Ward and Swire Pacific Ship Management (Australia) Pty Ltd (Formerly Pacific Manning Company Pty Ltd)
[2014] AATA 162
•26 March 2014
[2014] AATA 162
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0236 and 0456
Re
Max Ward
APPLICANT
And
Swire Pacific Ship Management (Australia) Pty Ltd
(formerly Pacific Manning Company Pty Ltd)
RESPONDENT
DECISION
Tribunal Mr Dean Letcher, QC, Senior Member Date 26 March 2014 Place Sydney Since the date of injury the applicant has had no ability to engage in suitable employment, and is entitled to periodic payments without deduction for Earnings in Suitable Employment and reasonable medical expenses pursuant to the Seafarers Rehabilitation and Compensation Act 1992.
The respondent should pay the applicant’s reasonable costs in both matters.
.................[sgd].......................................................
Mr Dean Letcher, QC, Senior Member
CATCHWORDS
COMPENSATION – seamen’s compensation – ciguatera poisoning – whether applicant sustained an injury arising out of, or in the course of, his employment – whether the applicant is entitled to compensation in relation to incapacity for work, medical and related expenses – amount of compensation payable for incapacity – suitable employment – decisions under review set aside
LEGISLATION
Seafarers Rehabilitation and Compensation Act 1992 ss 3, 26, 31, 32
CASES
Esam v ASP Ship Management (1998) 87 FCR 82
Mead v Kerney [2012] NSWCA 215
Nominal Defendant v Livaja [2011] NSWCA 121
SECONDARY MATERIALS
Lewis ND, “Disease and development: ciguatera fish poisoning” (1986) 23 Soc Sci Med 983
Pearn JH, “Chronic fatigue syndrome: chronic ciguatera poisoning as a differential diagnosis” (1997) 166 Med J Aust 309
REASONS FOR DECISION
Mr Dean Letcher, QC, Senior Member
26 March 2014
The applicant claimed Seafarers Rehabilitation and Compensation Act 1992 (“the Act”) benefits and medical and other expenses from the respondent employer arising from injury by ciguatera poisoning contracted in the course of employment on 27 August 2012. There was a deemed disallowance of each claim and the applicant seeks review by the Tribunal.
FACTUAL BACKGROUND
The applicant was born in 1960, left school before age 16 and went to sea as a Deck boy, then Ordinary Seaman and later as an Able-Bodied Seaman, a classification now termed Integrated Rating. Except for a few short periods ashore, the applicant has worked on ships all his life and for his employer as a permanent employee for over six years and then as a casual for some eight years. He lives in a small village in the Victorian High Country about one and a quarter hour’s drive from Mansfield, and almost three and a half hours from Melbourne. His pattern of work was to crew ships on a “swing” of four to six weeks, being on duty for 12 hours a day as an Integrated Rating working above and below deck, in engine rooms and other areas as required all over the ship.
In August 2012 he was crewing the “Pacific Wrestler”, a ship servicing oil rigs in the Timor Sea north west of Darwin. On 27 August he ate fish prepared as part of the crew evening meal and felt tingling and alteration of sensation in his arms and legs. On 31 August he again had fish for dinner and felt unwell, with more severe tingling, discomfort and alteration of sensation. He believed that the crew had caught Red Emperor fish over the side of the ship and served it as part of the meals provided. He notified his captain, was taken to a medic on board the oil platform and was then taken by helicopter to Royal Darwin Hospital. By that time the tingling sensation had spread so that it affected all of his body apart from his head and heart area. He was assessed overnight and discharged but admitted later when it was feared he might have suffered a stroke. The diagnosis of ciguatera was by clinical impression, there being no definitive physical test.
Ciguatera is an uncommon human food poisoning contracted by eating affected reef fish usually in tropical waters. Toxins in the muscles and viscera of the fish produce the symptoms. It is endemic in the equatorial belt, was detailed in Captain Cook’s 1774 logbook and has a lifetime incidence of up to 70 per cent in Polynesia (Lewis ND, “Disease and development: ciguatera fish poisoning” (1986) 23 Soc Sci Med 983). Neurologic abnormalities may last from weeks to months, about 20 per cent of cases have neurologic signs lasting for months, and up to two per cent report fatigue, weakness, headache or depression lasting for years (Pearn JH, “Chronic fatigue syndrome: chronic ciguatera poisoning as a differential diagnosis” (1997) 166 Med J Aust 309).
