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Administrative Appeals Tribunal of Australia |
Last Updated: 3 February 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
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Re |
MICHAEL BARTON |
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And |
PACIFIC MANNING COMPANY PTY LTD |
Tribunal |
Senior Member J.A. Kiosoglous MBE |
Decision
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The decisions under review are set aside, and the matter is remitted to the respondent for the calculation of the compensation payable to the applicant, in accordance with the following findings: i) the applicant suffered injury to his lower back in the course of his employment with the respondent, with that injury occurring by 18 November 1998; ii) the applicant suffered psychiatric injury in the course of his employment with the respondent, with that injury occurring by 18 November 1998; iii) the applicant's injuries entirely incapacitated him for work for a 45 week period. The applicant was unable to work in "suitable employment" during that period, and consequently is entitled to compensation at a rate of 75% of his normal weekly earnings prior to the accident for that 45 week period; iv) the applicant suffered a permanent impairment of 10% under the applicable Guide as a consequence of his compensable lower back injury; v) the applicant suffered a permanent impairment of 15% under the applicable Guide as a consequence of his compensable psychiatric injury; and vi) the applicant has suffered non-economic loss as a result of his permanent impairments, giving rise to a combined impairment score of "5" under Table 5 of Part B of the applicable Guide. The respondent is to pay the costs of the applicant. In the absence of agreement between the parties, costs are to be taxed by the Tribunal. |
(signed)
(Senior Member)
COMPENSATION - Seafarers' Compensation - whether lower-back injury and psychiatric injury sustained in course of employment - generalised anxiety disorder - incapacity for work - permanent impairment - non-economic loss
Seafarers Rehabilitation and Compensation Act 1992 ss 3, 8, 9, 13, 23, 26, 31, 32, 39, 41, 42, 62, 63, 78, 93
Seafarers Safety, Rehabilitation and Compensation Authority, "Guide to the Assessment of the Degree of Permanent Impairment"
31 January 2003 |
Senior Member J.A. Kiosoglous MBE |
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1. This is an application for review by Mr Michael Barton (the applicant) for review of two reviewable decisions of the respondent dated 6 July 1999 (file S1999/346 - T15/41) and 11 July 2000 (file S2000/483 - T21/53) respectively. The first reviewable decision dated 6 July 1999 (S1999/346) affirmed a determination of the respondent dated 27 January 1999 (T11/33-34) that it was unable to accept the applicant's claim for ongoing compensation for "occupational stress and lower back pain" pursuant to the Seafarers' Compensation and Rehabilitation Act 1992 (the Act). The second reviewable decision dated 11 July 2000 (S2000/483) affirmed a determination of the respondent dated 1 June 2000 (T19/50-51) refusing the applicant's claims for compensation for permanent injury dated 21 December 1999 and 7 January 2000 (T17 and T18).
2. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T30) as well as 27 exhibits, 18 lodged by the applicant (Exhibits A1-A18) and 9 lodged by the respondent (Exhibits R1-R9). Included in these exhibits was a videotape (Exhibit A17) depicting the weather and sea conditions aboard the MV "Pacific Conqueror", the ship upon which the applicant served. In addition, the Tribunal heard oral evidence from the applicant, who also called Ms Maggie Ellen Armstrong, his partner; Dr Nicholas Ford, psychiatrist; and Mr George Potter, orthopaedic surgeon; to give oral evidence on his behalf. The respondent called Mr Andrew William Vinnicombe, chief engineer aboard the "Pacific Conqueror"; Mr Duncan Brownlie Corbett, master aboard the "Pacific Conqueror"; Mr Malcolm John Hearnden, manager of the respondent; Mr Garry Wayne Steve, mate aboard the "Pacific Conqueror"; Mr Frank G. Bell, orthopaedic surgeon; and Dr Lawrence D. Terace, consultant psychiatrist; to give oral evidence on its behalf. The applicant was represented by Ms Kathleen Chambers and the respondent by Ms Rani Aria-Retnam, both of Counsel.
ISSUES
3. The issues before the Tribunal are, in relation to application S1999/346:
* whether the applicant has suffered and continues to suffer from a compensable psychiatric injury;
* whether the applicant suffered and continues to suffer from a compensable lower back injury;
* whether the applicant has been incapacitated for work as a result of a compensable psychiatric injury and if so, to what extent and for what periods; and
* whether the applicant has been incapacitated for work as a result of a compensable lower back injury and if so, to what extent and for what periods.
4. The issues before this Tribunal are, in relation to application S2000/483:
* whether the applicant has suffered a permanent impairment as a consequence of a compensable lower back injury;
* whether the applicant has suffered a permanent impairment as a consequence of a compensable psychiatric injury; and
* Whether the applicant has suffered non-economic loss as a result of any such permanent impairment.
5. In addition, it is also in contention whether or not the applicant complied with the provisions of the Act in making an application for compensation, and in particular, whether written notice of the injury was given to the employer as soon as practicable after the applicant became aware of the injury so as to comply with section 62 of the Act.
LEGISLATION
6. Section 26 of the Act provides for compensation for injury as follows:
"Compensation for injuries
26.(1) If an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for the injury.
..."
7. Section 31 of the Act provides for compensation for injuries resulting in incapacity as follows:
"31 Compensation for injuries resulting in incapacity
31.(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 33, 34, 35, 36 or 37 applies.
(2) Subject to subsection (3) and this Part (other than this section), compensation for the injury is payable to the employee, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount worked out using the formula:
Normal weekly earnings -- Earnings in suitable employment
where:
`Normal weekly earnings' means the amount of the employee's normal weekly earnings;
`Earnings in suitable employment' means the amount per week (if any) that the employee is able to earn in suitable employment.
(3) If the employee is a seafarer, the compensation payable under subsection (2) is payable for each of the first 45 weeks (whether consecutive or otherwise) after the date on which the seafarer is left on shore at, or returned to, his or her proper return port.
(4) Subject to this Part (other than this section), compensation for the injury is payable to the employee, for each week during which the employee is incapacitated, being a week to which subsection (2) does not apply.
(5) The amount of compensation per week payable under subsection (4) to an employee is:
(a) if the employee is not employed during that week -- an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment; or
(b) if the employee is employed for 25% or less of his or her normal weekly hours during that week--an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings; or
(c) if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week--an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings; or
(d) if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week--an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings; or
(e) if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week--an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 95% of his or her normal weekly earnings; or
(f) if the employee is employed for 100% of his or her normal weekly hours during that week--an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings.
(6) If:
(a) compensation is payable under subsection (4) to an employee for a week; and
(b) the employee is employed or engaged during the whole or any part of that week as a seafarer;
subsection (5) applies in relation to the employee as if he or she were covered by paragraph (5) (f).
(7) If an amount of compensation worked out under subsection (5) is more than 150% of the amount called the Average Weekly Ordinary Time Earnings of Fulltime Adults, as published from time to time by the Australian Statistician, the amount so worked out must be reduced by an amount equal to the excess.
(8) If an amount of compensation worked out under paragraph (5) (a) is less than the minimum earnings of the employee, the amount so worked out must be increased by an amount equal to the difference between that amount and the minimum earnings.
(9) For the purposes of subsection (8), the minimum earnings of an employee are taken to be:
(a) $254.46, or, if subsection (10) or (11) applies to the employee, the sum of $254.46 and the amount or amounts required to be added under whichever of those subsections applies; or
(b) an amount equal to 90% of the employee's normal weekly earnings;
whichever is less.
(10) If there are one or more prescribed persons wholly or mainly dependent on the employee, the amount of $62.99 must be added to the amount of $254.46 specified in paragraph (9) (a).
(11) If there are one or more prescribed children (whether born before, on or after the date of the injury) wholly or mainly dependent on the employee, the amount of $31.50 for each of those children must be added to the amount of $254.46 specified in paragraph (9) (a), but an amount must not be so added for a child in relation to any period before the date of birth of that child.
(12) If a prescribed child is:
(a) a prescribed person in relation to the employee; and
(b) the only prescribed person who is wholly or mainly dependent on the employee;
subsection (11) does not apply to the child.
(13) If 2 or more prescribed children are each:
(a) a prescribed person in relation to the employee; and
(b) wholly or mainly dependent on the employee;
subsection (10) applies to one of those children and subsection (11) applies to the rest.
(14) For the purposes of this section the normal weekly hours of an employee who is not employed on a ship are:
(a) if the award, determination or certified agreement that applies to the employee specifies the normal weekly hours of an employee--those hours; or
(b) in any other case--38 hours.
(15) In this section:
`proper return port' has the same meaning as in the Navigation Act."
8. In determining the amount per week than an employee is able to earn in "suitable employment" for the purposes of section 31, the employer is to have regard to section 32 which states:
"Determination of suitable employment
32. An employer who determines, for the purposes of section 31, the amount per week that an employee is able to earn in suitable employment must have regard to the following:
(a) if the employee is in employment--the amount per week that the employee is earning in that employment;
(b) if, after becoming incapacitated for work, the employee received an offer of suitable employment and did not accept that offer--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) if, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, did not engage, or continue to engage, in that employment--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) if, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee did not fulfil that condition--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(e) if, after becoming incapacitated for work, the employee has not sought suitable employment--the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) if paragraph (b), (c), (d) or (e) applies to the employee--whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in the opinion of the employer, reasonable in all the circumstances;
(g) any other matter that the employer considers relevant."
9. Section 39 provides for compensation for injuries resulting in permanent impairment as follows:
"Compensation for injuries resulting in permanent impairment
39.(1) If an injury to an employee results in a permanent impairment, compensation is payable to the employee for the injury.
(2) For the purpose of determining whether an impairment is permanent, the employer must have regard to the following matters:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment;
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is an amount assessed under subsection (4) by the employer, being an amount that his not more than the maximum amount at the date of the assessment.
(4) The amount assessed must be an amount that is the same percentage of the maximum amount as the percentage determined under subsection (5).
(5) The employer under this section must determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment must be expressed as a percentage.
(7) Subject to section 40, where the degree of permanent impairment of the employee, as determined under this section, is less than 10%, an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to an impairment resulting from the loss of, or injury to, a finger or toe.
(9) For the purposes of this section, the maximum amount is $100,778.56."
10. Section 41 provides for compensation for non-economic loss as follows:
"Compensation for non-economic loss
41.(1) If an injury to an employee results in a permanent impairment and compensation is payable for the injury under section 39, the employer is liable to pay additional compensation in accordance with this section to the employee for any non-economic loss suffered by the employee as a result of the injury or impairment.
(2) The amount of compensation is an amount worked out using the formula:
where:
"Degree of permanent impairment" means the percentage finally determined under section 39 to be the degree of permanent impairment of the employee.
"Degree of non-economic loss" means the percentage determined under the approved Guide, by the employer, to be the degree of non-economic loss suffered by the employee."
11. Section 23 provides for the indexation of the figures in section 41(2).
12. Section 42 provides for the Seafarers Rehabilitation and Compensation Authority ("the Authority") to issue a "Guide to the Assessment of the Degree of Permanent Impairment" ("the Guide"), which is to be used in assessing compensation payable for permanent impairment under the Act.
HISTORY OF THE APPLICATIONS
13. On 17 December 1998, the applicant lodged a "WorkCover Notice of Work Related Injury" (T7/24-25) claiming compensation for "industrial stress, back pain and depression" as a result of "working - living on a rig supply vessel", "constant isolation, confinement and boardom" and "sleep deprivation due to bow thrusters, anchors, a/c breaking down, faulse alarm bell, chipping and hammering".
14. In response to a letter from the respondent dated 23 December 1998 (T8/30), the applicant further provided an "SRCA claim form" dated 5 January 1999 (T7/26-29), in which he claimed compensation for lost wages resulting from incapacity to work, medical and related expenses and travel expenses attending medical examination/rehabilitation (T7/29) in relation to his stated injuries of "occupational stress and lower back pain" (T7/27). On the form, he stated that his injuries occurred in August 1998 whilst "working normal duties in a confined isolated environment" and "over a continuous period of time doing heavy lifting and living in a confined space". He further stated that in relation to the location where the injuries happened: "deck, E/R and accommodation, etc".. He stated that his injuries were caused by "heavy lifting and confinement". He further stated on the form that he reported the injury to Dr Tan on 30 November 1998, which was also the date of his first medical certificate (T7/28).
15. By letter dated 8 January 1999 (T9/31), the respondent stated that it did not have sufficient information to make a determination and that it needed further information as to the date of the alleged injury, the person to whom the applicant reported the injury and the date the applicant reported the injury. By letter dated 13 January 1999 (T10/32), the applicant stated that he could not give an exact date of his occupational stress because it had been an "ongoing thing for some time" and in relation to the back pain, it had also been a "gradual thing" which he could only "put down to constant bending down and heavy lifting over the last several months". He further stated:
"It wasn't till approx. 2 weeks into my leave that these things started to deteriate [sic] rapidly to a condition where I had to seek medical help, so none of the above was reported to a particular person at a specific date, so no log entry was made."
16. By letter dated 27 January 1999, the respondent stated that it was unable to accept the applicant's claim for compensation pursuant to the Act due to the following reasons (T11/33):
"1. There was no written notice of injury as required by section 62 of the Act;
2. A written claim in accordance with the form approved by the Act accompanied by appropriate medical certificate was not given to us in accordance with section 63 of the Act;
3. We do not have any conclusive medical evidence relating your alleged injuries to your employment with our company, in this regard, we are making an appointment for you to be reviewed by Doctor Adonis of the West Perth Occupational Medical Clinic and will reconsider your claim on receipt of a medical report following that review;
4. We are making some further enquiries regarding your exact duties on the relevant vessel at the relevant time when you commenced suffering your alleged injuries and we have not finalised those enquiries."
The letter further informed the applicant that it would pay him sickness benefits pursuant to Clause 27 of the Enterprise Bargaining Agreement in force the time whilst making its further enquiries.
17. By letter dated 10 May 1999, the applicant requested a reconsideration of the respondent's determination (T13/37-38) in accordance with sub-sections 78(2) and (3) of the Act. As required by sub-sections 78(4) and (5) of the Act, the respondent sought the assistance of Comcare in reconsidering its determination. In its report dated 28 June 1999 (T14/39-40), Comcare gave its opinion that the applicant had not established that he had an injury which was due to his employment and that he was therefore not entitled to compensation under the Act. Comcare stated that it could not be established whether the applicant had suffered a physical injury and that it remained to be proven whether any such injury was due to his employment. Comcare further stated that the applicant was not suffering from any recognisable psychiatric or psychological syndrome.
18. By letter dated 6 July 1999 (T15/41), the respondent informed the applicant that due to the advice given by Comcare to affirm the determination, the respondent's position with respect to the determination to disallow compensation had not changed.
19. By application dated 24 August 1999, the applicant applied to the Tribunal for review of this reconsideration (T16/42). This application was given the Tribunal file reference S1999/346.
20. By applications dated 21 December 1999 (T17/46-47) and 7 January 2000 (T18/48-49), the applicant made claims for compensation for permanent injury in respect of "lower back pain and occupational stress, anxiety and depression".
