Vienna and Brambles Shipping - [2002] AATA 1181

DECISION AND REASONS FOR DECISION [2002] AATA 1181

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/352

GENERAL ADMINISTRATIVE DIVISION       )
           Re      STEPHEN VIENNA
  Applicant
           And    BRAMBLES SHIPPING
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date1 November 2002
PlaceMelbourne

Decision        The decision under review is set aside and in substitution IT IS DECIDED- 1.       The effects of injuries which arose out of or in the course of employment with the respondent have not ceased; and 2.          The application is remitted to the respondent to i) determine weekly compensation in accordance with these reasons; and ii) calculate the entitlement for lump sum compensation pursuant to s.39 & s.41 for combined whole person impairment of 15% pursuant to Tables 5.1 and 9.6 of the Guide.   The respondent shall pay the applicant's costs pursuant to the Practice Direction of the Tribunal.
  ..........Sgd. Mr J. Handley..................
  Senior Member
CATCHWORDS
Seafarers' Compensation - Back injuries in employment - subsequent incapacity and acceptance of liability - decision made to cease liability - whether effects of injury have ceased - whether any incapacity for work - surveillance video and conflicting medical opinions - whether entitled to impairment lump sum - decision set aside.

REASONS FOR DECISION

1 November 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision made by the respondent on 26 March 2001. The respondent then affirmed a determination made on 15 January 2001 which ceased entitlement to weekly compensation with effect from 15 January 2001, and denied an entitlement to permanent impairment compensation pursuant to s.s 39 and 41 of the Seafarers' Rehabilitation and Compensation Act 1992 ("the Act").
The hearing of the application commenced in Albury and was adjourned part heard to Melbourne for further evidence. Mr Keeley appeared on behalf of Mr Vienna and Mr Watson appeared on behalf of the respondent. The applicant's claim for permanent impairment was with respect to a back injury he alleged that was suffered in the course of his employment. He also claimed impairment for an emotional or psychiatric sequel to that physical injury.
Stephen James Vienna
Mr Vienna is presently 48 years of age, having been born on 14 January 1954. He was educated until age 14, but having left school he then obtained employment in a grocery shop, a wood yard and later as a fork lift driver. By reason of his limited education, he admitted that he is poor at spelling and writing and his arithmetic is confined to adding and subtraction only.
On 23 July 1969, the applicant applied as a "deck boy" when he was then aged 15 years. However, he did not obtain employment as a seaman until 1971, having then completed a medical examination. Thereafter, the applicant has held employment in the maritime industry as a seaman to the present time, save for a period of about three months when his wife died and he remained on shore employed as a painter and docker and cared for his children.
At the time of injury in 1997, Mr Vienna had risen to the position as a chief steward with Brambles. That employment exposed him to many different tasks, such as ordering food supplies for the ship; loading and unloading the supplies; sweeping and mopping decks; recreation rooms; laundries and bathrooms; cleaning and vacuuming accommodation rooms and cabins; removing rubbish; and packing and unpacking linen. Mr Vienna described the employment as exposing him to much bending, twisting, stooping and lifting.
In a statement dated 16 January 2002 (and received into evidence), the applicant described an episode on 1 August 1997 on board the vessel "City of Port Melbourne". The applicant recorded that he was then unloading stores from a metal basket, which was described as a "large metal cage on wheels with an open top". He said it was about waist height and the sides were fixed. He was leaning into the basket to remove heavy boxed stores and when lifting a box of meat from the bottom of the basket, he felt sharp intense pain in his lower back and described it as if he had been "stabbed". He said the box weighed approximately 25 kilograms. At 1 August 1997, the applicant said that he had "nothing significantly wrong" with his back. He said he was then able to work in a full and unrestricted manner.
Mr Keely referred to marine archives which demonstrated claims for back pain at 28 June 1974, 14 July 1976, 20 July 1976 and 18 February 1986. Each episode exposed the applicant to a limited duration of incapacity. Mr Vienna said he could not recall any of those incidents.
The applicant reported the episode of 1 August 1997 and subsequently claimed compensation. Liability was accepted and weekly compensation was paid. The applicant was then incapacitated for a short period, but returned to work until 20 January 1998 when he suffered a further episode of acute back pain when lifting boxes of meat in a freezer.
Thereafter, the applicant had treatment from a number of doctors, was incapacitated on a number of occasions and returned to work on lighter duties. The restrictions exposed the applicant to work not involving bending or lifting above 5 or 10 kilos. In effect, the applicant said he continued to perform his pre-injury duties other than loading or unloading stores and working in the steel cage. That is to say the applicant said that he continued to perform his general cleaning duties of mopping, sweeping, vacuuming and removing rubbish. He also continued to undertake the work of ordering food supplies for the vessel.