Some three weeks after being medically evacuated the applicant was flown to Melbourne. He attended Alfred Hospital Infectious Diseases Unit. Thereafter he was given symptomatic treatment and referred for continuing neurological care. He says that his symptoms improved but still remain, worsening in hot conditions and with physical exertion.
LEGAL BACKGROUND
Section 26 of the Act provides that if a seafarer employee suffers an injury arising out of, or in the course of, his employment, resulting in impairment or incapacity for work, then compensation is payable. Under s 3, injury includes disease. The Act follows closely the Safety, Rehabilitation and Compensation Act 1988 which applies to non-seafaring employees. The Act provides for weekly payments during periods of total or partial incapacity, plus reasonable medical, rehabilitation and other treatment expenses. The scheme is known as “Seacare”.
Liability has not been admitted by the respondent but the Tribunal was informed that no submissions would be made on that issue. The live difference between the parties was whether the applicant was entitled to continuing total incapacity payments, or whether he was fit for some form of work and thus was entitled to no payments or to payments on the basis of partial incapacity. Under Seacare the incapacitated employee is entitled to Normal Weekly Earnings (“NWE”) for 45 weeks, less the amount of Earnings in Suitable Employment (“ESE”) (s 31 of the Act) then, if unemployed for longer, 75 per cent of NWE less ESE up to 150 per cent of Average Weekly Ordinary Time Earnings of Fulltime Adults.
“Suitable Employment” is defined as:
in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means any employment (including self‑employment) for which the employee is suited having regard to:
(a) the employee’s age, experience, training, language and other skills; and
(b) the employee’s suitability for rehabilitation or vocational retraining; and
(c) if employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(d) any other relevant matter.
Under s 32(e) of the Act, if the injured employee has not sought suitable employment, then ESE is assessed, having regard to the state of the labour market at the relevant time: Esam v ASP Ship Management (1998) 87 FCR 82. Under s 32(f) if the employee has not sought to engage in employment or rehabilitation, he may still receive compensation if that inaction is “reasonable in all the circumstances”.
The applicant claims total incapacity from 4 September 2012 to date and continuing. His case is that he is unable to find work within a reasonable distance from his home that he could perform, given his physical limitations and background. The respondent maintains that after a period of total incapacity, the applicant was initially capable of earning in suitable employments between $30,000-60,000 per annum, and now “with concerted effort” he is past the early stage and could earn $50,000-60,000 per annum, that is, a weekly rate of $961.54-$1,153.85 per week.
MEDICAL AND EXPERT EVIDENCE
The expert evidence came from Royal Darwin Hospital (whose staff diagnosed ciguatera), a number of Certificates of Capacity from general practitioners, the reports and evidence of treating neurologist, Dr Michael Poon, a Vocational Assessment of psychologist Mr Michael Parry, a report and literature search of Dr Robert Hjorth, neurologist, obtained by the respondent and the reports and evidence of Dr John Silver.
Dr Poon found sensory disturbance continued three months after ingestion of the fish with a “Christmas Tree” pattern of hot and cold disturbance on the torso (mirroring the distribution of nerves), fluctuating sensory symptoms and heat intolerance five months after, continuing altered sensation nine months after and again at 12 months. At the Tribunal hearing, 15 months after ingestion, the applicant still experienced tingling aggravated by heat and exertion, unusual fatigue and poor stress tolerance. Dr Poon accepted that the applicant was still suffering symptoms of ciguatera, agreed that he would have “unpleasant sensations” rather than actual pain, agreed that it was reasonable to investigate if ciguatera symptoms lasted past 12 months, and believed that the applicant would be able to perform “semi-sedentary work if it did not involve heat or heavy physical work”. He said :
As long as you can survive the ingestion you can recover with time – usually within 3 years … as long as you survive, you’ll improve.
He agreed that anxiety could serve to continue the symptoms after the toxin had gone but, in this case, he believed that the ciguatera was still contributing.