21. By letter dated 1 June 2000 (T19/50-51), the respondent declined both claims for compensation for permanent injury on the basis that:
"1. The medical evidence does not support that your client has suffered a physical injury or disability to his lower back at all or, in the alternative, that gives rise to a permanent injury. We particularly the report of Mr Bell dated 17 March 2000;
2. The medical evidence does not support that your client has suffered a psychological injury related to his employment with our client or that gives rise to a permanent injury. We particularly refer to the report of Dr Terace dated 28 March 2000."
22. By letter dated 22 June 2000, the applicant requested reconsideration of the respondent's determination to deny the applicant's claims for compensation for permanent injury (T20/52).
23. By letter dated 11 July 2000, the respondent affirmed its determination, stating (inter alia)(T21/53):
"Our client obtained a report from Comcare dated 28 June 1999 to assist in its redetermination of your client's claim for ongoing compensation, a copy of which was provided to you. That report recommended that our client affirm its decision to decline your client's claim on the basis that the medical evidence did not establish that your client had suffered a physical and/or psychiatric injury at all or that was attributable to his work with our client. Our client has subsequently obtained further medical evidence to support its view.
It follows for the same reason that our client does not agree with that your client has suffered a permanent injury or one related to his employment."
APPLICANT'S EVIDENCE
24. The applicant, who was born on 17 July 1949 in England, emigrated to Australia in 1958 with his family. He is currently 53 years old. He completed Grade 7 primary school in South Australia but he did not undertake any secondary schooling. Due to learning difficulties, he completed primary school at the age of approximately 15 years. Upon completion of his primary schooling he registered with a Shipmaster and commenced seafaring as a deckboy in 1966 when he was 16 years of age. Since then the applicant has remained in employment on various vessels including general cargo ships, ferries, bulk carriers, tankers, tugs and oil rig supply vessels. He worked his way through the ranks to the position of Able Seaman.
25. In his written statement tendered to the Tribunal (Exhibit A7), the applicant stated that his duties as Able Seaman included "general maintenance, painting, chipping, cleaning, greasing, watch-keeping, anchor handling and cargo handling." The applicant stated that in terms of the time he was required to spend at sea, if he was working on coastal ships, he would generally be at sea for five weeks and then have five weeks on land. When working on overseas ships, he would generally be working four months on the ship and four months on land.
26. The applicant stated in his oral evidence that from 1975 to 1980 he worked on the "Nancy Heath", a 20,000 tonne oil tanker with 34 crew. The "Nancy Heath" was approximately four times larger than the "Pacific Conqueror" with four separate bars, a gymnasium and lots of room on deck. The applicant stated that there was social activity on board due to the ship's recreational facilities, and the crew had barbeques and parties. His roster was five weeks on, five weeks off. The applicant then worked from 1983 to 1986 on the "Mobile Flinders", a 150,000 tonne oil tanker with a crew of 56. This ship traded internationally and thus went overseas and was a huge vessel with a pool, a gymnasium and three separate bars. He stated that on board the ship there were recreation nights, including dart competitions and barbeques. The vessel also called into port once every two weeks for two to three days at a time. His main duties aboard the oil tankers were pumping cargo, watch-keeping and general maintenance. The applicant stated that he stopped working on the "Mobile Flinders" after three years as he felt it was time for a change.
27. The applicant also worked on a vessel called the "Sandra Marie" - a smaller general cargo ship with a 6,000 - 7,000 tonnage capacity. It had two different recreation rooms and lots of recreation periods. He stated that it was only at sea for two to three days at a time and his main duties involved watch-keeping, opening and closing hatches and general maintenance.
28. The applicant stated that he then worked on various other vessels including anchor handling tug supply (AHTS) vessels. The applicant stated that the AHTS vessels tended to pay crew more but were dangerous to work on as there was no railing around the stern, the cargo swung around the crew when the vessel was hit by waves, and the workers were always walking on slippery surfaces. The applicant stated that prior to commencing on the "Pacific Conqueror", he was only on these other AHTS vessels for short periods of time.
29. The applicant commenced employment on the "Pacific Conqueror" on 2 November 1994 when he was 45 years of age. This was an AHTS vessel and was much smaller than the other bulk carrying and cargo vessels the applicant had worked on, being approximately 1,600 tonnes and with a crew of 9. The applicant stated that the "Pacific Conqueror" spent its time in the Timor Sea but that the equatorial waters were not calmer than other waters as they were open to the Indian Ocean and lots of swell came across, creating bigger waves. The applicant stated that there would be a cyclone once every three months during cyclone season. The applicant rated the sea conditions to those of Bass Strait, "quite choppy to fairly rough" and estimated the percentage of rough sea conditions to be 10%-15% of the time.
30. The applicant stated that his position on the "Pacific Conqueror" was as a Merchant Seaman with an Integrated Rating Certificate. The Certificate meant that the applicant was classified as multi-skilled and he could perform both deck and engine room duties. His duties aboard the "Pacific Conqueror" included watch-keeping, general maintenance, painting, chipping, cleaning, greasing, anchor and cargo handling and galley duties. His working arrangement was always five weeks on and five weeks off.
31. The applicant stated that compared with the previous vessels he had worked on, the "Pacific Conqueror" was smaller, noisier and not as clean. He stated that increasingly with the passage of time in performing his duties he began to experience some anxiety, agitation and a feeling of being confined and isolated. The applicant stated that his living quarters, the second mate's cabin, were located in the front of the vessel and were very small compared with previous accommodation quarters he had stayed in on other vessels. However, he agreed that he had a bed, ensuite, settee, table and wardrobe for his clothes and that there was a porthole which let in natural light. The applicant stated that there was also less room to go for a walk on the decks as the after deck was generally full of cargo. This meant that the applicant was generally confined either to his quarters or the recreational room, which was basically a television room.
32. The applicant agreed that despite the small number of crew there was a mess room with portholes letting in natural light. He stated that he went to the mess room to dine and to watch the occasional video. Every swing, the vessel was provided with a video per day for the whole 35 day swing and if in port, the skipper would also bring on newspapers, magazines and books. The applicant agreed that in the mess room he could associate with the other crew members and have meals and snacks during the day. The applicant stated that he occasionally went ashore but on some swings there would be no port calls at all.. On other occasions, the port calls would only be for six hours. He agreed that once in port, he could go to restaurants and bars with other crew members.
33. In describing his average day aboard the "Pacific Conqueror", the applicant stated that his shifts lasted for nine days at a time. He stated that his morning shift went from 8:00am to 12:00pm. From 8:00am to 10:30am he would start his watch and would also undertake cleaning and painting. He stated that "painting" was part of the constant maintenance required and was undertaken after rust was chipped from the vessel. From 10:30am to 12:00pm he would chip rust from the vessel. This involved using a pneumatic gun with nails. He stated that these guns were plugged into compressed air outlets and made an enormous amount of noise. He also undertook "greasing" which involved dragging a large drum of grease around the main deck to grease the windlass (a powerful heaving device for pulling anchors and towing) and other main parts.
34. The applicant stated that his next shift was between 8:00pm and 12:00 midnight. In between the morning and evening shifts he had a break period during which time he was supposed to be resting. The applicant stated that it was impossible to sleep as there was too much noise and so he would generally spend the time in his cabin reading magazines on woodwork and learning to play the keyboard. He also spent a considerable period of time just lying on his bed doing nothing. He stated that his cabin was very small, 2.6 metres long by 2 metres wide and his ensuite was 2 feet by 3 feet and consisted of a shower and toilet. The applicant stated that he was six feet tall.
35. The applicant stated that his sleep was regularly interrupted between 12:00 noon and 8:00pm by the noise and heat in his cabin and particularly during "rig calls", when an oil rig would contact the "Pacific Conqueror" asking for supplies and the "Pacific Conqueror" would respond. The applicant stated that he would sometimes have to work from 6:00pm to 2:00am during a rig call. He stated that there was regularly noise during a rig call from the bowthruster, propellers located directly beneath the accommodation and used to manoeuvre the vessel alongside an oil rig for periods of one hour to several hours. The applicant stated that the anchor chain and winch were also immediately outside his cabin and the noise of the chain reverberated throughout the accommodation when being used or when waves crashed against the anchor during rough seas and bad weather.
36. The applicant stated that the engine was going almost all the time and it was also very hot because the air-conditioning would often break down. The applicant stated that the air-conditioning would break down at least once in a five week swing and whilst usually it broke down for about one to two hours, it once broke down for a period of ten days. He stated that the air-conditioning would always break down when he was sleeping and as soon as it went off he could not breathe as it was very hot and humid. The applicant stated that the hot conditions also aggravated his psoriasis as he had to wear protective clothing and his skin was in contact with grease and dirt. The applicant stated that this psoriasis made him feel self-conscious and embarrassed, especially about sharing accommodation with other crew members.
37. The applicant stated that about twice per swing the general fire alarm would also activate which on every occasion was a false alarm but which again interrupted sleep. The applicant stated that the general alarm was supposed to activate in the presence of smoke or heat. The applicant stated that there were also engine room alarms which were isolated and alerted the crew to malfunctions in the machinery. There were also occasions where the applicant's sleep was disturbed by other crew members carrying out hammering and chipping. As the vessel was constructed of metal this noise would reverberate through the accommodation quarters. The applicant agreed that all chipping and hammering had to cease after 3:00pm. He stated that in general the guidelines were followed but occasionally someone would continue to chip or hammer outside the designated hours.
38. During his time on the "Pacific Conqueror", the applicant was also concerned about additional risks to his safety. He stated that the vessel's main function was to deliver and receive supplies and fuel from rigs situated in the Timor Sea and the North West Shelf seas. Cargo was loaded onto the deck area which was covered with a timber decking except for a bare steel strip which ran from the stern roller into the centre of the ship. The stern end of the deck was an open platform without guard rails. This deck area was slippery, was subject to spills such as salt, oils and grease and was often flooded with water as waves crashed over the stern roller and the applicant was not provided with a safety device or harness but he was required to wear steel-capped boots, overalls, a hard hat, eye protection and a life jacket. The applicant stated that he was afraid of falling overboard. The applicant stated that although attempts were made to clean the deck and mop up the water, when the waves were continuous, this was impossible, and in terms of cleaning off debris, there was never enough time to do it properly.
39. Cargo was transferred by crane between the "Pacific Conqueror" and the oil rig and this resulted in large containers often swinging overhead whilst the applicant and other workers helped to load and unload on deck. The applicant stated that he was often afraid of the possibility of the wires and ropes holding the cargo snapping or breaking whilst overhead.
40. The applicant stated that he developed a fear of accidents and recalled three incidents where he felt that he was in danger. The first incident involved a rig call in bad weather in 1995. The rig needed helicopter fuel and the captain ordered the applicant and two others to hook the crane to the fuel container. A large wave came over the stern and picked the applicant off his feet and slammed him into the cargo. The applicant stated that the deck was left in one metre of water and he had to hang onto the cargo to avoid being washed overboard. The applicant stated that at the time he was working with the mate, who told him to report the incident to the skipper as he had suffered abrasions and bruises. The applicant stated that he did so and then continued with his work. After this incident he became very afraid of working with cargo under the crane near the stern roller of the vessel.
41. The second incident occurred when the applicant was picking up a buoy with a cable attaching it to the vessel. When he bent down to pick up a hammer, the cable snapped and swung around, just missing the applicant's head. The applicant stated that he believed if it had struck him it would have decapitated him. The applicant stated that this incident made him more aware of working around wires. The applicant stated that he was working with one other person at the time and the incident was witnessed by the skipper who was relieving the mate on the bridge. After the incident, the applicant asked the skipper about it and the skipper had replied that he "did not realise how much power was on the engine" at the time. The applicant stated that since the incident, he started to feel scared during rig shifts, when there were lots of cables and chains swinging around.
42. The applicant stated that a third incident occurred in 1997 in Darwin involving a gangway. One of his fellow crew members was holding the gangway with ropes whilst the applicant stood on it attempting to shackle it into place. The gangway slipped half a metre, causing the applicant's ribs to hit the railings. As he was due to go on leave the following day, he flew home and saw his doctor, who referred him for a chest x-ray, identifying a fractured rib. The applicant stated that after this incident, he was too afraid to step onto the gangway unless it was totally secured.
43. The applicant stated that he became afraid because of these incidents and was particularly fearful of working with the cargo due to several near misses. He also mentioned being anxious when there were pipes on deck, which moved around a lot until they were secured. The applicant was afraid that if the pipes moved whilst he was securing them he could be crushed.
44. The applicant stated that he began to first experience symptoms of anxiety and feeling confined and closed in about 1996. The applicant stated that these feelings caused him to feel depressed, irritated, frustrated and anxious and these feelings increased with each five week swing. The applicant stated that his feelings of anxiety increased over time and became clear to the people he worked with as a number of comments were made to him about it. The applicant stated that he tried to ignore the comments and persisted with his duties and hoped he was only experiencing a short term problem. In his written statement, the applicant stated (Exhibit A7, page 7-8):
"I did not consult a medical practitioner during this period which is over about 1996 to 1998 because I had hoped that I would recover from these symptoms. I tried to deal with my situation myself the best way I could. I began to have difficulties at home when I returned from swings including arguments and disagreements with my partner. My libido decreased and I became withdrawn. My hands would shake frequently. My symptoms would usually occur particularly close to the time when I was due to go back on board the vessel. These would usually occur close to the time when I was due to go back to work."
45. The applicant stated that he had worked as a seafarer since 1966 on many vessels, but the "Pacific Conqueror" caused him to develop problems with anxiety because he felt that he was forever being placed in danger and was constantly getting bumps and bruises. Compared with the other AHTS vessels, the applicant stated that he only spent very short periods of time on these and his work on the "Pacific Conqueror" involved much more anchor handling and cargo work, which placed him in danger.
46. The applicant was referred to the various occasions over the years when he was involved in disciplinary action. The applicant explained that whenever an incident occurred on board a vessel, it would be recorded as a "logging" in the ship's log book. Such an incident could be related to conduct or to just a change in weather. The applicant stated that in relation to conduct, the crew member had an opportunity to challenge the logging. The applicant stated that in 1975 whilst he was aboard the "Nancy Heath" a logging was made in relation to his conduct. After the applicant made submissions in relation to this, the original outcome - sacking - was reduced to a written warning. The applicant stated that the logging process in that situation was "okay" and he stayed with the "Nancy Heath" for a further five years.
47. The applicant further stated that in 1991, there was an incident aboard the "Sandra Marie" involving the applicant in which it was claimed that the applicant assaulted the chief officer. The applicant stated that the matter was referred to the marine council. The applicant stated that he was aggrieved by these allegations and the Union became involved and as a result he decided to resign in 1993. The applicant agreed that this process was reasonably traumatic for him to go through. The applicant stated that he worked on various other vessels after this time before working on the "Pacific Conqueror" and that therefore the industrial issues in which he had been involved had no bearing on his employment with other vessels.
48. The applicant stated that he had been involved in two disciplinary incidents aboard the "Pacific Conqueror".. One incident, which he described as being as serious as the incident aboard the "Sandra Marie" involved an altercation with the captain of the ship in relation to an argument with the chief officer and not finishing his watch. He received a formal warning and the incident was referred to the marine council, which stated in its subsequent report that he could be excluded from the maritime industry if he breached the code of conduct again. The second incident involved him being unable to be roused for a watch due to intoxication in September 1997. The applicant explained that he had gone ashore and had had several beers as the weather was hot. When he came back on board the "Pacific Conqueror", he fell asleep and the captain was unable to wake him for his watch. The applicant stated that he apologised for this incident and was given a written warning. He stated that he felt very embarrassed by the incident and was happy with the way the captain dealt with the situation.