Eventually, the applicant said that he was no longer able to work and ceased on 13 January 2000. Weekly compensation was paid until 15 January 2001, but not since. The applicant, thereafter, was paid sick leave and other monies owing by the employer. Subsequently, he made a claim for Disability Support Pension, which Centrelink accepted.
In retrospect, the applicant said that he ceased work at January 2000 because his "back started aching so much", which he assumed to be a "build up of day to day activity".
Since he last worked, Mr Vienna said that he has not been offered any work with Brambles. He said he has sought work from Mr Orlinski, an officer of Brambles, but has not been successful. He suggested to Mr Orlinski that he might be employed as a wharf clerk, which despite his literacy impediments, Mr Vienna believed he was capable of undertaking. He said he had also previously completed a computer course at the William Angliss College and was confident he could work using a computer. He said he also offered to relocate to Tasmania to work with Brambles if work could be made available to him. He said that Mr Olinski eventually advised him that Brambles' "insurance" would not permit him to return to work unless he was without restrictions.
Eventually, Mr Vienna registered with "Employment Plus", a job agency in Wangaratta who referred him to Australian Defence Industries Ltd in Mulwala, where a vacancy existed. Mr Vienna said he completed an examination, but when interviewed he was immediately rejected when he disclosed his back injury. He said Employment Plus has not obtained any work for him or referred him to any other employers. He has applied directly to the Mulwala Services Club and to the Yarrawonga Golf Club as a cleaning services supervisor and dishwasher respectively, but on each occasion his application was unsuccessful. He said he applied at a local supermarket as a cashier and as a cleaner in a caravan park but was also unsuccessful in his application. He has looked for work through local newspapers and attended a rehabilitation counsellor in Melbourne with local newspapers in an attempt to receive advice with respect to employment opportunities.
Presently, the applicant said that he has pain in his lower back, principally on its right side with referred pain into his right buttock, right leg and through his thigh into the back of his knee. On occasions, he said his right foot is numb. He said his back pain is present always and the other symptoms occur from time to time. Medication is prescribed by his local Doctor in Yarrawonga which he consumes daily.
On a day to day basis, Mr Vienna said that he rests at home either laying in bed or sitting in his backyard. He plays 9 holes of golf on one or two occasions per week with a group known as the "9 holers". This group consists of men over the age of 55 years and who are either off work and/or are on a pension. He agreed that he has played 18 holes of golf, but says this is rare. After playing golf Mr Vienna said that he is sometimes "good as gold", but on other times he says he is required to "lay down" at home. He said he plays golf because it "stops me going mad" and said that Doctors had recommended it.
With respect to employment the applicant said he was "prepared to try anything". He thought he might be able to return to his former job "for two or three swings" only, but thought that he would suffer an aggravation of his injury and would then be forced to leave work. (The applicant worked on the base of 28 days on and 28 days off. He worked on a vessel travelling between the Australian mainland and Tasmania. A "swing" is said to be a voyage between Victoria and Tasmania).
In cross-examination, Mr Vienna agreed that since 1997 Brambles have paid medical expenses, pharmacy costs, gymnasium membership, rehabilitation, home assistance and provided light duties when available. He agreed also that weekly compensation was paid prior to January 2000.
The applicant denied that he had told officers at Brambles that he would not return to the light duties that had been offered to him. He was adamant that he had in fact told either Mr Orlinski or another officer, Ian Graham, that he would work light duties if they were made available to him. Mr Vienna said the only occasion when he was unable to perform light work was when Doctor Lyons provided a certificate certifying total incapacity. He said when the certificate expired and he returned to work, Mr Orlinski denied him employment.
With respect to rehabilitation assessment counselling provided by Industrial Work Conditioning Clinic of Carlton, Mr Vienna said that the only employment suggested by them for him was as a security guard where he would undertake a preparatory training course at the Wodonga Tafe. Mr Vienna denied that he rejected that course and said that he did not believe that he would be capable of working as a security guard, due to his back injury and because he understood that he could be exposed to violence or apprehending persons which he believed he was unable to do. Additionally, the applicant said he was prepared to undertake a literacy course at Wodonga Tafe but had "never heard from Brambles as to whether they would pay for the course". He said he did not "follow it up" other than to telephone Mr Orlinski to ask "what they were doing" and to be then told, allegedly, "we don't know".
With respect to his registration with Employment Plus Mr Vienna denied that he attended that centre as a pre-requisite for Centrelink benefits. He said he volunteered to attend that centre at a time when he was receiving accrued leave payments from Brambles. At that stage, he said, he had not made any application at Centrelink.
