headaches.
On examination Mr Tremaine was a muscular looking man, 179 cm tall and weighing 83 kg. He was wearing his lumbar brace, and had acupuncture pins in situ. His range of lumbar back movement was 9-13 cm over a 10 cm segment, demonstrating a mild reduction in range. Likewise his neck and shoulder motion was also restricted at the end of range. Slump test and straight-leg raise were normal. On palpation, marked tenderness was present in a paramedian position in the right L5 position. This tenderness was sharply defined and consistent with tenderness noted by myself in many previous examinations of his back. Tenderness was also present but less marked in upper right quadratus lumborum muscle, and in the neck in left suboccipital, left paravertebral C6, left upper trapezius, and left scapulothoracic muscles. Tenderness was also present in muscles of mastication bilaterally and over the right scapula. No neurological abnormality was noted.
Mr Tremaine did not make his radiological investigations available for review. These have previously been reviewed by myself and reported on in my letter to Dr Cullen of 19 May 1995, and to MMI on 29 April 1996. In my opinion on these occasions no significant abnormality was present on X-Ray, CT scan, or MRI scan of his lumbar spine.
My diagnosis therefore remains one of soft tissue injuries to lumbar and cervico-scapular regions. His symptoms and examination findings have been consistent and reproducible during the period that he consulted me, and remain so currently.
In my opinion, Mr Tremaine is totally incapacitated for work as a ship's officer. This opinion is based on his current presentation and the requirement for physical activity required in his duties as a ship's officer, particularly during heavy weather or emergency. Furthermore, in my opinion Mr Tremaine is fit only for work in a part-time light duties capacity, for example, clerical work or administrative work, for a maximum of 20 hours per week. A strict restriction on sitting would need to be observed, as well as on bending or lifting. His incapacity is, in my opinion, a direct consequence of his work injuries as listed above, and is likely to be long term.
…".

In a further report dated 15 January 1999 (Exhibit A17) to the applicant's solicitors Dr Main stated:
"I reviewed Mr Tremaine on 11 January 1999.
Very little has changed in his condition, and what change there has been has been for the worse. He gives a consistent and repeated history of pain and disability very much like that of my last report of 19 November 1997.
His main problems again as he related to me are:
1.Tinnitus
He complains of constant tinnitus. He has had no benefit from specialist tinnitus services to date. He still awakes at night with tinnitus.
2.Back pain
He accurately localizes right low lumbar back pain to the exact site noted in my previous examination. His wife continues to perform acupuncture in this area from my instructions some 18 months ago. The pain radiates into his right buttock and into his leg. He still has intermittent faecal incontinence due to pain. He now uses a walking stick when he comes into Perth City for fear that his right leg will collapse unexpectedly.
3.Left arm and neck pain
He has noted the recurrence of pain in his lower neck which seems to radiate into his left shoulder blade and his left forearm and hand. This was previously treated by myself and had resolved.
4.Function
There has been further deterioration in his functional level. He said he can no longer look after his farm or his quarry. His recreational life is severely curtailed. He has some elements of depression, which he says is particularly relayed (sic) to his tinnitus. He said that at one time recently he has talked about suicide. He has not had any treatment for depression to date.
On examination, his weight was 86.2 kg, 3 kg more than in 1997. He was wearing a soft lumbar brace. He looked miserable. His range of lumbar back movement was 9.5-15 cm over a 10 cm segment. Straight leg raise was 60 degrees on the right and 75 degrees on the left. Tenderness to palpation was present in the exact same spot as in the previous examination, that is, on the right side at the L5-S1 level, some 4 cm from the midline. The site of tenderness was adjacent to the scars from percutaneous neurotomy performed by me previously. Also noted was muscular tenderness and palpable trigger points in right gluteal muscles as well as in the upper body in the following muscles: trapezii, sternomastoids, levator scapulae, and infraspinatii.
The diagnosis therefore remains unchanged. He has intractable lumbar soft tissue pain. He has had a recurrence of his upper body soft tissue pains in the muscles noted. Furthermore, he has chronic, unremitting tinnitus relating to his noise exposure whilst at work. He is also currently suffering from depression.
…".
In cross-examination Dr Main, when asked whether it was "reasonable to say that soft tissue injuries generally recover", responded:
"No, it's not at all reasonable to say that". (Transcript, p246)

When asked about his method of testing a patient's functional limitations by reason of pain, Dr Main stated:

"I think a medical diagnosis relies more on history than it does on examination".

In clarifying that statement, Dr Main said:

"… the examination of course is not irrelevant in the assessment. We try to in the time available to us gain an impression of the physical capabilities of the patient in the light of their history". (Transcript, p247)

Dr Main thought it significant that the applicant's reports of pain and the localisation of tenderness in his lower back were always extremely consistent. He added:
"I think one of the characteristics of the malingerer is that the site of pain is often poorly localised and variable …". (Transcript, p250)

Dr Main was referred to a videotape, tendered in evidence by the respondent (Exhibit R5), which purported to show the applicant engaged in various activities on 1 and 2 April 1996, 28 November 1996 and 17 January 1997. Dr Main acknowledged that that videotape showed the applicant to be flexing his back in an apparently normal manner, squatting, sitting in a restaurant, getting out of a car (allegedly after having driven a distance of approximately 60 kilometres) and appearing to be comfortable, but he said that the videotape showed the applicant engaged in a range of only "very light activities" and did not show him performing a full range of movement. He said that he believed that the applicant is suffering from the pain he describes and is not fabricating or exaggerating his symptoms and that viewing the videotape had not caused him to change that opinion.
Dr A Harper