49. In relation to the psychiatric report prepared by Dr Terace, the applicant stated that Dr Terace saw him only once for about 45 minutes and did not appear to be interested in what the applicant had to say about the causes of his problems and only seemed interested in the disciplinary actions. The applicant stated that Dr Terace cut him off and did not ask him about the risks aboard the "Pacific Conqueror", the heat, accommodation, sleep deprivation, anxiety or his relationship with Ms Armstrong. The applicant stated that he did not see the reports of Drs Tan and Ford in Dr Terace's possession.
50. The applicant stated that he injured his lower back whilst aboard the "Pacific Conqueror" in August 1998. The applicant gave evidence that he was lifting heavy shackles, which weighed approximately 30 kilograms, from floor level to waist height in order to put them on a rack and felt a dull ache in his lower back as he leaned forward from the waist with his arms outstretched to place the shackles on the rack. The applicant stated that he did not tell anyone about the incident because the dull ache went away almost immediately and he continued with his normal duties of general cleaning and maintenance for the next two hours. During that shift he stated that he did not undertake any heavy duties and did not have to do any stair climbing or painting. The cleaning involved cleaning dirt from the bulkheads with a brush, hose and bucket of water. The applicant stated that after his eight hour break he completed his evening watch on the bridge listening to the two way radio and went to sleep at midnight.
51. The applicant stated that the following morning he was lying down when called to his watch. He got up and twisted around so he was sitting on the side of his bed and he turned as he jumped about 85 centimetres to the floor. The applicant stated that whilst doing this he felt a sharp pain in his spine in the same area as he had experienced the dull ache the day before so he lay down again for about 20 minutes. He stated that when he got up for the second time, the sharp pain had reduced to a dull ache and so he went down to breakfast. The applicant stated that only the watchkeeper was present at breakfast and the applicant did not mention the pain to him as it had gone away.
52. After breakfast the applicant stated that he was on deck and picked up a drum of liquid soap and immediately felt a twinge in his spine. He stated that the pain lasted for about ten minutes before becoming a dull ache, so he did not report it. The applicant stated that he continued with his normal duties including lifting, bending, cleaning and general maintenance, but not chipping or hammering, that day. The applicant stated that he might have been called in to move cargo and that he would have completed his night watch on that day.
53. The applicant stated that he continued working his normal duties although he avoided heavy activity for the rest of his swing. The applicant stated that it was only a short time until his five week break during which time he would be able to rest his back to ensure the problem had gone away. In relation to his five week break and return to work, the applicant stated in relation to his lower back and also mental state (Exhibit A7, pages 9-10):
"16. When I was at home I avoided activities hoping to allow my back to recover. I was still experiencing occasional aches in my lower back region. These symptoms were together with anxiety depression and a fear of going back to the confined spaces of the Pacific Conqueror. These symptoms were the focus of my attention. Also at this time I recall having increasing sleeplessness at night and a lack of appetite. I had noticed that my sleeplessness had increased. I had previously started experiencing that symptom after about two years of working at the Pacific Conqueror but the sleeplessness was increasing at around about September 1998. When I did sleep I was experiencing nightmares about being back on the vessel which actually woke me up. These dreams would occur possibly on average about once a week. I was generally very anxious and experiencing depression. My partner had noticed that towards the end of 1998 I was experiencing very severe symptoms of anxiety, depression and agitation. I told my partner Maggie about the lower back incident. I did not see a doctor as I hoped I would recover.
17. By the time I was to return to the vessel in about October 1998 I was feeling depressed, anxious and had some pain in my lower back but I persisted in trying to perform my duties. I was embarrassed to admit or accept that I was not coping with my employment conditions. I was also concerned about losing my job given my age and my poor education and lack of other experience.
18. I returned to the vessel in October and remained there for the five week period. When attending at the airport to depart for the vessel in October 1998 I recall throwing up. I was afraid and didn't wish to return to the vessel. I was trembling and felt ill at the prospect of having to return to such confined spaces and the noisiness of the environment."
54. The applicant stated that every time he picked up something heavy the dull ache would return but because the pain kept coming and going whilst he was working, he thought that it would just go away with time so he did not report it to anyone. The applicant stated that he had numerous other injuries aboard the "Pacific Conqueror" which he also did not report. The applicant stated that he was aware of the requirement to report injuries straight away and he stated that he previously had a cut on his finger that he reported as soon as it became septic. The applicant stated that if he could get on with his normal duties then he would not report an injury.
55. The applicant stated that it was only when he saw an orthopaedic surgeon that he identified the two incidents as causing his disability. The applicant stated that the orthopaedic surgeon's questioning was more precise, asking about the shackles incident and also what happened the next day.
56. There was some discrepancy as to the date upon which the applicant notified the respondent of his work-related injury. The applicant was referred to his work-related injury claim form dated 17 December 1998 and stated that when he saw Dr Tan on 30 November 1998, he wrote a medical certificate which the applicant then immediately posted to the respondent, followed by another medical certificate a week or two later after another appointment with Dr Tan. He remembered sending in a third medical certificate as well. He recalled that Dr Tan had told him that the certificates had been sent back to him. The applicant stated that he had no knowledge why the first medical certificate dated 30 November 1998 was date stamped as received by the respondent on 21 December 1998.
57. When asked why he did not identify any incident as causing his back pain on his claim form (T7/24-25), the applicant stated that there was not much room on the form to identify any incident and he thought that he had completed the form adequately. When referred to the Seafarers' Rehabilitation and Compensation form (T7/26-27), the applicant agreed that there was plenty of room on the form to detail the circumstances of the accident but stated that he was under the impression that the respondent did not want the details of particular incidents but just the cause of the injury. The applicant agreed during re-examination that he had had no legal assistance when filling out the claim forms..
58. The applicant stated that by letter dated 8 January 1999, the respondent had asked him why there was no report or entry in the ship's log about his injuries and that he had replied by letter dated 13 January 1999 (T10/32) that his back pain had been a "gradual thing".. The applicant agreed that this letter was correct in that the back pain gradually got worse over time.
59. The applicant stated that he had identified specific incidents to Dr Tan which were subsequently not recorded in his medical certificates. The applicant stated that he also told Dr Tan that the pain had gotten worse whilst he was on leave.
60. The applicant stated that his next swing was scheduled for mid-December and someone rang him up to start on a particular day. The applicant stated that he had told them that he was unfit for work and had three medical certificates and had also told Mr Hearnden, the Manager of the respondent. The applicant stated that the person did not say anything and he did not commence on the next swing. At the time he had not sent in a claim form but had sent in the medical certificates and the respondent had sent several letters to him.
61. The applicant stated that he saw Dr Ford, psychiatrist, on referral from Dr Tan. He agreed that when he saw Dr Ford he had provided Dr Ford with the details of his symptoms, including his feelings of confinement, isolation and his sleep deprivation but that Dr Ford did not look at any pictures or plans of the vessel. The applicant stated that he had provided Dr Ford with details about his difficulties with other crew members as well as detailed facts about the vessel, including the location of his living quarters and his general duties and hours worked.
62. The applicant stated that he did not mention any of the incidents to the other crew members aboard the "Pacific Conqueror".. The applicant agreed that generally the same people were on each swing although there were quite a few changes in the crew during the four years that the applicant worked on the "Pacific Conqueror". The applicant agreed that there were changes in the seafaring industry in 1998 in that prior to this time, a seafarer was industry-employed but after 1998 a seafarer was company-employed. The applicant stated that such changes had no impact upon his employment with the "Pacific Conqueror".. The applicant gave the opinion that crew changes were not due to the industry changing that rather people tended to stay in the maritime industry because of its good wages but moved from ship to ship depending upon their work preferences.
63. The applicant denied that he ceased work on the "Pacific Conqueror" because he did not want to work on AHTS vessels any more. He denied leaving the "Pacific Conqueror" because it was "no fun being at sea" and because he "could not go ashore any more like he used to".. The applicant stated that he could not cope with working on the vessel any more. The applicant stated that he last worked aboard the "Pacific Conqueror" in October/November 1998 and on the day he left he recalled saying goodbye to a number of workmates and telling them he was unable to cope with his work any longer and would not be returning.
64. In relation to the current state of his lower back, the applicant stated in his written statement (Exhibit A7, page 14):
"25. I have experienced ongoing pain and discomfort in my lower back which is constantly present in the form of a dull ache in the centre of my lower back which is aggravated by physical activities such as bending, lifting, twisting including working in the garden, sitting for long periods and being involved in any jarring movements. I took medication for my lower back injury. I took anti-inflammatory medication for my lower back and have had physiotherapy and chiropractic treatment. I have also had acupuncture. I have also had hydrotherapy and palaetish treatment. None of these forms of treatment have improved my symptoms. I have been managing my symptoms over the last few years by avoiding activities which I know will produce increased pain and discomfort. I have consulted specialist orthopaedic surgeons and I understand that I have an ongoing disability in my lower back.
26. I have constant pain and discomfort affecting my lower back made worse by various physical activities."
65. In relation to the current state of his psychological condition, the applicant stated (Exhibit A7, pages 15-17):
"27. ... Dr Ford has prescribed medication for me and I have been taking antidepressant medication daily since 1999. Initially Dr Ford prescribed Effexor medication which I took 70 milligrams per day. I had previously been on Cipramil prescribed by Dr Chester. The amount of medication I was taking was reduced to 35 milligrams after about a year of first consulting Dr Ford but I began to experience increased symptoms of anxiety and depression and the dosage of my medication was increased. I have taken and continue to take one 70 milligram tablet of Effexor at night time per day.
28. I feel that the medication has assisted in relieving some of the intensity of my symptoms but I still experience anxiety, depression and sleeplessness. In addition to this treatment of me Dr Ford also referred me to a psychologist, Luciano Guglielmin who I saw on a regular basis for treatment. I consulted Mr Guglielmin initially weekly and then fortnightly and eventually monthly, six weekly and then bi-monthly and this was until about the end of 2000.
...
37. ... For a significant period of time particularly initially after November 1998 and then again when I was taking 35 milligram medication I was anxious and afraid and depressed and had little enthusiasm for social or recreational activities. Lately with the assistance of my medication I have been more interested in going out. My personal life has been significantly adversely affected by my condition. I had difficulties with my personal relationships with my partner because I was experiencing anxiety, irritability, frustration, anger, depression and a loss of libido but with the assistance of the psychiatrist and psychologist my relationship has been stable for some time. I still continue to experience trembling of my hands which tends to happen at random and with no particular cause that I am aware of but this has only occurred since about 1996."
66. The applicant stated that he has not obtained any other employment since he last worked on the "Pacific Conqueror" in 1998. The applicant stated that he has been in receipt of sickness benefits from Centrelink until six to seven months ago when his doctor, Dr Pye, declared him "fit for light duties", meaning unable to lift more than 10 kilograms. Since then the applicant has been surviving financially on Centrelink Newstart Allowance benefits. The applicant stated that in the year 2000 he undertook a full-time sound engineering course to try and obtain some skills in another field. He had some work experience in theatre production work in his partner's theatre production where he sat at the sound mixing console and "turned the faders up and down" and also with the Noel Coward Society in the Arts Theatre at Angas Street, where on one occasion he put radio microphones onto the actors' clothes. The applicant stated that he has been unable to obtain any remuneration from sound engineering work. The applicant stated that he has just completed another course in video production. The applicant stated that his interest in sound engineering stemmed from playing the keyboard and he can play the keyboard and piano reasonably well. He stated that learning a piece of music takes him a long time because he cannot sight-read and must read and memorise the music.
67. The applicant agreed that he would be happy to work as a sound engineer. He described the duties of a sound engineer to be operating the recording studio console, altering the volume of different tracks with the equipment, overlaying other musical equipment. The applicant stated that the work requires skill relating to music and in particular frequency ranges. The applicant told the Tribunal that whilst undertaking his course he attended lectures, took notes, read handouts, read one or two books and sat for an examination. The applicant stated that he did not know if he passed the examination as the college was withholding his results until he finished paying off his course fees. The applicant agreed that therefore he could operate technical equipment if given the opportunity to learn about it.
68. The applicant also agreed that he could undertake clerical duties and if trained, he could undertake work as a ship's clerk or a clerk in a shipping firm or agency. The applicant stated that he has not looked for clerical work as he is not trained. The applicant stated that since he was declared fit for light duties, he has also unsuccessfully applied for work as a food and beverage attendant and as a machine operator. He stated that he was told that they needed people with experience.
69. In terms of the range of clerical duties, the applicant stated that he was not sure if he would be able to undertake filing duties or arrange conferences. He agreed that he could answer telephones, organise mail coming in and distribute it to personnel and undertake photocopying tasks. The applicant was not sure if he would be able to work as a sales assistant selling goods for use on ships but agreed that he could sell musical equipment. The applicant also agreed that he could undertake work in a courier's office, picking up items, finding the correct address and delivering items. The applicant qualified this by stating that he had trouble reading maps. The applicant further agreed that he could work as a travel or accommodation adviser, ringing up airlines for tickets for personnel to fly out to vessels to resume duty or arranging for hotel accommodation.
70. The applicant agreed that at least at the time he saw Dr Terace in March 2000 he was feeling a lot better but still did not have the confidence to obtain employment. The applicant stated that at the time he saw Dr Terace, he might have been physically feeling 9/10 but psychologically he was not. The applicant stated that as at the time he saw Dr Terace he was undertaking courses and had tried to obtain work as a food and drink attendant and machine operator.
71. The applicant stated that whilst assisting with his partner's theatre group he also assisted in catering, serving cups of tea and cake about one year ago. He stated that he was given a budget of $100 and he went to the supermarket to buy provisions. The applicant stated that he took a calculator along and added up each item and afterwards he took the provisions home and prepared them before delivering them to the theatre group. However, the applicant stated that he could not work in a coffee shop as he has had panic attacks before whilst handling money as he becomes confused when adding and subtracting. The applicant stated that he currently does have a bank account and he just files away his bank statements. He agreed that he pays his bills at the GPO without having panic attacks.
MS MAGGIE ELLEN ARMSTRONG
72. Ms Maggie Ellen Armstrong is the applicant's defacto partner. She has known the applicant since approximately 1976 and they began a relationship in 1988. She has been co-habiting with the applicant continuously since 1990. At the hearing, Ms Armstrong affirmed that her written statement (Exhibit A8) was true and accurate and that she intended for it to form the basis of her evidence.
73. In her written statement, Ms Armstrong stated that for the last three years she has held the position of general manager of a theatre company called "Vitalstatistix". Prior to that she was the direct marketing manager of the Festival Centre for a period of 13 years.
74. In describing the applicant's personality and behaviour prior to commencing on the "Pacific Conqueror", Ms Armstrong stated in her written statement (Exhibit A8, page 2):
"6. ... In the initial period of our co-habitation from about 1990 until about 1995 or 1996 when I recall first observing a significant change in his personality, I would describe Michael as a quiet man who enjoyed playing music. I would describe him as a happy person who enjoyed his home life and socialising with mostly my work colleagues and friends. He did not have many friends himself. Michael's main activities at home were his music and I recall he started to learn to play the key-board and became involved in woodwork and made a number of articles at home during the period from about 1990 up until about 1995 or 1996."