The applicant was then examined extensively with respect to his golf activity. He agreed that since he last worked with Brambles he has played 9 holes of golf on two occasions per week on Tuesdays and Thursdays. He agreed that he has played 18 holes of golf but really and not within the last six months. He agreed also that he practices driving on a range at the Yarrawonga Golf Course, where he is exposed extensively to bending to place a ball on a golf T and to collect it at the end of practice. He agreed that practicing exposes him to twisting, swinging and rotational movements of his back, but denied that he collects golf balls at the end of practice by bending and rather uses a bag with a lifting device. He also disagreed that he has practiced using one hand only with his other hand in his pocket.
The applicant agreed that he is capable of lifting and carrying his golf bag containing clubs, but did not know the weight of it. He said his clubs were made of "graphite" and said on a good day that he would be capable of lifting his golf bag with one hand. He also agreed that he used a golf buggy to drag or carry a bag of clubs. He disagreed that he could play golf without restriction and without pain and said that on occasions he is pain free, but on other occasions he is required to rest at the end of a round.
Mr Vienna disagreed that the twisting and rotational movements of his spine were similar to activity that he would undertake at work. When pressed on this issue however, he agreed that the movements of his back whilst playing golf would be greater than he would be required to undertake at work.
With respect to playing a game of golf, Mr Vienna agreed that he would be required to walk extensively and often on rough surfaces when carrying his golf bag. He also agreed that on occasions he used a motorised buggy or motorcycle at golf. He was asked why then he would make a claim on Brambles for the cost of lawnmowing involving a ride on mower when he was apparently capable of using vehicle to play golf on rough surfaces. He said that nine holes of golf occupies approximately 1 ½ hours only and then he would sit sideways on the vehicle. He said lawnmowing at his home on a ride on mower takes approximately 3 hours.
Mr Vienna was also asked to explain why he would claim garden help from Brambles to have leaves around his home raked, when he agreed that he would rake a sand bunker when playing golf. He explained that there were times when he was relatively pain free when playing golf and activities such as raking a bunker were within his capacity. He said there are other occasions when he was unable to undertake that activity. He said that there was an occasion where he was unable to complete a round of golf but when pressed on this issue said that it was once only in the last four years.
Mr Vienna was then taken to reports of the rehabilitation consultants where a history was obtained that he was unable to walk for more than five or ten minutes. He was asked to explain this in the context of being able to play golf for up to an hour and a half. He said that "90% of the time" he was riding a motor bike or golf buggy. He disagreed that he misled the rehabilitation specialist into a belief that he had a serious back ailment, which would interfere with his rehabilitation or work placement. He also disagreed that he misled the rehabilitation consultants when in their history they recorded that he avoided standing, when obviously he was capable of standing when playing golf.
With respect to the restrictions placed upon him by various doctors as to lifting either five or ten kilos, he agreed - despite not being aware of the weight of his golf bag - that it probably did weigh more than ten kilos and he was obviously capable of carrying it.
During cross-examination, it was known that the respondent had a video surveillance film of the applicant undertaking golfing activity. The facilities at the Family Court in Albury where the first day of hearing convened did not permit viewing of the videotape. Nonetheless, the applicant's solicitors have previously been given a copy of the film and it had been made available to Mr Brazenor, the applicant's treating doctor. The applicant said that he had not observed the film. Mr Watson elected to provide the applicant with a verbal summary of the events depicted on the film and asked the applicant to comment.
Mr Watson said that the film was taken on 30 September 2000. The applicant was observed to leave his home in the motor car and drive to another house where a male person was collected and both then travelled to the Yarrawonga Golf Course. The vehicle being driven by the applicant was a utility. The applicant was then observed to change his shoes into golfing spikes and was then observed to lift his clubs and golf bag from the back of the ute onto a buggy which was also assembled. The applicant was said to undertake this lifting activity without apparent restriction or discomfort. He was then observed to play 9 holes of golf unrestricted. He was observed during the game of golf to be bending, swinging, twisting and walking on rough terrain and in bunkers, which he was also observed to rake. The game was said to extend over two hours. It was said that the applicant was able to play without apparent restriction of movement or of bending. The applicant agreed that the events depicted in the film probably did occur.
The film was also said to depict the applicant moving into and out of his motor car without apparent restriction. It also depicted him shopping at a supermarket where he was observed to push a trolley and lift bags of groceries and place them in his vehicle. He was also observed to open the passenger door of his car to allow his wife entry but from the inside of the car, which caused him to reach across there by twisting his lower back.
The film depicted Mr Vienna driving a utility motor vehicle and it was suggested that he had been engaged in employment, using that vehicle, since he last worked with Brambles. Mr Vienna said that he owned and drove a utility vehicle because it was needed "to move things around - heavy and light things". He agreed that he had moved house since he last worked with Brambles, but he did not lift furniture on to the vehicle and transport it and thereby unload it into new accommodation. He said that by reason of the cessation of his compensation payments he was unable to afford mortgage payments and decided to rent his house and he moved to live with his parents. He said that he and his wife took their clothing only and a set of drawers, he said all other furniture was stored in a shed.