Dr A Harper told the Tribunal that he is a specialist occupational physician and that he had seen the applicant on one occasion, namely 12 March 1998, and had, at the request of the applicant's solicitors, prepared a report dated 13 March 1998 (Exhibit A5). That report recited the history of the applicant's work-related injuries in March 1994, his current pain symptoms, his work history and his current activities and continued:
"PHYSICAL EXAMINATION
On examination today Mr Tremaine is a man of stated age who is well muscled and only slightly overweight. He stood through most of the interview moving and walking about. His posture was normal. Power in his legs was normal, reflexes normal and sensation was normal apart from a slight subjective reduction in sensation over the left lateral thigh. Straight leg raising was 85º bilaterally with a negative stretch test. Range of movement of the lower back was normal in side flexion and rotation and extension. He said that extension relieved his symptoms. In forward flexion his hands reached the upper shin. Squatting was unimpeded. Range of shoulder movement was normal. There was slight reduction in side flexion of the neck to the left and right and also in forward flexion. Extension and rotation of the neck were normal.
ANSWER TO QUESTIONS
In response to your questions, I have the following comments to make:
…
(c)Findings on physical examination are given above. He is suffering from chronic low back pain and neck pain and mild deafness and tinnitus.
…
(e)I feel Mr Tremaine is totally and permanently incapacitated for work as a ship's officer. The basis of this is his intolerance of jolting, bending and manual work, rapid movements of the neck and walking on hard surfaces.
(f)Work restrictions include avoidance of manual work, going to sea, avoidance of prolonged standing and avoidance of prolonged sitting. He needs to change his position regularly and when standing to be able to walk about and move. He requires to be able to take intermittent breaks as required. I feel Mr Tremaine should be able to work 40 hours per week if self-employed. There is a probability that he would not be able to tolerate continuous working hours full time if working as an employee or in a workplace which was not controlled by him. He needs to be able to rest and stagger work hours as required.
(g)I attribute his work incapacity to the injuries in question and I have not identified other factors contributing to his work incapacity.
(h)I feel his work incapacity is permanent.
…".

In cross-examination Dr Harper agreed that his assessment of what the applicant is able, and unable, to do was based on what the applicant told him, and that there was no neurological or pathological basis, other than some degenerative change in his neck and back, for his complaints of pain and incapacity. He said that the only physical abnormality he identified in his physical examination of the applicant was a "slight reduction" in side flexion of his neck, both to the left and to the right, and some reduction in forward flexion. He also agreed that the applicant had good muscle mass and good muscle tone and that there was no lack of symmetry in his musculature.
Dr Harper said that the applicant did not complain that he was unable to bend, stand or sit at all – rather, that he was unable to do so for prolonged periods. He also said that the applicant did not present to him as a person malingering, or feigning or exaggerating pain symptoms and incapacity.
Mr J Bell
Mr J Bell, orthopaedic surgeon, confirmed that, at the request of the respondent, he had examined the applicant on two occasions and had subsequently prepared two medical reports dated 17 January 1995 (T21) and 3 March 1998 (Exhibit R6). In his report of 17 January 1995 Mr Bell recited the history of the applicant's work-related injuries in march 1994, his complaints of pain symptoms in his neck and lower back, his treatment and his employment history and continued:
"OBJECTIVE:
On examination:
He appears in excellent general physique at 82 kilograms with good posture and good general muscle tone. He has a full range of movement of all the joints of his upper and lower limbs. There are no obvious positive neurological signs in his upper or lower limbs at this stage. He has a full range of movement of his cervical spine with more discomfort on extension and rotation to the right. He indicates tenderness diffusely in the upper trapezius muscles more so on the left. There is no tenderness or muscle wasting in the upper limbs and no change in sensation in the upper or lower limbs. Reflexes are brisk and equal in the upper and lower limbs. Range of movement of his lumbosacral spine is about 60% of normal with more discomfort on flexion. Abdominal muscle tone is excellent. He is able to walk well on his heels and toes and squat. He indicates tenderness diffusely over the spinous processes from L4 to S1 and over the right sacroiliac joint."

He then summarised the results of "imaging investigations" and continued:

"ASSESSMENT OF HEALTH PROBLEMS:
1.Soft tissue injury cervical spine region musculotendinous and ligamentous in nature mostly in left upper trapezius muscle. No radiculopathy evident at this stage.
2.Soft tissue injury lumbosacral spine region with facet joint infalmmation over the lowest three mobile segments of the lumbar spine with no radiculopathy evident.
3.Abdominal discomfort since July 1994 ? related to Naprosyn intake.

FURTHER QUESTIONS will be given specific answers:
Prognosis:
Although he may have ongoing discomfort for some months I would not expect him to have any degree of permanent disability related to his March 1994 injury at work.
Capacity for work:
There must be some doubt about the situation. He indicates that his neck and low back problems are too severe at present to undertake duties at sea. I do have some doubt about the situation as his general muscle tone is excellent and it does appear that he has good function and it is difficult to support him in his view that he is unfit for duties at sea. It is a problem that he needs to be able to do heavy lifting and withstand bad weather and therefore on balance I feel it is reasonable to assess him as unfit for those duties on the offshore supply vessel.
Most duties however should be possible for him.
…".