75. In terms of the applicant's behaviour and personality since commencing on the "Pacific Conqueror", Ms Armstrong made the following comments in her written statement (Exhibit A8):
"7. We enjoyed a good relationship in all respects until about 1995 or 1996 when I first recall observing some changes in his personality. I am aware that Michael commenced work as an Able Seaman on The Pacific Conqueror in about the mid 1990's. I do recall that the changes I observed in him occurred after his started work on The Pacific Conqueror. The first main change that I noticed in about 1995 was that his libido had decreased quite substantially and quite rapidly to the point where I raised it as an issue. At the same time I recall that his psoriasis which he suffered from had also begun to occur more frequently and with more intensity. I also recall at about this time whilst he has always been a fairly quiet person he was never difficult to talk to or for me to communicate with but I started having difficulties in communicating with him as he tended to become withdrawn. By this stage I had formed the view that clearly there was something wrong with Michael but had tried to talk to him about it on a number of occasions but he simply wouldn't communicate about what difficulties he was experiencing at the time.
8. I am aware that he would work four to five weeks away at sea in what is known as a swing. During the course of 1995 or 1996, I observed that when the time approached for him to return to sea, he became more withdrawn and agitated and appeared to me to be irritable and his sleeping pattern was also by this stage becoming affected. His sleeping pattern became fitful on a regular basis particularly as the time approached for him to leave to go back to the vessel. I also noticed that his hands would tremor which over the course of the period 1995/1996 soon seemed to became a fairly permanent aspect of his presentation..
9. Prior to 1995 or 1996, Michael had no impairment with respect to his libido. He did not appear to have any sleeping difficulties. His psoriasis was under control and his hands did not tremor. He was also easier to communicate with. In the period from 1995/1996 until he left The Pacific Conqueror in 1998 these symptoms were frequent and increased in severity particularly leading up to the dates of his departure for the vessel. I would also notice during this period that he was still anxious and withdrawn and generally seemed down when he returned form the vessel but over a period of about a week or so following his return his symptoms would tend to decrease for a short period of time and then flare up again in approximately the week leading up to his departure. However, as time passed and his symptoms increased, there appeared to be no relief from the symptoms between swings and I observed him to have these difficulties during the entire period of his leave between swings.
10. I recall on a couple of occasions during the period 1995 or 1996 to when he last worked on The Pacific Conqueror that I commented to him that he should seek some psychological assistance. He would simply say that he couldn't cope with this particularly work that he was doing. He would be no more descriptive about his situation. Also during this period between 1995 or 1996 and when he lasted worked on The Pacific Conqueror he gradually lost the motivation and enthusiasm for participating in activities that we had undertaken before, such as going for walks, going to the beach, coming out with my friends and planning activities together. I am aware that Michael has sustained an injury to his back in an incident involving a bunk as I recall and that he has had ongoing problems with his lower back. From my point of view his psychological injuries are more severe and I have paid more attention to those issues. However I have observed him at home doing less woodwork and having to stand and take breaks and stretch and he has asked me to massage his back and complained of pain in his lower back for some time.
11. Michael used to assist me with the heavier lifting around the garden at home where I have chickens and I am required to move things such as bags of wheat and he has not assisted with that activity for a number of years now and he has indicated to me that this is because of the pain he experiences in his lower back when trying to lift. I have massaged his back on a number of occasions and have seen him grimace and a pained expression on his face when he gets up after having been seated for a lengthy period of time.
12. I recall the last occasion when Michael was to go to The Pacific Conqueror. When I was driving Michael to the airport towards the end of 1998 he started crying and trembling and was very distressed about having to go back to work. This was the first time that I had seen this sort of reaction and seen him in this state. He was very distressed and kept repeating "I can't go".. I was very concerned for his wellbeing at this stage. He didn't explain why it was that he couldn't go. He had complained to me of the confined spaces on The Pacific Conqueror, the noise and his inability to sleep on a number of occasions. When Michael returned from The Pacific Conqueror on leave following the last occasion that he was on the vessel, I pushed him to get some medical assistance. I considered that he might have had a breakdown and I was very concerned for his health and well-being. He appeared not to be able to concentrate and think clearly and his psoriasis had flared up, he was trembling severely and he appeared to be very withdrawn and downcast. I had to push Michael on this occasion because I was very concerned for his health. I would describe him as a proud person who would tend to suffer in silence rather than get some assistance. I am aware then that finally by about the end of 1998, he consulted a medical practitioner and has not returned to work since. I am also aware that he has consulted doctors for his back and a psychiatrist and psychologist and has continued to take medication on a daily basis which I observe.
13. His personality has changed.
14. For most periods since late 1998, Michael has been on medication and this has assisted him in presenting more calmly although he still continues to have fitful sleeps and virtually no libido and tremors. However, there have been some periods when he has not been on any medication and during those periods he returns quickly to a very distressed state on a daily basis..
15. Michael's personality has certainly changed. Without his medication I recall an example on one occasion when friends came to visit that during the course of the evening he was irritable, agitated and very edgy. With his medication he seems to be able to function a little better. Generally I would say that Michael is not the same person that he was prior to working on The Pacific Conqueror. His personality is different in the ways I have described above."
DR NICHOLAS FORD, PSYCHIATRIST
76. Dr Nicholas Ford, psychiatrist, has seen the applicant on numerous occasions and prepared five reports in relation to the applicant, dated 30 August 1999 (T27), 9 December 1999 (T26), 18 May 2000 (T25), 21 June 2001 (T24) and 28 August 2001 (T23).
77. In his oral evidence, Dr Ford stated that his opinion as to the applicant's condition remains the same as in his reports. Dr Ford stated that his diagnosis of the applicant was of having generalised anxiety disorder. He explained that people with this disorder live in a state of constant anxiety which is pervasive and continuous. He contrasted this disorder with panic disorder, where a person has discreet episodes of increased anxiety and experiences physical symptoms such that the person thinks they are going to die. Dr Ford stated that often patients have panic disorder with generalised anxiety disorder but in the applicant's case he did not have panic attacks of that intensity but rather just had the constant anxiety. Dr Ford stated that generalised anxiety disorder is very common in high risk occupations, such as fire-fighting and police work.
78. Dr Ford stated that the applicant's current treatment regime involved taking 112.5 milligrams of Venlafaxine per day. His dosage was increased in December 2001. Dr Ford anticipates seeing the applicant in the next two to three weeks about his Tribunal case and then in several months' time and then again in another two years. Dr Ford stated that when he saw the applicant on the Friday before the Tribunal hearing began, the applicant was extremely nervous but the applicant had improved on medication despite the pending litigation.
79. Dr Ford stated that seafaring is a high risk occupation as far as psychiatric problems are concerned but that very little has been written about it. He stated that there is only medical literature from Poland relating to fishermen. He stated that alcohol and drug abuse is common and that seafarers experience mixed anxiety and depressive conditions. Dr Ford stated that the Polish data revealed that behaviour disturbances among fishermen decreased with age but neurotic, depressive and anxiety conditions tended to increase with age. Dr Ford stated that only one publication looked into the specific stressors causing these problems and found the most significant to be noise, climatic differences and difficulties getting on with other people. He stated that it appeared that the seafarers' tolerance to stress decreased over time.
80. Dr Ford told the Tribunal that he has been a major in the Army reserve for the past two years and has been studying conditions such as post-traumatic stress disorder. He stated that he has looked at the situations of police officers, ASIO officers, firefighters and army personnel as well as officers posted abroad. He stated that whether they developed psychiatric symptoms depended upon where they were located, the level of isolation they experienced and the types of traumatic incidents they encountered. Dr Ford stated that he did not have any personal experience with merchant seamen but had seen a number of fishermen in the south east of South Australia. Dr Ford agreed that his knowledge of the activities of merchant seamen was vicarious in the sense that he gained the knowledge through reading, discussing seafaring life with several family members in the Navy and through the applicant. Dr Ford stated that he did not know if the activities differed from vessel to vessel and that was why he researched the available literature.
81. Dr Ford gave evidence that the applicant told him that his difficulties were present in August 1998 but he had had problems for quite some time. Dr Ford stated that the applicant's partner, Ms Armstrong, had told him that the applicant has been exhibiting behavioural problems for the past five years, with an increase in the last three years (from 1994-1999). Dr Ford stated that when at his suggestion the applicant's medication was decreased, the applicant promptly relapsed, which to Dr Ford suggested a recalcitrance in relation to his condition.
82. Dr Ford stated that during the course of his consultations with the applicant he referred him to a clinical psychologist, Mr Luciano Guglielmin, who assisted the applicant with psychotherapy in conjunction with his medication. Dr Ford stated that psychologists are generally cheaper to visit and have more time for discussion and to teach anxiety management strategies. Dr Ford stated that the feedback he had received from Mr Guglielmin was that he had been meeting monthly with the applicant and that he thought the applicant was getting better and stabilising until he stopped taking his medication.
83. Dr Ford stated that patients in general are more truthful with their treating specialist and as patients become more comfortable with a specialist, they reveal more and patterns they have missed may emerge. Dr Ford gave the opinion that it would be difficult to prepare a medico-legal report after only one interview with a patient.
84. Dr Ford stated that in the applicant's case, the information that he had before him was the history given by the applicant and his partner, and reports from the psychologist, orthopaedic surgeon and Dr Terace. Dr Ford stated that he used these reports to cross-check the history given to him. Dr Ford was of the opinion that the applicant was a reliable historian. Dr Ford stated that his discussions with Ms Armstrong confirmed the diagnosis, corroborated the history and offered another person's point of view.
85. Dr Ford stated that the applicant told him at the first interview about the three or four disciplinary incidents in which he had been involved. When referred to the disciplinary action aboard the "Sandra Marie" in 1993, Dr Ford stated that the applicant had told him that at the time he had felt threatened and resentful and he was particularly upset about the way that it concluded. Dr Ford gave the opinion that he thought the applicant's anxiety started on the "Sandra Marie" and increased over time. Dr Ford further gave the opinion that the situation aboard the "Pacific Conqueror" may have exacerbated a pre-existing condition and that perhaps in another situation, the condition may not have developed.
86. Dr Ford stated that the applicant had told him about the disciplinary action aboard the "Pacific Conqueror" in 1997 regarding the alcohol incident and that the applicant had told him he was satisfied with this outcome. Dr Ford stated that based on the history provided by the applicant's partner, the applicant would have been having difficulties with anxiety at the time this occurred.
87. In considering the factors which contributed to the applicant's condition aboard the "Pacific Conqueror", Dr Ford referred to the noise, sleep deprivation and heat and the traumatic incidents the applicant experienced, such as the time he was nearly washed overboard, nearly having his head taken off by a cable and having cargo swinging above him. In addition although the applicant had stated that he got on well with the officers this was belied by conflict with them. Dr Ford stated that the applicant's partner had told him that the applicant was a "blocker", meaning he is disinclined to acknowledge his anxiety symptoms to others. Dr Ford stated that the applicant's feelings of anxiety led to increased sensitivity to noise, problems sleeping and difficulty getting on with others. He stated that the applicant had told him that he also had nightmares about being on the boat and being unable to sleep due to noise. He further stated that because of his anxiety condition, the applicant could have become hyper-responsive to noise and displayed a startle response even though the noise on board the "Pacific Conqueror" was no louder than aboard any other vessel. Dr Ford stated that alternatively, the applicant may not have been able to sleep because of his anxiety and was blaming inability to sleep on noise. Dr Ford stated that it was difficult to discriminate between noise and a person's perception of noise. Dr Ford stated in relation to the noise from crew members undertaking hammering and chipping work that the applicant had told him that the restrictions on the hours in which one could carry out this type of work were not complied with.
88. In relation to the hours in which the applicant worked on the "Pacific Conqueror", Dr Ford stated that the applicant had told him that he worked four hours on, eight hours off and then four hours on, but when there was a rig call, he would work eight hours instead of four. Dr Ford agreed that the applicant had periods of eight hours off to sleep and rest but stated that the applicant had told him that he could not sleep due to noise, heat and anxiety. Dr Ford agreed that the applicant had the second mate's cabin with an ensuite and that on board the "Pacific Conqueror" there was also a mess room with windows to let in natural light, a video, dining room and library and that the applicant had ample opportunity to stay in the mess room or walk around the deck.
89. In relation to the heat, Dr Ford stated that the applicant had told him that the air-conditioning would break down regularly and although it was repaired within hours, the applicant could not by that stage go back to sleep. In addition, Dr Ford stated that it was the applicant's perception that the heat was difficult to tolerate.
90. Dr Ford stated that he was not surprised that the applicant never mentioned being anxious to his employer. He stated that the applicant is a "blocker" and therefore would not acknowledge his anxiety symptoms but rather would become irritable and would withdraw into himself. Dr Ford gave the opinion that it was common in the type of environment the applicant was in that one would not tell one's workmates about a problem. Dr Ford observed in addition that it did not appear that the applicant had formed any close friendships whilst at sea. Dr Ford stated that there was evidence in the disciplinary incidents in which the applicant was involved suggesting a person experiencing difficulties, eg, becoming involved in a fracas with the chief officer and being too drunk to do one's shift. Dr Ford stated that he was not aware of the intoxication incident at the time of receiving his first history from the applicant but he was aware of the other incidents. He stated that he did not know if the applicant told him about the intoxication incident or if he read about it in Dr Terace's report but the incident was of concern to Dr Ford. Dr Ford gave the opinion that it is possible that the various disciplinary incidents, including the one on board the "Sandra Marie", could have caused the applicant's generalised anxiety disorder but stated that on the other hand the symptoms of the applicant's generalised anxiety disorder may have caused the intoxication incident aboard the "Pacific Conqueror".
91. Dr Ford stated that the applicant has not gone back to the "Sandra Marie" incident or the other disciplinary incidents in interviews but rather has focused on his frustration with the heat, noise and sleeplessness as the cause of his nightmares and other problems. Dr Ford stated that in relation to the disciplinary incidents, what upset the applicant the most was the inconsistency in treatment he received from the captains of the vessels he was on. Whilst the applicant felt he was treated reasonably in relation to the intoxication incident aboard the "Pacific Conqueror" he felt he was treated unfairly after the incident aboard the "Sandra Marie". Dr Ford gave the opinion that whether or not a disciplinary incident affected a person depended upon how the ship was run.
92. Dr Ford stated that people with generalised anxiety disorder feel isolated even when they are with people that they know and like. He further stated that it did not appear that the applicant had any longstanding friends whilst on board the "Pacific Conqueror" despite the fact that the captain of the "Pacific Conqueror" was liked and respected and that the applicant had gone off drinking in town with the other crew members on occasion. Dr Ford gave the opinion that whilst the applicant felt isolated, he was not antagonistic with everyone.
93. Dr Ford disagreed with the opinion of Mr Guest, psychologist (mentioned in Dr Ford's report dated 30 August 1999 (T27)) that the applicant was worried about losing his partner because of his time away at sea. Dr Ford stated that the applicant was fairly close with his partner, Ms Armstrong, who was heavily involved in her own activities, and that therefore there was no pressure on the applicant to get onshore.