The applicant was then examined with respect to a prior worker's compensation claim. The applicant was asked to comment on documents apparently held by the respondent, which demonstrated that he had initiated proceedings against Brambles with respect to a right shoulder and thoracic spine injury. It was said by the documents that the injuries occurred in 1984 and the initiating proceedings alleged partial incapacity for employment from the date of injury. It was suggested that because proceedings did not conclude until 1992, that he must have suffered impairment from the date of injury at least until the conclusion of the proceedings, which resolved by payment of lump sum compensation.
The applicant was asked in these circumstances to explain why his evidence had been that he did not suffer any physical problems prior to commencement of employment or during employment with Brambles. He explained that his prior comment and his statement, which was put into evidence, was with respect to the absence of prior back injuries only. He said that he was a deckhand at the time of his shoulder and thoracic spine injuries and it was by reason of those injuries that he eventually obtained employment as a chief steward where the work would not be as heavy or as exertive. He denied that he suffered the same restrictions as a result of his back injury that existed when he suffered his shoulder and thoracic spine injuries.
In re-examination, Mr Vienna said that he plays golf from a handicap of 27 which he said was the biggest handicap at the Yarrawonga Club and so far as he was aware it was the biggest handicap at other golf clubs.
With respect to his neck injury, which he admitted during proceedings, did cause him discomfort from time to time. He said that he "puts up with it". He said that it did not cause him incapacity and was different in nature and not as severe as his back injury.

With respect to comments recorded by the rehabilitation consultants that he walks with a limp from time to time, the applicant said when he suffers referred pain into his right leg or when he was carrying shopping bags or walking "too far", he limps. He said the limp "come and goes".
With respect to a comment made by one of the rehabilitation consultants in a report found within the T-documents, where it was suggested that the applicant was "apprehensive" about undertaking the security course at the Wodonga Tafe, the applicant said that he did not believe that he could "tackle people" which he believed would be a requirement for undertaking security work.
With respect to allegations that he was not motivated to return to work, Mr Vienna said that he frequently replaced other persons at work who were ill or who wanted to take time off during a working roster. He said that he frequently "chased work" because he liked the job and was aware also that generally ships are unable to sail if they are shorthanded. He said he was not paid money for extra work, but was paid by days in lieu. He said he was financially motivated to work and to return to work, because he needs to "get ahead" and to have sufficient funds to pay his mortgage.
Mr Vienna said that the surveillance video depicted him to bend to place a golf ball on a tee with his legs spread, because he said that did not produce pain. He also asked that it be noted that between each hole of golf, and whilst waiting for his partners to play, he sat down. When raking a sand bunker, he said the activity was light and involved dragging a rake across the top of the sand only for 10 to 12 seconds. He said this was considerably different to the activity and exertion required in mopping and sweeping. The applicant also noted that he ceased playing at the fourth hole on the day he was filmed.
With respect to the claim made for a permanent impairment lump sum for psychiatric injury, Mr Vienna said that he is in constant pain and he "puts up with it". He said prior to the back injuries he was fit and healthy and "never took pills except for gout". He said he is now not coping and sleeps poorly. His blood pressure is of concern and medication has been prescribed. He said that his memory and concentration is poor and is upset by not being able to work, losing his employment and the camaraderie of workmates he had enjoyed for almost 30 years.
When cross-examined in relation to the issue of the psychiatric injury, Mr Vienna said that he was also "stressed" at the thought of losing his home because he was unable to meet mortgage payments. He said he sold a home unit that he owned because he was unable to make payments over that it. Mr Vienna thought that his blood pressure was associated with the stress of an inability to pass a medical examination to permit him to return to work. He said that his doctors were so concerned at the level of his blood pressure that he was at risk of suffering a heart attack or a stroke.
Graham Brazenor
Mr Brazenor is a neurosurgeon who initially treated Mr Vienna, having been referred by Dr Salter in Yarrawonga. Mr Brazenor has provided three reports dated 10 July 2000, 6 October 2000 and 17 October 2001 at the request of the applicant's solicitors.
In his report of 10 July 2000 found at T-66, Mr Brazenor reported that he first consulted the applicant on 27 March 2000 and he obtained a history of back pain associated with lifting boxes of meat out of a basket, cleaning a freezer and stacking and restacking boxes. Mr Brazenor was then aware that the applicant was playing golf and obtained a history that a motor bike/buggy was used. The applicant was then consuming digesic tablets, together with tryptanol and celebrex. Mr Brazenor formed the opinion that the applicant then had "back pain" which he associated with lifting boxes of meat and restacking boxes in a freezer. He recommended an exercise routine of walking on a daily basis, with the distance being gradually increased. He thought that eventually the applicant would be able to return to full-time work if that routine was undertaken. On review, he learnt that the applicant had not undertaken that routine but had been swimming breast-stroke on a daily basis which he (Dr Brazenor) thought was responsible for the applicant's complaints of neck pain. On examination, at the time of review, "absolutely no abnormality" was found in the applicant's lower back. Mr Brazenor concluded that whilst the applicant did have "cumulative injuries of wear and tear in the disc and facet joints at L4-5" those conditions were "reversible". He thought that the applicant should undertake the fitness program recommended, because he would become fit for full-time work but not involving repeated bending or lifting in excess of 15 kilograms. He thought those restrictions would be permanent.