In his report of 3 March 1998 Mr Bell recited the applicant's history, current pain symptoms and treatment and continued:

"OBJECTIVE:
On examination:
He is of excellent general physique at 84 kilograms much the same as before. He again has a full range of movement of all the joints of the upper and lower limbs. There are no obvious positive neurological signs in the upper or lower limbs. He has a full range of movement of his cervical spine with more discomfort on extension and rotation to the left on this occasion. He indicates tenderness diffusely in the upper trapezius muscle region in the left. Reflexes are brisk and equal in the upper and lower limbs. Range of movement of his lubosacral spine is now about 70% of normal with more discomfort on flexion. Abdominal muscle tone remains excellent. He is able to squat with some mild discomfort. He remains tender diffusely over the spinous processes from L4 down to S1 and over the left sacroiliac joint.
Imaging investigations:
29.1.98- A repeat COMPUTER TOMOGRAM of the LUMBOSACRAL SPINE does show some bulging of the L4/5 disc and otherwise these views are essentially within normal limits.
ASSESSMENT OF HEALTH PROBLEMS:
1.Soft tissue injury lumbosacral spine region with facet joint inflammation over the lowest three mobile segments of the lumbar spine. No radiculopathy evident.
2.Soft tissue injury cervical spine region muscolutendinous and ligamentous in nature mostly in the left upper trapezius muscle. No radiculopathy is evident.
3.Abdominal discomfort since July 1994 – on occasional weekly Mylanta.

FURTHER QUESTIONS will be answered by numbers:
QUESTION 1
Physical condition detailed above.
QUESTION 2
In my opinion the accidents on 7 March 1994, 16 March 1994, and 18 March 1994 could indeed have caused the particular soft tissue injuries to the neck and low back.
QUESTION 3
His condition does appear to have stabilised. As detailed above he indicates that there has been no recovery. However clinical signs do show excellent physique and muscle tone for his age and there does appear to have been reasonable recovery. A recent computer tomogram of the lumbosacral spine was essentially within normal limits.
QUESTION 4
Permanent disability:
As outlined on the 4th page of my January 1995 medical report I do not assess him as having any degree of permanent disability related to his March 1994 injuries.
…
QUESTION 7
Capacity for work:
As outlined in my previous medical report he does office work running his businesses including fishing interests in South Australia and a 200 acre property at Gingin with some cattle and a quarry operation which is subcontracted.
It does appear reasonable to assess him as fit for the above duties.
I remain of the opinion as outlined in my January 1995 medical report that he is unfit for duties at sea.
The course (sic) of his loss of capacity for work is his ongoing spinal problems with neck and low back discomfort. It is a problem that he needs to be able to do heavy lifting and withstand bad weather at sea and therefore on balance I fell it is reasonable to assess him as unfit for those duties on the offshore supply vessel."

In his oral evidence Mr Bell confirmed that, when he examined the applicant in January 1995, he appeared to be "a very fit man". He found him to have "good general muscle tone" throughout his limbs and his trunk which, he said, signified activity. He also found him to have "excellent" abdominal muscle tone which, he said, generally takes a lot of activity to maintain. He added that it is "unusual … for a patient with a significant low back complaint to have good abdominal muscle tone". (Transcript, p386) He also commented that the applicant had heavily muscled legs which suggested significant activity, and he added that that was "somewhat in variance with his history". (Transcript, p387) He also said that when he examined the applicant in March 1998, his findings were much the same as in January 1995.
Mr Bell confirmed his assessment that the applicant had, in the work-related incidents in March 1994, suffered a soft tissue injury to the cervical spine and to the lumbo-sacral spine. He agreed that, as a general proposition, soft tissue injuries are expected to improve over time and that it is unusual for them to get worse.
Mr Bell also confirmed that, on examination both in January 1995 and in March 1998, the applicant indicated tenderness "diffusely" – that is, "in a generalised area", in contrast with tenderness "which is specific to a point" (Transcript, p386) – over his lumbo-sacral spine from L4 to S1. He further confirmed that in January 1995 the applicant had indicated tenderness over the right sacroiliac joint, whereas in March 1998 he indicated tenderness over the left sacroiliac joint instead.
Mr Bell was questioned about the videotape (Exhibit R5) referred to in paragraph 46 above. He commented that the applicant's activity, as recorded on the videotape, was "significantly good" and that this was consistent with the objective physical signs which he had found at the two examinations which he had conducted in January 1995 and March 1998. He added, however, that the recorded activity was "considerably at variance with the history given". (Transcript, p388) Asked whether he was still of the opinion that the applicant is unfit for duties at sea, Mr Bell responded that the applicant "really is in good physical shape". (Transcript, p388) He also said that if the applicant came to him wanting to go to sea, he would "really have no problem at all agreeing that he was fit to do those duties". (Transcript, pp 388-389) He added that he had "struggled" with his earlier assessment that the applicant was unfit for sea duties.
In cross-examination, Mr Bell reiterated:
"that the video film supported the objective physical findings which were very much at variance with the history given. That it is difficult to support him in having a significant spinal problem with the muscle tone and physique that he has". (Transcript, p397)

Later in cross-examination Mr Bell's evidence was as follows:

"… the history given by the patient or by anyone else is very much at variance with the physical signs. You've told me that there's a 6-year history where he is considerably disabled and I haven't been able to support that with my objective physical findings and those objective physical findings are really supported by the video film.
Okay?- - - And very much at variance – significantly at variance with the history given by the patient.
From three quarters of an hour of video?- - - From objective examination the video is merely confirming my objective evaluation on two occasions which would have been brief times, presumably around about 40 minutes on two occasions in 1995 and 1998.
And where was it in your objective examination that you measured the level of pain he was in – objectively? - - - You can never- - -
Exactly? - - - - - - objectively measure pain, pain is a symptom.
Exactly? - - - But my objective evaluation of his health problems is very much at variance with the history of pain given.
And it is not unusual for there to be a discrepancy or difference between what you objectively observe via examination and what a person reports in terms of the levels of pain, is there? - - - Oh, no. I feel great pain in my office when I see physical signs that are very much at variance with the history, I feel very uncomfortable when that happens, it is not usual.
Not usual? - - - No.
No. It does happen? - - - It happens.
And at the end of the day you can't in any way say that he is not suffering from the level of pain that he describes? - - - I can say that the history given is very much at variance with the objective physical signs and with my evaluation and assessment.
…
Okay. Would your opinion expressed in the report of March 1998 have differed at all if you'd seen the video prior to examining Mr Tremaine on that occasion? - - - I don't believe so.
So, your opinion would have remained as it was at 3rd of the 3rd 98? - - - With the possible exception of the area of capacity for work. The video does make it much more difficult to support him being unfit for offshore duty." (Transcript, p404-405)

Dr J Silver

Dr J Silver, a specialist occupational physician, confirmed that he had prepared 5 medical reports in relation to the applicant.
In his first report, dated 28 November 1996 (T32), Dr Silver recited the applicant's general history, occupational history, and the history of the relevant work-related injuries in March 1994, and continued:
"EXAMINATION
Clinical Examination
He is 5'10" tall, of slim build, and looking 'in the pink of health'.
Despite this he sat slumped on his left side in the consulting room chair during the history taking, but he moved and undressed freely.
He was wearing a back brace, but the brace, that he says he has been wearing constantly for twelve months, has no structural support, and it appears to be hardly worn, with the velcro strapping appearing almost new.
He was wearing a TENS machine with electrodes that also appeared new, and it is noted that there was no evidence of ongoing sticky tape irritation in the lumbar spine which is the norm after prolonged use of such devices.
He was wearing acupuncture pins that were not touched.
Posture
Normal.
There was no guarding, spasm or tightness in the neck, shoulder girdle or paraspinal muscles.
Lumbar Spine
Active extension was full and free.
Flexion was limited to 60º before he dispassionately complained of pain 'like a toothache just between the acupuncture pins'.
Passive side flexion and rotation were full range but associated with grunting and alleged discomfort.
Gentle vertex pressure produced complaints of pain in the right side of the lumbosacral region.
He moved to the examination couch freely.
Lower Limbs
He was well muscled with well muscled lower limbs considering his age.
There was no wasting, and the tone, reflexes and sensation were normal.
Straight leg raising was full but he complained of low back pain at its extent on both sides.
He was able to sit and lean forwards on the examination couch although he bent his knees in doing so.
He complained of exquisite tenderness on gentle palpation of the spine from the sacral to the low dorsal spine, but the sites of this tenderness varied with repeated assessments.
When sitting on the side of the examination couch he was able to extend each knee separately and both together without complaints of pain or change of posture.
He re-dressed easily at the conclusion of the formal clinical assessment.
Special Investigations
CT scans of the spine show some minor disc bulging at the L4/5 level, but there is no significant abnormality.
OPINION
The man's history of low back pain is unconvincing. He may well have suffered a soft tissue strain in the circumstances he described, especially if he was favouring a fractured foot, but the natural history of such a condition is for gradual resolution of his symptoms.
This man's symptom complex is entirely subjective, without any objective radiological or clinical evidence to support, and, on the contrary, his general presentation, the appearance of the brace, the TENS machine and the inconsistencies in the clinical examination suggest that this man is malingering as defined in the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition) excerpts of the particular section from this reference being included with this report.
Even giving this man the benefit of the doubt as to accepting he is suffering some degree of low back discomfort, he is not impaired or disabled and, in my view, is fit for ergonomically sound activities including most duties of a Master Mariner, but, in doing so, it is my view that it is reasonable to restrict bending, twisting and heavy lifting, ie, heavy physical labour, with this view being taken for academic reasons, and to acknowledge the possibility, despite the unlikelihood, given the opinion expressed above, that this man does suffer from more than nuisance low back discomfort.
In coming to this conclusion, I am trying to look at the bigger picture of an individual who presents looking extremely well and healthy and who is, by his own description of his activities, apparently fit to run beef cattle, and to attend fences on his property, and be involved in an aquaculture project that will involve significant physical work not dissimilar, in ergonomic terms, from the work required of him as a Master Mariner Class 4. More information, however, regarding this will be presented following a worksite visit to an oil rig tender vessel similar to that on which he was employed at the time of his alleged injury."