94. When it was put to Dr Ford that the applicant may have been upset when the Maritime Union of Australia bargained away all the seafarers' working conditions in late-1998, Dr Ford stated that whilst such things might have made the applicant unhappy, he could have already been upset at this time and it might have upset him further if he thought that there would be even less employees at sea with him. Dr Ford stated that when one returns to the applicant's history, the issues the applicant focuses on are not the changes in the maritime industry or the disciplinary actions in which he was involved but rather the heat, the noise and the dangerous working conditions. When asked why the applicant had told Dr Terace but not him about the intoxication incident aboard the "Pacific Conqueror", Dr Ford stated that perhaps when the applicant was calm, after treatment, he was able to remember more incidents.
95. Dr Ford stated that the applicant had told him that he had worked on AHTS vessels before but had had no difficulties on these other vessels and that his first problems were aboard the "Sandra Marie". Dr Ford stated that he had not revisited this early history since his early treatment of the applicant.
96. Dr Ford was referred to his report dated 28 August 2001 (T23/60-61) and in particular the passage stating:
"He does not have suicidal thoughts or fantasies now. He says that he recalls thinking quite frequently on his last trip on the boat a wish to jump from the steps to the bridge. This is a little puzzling, as the distance was only some 4 metres apparently, although he spoke with some satisfaction of the numerous protruding objects at the bottom on which he thought he might be impaled."
Dr Ford stated in relation to this that the applicant had mentioned to him feeling like throwing himself off a cliff and that he had pointed out to the applicant that the distance from the steps to the bridge was not very high and the applicant had said in reply that he could have hit lots of things in the way. Dr Ford stated that it would surprise him if there was nothing in the way between the steps and the bridge.
97. Dr Ford stated that whilst early on in his consultations with the applicant he had felt hopeful that the applicant could attempt a return to work he had subsequently formed the view that it was unlikely that the applicant could ever go back to work in a maritime environment because of his loathing for it and his symptoms. Dr Ford stated that the applicant had undertaken studies in music and a course in sound engineering but the applicant anticipated that he would fail the course due to experiencing too much anxiety.
98. In relation to permanent impairment, Dr Ford stated that in line with the Authority guidelines, he assessed the applicant as currently having a 20% impairment rating under the Guide relating to his anxiety disorder (T23/61). He stated that once these proceedings were concluded, he expected this level to subside slightly, and that the applicant would have a permanent impairment of 15%.
DR LAWRENCE D. TERACE, PSYCHIATRIST
99. Dr Terace has been a practising consultant psychiatrist for the past eight years. He saw the applicant on 16 March 2000 at the request of the respondent for a period of about 50 minutes to one hour and prepared a report in relation to this interview dated 28 March 2000 (T29/76-97). In his report, his conclusions were as follows (T29/94):
"1. Mr Barton met criteria for a panic disorder (DSM-IV nomenclature) in the past and this is a recognised psychiatric condition.
2. This has mostly resolved, in the present.
3. That condition was, at the time of the contraction, a product of:
3.1 Inherent personality and constitutional vulnerability (i.e. personality make-up) - 70% contribution, since there is good scientific evidence to support that most of these conditions are predominantly constitutional in origin, interacting with
3.2 What appeared to be a formal disciplinary process. However, the reasonableness of this is a legal and industrial matter outside of my determination.
4. Mr Barton is not describing a posttraumatic stress disorder as a result of any minor mishaps or accidents during the time of his employment as a Seaman. I clarified quite carefully with Mr Barton that any apparent mishaps or accidents were not of particular psychological significance to him and, therefore, they could not have been causal to his symptoms. The sole contributor from the workplace was the matter of the formal disciplinary process, accusations of misconduct and poor work performance. However, the reasonableness of this is a legal and industrial matter outside of my determination.
5. The issue of Mr Barton's back complaints is a matter of physical injury, which is outside of my determination. ..."
100. Dr Terace stated in his oral evidence that when he reviewed the applicant on 16 March 2000, he asked him for a detailed history of events. He stated that it is his standard practice to do so in order to understand the patient's general perception of the workplace. DrTerace stated that he is very careful not to lead a patient in any way so as to elicit spontaneous responses from them.
101. Dr Terace stated that the clearly predominant matters concerning the applicant about his time on board the "Pacific Conqueror" were the disciplinary proceedings mentioned in his report at pages 3-5 (T29/78-80) as follows:
"Work History
1.5 Mr Barton was first appointed as a Seafarer on the 9th September, 1966 and he has worked with several different companies since then.
1.6 Mr Barton has been almost continuously employed in that capacity.
1.7 Mr Barton was appointed to Pacific Manning Company Pty Ltd approximately five years stating that his duties were called "Integrated Rating" in 1993 and prior to that, as an "Able Seaman"..
1.8 Mr Barton stopped work in November, 1998.
1.9 Mr Barton clarified that -
1.9.1 There were several episodes of formal criticism of his work performance.
1.9.2 That - "The second time, I joined the vessel in 1993" (Mr Barton was first appointed to Pacific Manning in approximately November, 1993). On return from shore leave, his performance was criticised by the Captain of the ship, reportedly for having had an argument with the Chief Officer. Mr Barton stated that he had told the Chief Officer to-
"Get f-----!".
- following which he slammed the telephone down on the Chief Officer. The Chief Officer reportedly came down and Mr Barton stated -
"I told him to "Get out of the f...... room!""
The Captain came down and admonished Mr Barton for telling the Chief Officer to `get f......'
Mr Barton then walked away.
The next morning, the Captain criticised him for -
"Not finishing my watch".
Hence, the Captain gave him a formal warning.
The next day, the Captain gave him a written copy of the complaint, requesting a reply, with which Mr Barton reportedly complied.
The report then went to the Marine Council, who reportedly found Mr Barton guilty of a breach of code of conduct, and he stated that -
"While I was waiting for the report, I was under a lot of stress".
"The Marine Council had the right to terminate my employment - that put me under a great deal of stress, waiting for that report to come through".
"The report came and said, "Because you have been in trouble before, we'll give you one more chance"".
1.9.3 "There was a third one" (the first formal warning was reportedly on a previous ship, with a different company).
Mr Barton described a similar incident -
"When I went ashore, I had a couple of beers. The Captain came to me the next day. He called me into his cabin and complained that I wasn't sober (I was pretty unconscious due to alcohol) and he couldn't wake me. I'd had no sleep the previous day, and I'd been drinking and he couldn't wake me up".
Hence, Mr Barton received a third written warning in approximately the beginning of 1998.
Further events of 1998
1.10 "I was starting to feel depressed because I'd been put under great strain" (after the third written warning).
1.11 Mr Barton did not describe any other specific trigger in the form of any critical incident, true work trauma or evidence for a psychologically dangerous or toxic work environment in the workplace over that time, except that -
"There were a few minor accidents (for the whole four years I was on the vessel)".
None of these appeared to be particularly significant and Mr Barton described them as -
"Nothing totally major".
..."
102. Dr Terace stated that he was very careful in trying to elicit whether there were any other factors or stressors affecting the applicant but that the applicant had only described a few minor accidents in four years, none of which appeared particularly significant.
103. Dr Terace stated that some experiences on board sea vessels are associated with anxiety disorders, such as particularly traumatic events such as a near-drowning, or witnessing a drowning.
104. Dr Terace stated that the applicant did not mention to him his conditions of employment, or any particular problems with noise, false alarm bells, the air-conditioning breaking down, or feelings of boredom, confinement and isolation.
105. In relation to the applicant's psychological symptoms as at the time he reviewed the applicant, Dr Terace stated that the applicant appeared to have improved substantially by the time he saw him and that there were only very residual symptoms of his past panic disorder. It was his opinion that the condition was in remission. Dr Terace stated that he had diagnosed the applicant as having an anxiety disorder based wholly on the history given by the applicant as there were no other objective signs.
106. Dr Terace gave the opinion that at the time he saw the applicant, the applicant could have returned to work as a seafarer. Dr Terace stated that the applicant's condition was not permanent but rather was in remission and that the applicant's progress should continue to be good and with no further sequelae. When asked whether the applicant was in fact choosing not to work, Dr Terace stated that there were two possibilities, firstly, that the applicant has a fear that if he returns to work on the vessel it might lead to a relapse; or secondly, that given the disciplinary processes he went through, he might resent his employer and choose not to return to work.
107. When it was put to Dr Terace that the applicant had given evidence that the two disciplinary incidents aboard the "Pacific Conqueror" did not result in him resigning and that the applicant had stated that he believed he was treated reasonably by his employer in relation to the second incident, Dr Terace stated that his opinion was based on the degree to which the applicant appeared to be preoccupied with the disciplinary proceedings during the review and the degree of elaboration in relation to them. Dr Terace stated that the applicant became particularly distressed when talking about the report to the Marine Council. Dr Terace stated that the interview did not show the applicant to be acutely or profoundly disturbed about any other issues such as to cause a psychiatric condition.
108. Dr Terace recalled reading the reports of Drs Ford, Chester, Tan and Bell but stated that he conducts his psychiatric interviews without looking at any reports. He stated that he conducts the interview, dictates the contents of the interview, forms a preliminary conclusion and then reads the reports and amends his opinion if the weight of the evidence is different. He further stated that he considered the other reports after the interview but he did not mention these other reports in his report because he did not see them as affecting his report. Dr Terace stated that he let the applicant lead the interview as he saw fit. Dr Terace disagreed that it was sensible to look at other reports as part of a patient's history before such an interview and gave the opinion that such would predispose him to a certain view of the patient and that it is his task to remain impartial. Dr Terace stated that it was important for him to understand the predominant state of mind of the applicant at the time of the interview.
109. Dr Terace stated that the purpose of a psychiatric interview was to form an intellectual opinion and that a single interview was sufficient to form an opinion and that such opinion would be just as reliable as multiple interviews and was a sufficiently valid scientific view or diagnosis of the person. Dr Terace stated that in so far as diagnosis was concerned he is in a better position than a treating psychiatrist because his lack of predisposition increases the validity of the report in the sense that such would be not clouded. When asked during cross-examination whether or not he considered himself to be in a better position than Dr Ford, the applicant's treating psychiatrist, to determine diagnosis, cause, treatment, long term progress and ability to return to work, Dr Terace stated that he believed he was in as good a position in relation to diagnosis and causation, but in relation to treatment, the treating psychiatrist would be better as he would have had more sessions with the patient in a clinical setting.
110. In relation to causation, Dr Terace stated that anxiety conditions can occur for no reason at all and one could not say that a particular incident will always lead to the development of the condition. Dr Terace stated that he reached his different opinion as to causation based on a scientific process of assessing the probability the condition would have occurred anyway, the applicant's preoccupations at interview and other factors.
111. When told that the applicant had stated in his evidence that he felt he had no rapport with Dr Terace, Dr Terace stated that rapport is an issue for treatment in the sense that there is an expectation that patient and psychiatrist will have a therapeutic alliance and that rapport does not affect diagnosis or causation. Dr Terace stated that he always shows professional courtesy and gave the opinion that that sometimes people come to medico-legal assessment with a predisposed view that the psychiatrist is against them.
112. Dr Terace stated that the onset of the applicant's anxiety disorder was closely related to the distress suffered by him in relation to conduct problems at the time. Dr Terace stated that he had considered things such as working in rough seas as a significant stressor but found no causal link and gave the opinion that most of the time significant stressors do not lead to the development of a psychiatric disorder. Dr Terace further gave the opinion that whether a disciplinary process was reasonable or legal or not is not usually relevant to whether a person develops a psychiatric condition.
MR GEORGE POTTER, ORTHOPAEDIC SURGEON
113. Mr Potter is a consultant orthopaedic surgeon. He stated that he often prepares reports for litigation. He had one consultation with the applicant on 20 April 2001 for approximately 45 minutes, during which time the applicant underwent an examination and completed a questionnaire. He prepared a report in relation to this consultation dated 24 April 2001 (T22/54-59). In this report, Mr Potter stated, inter alia:
"Mr Barton developed back pain in August 1998. The initial incident occurred when he jumped out of the bunk on the supply ship on which he worked. He had a sharp pain at the time which caused him to return to his bunk. The pain settled over a period of 20 minutes and he then went onto the deck where he was involved in work which included lifting and twisting a drum of soap weighing approximately 20 kgs. As he did this he had a severe recurrence of pain and since then has experienced ongoing low back pain which is particularly troublesome after bending and straightening. He also has difficulty with prolonged standing and sitting and is limited in a range of physical activities.
...
In addressing your questions I shall summarise the above report or expand it as necessary.
1. The physical symptoms reports to me were low back pain which was aggravated by activity and also increasing by prolonged standing, sitting, twisting, jarring and straightening from the flexed position. These symptoms have been evident since an injury in 1998 and continue to limit him in his daily activities.
2. The findings were of localised tenderness in the L3 region of his lumbar spine with no associated neurological abnormalities. The findings were considered consistent with the history provided.
3. He has a non specific low back pain problem. A diagnosis has not been established as investigations have been normal. I have raised the possibility of a facet joint injury but have not substantiated this diagnosis.
4. He has received appropriate treatment for this problem in the past. There are some alternatives that I discussed with him which he may care to explore. These treatments are supportive of a facet joint injury rather than curative but can sometimes provide effective pain control in an individual who can modify their activities appropriately.
The treatments I have suggested that he consider are the physiotherapy techniques of the McKenzie technique and subsequently a Pilates program. I have also raised the possible role of the provocative study of a facet joint injection as a potentially diagnostic and therapeutic procedure.
5. The usual treatment for a non specific low back pain problem is simple analgesics, anti-inflammatory drugs and physiotherapy treatments coupled with modification of daily activities. These treatments have been implemented in the past with little benefit being derived from them. I am not aware of the costs of either the McKenzie technique or a Pilates program and would suggest that if he pursues these that estimates be obtained from the treating practitioners.
6. I would consider a facet joint injury would leave a permanent residual physical impairment which could adversely affect an individual's ability to undertake heavy manual work or work requiring repetitive bending, heavy lifting or the prolonged maintenance of static postures. I believe that he would be able to cope with full-time work if suitable duties were available to him but understand that he will not be returning to his previous occupation and note that he has not had experience in other areas of the work force.
7. In accordance with the tables provided to me I believe that he does have a permanent residual physical impairment of the lumbar spine which I would assess as representing a 10% loss of function. The pain score from this condition is usually in the region of 1 or 2 and the suffering score would usually be classified as 2 and the effect on recreation and leisure would be scored as 2. In Mr Barton these scores are not an accurate reflection of the symptoms described to me and it seems likely his problem with depression is compounding the symptoms and limitations he reports. In table 2, I would expect the mobility score to be 2, social relationships to be 1 and recreation and leisure activities to be 2.
8. I would consider his condition has stabilised. There are some treatment strategies which he could employ which may offer some useful mechanisms of controlling his symptoms but will not eliminate his problem.
9. I found no evidence of exaggeration or the presence of non organic factors on examination. I note that he has a history of anxiety and ongoing depression for which he has received treatment."
114. Mr Potter stated in relation to the applicant's description of the incidents causing his low back pain that he had given the applicant a questionnaire regarding causation and the applicant had ticked "lifting" and "twisting".. Mr Potter stated that he asked the applicant to describe his problem and how it happened. He stated that he would have asked him to describe the onset of his problems and the applicant in response related the onset to an incident.