In a report of 6 October 2000, Mr Brazenor notified the applicant's solicitors that the applicant suffered a 10% impairment under Table 9.6 of the Guide, by reason of "loss of less than half normal range of movement".
In a report of 17 October 2001 forwarded to the applicant's solicitors (Exhibit C) Mr Brazenor, having observed the video surveillance tape, reported that his opinion of the applicant was unchanged. He thought that Mr Vienna was "employable full time at any job which does not involve recurrent bending and lifting", but he was not fit for "arduous seagoing duties". He concluded "why he is not working 40 hours on a land based job at present is a little beyond my ken (sic) however".
In evidence, Mr Brazenor re-affirmed his opinion that the applicant was capable of working on a full-time basis, but without repeated bending or lifting. He thought the applicant should not return to work at sea because "rolling ships" and slippery floors may lead to further injury. In cross-examination, he said that at his most recent consultation the presence of degeneration in the applicant's spine was consistent with normal activities of daily living. However, he acknowledged that the applicant's treating general practitioner would be in a better position than a specialist to advise the significance of events from the patients history. He acknowledged that the General Practitioner would observe any changes in the complaints or frequency of consultation. In relation to the assessment of a permanent impairment of 10% under Table 9.6 of the Guide, Mr Brazenor said that he did not attribute the impairment wholly to the work episodes.
Margaret Lea
Ms Lea provided a proof of evidence, which was received into evidence as Exhibit B. She said she has known Mr Vienna since 1995 and he was then a person who was energetic, happy, outgoing and very active. She said he "loved his job" and the camaraderie of life on board ships.
She has lived with Mr Vienna for the last three or four years and has noted that since he injured his back with Brambles he has been in pain. She observes him moaning each morning when he wakes and sits on the side of his bed holding his back. When he stands, she said, he walks with a limp. She notices that he is frequently grey or ashen in complexion after walking and frequently rests either by sitting or lying down. She recalled that at restaurants or at a picture theatre Mr Vienna frequently complains about the chairs being uncomfortable and often stands or walks to relieve back pain. She said Mr Vienna regularly takes pain killing medication. In relation to his mental state, she noted that he is often tired and sleeps poorly. She said that he is frustrated, irritable, short fused and suffers poor concentration. She described Mr Vienna as "half the man he used to be".
In cross-examination, Ms Lea acknowledged that Mr Vienna plays golf regularly, drives a motor car, enjoys the company of the men he plays golf with and attends the clubhouse after games of golf. She said his only restriction prior to the back injuries was that he suffered from gout.
Colm Moore
Dr Moore is a consultant psychiatrist who examined the applicant on two occasions at the request of his solicitors. On 23 October 2000 he provided a report which is found at page 126 of the T-documents. Another report was prepared on 15 October 2001 and received into evidence as Exhibit D.
In the first report, Dr Moore diagnosed the applicant as suffering from chronic adjustment disorder with anxiety and depressed mood. He thought the applicant's prognosis would be dependent on whether he returned to work, but thought that would be unlikely. He noted Mr Vienna was "illiterate", without specific skills or qualifications and has a demonstrable back injury which restricts him in the workplace. He thought that Mr Vienna "constitutes a rehabilitation providers' nightmare".
In his report of 15 October 2001, he re-affirmed the diagnosis previously expressed and assessed a 10% permanent impairment under Table 5.1 on the basis of the applicant's reaction to stresses of daily living with minor loss of personal or social efficiency and minor distortions of thinking. He obtained a history of the applicant being unsuccessful in locating employment, which has caused him to be "discouraged by his attempts to cease looking and is now on a disability allowance". He thought that the applicant was "coming to terms with his unemployability, he is being realistic". In terms of a connection between the work injuries and the subsequent psychiatric impairment, Dr Moore found "that there were no predisposing factors" and thought that a connection did exist between the injuries at work and his subsequent psychiatric illness.
In evidence, Dr Moore said that a combination of back pain, inability to engage in a usual lifestyle and the inability to go to sea significantly contributed to his psychiatric state. He thought the applicant had a 10% impairment on both of the occasions that he consulted. He noticed that the only changes between both consultations was a reduction in the extent of his irritability by the time of the second consultation. However, he said this was "balanced" by a worsening of the applicant's depression. He thought the applicant would not respond to treatment and any improvement in his mental state would only be achieved if there was an improvement in his physical state.