In his oral evidence, Dr Silver confirmed that he had noted in his report that the applicant had no relevant medical history – which indicated that the applicant had responded in the negative when asked if he had had any previous back problems. He also said that the general duration of a soft tissue strain, such as that suffered by the applicant in March 1994, varies but usually it is weeks – days to weeks with minor soft tissue strains – but "not months and certainly not years". (Transcript, p435)

Dr Silver's second report, dated 12 December 1996 (T33), comprises a worksite assessment report as foreshadowed at the conclusion of the abovementioned report. In his second report, Dr Silver described the vessel which he had inspected, summarised the range of duties required of a Mate or Second Mate on that vessel (comparable to the duties which the applicant was required to perform on the vessel "Laga" at the time of the relevant incidents in March 1994) and continued:
"SUMMARY OF MEDICAL OPINION
This man is considered to be a fit and healthy individual with no significant physical, particularly back, problem and who is not disabled, being fit for any physical activity commensurate with his age. Giving him the benefit of the doubt, however, regarding his complaints of back pain, and notwithstanding the fact that there is no objective evidence of any physical problem, it is recommended that this man be given the benefit of the doubt and not required to work in heavy physical labouring activities. These comments are made despite the overt Abnormal Illness Behaviour demonstrated at his clinical assessment, and the impression he creates of being capable of performing a variety of heavy physical activities on his farm.
Under the circumstances, and with an understandably and appropriately uncompromising requirement of physical fitness at sea, it is considered inappropriate that Mr Tremaine be asked to return to sea in such a vessel. He could, however, return to sea as an Officer in a larger vessel where there was no requirement for him to perform labourer work.
SUGGESTED SUITABLE DUTIES
As already stated, whilst it is my feeling that this man is fit for unrestricted duties, it is my recommendation that he not perform heavy physical work, and that he not return to sea in oil rig or diving tender vessels, he is fit for light to moderate physical work, and could perform a wide variety of duties, considering his qualifications, including being an Officer on a larger ship if such a position were available to him, or to perform administrative/managerial work for his employer.
I would be happy to review any suggested vocation the company has, and to comment on Mr Tremaine's fitness for it, as well as his fitness to travel and to work at sea.
It is my view that this man is not restricted in terms of travelling from Yanchep to Perth, nor is he restricted from the routine physical requirements of being at sea, ie working at sea on a rolling ship, or of climbing ladders."

Dr J Kagi, orthopaedic surgeon, told the Tribunal that he examined the applicant, at the request of an insurance company, on 17 January 1996 and that he prepared a report, dated 18 January 1996, in relation to that examination. That report (Exhibit R9) summarised the history of the applicant's work-related injuries to his left foot and back in March 1994, and his subsequent treatment, and continued:
"Past History
He said that he had had no trouble with his back, neck or left arm prior to this injury.
Occupation
He says he is unable to resume his occupation which involves working both on the bridge and the deck of the ship because of his low back.
He says he is unable to lift heavier than twenty kilo and cannot bend fully. He said he could not tolerate the bouncing around in a high speed rescue vessel. In regard to driving he said he has driven from Yanchep to Mandurah and in fact did this twice recently with a lot of discomfort in the lower back.
Examination
I examined the cervical and lumbo-sacral spines. In the cervical spine there was no deformity but he was tender in the upper cervical spine in the mid line. His neck appeared to be fairly stiff and he could only forward flex so that his chin reached to within three fingerbreadths of his chest. Extension was to thirty degrees as was lateral flexion and rotation to either side i.e. considerably less than normal.
Neurologically there was some blunting of sensation in the medial aspect of the left arm and the radial aspect of the left forearm.
In the lumbo-sacral spine there was no deformity nor any tenderness. He appeared to be stiff in this portion of his spine also and he could only forward flex so that his fingertips reached to the upper tibiae however he would sit on the couch and reach to within an inch or two of his toes with his fingertips. Straight leg raising was not significantly restricted. Neurologically the only abnormality was slight blunting of sensation in the lateral aspect of the right leg below the knee.
There was no swelling or bruising or deformity of his left foot nor any localised tenderness nor any restriction of movement of ankle or more distal joints.
X-rays
He had many x-rays. I reviewed x-rays of the left foot taken on the 29th July, 1994 on which I could see no particular relevant abnormalities. X-rays of the lumbo-sacral spine taken on the 25th March, 1994 and repeated on the 14th August, 1995 showed longstanding degenerative changes in the form of marginal osteophyte formation of the L4 and L5 vertebrae. X-rays of the cervical spine taken on the 30th September, 1994 showed pre-existing degenerative changes extending from the C3/4 intervertebral disc space to the C6/7 intervertebral disc space. Myelograms and CT scans of both these regions of his spine showed posterior intervertebral disc bulges consistent with these degenerative changes in both portions of the spine. In the cervical spine they were more widespread and are associated with osteophyte formation at the C4/5, 5/6 and 6/7 levels and in the lumbo-sacral spine appear to be fairly well confined to the L4/5 level. A bone scan of the 4th May, 1994 showed no particular abnormalities in my opinion.
Summary
In my opinion this man sustained sprains of both lumbo-sacral and cervical spines. The former appears to be the one giving him most bother at the moment and his symptoms with respect to his cervical spine are minimal. It appeared though, earlier in the piece, that his cervical spine injury was associated with some radicular pain into the left arm which likewise has resolved to a large extent.
Whatever the injury to his foot was it appears to have resolved now.
On history all his injuries were due to the accidents in question, the foot to the injury of the 7th March, 1994 and the low back, neck and arm to the injury of the 16th March, 1994.
At the present moment I got the impression that he has recovered to a variable extent and I would regard him fit to resume work not involving lifting heavier than twenty kilo and, because of the particular aggravation of his complaint caused by the high speed rescue vehicle, apparently not for duties at sea. I would recommend any occupation that he resume not involve driving for longer than half an hour at a time.
Prognosis in the circumstances i.e. a work injury that has not changed despite complete rest off work for nearly two years, is guarded."