The respondent retained the neurologist Dr Robert Hjorth, whose report and annexed medical literature supported the diagnosis and variable progress of ciguatera:
Some people get better after a few days or a few weeks but other people have symptoms that persist for years. Even when it clears up it can still be aggravated by such activities as drinking alcohol, eating fish, etc.
The main issue in the case was the applicant’s residual capacity for work. It was common ground that, at this stage, the applicant could not return to work as an Integrated Rating because it involved heavy physical work, 12 hour shifts, work in the heat of engine rooms and/or in the tropics. He was assessed by Mr Parry, a psychologist experienced in vocational assessment and injury management. In response, the respondent retained Dr Silver, consultant occupational physician, who interviewed the applicant. Mr Parry made a vocational evaluation of the applicant as an individual using standard tests of abilities and personality. He found that the applicant had very poor computer literacy and clerical skills, low social and cognitive abilities, low stress tolerance and he showed anxiety and depression. Mr Parry also made a detailed survey of the jobs on offer in the Yarra Valley and High Country area surrounding the applicant’s home. On seek.com.au he found only 46 positions in that area of about 150 km radius (as opposed to 15,157 in the Melbourne area). He considered that the applicant was not “suitable by way of his education, training and restrictions for any of these job offers”. He also analysed nine occupations for which the applicant had told Dr Silver that he could perform the majority of the activities. The respondent’s neurologist Dr Hjorth had considered each of these occupations and reported that none was suitable for the applicant, except possibly Sales Representative “if he could take time off and sit down or move or lie down if things got difficult”.
Mr Parry examined the activities and abilities required in these positions and concluded that, if any such jobs were available in the area, the applicant could not in practice carry them out. These occupations and the disqualifying factors were: Delivery Driver (physically demanding, computer skills required, 0 jobs advertised), Sales Representative (prolonged standing, no sales or clerical skills, 4 jobs), Caretaker (physical and clerical, 0 jobs), Courier (too physical, 0 jobs), Store Person (very physical, need computer skills, 0 jobs), Tour Guide (no experience, languages, licences, fitness, 0 jobs), Transport Clerk (needs clerical, computer skills, 0 jobs), Forklift Operator (no licence, too physical, 0 jobs), Driving Instructor (lack qualifications, experience, 0 jobs).
Mr Parry recommended training schemes for possible future employment as a Purchasing Officer, Despatch or Transport Clerk. Mr Parry commented “[t]he rehabilitation process from this point would be considered relatively long term, bearing in mind the ongoing treatment deficits and skill deficits in changing his occupation”.
Dr Silver’s report set out the applicant’s symptoms noting that he had reported a “nervous breakdown” and acute worsening of the tingling when told that his employer would not admit liability for payments. The applicant had told him that he could undertake “the majority of the activities” in the nine occupations. The doctor found a “significant emotional component to his entirely subjective symptoms”. He said that the applicant “rationalised that there was no work available in his small country town” but the doctor found that “at least from the point of view of his physical capacities” he could work “provided no undue heat or physical exercise”. He believed that he could work “if work were made available to him or he were willing to come to Melbourne to do so”.
Mead v Kerney [2012] NSWCA 215 concerned a Telstra technician/grazier living at Kandos about one hour’s drive from Mudgee (population 8,700) and about four hour’s drive from Sydney. He was left with serious leg disability, pain and fluctuating depression after a motor vehicle accident. He was not able to return to his Telstra work nor his grazing activity. He accepted that he could perform light work and he could be suited to auto/machinery sales or real estate sales.
The evidence was that no suitable work was available in his geographic area. His residual earning capacity was assessed at 40 per cent because, while he was physically capable of certain activities, he could carry them out only part-time and with some unpredictability of attendance. The Court of Appeal followed its previous approach in Nominal Defendant v Livaja [2011] NSWCA 121:
… Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some occupation… (at [65])
The Court held that it was not reasonable in all the circumstances to expect the man to move from Kandos. It was practical for him to travel to Mudgee to obtain employment there “But there is simply no evidence that by going to Mudgee there would be any work which he could practically obtain” (at [19] quoting the trial judge). The Court stated:
… it was useful for his Honour to first identify the types of jobs that the respondent might be able to perform and secondly to consider whether the evidence established that the theoretical capacity represented an actual ability to obtain employment in the region in which it was considered reasonable for the respondent to seek work. (at [41])
The Court concluded that any job suitable for the injured man would be:
·part-time;
·light or restricted activities;
·not sitting or standing for prolonged periods;
·with an employer prepared to tolerate unpredictability of attendance and more sick leave being required than usual.