In cross-examination, Dr Moore disagreed with the suggestion put to him that the applicant satisfied the criteria against a nil percentage impairment under Table 5.1. He thought the applicant was beyond "a loss of personal or social efficiency" because he "looses it" and he "boils over and he is angry". He said this was not normal behaviour and satisfies the DSM-IV criteria of a psychiatric disorder. He found the applicant suffered minor distortions of thinking because he does not think clearly and observed that at first consultation the applicant had poor memory and fluctuations in mood and concentration. When he was notified that the applicant had remembered details of job applications he had made and other dates and times, Dr Moore said his predominant problem was poor concentration.
Anthony Buzzard
Mr Buzzard examined the applicant at the request of the respondent's solicitors on 5 December 2000 and provided a report on 6 December 2000. He also provided a report on 18 December 2000 after he observed a surveillance video tape.
In his first report, he observed the results of an MRI scan of February 1999, which he interpreted as demonstrating bulging at the L4/5 disc. He concluded that Mr Vienna had degenerative disease of the lumbar spine and the incidents at work represented a "soft tissue injury to the low back region". He thought the applicant's complaint of right leg pain suggested right sided sciatica, however it could not be clinically or radiologically confirmed. He thought that if the applicant's complaints and history were accurate, that he would not be able to work "involving extremely heavy lifting bending or stooping". He found the applicant had a "residual disability in the order of 10% loss of industrial usefulness of his back".
In his report of 18 December 2000, having observed the surveillance video tape, he found the applicant "appears to have a quite free range of movement of the back". He did not observe the applicant using a motor bike or a golf cart. He thought that if the applicant was capable of undertaking the activities depicted on the video tape that he would be capable of returning to work.
In evidence, Mr Buzzard said that he measured the applicant's straight leg raising to 70 degrees, which was not significant and inconsistent with Mr Vienna having right sided sciatica. He thought there was nothing clinically obvious of any serious problem as demonstrated by an MRI, CT scan and x-rays.
In cross-examination, Mr Buzzard said that he attended the applicant for a duration of 27 minutes which included time spent dictating his medical report. He said he gave the applicant "the benefit of the doubt" when he prepared the first report, but acknowledged that he changed his opinion having observed the video surveillance tape. He said that his main concern with the applicant was his reliability as an historian and the presence of callous' on his hands, which he said were not consistent with the applicant previously working as a steward. He thought that if the applicant could play golf regularly, it indicated a degree of fitness and therefore an ability to resume employment. He had no recollection of the applicant being depicted bending with his knees, but said if the applicant had adopted a posture of that type it would be consistent with a person having restrictions by reason of back pain. He disagreed with a proposition put that the treating general practitioner was not necessarily in a better position to assess the applicant's restrictions and capacity because that doctor may have a "lack of objectivity".
When he was pressed on his observations of the applicant from the video surveillance tape, Mr Buzzard said that if the applicant was depicted as sitting before and after each tee shot, that he may be doing so because of boredom or because he was waiting for others. He concluded that the applicant was "ok" at the end of the round of golf, because if he was not he would have ceased playing. He discounted the applicant sitting on the tale gate of his ute when changing his shoes and said "I might do that also - it is easier". Mr Buzzard disagreed with the proposition put that he was attempting to argue the case on behalf of the respondent and said that he was attempting to be objective.
Mr Buzzard acknowledged that an L4/5 disc bulge was present and when he was notified that Mr Brazenor had found that there was facet joint arthropathy, he acknowledged that with a condition of that type, the applicant would suffer from a "greater degree of injury than I gave him credit for". He acknowledged that the applicant could suffer a disc injury without sciatica, but he said there was no radiological evidence of nerve root involvement and said that on radiology there would be 99% accuracy.
Mr Buzzard thought the applicant was fit for work as a steward, where he would carry food "as a waiter". He acknowledged that he would "do more at sea" because he would be required to prepare food. He had no knowledge of the applicant being required to lift bags or boxes of stores. Whilst he thought the applicant should not lift 25 kilo boxes, he thought the applicant was capable of lifting up to 15 kilos in weight and was capable of bending, on three or four occasions in each period of 10 minutes. He thought the greatest concern for the applicant was the degree of lifting, rather than being employed at sea. He accepted that the applicant did suffer from pain but he queried the cause of it. He acknowledged that there was a "possibility" of an L4/5 disc injury and facet joint injury arising out of the employment with Brambles, but thought any contribution to incapacity by work caused injuries was minor.
Michael Falkenberg
Mr Falkenberg is an orthopaedic surgeon practicing in Wangaratta. He was not called to give evidence but provided reports to the applicant's solicitors on 8 March 2000 (T-56). Additionally, a report forwarded to Doctor Lyons dated 7 January 1999 was received into evidence.