Dr Kagi also confirmed that he was subsequently provided with a videotape of the applicant's activities and that he prepared a further report, dated 4 June 1996, in relation to that videotape. That report (Exhibit R10) states:

"… I reviewed the surveillance on this man on the 30th of May, 1996. In the film I mainly saw evidence that he could move his neck apparently to a normal extent. I saw this whilst he was getting out of his car in a car park on the 1st of April 1996.
On the same day he bent over to tie a rope on a trailer and on the following day, the 2nd of April 1996, bent into the front seat of his car. Both these movements required a fair degree of flexion of the lumbar spine and, after the first occasion at least, he didn't appear to have any undue discomfort as a result of this movement. He was also seen to drive the car on several occasions.
As a result of seeing these films, his cervical spine at least would appear to be better than it was when I examined him and probably also the lumbar spine.
I am still of the opinion that he is fit for work not involving lifting heavier than 20 kilograms and I doubt whether the high speed rescue vehicle would really irritate his neck all that much, judged on what I have seen on the film.
The other restriction, driving, would seem to have been excessive also and I got the impression, again from the film, that he had no problems whilst driving."

In his oral evidence-in-chief, Dr Kagi said that he would have expected that the sprains of the lumbo-sacral and cervical spines sustained by the applicant in the March 1994 work-related accident, as described by the applicant, would have recovered within a period of approximately 6 weeks to 6 months. Dr Kagi also confirmed that the restrictions in relation to the applicant's work capacity, referred to in his report of 18 January 1996, were based on the history he obtained from the applicant regarding his work capabilities or lack thereof.
Dr Kagi was referred to the general practitioner's clinical notes regarding the applicant's seeking treatment for low back pain in October 1987 (Exhibit R4 – see paragraphs 24 and 29 above) and was asked, having regard to the contents of those notes, to express an opinion on the cause of the applicant's ongoing low back pain symptoms. Dr Kagi's response was as follows:
"Well, my full diagnosis was that he sustained sprains superimposed on the pre-existing degeneration in his spine and if he's still experiencing pain, I'd be of the opinion that the pain is more likely to be due to the underlying condition than to the sprain sustained on the – in the accident or the injury in 1994. And to substantiate my hypothesis, he did have the degenerative changes in his back on his x-rays and these had been long-standing and although Mr Tremaine told me – when I asked him the question in January 1996, that he'd had no – that he had had no previous back or neck trouble at all, full stop. This general practitioner's note in October 1987 would accord with my hypothesis of the natural history – would accord with my hypothesis and the natural history of a degenerative lumbar spine, that is, he had an episode of back pain and had had for the preceding few months – 12 months or so, according to his general practitioner's notes which were quite – quite full. And also, the general practitioner comments here that he had had an injury 15 years prior to that which had necessitated … having 6 months physiotherapy to no avail and subsequently seeing an orthopaedic surgeon. So that he had low back pain of sufficient severity in 1972 or thereabouts to see an orthopaedic surgeon. He had another episode sufficient to take him along to his general practitioner in 1987. He had this episode in 1994 and he has, I believe, ongoing backache, well I think this is just a natural history of a degenerate back." (Transcript, p527)

In cross-examination Dr Kagi said that he accepted that the applicant has a sore back. He added that he would expect the applicant to have a back ache given the degenerative changes in his back. Asked what contribution the relevant work-related incidents of March 1994 would have made to that degeneration, Dr Kagi's evidence was as follows:
"What contribution would the incidents that occurred in 1994 make to that degeneration? - - - It probably – it may well have exacerbated the rate of degenerative change.
And that may well mean that he is further down the track even now then he would have been otherwise? - - - It is a possibility.
Yes? - - - But to be even-handed with it, you would have to say that there is just as much possibility that that incident, like the previous incidents, settled in a finite – settled in a reasonable period of time. And then he has got back to the underlying pathology which has a natural history." (Transcript, pp538-539)

Additional Lay Witnesses

Mr B McNicholl and Mr M Wardle, who both hold senior positions with marine companies other than the respondent, were also called as witnesses by the respondent. It is unnecessary, however, for the Tribunal to refer to that evidence for present purposes.
The Legislation
Section 26 of the Act provides:
"If an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for the injury."

Section 3 of the Act contains the following relevant definitions:

" 'ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);"
" 'disease' means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment;"
" 'impairment' means the loss, the loss of the use, or the damage or malfunction, of any part of the body or the whole or part of any bodily system or function;"
" '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, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

…".

Section 8 of the Act provides:

"A reference in this 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."

The Submissions

Mr Stubbs (for the applicant) essentially submitted that the applicant sustained an injury to his left foot, his neck and his back in the work-related incidents which occurred in March 1994 on board the respondent's vessel "Laga", that the effects of those injuries are still continuing, and that they have resulted in the applicant's incapacity to carry out the duties that he was carrying out on board that vessel immediately before those injuries occurred. Mr Stubbs submitted that a factor contributing to the applicant's failure to recover fully from the effects of those injuries and also contributing, therefore, to his ongoing incapacity for work is his condition of tinnitus – which he sustained in another work-related incident in March 1994 (referred to in paragraphs 15-21 of his affidavit (Exhibit A1) set out in paragraph 19 above) and which the respondent has acknowledged is compensable under the Act – which interferes substantially with the applicant's sleep and has thereby delayed the normal recovery process.
Mr Lenczner (for the respondent) submitted that the applicant has recovered from the injuries sustained by him in the work-related incidents in March 1994 and that as at 1 March 1997 - the date of termination by the respondent of its payment of compensation to the applicant - the effects of those injuries had ceased and that, to the extent that the applicant continues to experience back pain, that pain is attributable solely to an underlying degenerative spinal condition which is entirely unrelated to the applicant's employment with the respondent. Mr Lenczner further submitted that the applicant was not incapacitated for work, within the meaning of s.8 of the Act, or, that if he was so incapacitated, such incapacity was not the result of the work-related incidents of March 1994 and was, accordingly, not compensable under the Act.
Findings on Material Questions of Fact