115. Mr Potter stated that the applicant told him about the incident where he jumped off the bunk and then being on deck and lifting and twisting as he picked up a drum weighing 20 kilograms and from then onwards experiencing pain on bending and lifting. Mr Potter stated that the applicant made no mention of any incident involving lifting shackles. Mr Potter stated that the applicant described the onset of his pain in August 1998 with no pain prior to the initial episode.
116. Mr Potter stated that the applicant had told him that he had continued with his normal duties with pain and that he tried to avoid certain tasks. Mr Potter understood that after his five week swing finished he had a five week break and then returned to work, before leaving in November 1998. Mr Potter stated that the applicant did not advise him that he did not report the incidents until November 1998.
117. Mr Potter stated in his report (T22/56) that the applicant's history and localised tenderness suggested that he had sustained an "ill defined non specific low back injury with the most likely cause of this being a facet joint injury". He stated that he found no structural abnormalities in the applicant's spine and he further stated that he found no features of arthropathy, which can lead to back pain particularly from the facet joint. He gave the opinion that the applicant's symptoms did not suggest a discogenic injury but he could not completely exclude such a diagnosis. He further gave the opinion that he did not think the applicant had merely a musculo-ligamentous injury. In addition, whilst he stated in his report that "investigations show no evidence of pre-existing degenerative change", Mr Potter stated in oral evidence that the applicant's radiologist had formed the view that there were slight degenerative changes in the applicant's spine.
118. Mr Potter stated that many people with facet joint injuries just think they have strained their back and hope it will settle with time and therefore do not report the pain straight away. Mr Potter stated that a facet joint injury would never resolve as the surface of the facet joint cannot be repaired.
119. Mr Potter stated that orthopaedic surgeons have a raft of examination techniques to find out if there are any inconsistencies between a patient's physical condition and their presentation. However, he stated that he cannot test a person's own perception of pain. Mr Potter agreed that it was surprising that the applicant had not mentioned any specific incidents as causing his back pain to other doctors, including his GP. He stated that in light of this information, he would change his diagnosis to "facet joint pain" rather than "facet joint injury".. Mr Potter gave the opinion that despite this change in diagnosis, he was still of the view that the applicant was left with a permanent disability as the surface of the joint cannot repair itself.
120. Mr Potter stated that in a person aged 50 years undertaking heavy manual work, it would be unusual not to have a history without any back pain. However, he stated that a person of such an age has a 70% chance of back pain regardless of whether they undertake heavy duties or not. Mr Potter stated that x-rays of the applicant's back revealed it to be "pretty good".
MR FRANK G. BELL, ORTHOPAEDIC SURGEON
121. Mr Bell stated that he is a retired orthopaedic surgeon after practising as a surgeon for 45 years. He stated that he has a vast amount of experience in diagnosing back injuries in the workplace and has had experience with seafarers through his work at Fremantle Hospital. He stated that he had been on a few sea trips as the ship's doctor and had travelled on both passenger and cargo vessels and therefore had a fair idea of the range of duties seafarers were expected to perform. He stated that on these vessels, there were about 20 to 30 people on board. Mr Bell stated that he saw the applicant on 17 March 2000 and prepared a report dated 21 March 2000 in relation to the applicant (T28/71-75). In his report, Mr Bell stated, inter alia:
"He recounted how in August 1998 he awakened one morning with back pain. He said that this recovered in 10 or 15 minutes but still somewhat troubled him when bending. He said that he put up with this and no reporting it until November when it just got worse. He told me on my questioning that he felt that this could have been as the result of lifting heavy shackles, some 6 or 8 of them, about 50 kilograms from the deck to a rack where they were kept.
He said that he reported to Dr Tan his general practitioner who gave him anti inflammatories and acupuncture, arranged physiotherapy and hydrotherapy, xrayed his back and he had had chiropractic treatment none of which has had any effect whatever on his back ache.
He recounted that anxiety/depression came on about 2 years before this alleged back injury when he was working out of Darwin, 5 weeks on and 5 weeks off. He explained that this job involved undertaking watches of some 4-6 hours and also involved working in the hold at times hitching cargo onto rig cranes, often in rough seas and this concerned him. He found he was becoming angry, he could not communicate, he had suicidal thoughts and other self harming thoughts, nausea and vomiting on one occasion. He said that he found working on a small vessel with just a crew of 9 was a strain. He tended to shun his shipmates and retire to his room during time off. He volunteered that his mental stated has improved quite a lot in the last 6 months.
...
He stood erect without any back problems of back pain and walked without a limp.
I could find very little in the way of tenderness, perhaps maximally about the lumbosacral level.
There was no tenderness in his buttocks or about the musculature of his thighs or calves.
He was able to flex fingertips to lower shins. He said he could usually touch his toes.
He extends without any dysrhythm.
He declares mild pain on hyperextension.
Lateral flexion was normal in range and without pain.
Straight leg raising was possible to 70 degrees both right and left with evidence of rather tight ham strings.
I could not fault his deep reflexes, power or sensation.
...
I viewed some plain xrays which he brought with him of the 11 January 1999. These I considered normal with only very minor degenerative changes for a man of his age. The disc spaces were all well preserved. There was no evidence of breach of the arches of any of the vertebrae and his facet joints seemed remarkably well preserved.
I did arrange a CT scan on the 17 March 2000 to exclude any overt disc bulges or herniation but these show his discs to be absolutely normal, the arches are shown again to be in tact and his facet joints show only minor degenerative changes.
Opinion:
Mr Barton's account of the onset of his depression seems to be clearly that it commenced about 2 years before the alleged incident in question, coupled with the absence of any injury except perhaps the lifting of shackles.
The conditions on the vessel would seem to be very reasonable being placed in the second officers cabin with en suite facilities.
Having travelled on cargo vessels myself in the past, the various noises around the ship would not seem to be all that bad.
It is well known that difficulty with sleeping is a symptom of depression rather than a cause and I find it difficult to accept that in the absence of any physical signs and remarkably clear xrays for a man of 51, who has been a seaman all his life, to conclude that his back ache is other than depression.
I have seen this commonly in the population at large, of the onset of back ache with depression and once the offending cause of that depression is found, the condition clears up.
In any event I address your list of questions:
...
3. The findings on examination are of no identifiable pathology affecting his back and would conclude that his back ache is of psychological origin related to the alleged depression. He tells me his health is otherwise good.
...
5. Depression is a very common problem in our society. It is accepted that 10% of all Australians are subject to depression at some time in their life and late middle age is a very common period for this to occur.
I do not consider that Mr Barton's physical symptoms and the absence of significant physical signs that his back condition at least is not caused as the result of his employment.
6. I would consider that Mr Barton's physical condition will resolve once he has his depression adequately treated.
7. I do not consider that Mr Barton will require or benefit from any further treatment to his alleged back injury. He certainly will not require surgery to his back, now or in the future.
8. I do not consider Mr Barton will suffer any permanent disability in his back.
9. My opinion is that Mr Barton has a capacity for full time employment from a physical perspective and can see no reason why he should not return to his normal duties as a Merchant Seaman on a full time basis.
The Psychiatrist and the Maritime Certifying Doctor may have good enough reasons to sanction such employment from a psychological point of view.
10. I do consider Barton is fully fit for other alternative types of work on a full time basis as a labourer, courier, salesman, clerk, shop assistant, security guard, grounds man, or any other occupation.
11. I do not believe there is any restrictions Mr Barton may have as a result of his physical condition, in social or family life."
122. Mr Bell stated in his oral evidence that he still agrees with the contents of his report. Mr Bell stated that during his consultation with the applicant he had asked him when the pain in his back started and the applicant described that particular incident with the shackles in August 1998. The applicant also told him that he had previously strained the muscles in his back and was off work for three weeks and had had a bruised rib in 1995 which required several weeks off work. Mr Bell later made a correction that the applicant had not reported strained muscles of the back but rather strained his ankle. Mr Bell stated that no other incidents in relation to the back were described to him.
123. Mr Bell stated that he reviewed the x-rays that the applicant presented to him and considered them to be normal with minor degenerative changes which were consistent with a person aged 51 years. Mr Bell further stated that he sent the applicant for a CT scan on 17 March 2000 because such a scan would give him a better appreciation of the state of the applicant's discs and facet joints. Mr Bell stated that the discs appeared to be normal, the arches of the vertebrae were intact and the facet joints exhibited minor degenerative changes.
124. Mr Bell stated that he still agreed that there was "no identifiable pathology" affecting the applicant's back. In relation to his comments regarding the applicant's depression, Mr Bell stated that he had no experience with depression except for many years in medicine and his opinions as to the applicant's depression were based on his physical examination of the applicant and on the fact that the applicant has been taking Cipramil, a fairly strong anti-depressant medication, for the past two years.
125. Mr Bell stated that the applicant's back condition was not caused by his employment and that he does not require treatment or surgery for it. He stated that treatment is not likely to be of benefit as he does not have a disability at this time. Mr Bell gave the opinion that the applicant is able to return to his seafaring work plus other forms of work as well (from a physical perspective).
126. When asked whether it was likely that the applicant had a facet joint injury, Mr Bell stated that if present he did not believe it was badly disabling the applicant but rather that the applicant was experiencing back ache as a result of his depressed mental state, which is common. Mr Bell gave the example of an accountant he had seen several years ago who was in severe pain. He was facing the charge of fraud and was experiencing intractable back ache which nothing would relieve. Mr Bell stated that he suggested invasive surgical treatment but asked the patient to wait until his case was heard in court. Mr Bell stated that he met the accountant several months later by accident and the accountant said that his back was fine. Mr Bell stated that such a person was feeling the pain in his mind rather than being untruthful.
127. Mr Bell stated that at the time he examined the applicant he did not find that the applicant had suffered a significant facet joint injury. He stated that he found no point of tenderness in the facet joint area and that the applicant had a normal range of movement in all directions, which was not consistent with facet joint pain.
128. Mr Bell stated that based on his examination of the applicant, the only other possible clinical basis for his back pain would be the applicant's psoriasis which can cause joint degenerative change. He stated that he has seen patients whose psoriasis gets worse when they are distressed. Mr Bell stated that he was a general physician before he became a surgeon and in that time he noticed that prolonged anxiety and depression can cause heightened psoriasis, which in turn is one of the well-known causes of osteoarthrosis in the joints.
DR A. J. H. TAN, OCCUPATIONAL PHYSICIAN
129. Dr Tan prepared three reports which were tendered and dated 23 May 1999 (Exhibit A13); 28 November 1999 (Exhibit A14); and 12 August 2000 (Exhibit A15). In his report dated 23 May 1999 (Exhibit A13) Dr Tan stated that the applicant first consulted him on 30 November 1998 and thereafter at regular intervals. He stated that the applicant's complaints were stress, anxiety and depression and lower back pains. He stated that the applicant attributed these as being work related. On clinical examination he found the applicant to be highly stressed, anxious and depressed as well as having some restrictions in the range of active movements of his back. His diagnosis included occupational stress, anxiety and depression and that the back injury was probably musculo-ligamentous in nature. The treatment he prescribed was medication, counselling, physiotherapy and psychiatric examination.
130. Dr Tan stated in his report that the conditions in which the applicant worked were unreasonable and have led to his present psychological state. As to the lower back pains, he stated that these were due to the heavy physical demands in the job, such as heavy lifting and working in confined spaces. In preparing his first two reports (Exhibits A13 and A14) Dr Tan did not have the benefit of an MRI of the lumbar spine. In his third report (Exhibit A15), he states that such was undertaken on 8 August 2000. As to the findings and treatment he provided, inter alia, as follows:
"FINDINGS:
* There is normal vertebral alignment
* The vertebral bodies maintained normal height and return normal signal
* There is one small incidental vertebral haemangioma within the L3 vertebral body posteriorly, of no clinical significance
* The five lumbar discs and visualised lower two thoracic discs return normal signal and maintain normal height
* All appear well contained and no posterior annular tears are seen
* There is no spinal canal stenosis or nerve root compromise.
COMMENT: Normal study.
The diagnosis included,
1. Occupational stress, anxiety and depression
2. Back injury, musculo-ligamentous in nature.
Treatment had included
1. For the stress, anxiety and depression
(a) Stress management
(b) Psychological counselling
(c) Anti-depressant medications
2. For the back injury
(a) Physiotherapy
(b) Hydrotherapy
(c) Manipulation
(d) Acupuncture
Despite treatment, he has made no significant improvements."
131. As in his other reports his diagnosis included occupational stress, anxiety and depression as well as back injury, musculo-ligamentous in nature. He also estimated that the applicant has suffered permanent residual disabilities in the lower back at 6%.
MR ANDREW WILLIAM VINNICOMBE, CHIEF ENGINEER
132. Mr Vinnicombe is currently employed by the respondent as chief engineer. He referred to his written statement dated 4 February 2002 (Exhibit R2). He was the chief engineer aboard the "Pacific Conqueror" from 22 January 1997 to 23 March 2000, including the swings when the applicant was on board, from 5 August 1998 to 11 September 1998 and from 15 October 1998 to 18 November 1998. Mr Vinnicombe was shown the applicant's record of service (Exhibit R8) and agreed that it showed that he had worked with the applicant on his last ten swings. Mr Vinnicombe stated that he saw the applicant every day as the "Pacific Conqueror" was a very small boat. However the applicant did not work directly for Mr Vinnicombe.
133. In his written statement, Mr Vinnicombe stated inter alia (Exhibit R2):
"7. To my recollection, the Applicant's duties on both swings involved his working on the galley or the deck. The Applicant was not required to work in the engine room.
8. I do not recall the Applicant being required to engage in any particular heavy lifting. The only lifting that he would have been required to perform was that involved in the normal routine operation of the Vessel such as lifting mooring ropes, cargo slings, 20 litre drums, shackles and buckets of bulk waste out of the bulk pods that weighed up to approximately 20 kilograms. The Applicant was not the only crew member required to perform lifting of this nature.
9. The Applicant occupied a forward cabin designated as a second mate's cabin for the entirety of the relevant swings. The Applicant was not allocated that cabin for any particular reason or because of any show of symptoms or difficulties on board the Vessel but purely due to luck when his cabin was assigned at the time that he joined the Vessel.
10. I cannot recall whether there were any problems or disputes between the Applicant and the other crew members.
11. The Vessel was 64.4 metres in length and 13.8 metres beam. From my experience, the Vessel was not smaller in terms of general size than other off-shore vessels that I had worked on and the accommodations were not unusually cramped. The Applicant's cabin was larger than most.
12. The Vessel was not usually dirty or noisier than other vessels that I had worked on. From my cabin I could often hear the noise of the Applicant's electrical musical keyboard coming from the other end of the accommodation so the noise of the Vessel could not have been too loud.
13. To the best of my recollection, the Applicant showed no obvious symptoms of stress during either swing or any sign of depression other than was normal for someone being away from home and wishing they were at home instead of at sea.
14. To my recollection the Applicant spent a majority of his time off duty in his cabin either sleeping or practising on his electrical musical keyboard.
15. I do not recall the Applicant having any difficulty performing his duties.
16. The Applicant did not report to me any incident or incidents involving his back at any time on either swing and did report any problems of stress or depression.
17. I cannot recall the Applicant showing any signs or symptoms of psoriasis at any time on board the Vessel.
18. The Vessel did not have an unusually noisy bow thruster for the industry.
19. The Vessel had air-conditioning that worked reasonably well and only had a couple of two or three hour shutdowns for maintenance during both swings. The air-conditioning was definitely never out of action for 10 days at a time.