The report to Doctor Lyons was written at a time before Mr Falkenberg had the results of an MRI scan but at a time when he had a CT report. It was his opinion that the applicant then had soft tissue injury but the presence of pain for 12 months suggested to Mr Falkenberg that there may have been disc involvement. He reported that the disability was "only moderate" and he thought Mr Vienna was fit for light work lifting less than 5 kilograms without repetitive bending or lifting. He thought he should not return to sea.
On 22 February 1999, Mr Falkenberg again wrote to Doctor Lyons having received the report of the MRI scan. He reported that it demonstrated bulging at L4/5 and thought that the findings were "normal" for a 44 year old person and were not indicative of trauma.
Mr Falkenberg reported in similar terms to the applicant's solicitors on 8 March 2000.
Treating General Practitioners
Mr Vienna has been treated for his back injury by Doctors Ronan, Lyons and Salter at the Yarrawonga Medical Clinic. Neither of these doctors were called to give evidence nor did they provide reports, save for a report at T-55 from Dr Ronan, dated 23 February 2000 addressed to the applicant's solicitors. The report refers to back injuries in employment and expressed an opinion of work capacity but was written almost 12 months before the decision under review.
Video Surveillance Tape
The video surveillance tape produced by the respondent was received into evidence. It was an edited version of some events depicting the applicant on 30 September 2000. Initially, it showed the applicant arriving at a golf course where he lifted a golf bag with clubs from the back of his utility and placed them onto a trolley which was then pushed by a colleague. The applicant then assembled a golf buggy, which he pushed without a golf bag attached to it. These manoeuvres involved the applicant in bending to approximately 90 degrees with his legs virtually straight. He was later depicted sitting on the tail gate of his utility, changing his shoes. The applicant was later depicted pushing a trolley with a bag of clubs whilst walking at a slow pace on flat even ground. He was observed on one occasion to be standing with his body weight predominantly on his left leg. On one occasion, he chipped a golf ball and his back was straight and relatively rigid. On another occasion, he drove a golf ball with considerable vigour which involved a twisting rotational type movement. On occasions that he bent to pick up or place a golf ball, he did so with his legs relatively spread and with one leg behind him. There was an occasion where the applicant was seen to be seated and when he rose from that position he did so without apparent restriction.
The remainder of the video tape depicted the applicant walking out of a newsagency in Yarrawonga and entering into a small compact motor vehicle. He is later depicted walking from that motor vehicle which was in a parked position near a restaurant.
Disability Support Pension
It was learnt during these proceedings that the applicant had qualified for disability support pension ("DSP"). Qualification for DSP is found at s.94 of the Social Security Act principally, being an impairment of 20 points under the Table appended to the Act and having a 'continuing inability to work' (as defined).
There is no correlation between those findings and a finding of capacity for employment under the Act. It is not known whether the Commonwealth Medical Officer ('CMO'), who recommended entitlement to DSP, observed the surveillance video. Additionally, the CMO was not called to give evidence in these proceedings.
Conclusion & Reasons For Decision

A considerable attack was made on the credit of Mr Vienna in these proceedings. Part of the file from the completed County Court proceedings was placed into evidence in an attempt to counter the applicant's assertions that he had been fit and well prior to the back injuries, which have given rise to this application. Additionally, the evidence of the applicant having a capacity to play golf was raised as an indicator of the capacity of the applicant to be engaged in employment. It was also put that the applicant on occasions either exaggerated the extent of his symptoms, was selective in memory or chose to give answers which supported his case.
On balance, I am satisfied that the evidence of the prior claim arising out of a shoulder injury is an irrelevance. It is true that the applicant did claim upon a number of defendants - one of which was Brambles - for a rotator cuff injury affecting his right shoulder. Those proceedings were eventually concluded and it would appear that the applicant thereafter returned to work. The applicant said in evidence that he denied the existence of prior injury because he understood that questions were directed to the existence of prior back injury. It might be thought that the applicant was attempting to evade truthfully answering questions asked concerning prior injury but in fairness he is (without intending any disrespect) relatively unsophisticated and conceivably could have misunderstood the question. Additionally, I would have thought that he would achieve little denying prior injury when in fact, the previous proceedings were brought against a number of defendants including the same employer who is the respondent in these proceedings.
In relation to the applicant's golfing activities it is clear that he has frequently played golf, which has involved movements inconsistent with an incapacity for work. He has sought employment and has made a number of attempts to return to the workforce. Whatever might be said of the outcome of his consultations with the rehabilitation provider, the fact is he did not ever assert total incapacity and did, in my view, genuinely seek employment. It appears however, from the time that he was found to have satisfied the qualification for Disability Support Pension, that no serious attempt to return to work has been undertaken by him.