The fundamental question of fact in this case is whether, by 1 March 1997 (being the date from which compensation benefits under the Act ceased to be paid by the respondent to the applicant by reason of the respondent's initial determination as affirmed by the reviewable decision – hereafter referred to as "the relevant date"), the applicant had fully recovered from the effects of the work-related injuries he sustained to his left foot, neck and back in March 1994 or, whether, as of the relevant date, he continued to suffer from the effects of one or more of those injuries. In the event that the Tribunal finds that the effects of one or more of those injuries had not ceased by the relevant date, the question whether the applicant was, at that date, incapacitated for work (within the meaning of s.8 of the Act) as a result thereof will then arise.
In order to consider the abovementioned fundamental question of fact, it is convenient to consider each of the relevant injuries separately.
The Left Foot Injury
The applicant in his oral evidence, and Mr Stubbs in his submissions, did not press the matter of the left foot injury and in effect conceded that the applicant was no longer suffering from the effects of that injury.
According to the medical evidence before the Tribunal, Mr McCallum conducted an operation on the applicant's left foot, on 23 June 1994, in which he removed a piece of loose bone from the area of the middle toe. That operation was entirely successful and pain symptoms experienced by the applicant in the region of the middle toe of his left foot resolved thereafter by October 1994 at the latest. In his oral evidence the applicant stated that he presently experiences some pain in the forward part of his left heel from time to time, predominantly in cold weather. There is, however, no evidence before the Tribunal to connect such pain symptoms with the left foot injury sustained by the applicant in March 1994.
Accordingly, the Tribunal finds that, as at the relevant date, the applicant had fully recovered from the effects of the left foot injury that he sustained in the course of his employment with the respondent in March 1994.
The Neck Injury
According to the medical evidence before the Tribunal, the neck injury sustained by the applicant in the course of his employment with the respondent in March 1994 involved a soft tissue injury in the cervical spine region. None of the medical practitioners who diagnosed that injury, however, regarded it as serious and the prognosis was for a short-term resolution of that injury. Indeed Dr D Main, who began treating the applicant at the Pain Management Clinic in April 1995, reported on 19 May 1995 that the applicant had "shown a rapid response to treatment with near complete resolution of neck, upper back and arm symptoms" and that "(h)is overall prognosis in regard to the upper segment pain is excellent". On 29 April 1996 Dr Main reported that the applicant "has had a complete response of his upper segment pain and arm symptoms and is now free of symptoms in this region." Likewise, Dr Kagi reported on 18 January 1996 that the applicant's cervical spine symptoms were "minimal". Subsequent reports by Dr Main on 19 August 1996 and 19 November 1997 make no reference to the applicant's cervical spine or to his suffering neck pain. Although more recent reports by Dr Main refer to the applicant's suffering a recurrence of neck pain, the Tribunal is not satisfied that any such neck pain is attributable, wholly or partly, to the soft tissue cervical spine injury sustained by the applicant in March 1994. In the Tribunal's opinion, on the basis of the whole of the medical evidence, the effects of that injury had completely resolved by April 1996 at the very latest, and the subsequent recurrence of pain symptoms in the applicant's neck region is more likely to be attributable to other factors unrelated to his employment with the respondent, including pre-existing degenerative changes in his cervical spine (see Dr Kagi's report of 18 January 1996) and periodic tension experienced by him in relation to financial and domestic matters (see the applicant's oral evidence referred to in paragraph 23 above; see also Dr Cullen's comment quoted in paragraph 30 above).
Accordingly, the Tribunal finds that, as at the relevant date, the applicant had fully recovered from the effects of the soft tissue injury to his cervical spine that he sustained in the course of his employment with the respondent in March 1994.
The Back Injury
There is substantial conflict in the medical evidence before the Tribunal regarding the existence, or otherwise, of a causal relationship between the applicant's work-related back injury in March 1994 and his continuing symptoms of lower back pain. The medical evidence in relation to that issue may be summarised as follows.
Both Dr D Main and Dr A Harper expressed the opinion that the applicant is totally incapacitated for work as a ship's officer and that that incapacity is attributable to his work-related injuries of March 1994. Both doctors were unaware, however, that the applicant had a pre-existing lower back problem (as indicated by the general practitioner's clinical notes of 12 October 1987) and acknowledged in evidence that their opinions were based largely on the subjective history given to them by the applicant. Neither doctor, moreover, provided any objective basis for his assertion that the applicant's current incapacity was attributable to his work-related injuries of March 1994.
Mr J Bell, in his oral evidence, said that, as a general proposition, a soft tissue injury, such as that suffered by the applicant to his lumbo-sacral spine in March 1994, is likely to improve over time and that it would be unusual for a person with a significant low back complaint to have the "excellent" abdominal muscle tone which the applicant has. He also confirmed that the subjective history of low back pain and incapacity given to him by the applicant was very much at variance with his objective physical findings and that, having viewed the videotape (Exhibit R5) of the applicant's activities which appeared to be consistent with those objective physical findings, he was now of the opinion that the applicant was fit for sea duties.
Dr J Silver's opinions, in relation to the above issues, are essentially consistent with those of Mr Bell, although expressed somewhat more forcefully. Dr Silver also said that, had he been aware that the applicant had had a pre-existing lower back problem (as indicated by the general practitioner's clinical notes of 12 August 1987), he would not have expressed the opinion (as he did in his report of 29 January 1998) that there was a possible causal relationship between a disc bulge at the L4/5 level of the applicant's lumbar spine and the work-related soft tissue injury suffered by the applicant to his lower back in March 1994. He opined, instead, that the applicant would have recovered from that soft tissue injury within a period of "days or weeks".