20. The Vessel did not suffer from a lot of false alarm bells. The alarms were tested on a weekly basis but this was done when all crew members were awake, for example at just before meal time.
21. Chipping and hammering around the accommodation was only undertaken during the hours of 10.30 and 2.30 pm and did not occur on a daily basis.
22. We were provided with ear plugs to assist in blocking out any noise when we were trying to sleep."
134. Mr Vinnicombe stated in his oral evidence that he did not observe the applicant showing any signs of a back disability in the last ten swings. He further stated that the applicant showed no more than usual levels of anxiety or depression. Mr Vinnicombe stated that the applicant was a very quiet person who was pleasant to talk to. Mr Vinnicombe stated that the kinds of complaints he received from the crew were, for example, wishing they were not on the ship, feeling that they would rather be with their family, feeling fed up with the sea conditions on the deck.
135. Mr Vinnicombe stated that the applicant did the general duties of an integrated rating on board the ship except for engine room duties.
136. Mr Vinnicombe stated that he commenced work on AHTS vessels in 1981 and has worked on many since, all whilst being employed by the respondent. Mr Vinnicombe further stated that he has not been on other vessels with bars but sometimes cargo vessels had swimming pools. Mr Vinnicombe gave the opinion that the AHTS vessels were not as big. He stated that the "Pacific Conqueror" was not particularly noisy and that in the last ten swings there was no problem with the alarm bells. Mr Vinnicombe stated that it was quite possible that the alarm bells went off twice a swing - he stated that they used to test the fire alarm bells every week but usually only on Sunday, just before or after meal time so that everyone was presumably awake at the time.
137. Mr Vinnicombe testified that the air-conditioning aboard the "Pacific Conqueror" was "not brilliant but not dreadful".. He stated that he usually used to sleep under a light quilt. Mr Vinnicombe stated that the heat was "shocking" when the air-conditioning was off as there was very little air flow. Mr Vinnicombe stated that as he was chief engineer he was responsible for the air-conditioning and if he did not fix it he would suffer too. He stated that he would shut down the air-conditioning once per fortnight to let it defrost and to clean it out and the boat would get fairly warm at that time. He stated that at no time whilst he was aboard the "Pacific Conqueror" did the air-conditioning stay off for ten days. Mr Vinnicombe stated that because of the humid conditions and the fact that the doors were frequently being opened, it was difficult for the air-conditioning system to operate at full capacity.
138. Mr Vinnicombe stated that in harsh weather the engine room was one of the better places to be on board the "Pacific Conqueror".. He stated that there was less movement in the engine room which was kinder on the body, but one could still get thrown around but not off the deck. He stated that there were times when he has staggered against things but has not reported such incidents unless he was injured. He stated that if he bruised himself he probably should report such an incident but he would not. In other words, he would not report the minor things, only major things if he was incapacitated. Mr Vinnicombe stated that he did all the mechanical and electrical work and his work had very little to do with the applicant.
139. Mr Vinnicombe stated that on such a small boat, he would expect people to mention any incidents to him as he is a senior officer, but that the applicant was not obliged to come to him.
DUNCAN BROWNLIE CORBETT, MASTER
140. Mr Corbett has been employed by the respondent since 1994 as a master. He has been involved in the maritime industry for 39 years, 19 of which years he has worked offshore. He has completed 19 swings on the "Pacific Conqueror" and was the master of the vessel for the swings from 5 August 1998 to 11 September 1998 and from 15 October 1998 to 18 November 1998. He stated that the applicant was working on board the vessel as a merchant seaman on both of these swings. He referred to his written statement (Exhibit R3).
141. Mr Corbett stated that he knew the applicant both as a crew member on the "Pacific Conqueror" and prior to that as well. He stated that the applicant had had "a lifetime at sea". Mr Corbett stated that the applicant's duties were the same as any other integrated rating signed on that class of vessel. In terms of lifting, Mr Corbett stated that the applicant would have been involved in the loading of food stores or technical stores onto the vessel at the outset, lifting paint drums and anything else that was needed to keep the ship running. He agreed that there were shackles on board which weighed between 25 and 30 kilograms and stated that these are normally not lifted but dragged and that if they are too heavy, one could always get assistance from another crew member.
142. Mr Corbett stated that he did not notice the applicant experience any problems in performing his duties in the last two swings. Mr Corbett stated that the applicant never mentioned a back problem to him and he further stated that in terms of depression and anxiety, he did not recall the applicant exhibiting any behaviour different from normal. Mr Corbett stated that generally the applicant performed his duties during the required hours and during his break he spent lots of time practicing and playing his keyboard. Mr Corbett further stated that the applicant also watched videos and there was also a library on board the vessel if someone wanted to read. Mr Corbett stated that there were also weights and an exercise bike on board the vessel.
143. Mr Corbett stated that he has been on 21 AHTS vessels in all and that that "Pacific Conqueror" was fairly normal for the year it was built. He stated that there was very little difference between AHTS vessels apart from the fact that the newer ones are larger. He stated that the "Lady Kathleen" was a similar AHTS design to the "Pacific Conqueror" and was designed so that all accommodation and machinery are as far forward as possible to allow the maximum deck area.
144. When asked for the procedure if one of the crew suffered from a disability or illness on board, Mr Corbett stated that a crew member is to report anything, whether an illness, injury or a "near miss", to the ship's master or officer as near to the time of the incident as possible. Such an incident is then entered into the deck log book. If the injury is more than a scratch, an incident report is to be prepared, one copy of which is to remain on the ship and two other copies are to be sent to the regional office. He stated that it is imperative that this is done to avoid problems later.
145. In terms of dirt aboard the vessel, Mr Corbett stated that when the vessel is in port, there is a lot of dirt, grime and dust around, and when next to a rig, there is a lot of smoke. He stated that it was the crew's responsibility to clean the ship whenever possible. In terms of the noise aboard the "Pacific Conqueror", Mr Corbett stated that when the vessel is steaming, there is not much noise, but when the vessel is manoeuvring over to an oil rig, the bowthrusters are in operation and the anchor is in use. He stated that the bowthruster is rather noisy but the noise level depends upon how much the bowthruster is used to hold the vessel in place. He further stated that the crew are supplied with ear plugs to be used for sleeping. Mr Corbett gave the opinion that the "Pacific Conqueror" was not any noisier than any other AHTS vessel. Mr Corbett also stated that he could not recall a problem with the ship's alarm system during the last two swings and he stated that the vessel could go for five weeks with no activation of the alarm bells. Mr Corbett further stated that any chipping and hammering aboard the vessel had to be carried out between 10:00am and 2:00pm and that the only reason he could think of for such noise occurring outside the designated hours was if someone was repairing something.
146. Mr Corbett stated that the air-conditioning was quite adequate but there was the occasional breakdown. He could not recall any problems with the air-conditioning in the last two swings. He stated that if the air-conditioning broke down, the worst case scenario was that a part would have to be ordered using the vessel's communication equipment from onshore, which would be delivered to the vessel whilst in port or by helicopter. Mr Corbett stated that each cabin also has a fan.
147. Mr Corbett stated that he had no disciplinary problems with the applicant and that whilst master of the vessel, he did not notice anything different about the applicant's behaviour. Mr Corbett stated that the applicant was not a particularly social person and spent his time in his cabin. Mr Corbett agreed that he did have discussions with the applicant about the cabin arrangements, at a time when there was a second mate coming aboard the vessel and he requested the applicant vacate the second mate's cabin. Mr Corbett stated that as there were only two or three days to the end of the swing, the applicant was allowed to stay in the second mate's cabin. Mr Corbett stated that this incident did not affect his relationship with the applicant, which he described as "an average working relationship".
148. Mr Corbett agreed that there was better remuneration on AHTS vessels than on an ordinary tanker because of the nature of the work required and the fact that the bigger vessels were more comfortable.
149. When referred to the videotape of the "Pacific Conqueror" at sea, Mr Corbett stated that the video depicted typical conditions experienced by the "Pacific Conqueror". Mr Corbett stated in relation to the waters in the vicinity of the rigs that they were usually quite rough but that the wind could come up and go down within one hour.
MR MALCOLM JOHN HEARNDEN, MANAGER OF THE RESPONDENT
150. Mr Hearnden has been the manager of the respondent since 1993. He has been employed in the maritime industry for approximately 15 years and has worked for both the respondent and other employers in the industry. He referred to his written statement dated 26 March 2002 (Exhibit R4).
151. Mr Hearnden stated that he only knew the applicant through telephone conversations, when, for example, he would give him flight details, and had never met the applicant. He further stated that he had been on the "Pacific Conqueror" at sea but not whilst the applicant was on it. He stated that he had been on the vessel for sea trials, but not in the Timor Sea.
152. Mr Hearnden stated that the "Pacific Conqueror" was principally assigned to the North-West Shelf and the Timor Sea. He stated that the seas in this area are generally regarded as "benign" but can get rough. He stated that generally the company would encourage a vessel to take "avoiding action" if confronted by a cyclone at sea.
153. Mr Hearnden stated that the respondent runs ten vessels in Australia, the majority of which are AHTS vessels. He stated that AHTS vessels generally do not differ in terms of the tasks they perform. Mr Hearnden stated that that he could not comment on whether the conditions on board an AHTS vessel were harder that on other vessels but stated that there are dumb-bells and exercise bikes aboard the vessels as well as televisions, radios, stereos, newspapers and libraries aboard the AHTS vessels for the amusement of the crew. In addition there are port calls approximately every seven to ten days and that it was extremely rare for there not to be a port call for 35 days.
154. Mr Hearnden referred to the annexures attached to his written statement (Exhibit R4) which detailed the disciplinary issues involving the applicant. He stated that he had no knowledge of any other disciplinary issues which concerned the applicant.
155. Mr Hearnden stated that all disabilities are to be reported to the ship's master and any such report is to be forwarded to the respondent's office. In addition a deck log record should be made. He stated that such procedure should be followed strictly and that all disabilities are to be recorded.
156. In relation to the applicant, Mr Hearnden stated that his first notification of a disability was in late November or early December 1998, when the applicant informed an officer of the respondent that he would not be returning to the vessel and Mr Hearnden subsequently received a workers' compensation certificate in early December. Mr Hearnden stated that he asked the applicant for further details as there was no record of injury on the ship and the applicant had informed him that his injuries had had a gradual onset, rather than any specific incident causing them.
157. Mr Hearnden stated that the applicant was first employed to serve on the "Pacific Conqueror" on 2 November 1994 and his employment lasted until his last swing when he left the vessel on 18 November 1998. He stated that he knew that the applicant was given the second mate's cabin, which he described as being bigger than cabins generally allocated to an integrated rating seaman on the vessel. He also stated that he was unaware of any arguments amongst members of the crew, particularly involving the applicant. He further stated that he was unaware of the applicant suffering from psoriasis or complaining of suffering any physical difficulties with his back or with anxiety, depression or stress in coping with his employment duties. He also stated that he had never known the applicant to complain of any difficulties with his employment duties. He stated in his oral evidence that the "Pacific Conqueror" was principally employed in the North-West Shelf area/Timor Sea.
158. Mr Hearnden stated that the respondent has a strict system of recording any disciplinary issues and it would not be possible for any disciplinary action to be taken against the applicant without it being documented thoroughly. He stated that the respondent also has a strict, formalised procedure for recording any disability suffered in the course of employment as well as difficulties with employment duties in general. He also stated that the respondent is subject to the jurisdiction of various regulatory bodies such as the Australian Maritime Safety Authority (AMSA) and the Seafarers' Safety, Rehabilitation and Compensation Authority. He further stated that the respondent is subject to the scrutiny of the Maritime Union of Australia (MUA) and liases with it in relation to any issues arising out of the employment of seafarers with the respondent.
159. Mr Hearnden stated that it is not possible for any employee to suffer disability or employment related difficulties without some documentation being raised. He then proceeded to explain the documentation format and recording action taken, a copy of which is kept in the vessel's deck log and an incident report form forwarded to the head office. He stated that there is no entry in the deck log for the last two swings on which the applicant was employed.
160. In so far as the complaints made by the applicant concerned the vessel's air-conditioning, Mr Hearnden stated that of the nine officers and crew on board, two of the nine were engineers. He stated that all technical difficulties with the vessel are, if possible, taken care of within normal working hours. If there is a serious problem, the engineers will take the necessary measures to implement a temporary remedy until the vessel comes into port. He stated that if, however, the problem is unsolvable and cannot be remedied while at sea and the problem causes a difficulty with the safe operation of the vessel, including the safety and welfare of the crew, it will be brought back into port. As to the noise factor, he stated that in bad weather the noise of waves does occur. He stated that the vessel spends a majority of its time in tropical waters where the seas are calm. He also stated that if it is ever caught in cyclone conditions then avoiding action has to be taken.
161. Mr Hearnden stated that the vessel would make port calls when on a swing approximately every seven to ten days. He stated that it was extremely rare for there to be no port calls, in particular for thirty-five days, and that he had no knowledge of such.
162. Mr Hearnden stated that the applicant first contacted the office concerning his disabilities in late November/early December and informed one of the officers in the office that he was not returning to the vessel. The applicant also forwarded a Workcover Notice dated 17 December 1998 (T7) to the respondent. He stated that on receipt of this that he forwarded a compensation claim form to the applicant (T8). The reason for seeking further details from the applicant was that there was no record of him having suffered any injury on the ship. Mr Hearnden stated that the applicant had informed the respondent that the disabilities were brought on by gradual onset (T10). As a result of the claim he stated that he became aware of the applicant suffering occupational stress and depression as well as back injury. He attributed the applicant as being incapacitated for work from 30 November 1998 to 4 December 1998. He further stated that the respondent made the decision to reject the claim because the medical conditions had not been reported on the vessel nor recorded.
MR GARRY WAYNE STEVE, MASTER MARINER
163. Mr Steve commenced employment with the respondent in February 1998 and is still employed with it. He has been employed in the maritime industry for approximately 22 years, working for the respondent and other employers. He referred to his written statement dated 21 March 2002 (Exhibit R5). When he first commenced employment with the respondent he did so as the Mate, in which capacity he served two swings, of the "Pacific Conqueror". He is currently a Master.
164. Mr Steve stated that he worked with the applicant on the "Pacific Conqueror" on two of its swings. The applicant was one of nine personnel on board the vessel on both swings, namely from 5 August 1998 to 11 September 1998 and from 15 October 1998 to 18 November 1998. He stated that he was the second in charge of that vessel and that he worked closely with the applicant and spoke with him every day, assigning jobs to the applicant as well as to other crew members each day. He further stated that when at sea the applicant was on a nine day roster of six hours on and six hours off, undertaking a variety of duties including general deck work, chipping, painting, cooking and duties in the galley. He stated that the crew itself organised the roster at the time of coming on board the vessel at the commencement of each swing, and they would rotate the workload.
165. Mr Steve stated that the applicant also worked cargo at the rig. Such entailed moving cargo, fuel, water and supplies by using rig cranes. He stated that one of the crew performed the duty of permanent greaser, hence the applicant would not have been required to work in the engine room apart from pod cleaning duties. He further stated that neither of the pod rooms, however, are directly in the engine room.