Given this formidable array of requirements, the Court said that it could not “be assumed, in the absence of evidence, that there would be jobs fulfilling the criteria applicable to any employment of the respondent” (at [31]). That is, while in theory there was employment in Mudgee, in practical terms it was not employment that the injured man could perform. The Court found that the relevant area for any assessment of the state of the labour market was a radius of about one hours’ driving time (so as to include Mudgee).
It is the applicant’s case that he is in a similar position, with geographic isolation compounding residual disability, so that there is no practicable suitable employment available. The respondent does not accept that view, relying on Dr Silver’s opinion that:
there is a variety of things he could do, of a semi-sedentary nature… he could undertake the majority of the activities listed…with his only negative comment being that he cannot work in the heat… The limitations regarding heat and other than minor to moderate physical activity are based on Mr Ward’s symptoms alone… He does not require rehabilitation but Mr Ward could return to work in the activities listed above if such work were to be made available to him or if he were willing to come to Melbourne to do so.
Dr Silver referred to the applicant’s anxiety and depression. He agreed that such could be expected in a man with limited skills, in an isolated location, with the doctors unable to tell him when he would get better and with his employer declining to pay compensation. I do not find that the psychological factors were a novus actus interveniens.
It is instructive to apply the process approved by the Court of Appeal in the Mead case to the applicant’s facts. Firstly, the types of jobs the applicant might be able to perform include Delivery Driver, Sales Representative, Courier, Tour Guide, Caretaker, Store Person, Transport Clerk, Forklift Operator and Driving Instructor, although Dr Hjorth and Mr Parry raise practical objections.
Secondly, does the theoretical capacity represent an actual ability to obtain employment within a reasonable distance? Here Mr Parry’s enquiries show minimal opportunity within the reasonable area and a driver, courier or sales representative unable to function in heat, or a forklift operator or storeman unable to lift loads is not likely to gain a job in any location.
In relation to this applicant, the “Suitable Employment” had to take account of his age (53 years), minimal education with minimal numerical and clerical skills, poor computer literacy, restricted physical effort, susceptibility to heat, unpredictable absences, poor stress tolerance and, all this in an area with few positions less than 75 minutes driving time away. The applicant has lived in his isolated community and taken part in local activities since 1985. I think it would be unreasonable to require or expect him to go to work in Melbourne, either living there or commuting.
In my view the relevant “labour market” is that within no more than 1¼ hours driving time from the applicant’s home. I think it unreasonable and unrealistic to expect this applicant to travel further or relocate to Melbourne. That would impose unfair hardship. I find that the relevant area in which the state of the labour market is to be assessed is the Yarra Valley and High Country region, the subject of Mr Parry’s report.
I preferred the evidence and opinion of Mr Parry to that of Dr Silver who concentrated on the applicant’s ability to perform various specific physical actions. Mr Parry looked at the actual availability of particular jobs and the qualities needed to hold such positions in practice. I found Mr Parry’s analysis more in keeping with the test approved by the New South Wales Court of Appeal and I adopt that approach.
In the circumstances of the applicant, I find that he has been precluded since the date of his injury by his residual disabilities, his levels of skill and training and his geographical location from engaging in any suitable employment, and the fact that he has not engaged in employment or rehabilitation activity is reasonable in all the circumstances.
CONCLUSION
Since the date of injury the applicant has had no ability to engage in suitable employment, and is entitled to periodic payments without deduction for Earnings in Suitable Employment and reasonable medical expenses pursuant to the Seafarers Rehabilitation and Compensation Act 1992.
The respondent should pay the applicant’s reasonable costs in both matters.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member .................[sgd].......................................................
Associate
Dated 26 March 2014
Dates of hearing 4 and 5 December 2013 Counsel for the Applicant Mr T McKenzie Solicitors for the Applicant W G McNally Jones Staff Lawyers Counsel for the Respondent Mr B Kelly Solicitors for the Respondent Jarman McKenna Barristers & Solicitors
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