Likewise, Dr Kagi stated that he would have expected that the lower back sprain sustained by the applicant in March 1994 would have recovered within a period of approximately 6 weeks to 6 months. He also opined, having regard to the general practitioner's clinical notes of 12 August 1987, that in March 1994 the applicant sustained a sprain "superimposed on the pre-existing degeneration in his spine" and that any back pain presently experienced by the applicant was more likely to be due to the underlying condition than to the sprain sustained in March 1994. Dr Kagi went on to provide a reasoned basis for that opinion (see paragraph 65 above). Dr Kagi acknowledged, however, that there was a "possibility" that the applicant's work-related incident of March 1994 had exacerbated the rate of degenerative change in his lumbar spine.
None of the other medical witnesses or medical reports before the Tribunal expressed any opinion regarding the existence of a causal relationship between the applicant's work-related back injury in March 1994 and his ongoing symptoms of lower back pain.
Faced with the abovementioned conflict in the medical evidence, the Tribunal prefers the views expressed by the orthopaedic surgeons Mr Bell and Dr Kagi, and the similar views expressed by the specialist occupational physician, Dr Silver. The opinions expressed by those specialists take full account of both subjective and objective factors, whereas the contrary views expressed by Dr Main and Dr Harper are based very largely on the subjective history as related to them by the applicant, and, for that reason, the Tribunal regards the former opinions as more persuasive. In that connection the Tribunal would add that it is not entirely satisfied as regards the reliability of the applicant either as a historian or as a witness, given the various inconsistencies between his subjective complaints and the objective physical findings referred to by Mr Bell and Dr Silver and having itself viewed the videotape of the applicant's activities (Exhibit R5). The Tribunal also notes that the applicant apparently failed to disclose, to any of the doctors who have examined and treated him in relation to his allegedly work-related back condition, the fact that he had previously had a lower back problem as early as 1972 and subsequently in 1987 (as indicated by the general practitioner's clinical notes of 12 August 1987 – Exhibit R4). Indeed, according to the medical reports and/or the oral evidence of some of those doctors – including Mr Bell, Dr Silver, Dr Kagi and Dr Cullen, the applicant's treating general practitioner since March 1994 – the applicant told them that he had had no previous back problems – a matter which Dr Cullen said "caused him some concern". That evidence also causes the Tribunal some concern about the applicant's credibility, notwithstanding his evidence that he could not recall having previous back problems or previously consulting doctors in relation to his back (see paragraph 24 above). The Tribunal has already noted (see paragraph 79 above) that neither Dr Main nor Dr Harper was aware of the applicant's pre-existing lower back problem when expressing the opinion that the applicant's current incapacity for work is attributable to the work-related lower back injury he sustained in March 1994. The validity of that opinion is, in the Tribunal's opinion, seriously open to question by reason of that lack of information and the Tribunal attaches considerably less weight to it than would be the case had it been expressed in full awareness of the applicant's history of prior and pre-existing lower back problems.
On the basis of the whole of the evidence before it and, in particular, having regard to the opinion of the orthopaedic surgeon Dr Kagi to which the Tribunal gives the greatest weight, and the generally supportive evidence of Mr Bell and Dr Silver, the Tribunal is satisfied, on the balance of probabilities, that the soft tissue injury which the applicant sustained to his lower back in the course of his duties on board the vessel "Laga" in March 1994 had fully resolved within a reasonable period of time thereafter. The Tribunal is unable to specify precisely when that injury had fully resolved but it is satisfied, on the balance of probabilities, that this occurred within 6 months of the date on which that injury was sustained (as opined by Dr Kagi) and certainly well before the relevant date. The Tribunal is also satisfied that any lower back pain which the applicant has continued to experience since that time has been attributable entirely to factors unrelated to the relevant incidents of March 1994 – in particular, the pre-existing degenerative condition of his lumbar spine.
Accordingly, the Tribunal finds that, as at the relevant date, the applicant had fully recovered from the effects of the soft tissue injury to his lumbar spine that he sustained in the course of his employment with the respondent in March 1994.
Conclusion
The overall conclusion of the Tribunal is, therefore, that, as at the relevant date, the applicant had fully recovered from the effects of the injuries he sustained to his left foot, cervical spine and lumbar spine in the course of his employment with the respondent in March 1994, and that any incapacity of the applicant for work from and including the relevant date has been, and continues to be, unrelated to those abovementioned injuries. It follows that, as at the relevant date, the respondent was no longer liable, pursuant to s.26 of the Act, to pay compensation to the applicant in respect of those abovementioned injuries.
Decision
For the above reasons the Tribunal affirms the decision under review.

I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Senior Member and Dr Y Haslam, Member
Signed:
........................(sgd S Railton)......................
Associate
Dates of Hearing   17, 18, 19 February, 6, 7, 8 October 1999
Date of Decision   28 June 2000
Counsel for the Applicant         Mr G Stubbs
Solicitor for the Applicant          Dwyer Durack
Counsel for the Respondent    Mr J Lenczner
Solicitor for the Respondent    Middletons Moore & Bevins