I am satisfied that Mr Vienna did suffer back injury arising out of and in the course of his employment with the respondent. I am satisfied that he has suffered a facet joint injury at L4-5 with disc bulging. I am satisfied that he continues to suffer the effects of that injury. But I am not satisfied that he is totally incapacitated.
All of the Doctors were of the opinion that irrespective of the cause of the applicant's complaint of back pain, he does have restrictions. Those restrictions extend to lifting, twisting, stooping type movements and lifting objects varying between 5 and 15 kilograms. I also believe the applicant is motivated to return to work. I note that he returned to work after the right shoulder injury which gave rise to the County Court proceedings and he also returned to work after the first back injury which has given rise to these proceedings. Part of the applicant's claim for impairment for psychiatric injury is the loss of camaraderie, which is consistent with the applicant having previously expressed a wish to return to his former employment.
I thought the opinions expressed by Mr Buzzard on behalf of the respondent - whilst consistent with the other medical practitioners as to the restrictions that he would impose in any return to work - were harsh and unfair. I thought there were elements of the evidence of this witness which suggested that he was intending to prosecute the respondent's application, as opposed to being a fair minded, balanced witness assisting the Tribunal in the review.
Mr Brazenor appeared to be frustrated with the applicant because of the apparent failure to comply with an exercise regime that he recommended, however he also imposed restrictions upon the applicant's capacity. He found that there was some evidence of age related degeneration but with specific trauma at the L4/5 level by reason of the lifting episodes of work. It is that trauma and its manifestation, which satisfies me that the affects of injury are continuing.
It may be thought that with the passage of time since the applicant last worked that the effects of injuries might have ceased, or the manifestation of pain at the present time is the normal expectation of a 48 year old person with a degenerate thoraco-lumbar spine. I am satisfied on balance that the applicant, being relatively pain free prior to these episodes at work, is currently exhibiting the continuing effects of the work injury. Mr Vienna did have prior back injuries for which compensation claims were made, but where there had been limited periods of incapacity and a return to work following each episode. The episodes at work with Brambles which have given rise to these proceedings involved lifting of heavy weights, in awkward positions, placing considerable stress and strain upon the applicant's lower back. I am also satisfied that the applicant's complaints of pain and the observations of him by Ms Lea are truthful.
Having found that the applicant is not totally incapacitated, s.31 of the Act determines the rate of weekly compensation by reference to the normal weekly earnings less the earnings in suitable employment. There was no evidence in the proceedings about the normal weekly earnings, or that which might be earnt in suitable employment. However, for the purposes of this decision, I am satisfied that the applicant is capable of employment in a position where he is not required to bend, stoop or twist or lift more than 10 kilograms (being the average between the range of lifting restrictions made by the Doctors). This part of the application should therefore be remitted to the respondent for calculation of the rate of compensation, having regard to these findings.
I am satisfied that by reason of the continuing effects of injury, the applicant will require ongoing treatment and probable prescription of medication. It follows that the liability of the respondent with respect to continuing medical and like expenses will continue.
With respect to Table 9.6 of the Guide, I am satisfied that the applicant does have a permanent impairment but attracts a whole person assessment of 5% only. This is because from the medical information read, the medical evidence heard, and my observations of the applicant from the video surveillance film, I am satisfied that the applicant satisfies the criteria of "minor restrictions of movement". I believe that he has more than "x-ray changes only" being the criteria against a nil assessment, but less than "loss of less than half normal range of movement". Put another way, I am satisfied that the better description of the impairment with respect to the applicant's thoraco lumbar spine is "minor restrictions of movement".
With respect to the application for an impairment lump sum under Table 5.1, I am satisfied that the applicant has a whole person impairment of 10%. This is because I am satisfied on the medical evidence read, the medical evidence heard, (particularly Dr Moore) and my observations of the applicant - both giving evidence and from the video surveillance film - that he suffers "reactions to stressors of daily living with minor loss of personal or social efficiency" and "minor distortions of thinking".
In all of the circumstances, I am satisfied that the decision under review should be set aside. In substitution, it is decided that the effects of injuries have not ceased, however the applicant does have a capacity for work and his entitlement to weekly compensation is to be determined by the formula found at s.31(2) of the Act. Additionally, I am satisfied that the applicant has suffered an impairment of 5% under Table 9.6 and 10% under Table 5.1, giving rise to a whole person impairment of 15%. The entitlement to compensation pursuant to s.s 39 and 41 of the Act is remitted to the respondent for calculation in accordance with these reasons.
It is further decided that the respondent pay the applicant's legal costs of these proceedings pursuant to the Practice Direction of the Tribunal.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         ........………….
  Secretary
Date/s of Hearing  30 January 2002, 18 March 2002
Date of Decision  1 November 2002
Counsel for the Applicant        Mr Keeley
Solicitor for the Applicant
Counsel for the Respondent    Mr Watson
Solicitor for the Respondent