166. Mr Steve did not recall the applicant ever engaging in particularly heavy lifting during the two swings. He stated that the only lifting that the applicant would have been required to perform was that involved in the normal routine operation of the vessel, including lifting hoses that were not particularly heavy. He in fact also stated that he recalled that the applicant did not exert himself. He could not recall the applicant being required to lift heavy shackles. He stated in cross-examination that where there was a need to lift heavy shackles it was done by two crew members but never alone. The movement of shackles was generally by hand. At no time did he feel that the applicant had difficulties coping with his duties.
167. Mr Steve stated that the applicant occupied the second officer's cabin over the entire length of both swings. The applicant was never requested to vacate the cabin even when an extra rig shaft mate or engineer came on board in the middle of a swing. The second officer's cabin has ensuite facilities and is located in the starboard forward.
168. Mr Steve stated that the vessel had enough room to go for walks. He stated that on the applicant's last swing he would have spoken to the applicant every day and that sometimes he would work with him continuously during a watch. He would also speak to the applicant whilst eating meals or watching videos together, either in the common room or on deck. He stated that on the back deck behind the main winch there was weight-lifting equipment for the use of the crew. He stated in cross-examination that the applicant when not on duty used to sit down and watch videos at night, but that the applicant also used to play quite a lot with the keyboard which was in his room.
169. Mr Steve stated that he recalled the applicant's last swing and having a conversation with him on the last day in November 1998. He further stated that on leaving the vessel the applicant came up to him and said that this was his last swing and that he was finishing up, and said "goodbye". Mr Steve also stated that the applicant told him that he did not want to be at sea any more because there was no longer any fun in it and that not enough time was spent "in port when on these boats." He stated that after that he did not see the applicant again nor work with him.
170. Mr Steve stated that the applicant had no difficulties coping with his duties and at no time said anything about a back injury nor any disability including anxiety. He stated that the applicant did not make any complaint of depression nor of any general difficulties with his work. In his view he did not think that the applicant was depressed but rather had had enough with being at sea for so long and wanted to get out of maritime work. He further stated that any reporting of any complaints such as illness and injuries was recorded in the log book and then to the vessel's charterers.
171. Mr Steve stated that he did not recall the applicant displaying any symptoms of back injury over the two swings or at any earlier time and that no complaint had been made of any such symptoms. He further did not recall the applicant ever demonstrating any difficulty in performing his duties. He also stated that the applicant did not make any report of an incident or incidents involving his back including lifting heavy shackles or jumping from his bunk nor report any symptoms or make any complaint to him of any sleep deprivation. He stated that the applicant was the same as everyone else and some noise was expected when at sea, and in any case earplugs were provided to mitigate most of the noise.
172. Mr Steve stated that he did not recall the applicant displaying any signs of stress of depression during the two swings. He also could not recall himself or any other members of the crew making any comment to the effect that the applicant had the "shakes" or that he was displaying any symptoms of stress or depression. He further stated that it was a requirement for all seamen to have an AMSA medical check-up every two years and to be certified medically "fit" for duties. In the event of any prior injuries, these must be recorded. He said that at sea fitness is important as each depended on each other to conduct their jobs in a safe manner.
173. Mr Steve also was unable to recall any unusual problems with the air-conditioning on board this vessel during the two swings. He did say that on rare occasions the air-conditioning did malfunction but was not off for long. He further stated that he could recall the engine room alarm bell going off occasionally due to the heat but that it was quickly turned off. He stated that this did not happen often and apart from this there were no false alarm bells. As to the chipping he stated that by agreement, it was only carried out around the accommodation area between 1000 and 1400 hours to enable watch keepers to get their sleep.
APPLICANT'S SUBMISSIONS
174. Ms Chambers submitted that the applicant first commenced employment as a seafarer in 1966 and remained within the maritime industry from that date until his last swing with the respondent, which ended on 18 November 1998. During that period the applicant had worked on numerous vessels including AHTS vessels such as the Pacific Conqueror. She submitted that Mr Hearnden in his evidence stated that the remuneration of AHTS vessels is much more attractive than on the larger vessels and that Mr Steve gave evidence that this additional pay is as a result of the conditions on AHTS vessels being "less comfortable" than other vessels.
175. Ms Chambers submitted that the applicant sustained a lower back injury in August 1998 and developed a generalised anxiety disorder over a period of time whilst on the Pacific Conqueror. He submitted that the applicant attributes the cause of the generalised anxiety disorder to a number of factors including:
(a) an increased feeling of confinement;
(b) heat and humidity in the area of the Timor Sea and North West Shelf;
(c) faulty operational equipment such as false alarms and air-conditioning which worked poorly and was switched off for approximately one to two hours approximately two times per swing; and
(d) noise from things such as chipping, alarms, waves crashing against the vessel and on the dock, and the operation of equipment such as the bowthrust, the winch and the engine which were located in close proximity to the accommodation.
176. Ms Chambers submitted that in addition the applicant experienced a number of very frightening episodes while on the Pacific Conqueror. She stated that the first significant incident occurred shortly after the applicant's commencement on the Pacific Conqueror, when the vessel had pulled in close to an oil rig within the Timor Sea in very rough conditions. Supplies were being loaded when the deck was hit by a massive wave sweeping the applicant off his feet and slamming him into the cargo. She submitted that the deck was left in one metre of water and the applicant was caught up in the backwash and had to hang on to the cargo to avoid being swept off the deck into the sea. The applicant in his evidence stated that this resulted in a heightened awareness of danger and bad weather and storms could cause him to become anxious for his well-being.
177. Ms Chambers submitted that a second incident occurred several months later. On this occasion the applicant was almost struck by a large metal cable which was attached between a buoy and the vessel. The cable had snapped and swung back into the vessel and had the applicant not been bending down at the time, the cable would have decapitated him. As a result of this incident any loud or sudden unexpected noise has become a trigger making the applicant more anxious more often.
178. Ms Chambers submitted that the third incident occurred in 1997 involving a gangway slipping causing him to fall resulting in a fractured rib. She further submitted that this incident resulted in the applicant becoming even more anxious.
179. Ms Chambers submitted that the applicant also suffered a pre-existing condition known as psoriasis. She further submitted that during the period in issue the applicant's psoriasis worsened causing him significant discomfort. She submitted that the applicant in his evidence stated that the condition of psoriasis was also aggravated by heat and humidity. She also submitted that Mr Bell, although an orthopaedic surgeon, also had experience as a physician. She submitted that Mr Bell in his evidence stated that through his experience as a physician he understood that the condition of psoriasis was aggravated by stress and anxiety.
180. Ms Chambers submitted that the applicant had difficulty sleeping due to the air-conditioning not working, surrounding noise from chipping and the general operational noises involved in a supply vessel such as the Pacific Conqueror. She supported this by referring to the evidence of Dr Ford wherein he stated that in his view the applicant may have developed a heightened sensitivity to the noise and heat as a result of his anxiety state. She further submitted that the applicant during the period that he was on the vessel between 1995 and 1998 became more isolated, spending more of his spare time in his cabin which was approximately 2.6 metres long by 2 metres wide. This she stated was supported by the respondent's witnesses who worked on the vessel with the applicant.
181. Ms Chambers submitted that in August 1998 the applicant sustained an injury to his lower back and that this injury is also the subject of a claim before the Tribunal. She submitted that the applicant while lilting heavy shackles form floor level to waist height in order to place them on a rack felt a dull ache in his lower back. The applicant continued to finish his shift. She submitted that the next morning as he jumped from his bunk he twisted and in so doing felt a sharp pain in the same area that he had felt the dull ache the day before.
182. Ms Chambers submitted that the applicant as a result got back into his bunk and lay down for a short time to rest and that when he next got up the sharp pain had reduced to a dull ache. She stated that he then went about his normal duties but modifying the way he did so and avoiding as much as possible the heavy duties. He continued in this manner over the remaining few days left until the end of his swing when he would be going on shore leave for five weeks. She submitted that the applicant did not report the incidents concerning the shackles and the jumping out of the bunk and twisting, nor did he report his increased feelings of anxiety or depression to the vessel's captain or other crew members.
183. Ms Chambers submitted that the applicant did not report the incident with the shackles or the one where he jumped out of bed twisting. She further submitted that the applicant did not report the increasing feelings of anxiety or depression to the vessel's captain or other crew members. She referred to the evidence given by both Mr Hearnden and Mr Corbett and in particular to that where they each stated that all incidents, even if minor, insignificant or significant, had to be reported and an entry placed in the log book. She submitted that this was in contrast to the evidence given by both Mr Vinnicombe and Mr Steve who indicated that there are occasions when crew members sustain injury that are not reported nor recorded in the log book.
184. As to the credit of the applicant Ms Chambers submitted, inter alia, that he was up-front and forthright in relation to disciplinary actions taken against him. Also that his evidence was corroborated by his partner, Ms M. Armstrong. As to his injuries the applicant reported these to Dr Tan on 30 November 1998 following the completion of his swing on 18 November 1998. She also submitted that the applicant's psychiatrist, Dr Ford, the orthopaedic surgeon, Mr Potter, and the orthopaedic surgeon, Mr Bell all assessed the applicant as honest.
185. As to the applicant's allegations of conditions in relation to the vessel regarding the breaking down of the air-conditioning, Ms Chambers submitted that this was corroborated by the evidence of Mr Vinnicombe. She also submitted that the allegations of excessive noise on the vessel were corroborated by Mr Corbett who in his evidence stated that he often wore ear-plugs to sleep.
186. Other areas of conflict that were uncontested by the respondent were the waters in the Timor Seas as depicted by the video evidence (Exhibit A17); whether or not the deck was mostly clear and provided ample room for exercise; and that Mr Steve was wrong as to the swing finishing in Dampier rather than Darwin.
187. As to the medical evidence, Ms Chambers submitted that in so far as the psychiatric evidence is concerned that the Tribunal should prefer that of Dr Ford rather than that of Dr Terace. She submitted that Dr Ford was a far more experienced psychiatrist who had researched psychiatric conditions associated with seafaring and he had seen the applicant on a number of occasions as the treating practitioner. She further submitted, and the Tribunal of its own volition observed, that Dr Terace, unlike Dr Ford, did not read any of the medical reports of Dr Ford or other treating medical practitioners despite the fact that all of these were provided to him. She also submitted that even though Dr Terace arrived at a different conclusion from Dr Ford as to the cause of the anxiety condition nevertheless he did find that the applicant had suffered an anxiety disorder.
188. Although Dr Tan did not give oral evidence it was submitted that his medical reports should be given weight, particularly where they corroborate the applicant's history.
189. In relation to the physical injuries it was submitted that both Mr Potter and Mr Bell determined that the applicant was suffering from a possible facet joint injury. Also, both agreed that lifting and twisting at work on the Pacific Conqueror was the most likely cause, particularly given the fact that there was no degeneration except in the facet area which was minor. Ms Chambers submitted that Mr Bell did not find tenderness over the facet area, while Mr Potter did.
190. Ms Chambers submitted that the differences in opinions between Mr Potter and Mr Bell were largely that Mr Potter believes that the physical injury is the cause for the current disability while Mr Bell believes that the cause is the psychiatric condition. It was submitted that where the medical opinions differ, the evidence of the applicant should be relied on in relation to ongoing incapacity and disability. It was further submitted that the applicant gave evidence that he experienced a dull ache most of the time which is minor in nature but is aggravated by such activities as bending, lifting, twisting and sitting for long periods of time or jarring his back.
191. It was submitted that where the views of Mr Potter and Mr Bell conflict as to permanent impairment that the Tribunal accept the assessment of Mr Potter as this is consistent with the applicant's evidence. Ms Chambers submitted that Mr Potter's assessment of the degree of permanent impairment was not challenged by the respondent.
RESPONDENT'S SUBMISSIONS
192. Ms Aria-Retnam submitted that the respondent's argument is whether or not the Tribunal accepts the applicant's claim that he suffered a disability in the course of his employment with the respondent. She further submitted that she did not ask the Tribunal to make findings on whether or not the applicant is credible in all respects nor to choose between the evidence of the applicant and that of the respondent. She also submitted that there may be many areas in which the Tribunal may choose to accept the evidence as it was put by the applicant. She then submitted that the essential issue is for the Tribunal to consider all of the applicant's evidence and the way he presented, not only to the Tribunal, but also to his treating medical practitioners, as opposed to what she described as medico-legal reviewers. She also submitted that consideration should be given as to how he presented in the witness box as well as to his demeanour, and then these should be compared with the respondent's evidence. She submitted that there are many facts which are not disputed.
193. Ms Aria-Retnam submitted that the applicant commenced employment with the respondent in 1994 and that prior to this he had worked on vessels larger than those described as AHTS vessels such as the Pacific Conqueror. She referred to the evidence about the differences between the larger vessels, of their swings of up to three to four months and of their recreational facilities, including having a swimming pool and gymnasium as against the AHTS vessels. In addition the larger vessels have bars, dart and singing nights as well as "a lot of people on board."
194. Ms Aria-Retnam then contrasted the difference between the larger vessels and the AHTS vessels by submitting the contentions of the applicant, who said that the AHTS vessels are dangerous and consist of only nine crew. In addition she submitted that the applicant stated that the vessel is cramped, noisy, dirty, very hot and has no room to walk. Also, the accommodation is at the front of the vessel with the engine room being immediately underneath. She also stated that the applicant also contended that the anchor was outside his particular cabin, and that his sleep was regularly interrupted by the anchor and the bowthrusters.
195. She also referred to the applicant's comment about the air-conditioning breaking down and being out of action for anything from a few hours up to ten days. She further referred to the applicant's contentions that the fire alarms would go off once or twice every swing whilst the grease and dirt and the continual wearing of overalls aggravated his psoriasis. She submitted that the applicant contended that the Pacific Conqueror was dangerous, maintaining that working on the deck was hazardous with the waves washing over the stern causing the surface to be slippery all the time. She also referred to the applicant's contentions concerning, among other things, the chipping, hammering and noise that was continual.
196. Ms Aria-Retnam referred to the applicant's contentions that he had a number of accidents whilst on the vessel including when he was slammed into the cargo; when he bent down to pick up a hammer and a cable flipped around nearly decapitating him; and when he was holding the gangway with ropes and he slipped off the gangway hitting his ribs in the process. After each of these incidents he continued working notwithstanding that he described each of these as being significant.
197. Ms Aria-Retnam in her submissions also referred to disciplinary incidents with which the applicant was confronted. In particular she referred to one such incident on the Pacific Conqueror in which the applicant stated that he had been fairly treated by the respondent. She submitted that on the applicant's account he continued to work with no complaint and there were no outward signs of distress noticeable by his workmates and the respondent. She further submitted that the applicant did not tell his psychiatrist about the second disciplinary incident on the Pacific Conqueror.
198. Ms Aria-Retnam submitted that the applicant only described two incidents to his orthopaedic surgeon and yet when giving evidence spoke of three incidents, all of which resulted, according to the applicant, in his suffering a back injury. She submitted that it was not disputed that the applicant did not make a claim for any or all of the three incidents and that he did not inform the respondent about them. She further submitted that the applicant did not even tell his treating general practitioner. She stated that the applicant saw his treating general practitioner on 30 November 1998 which was after he came off his swing on or about 11 September 1998.
199. Ms Aria-Retnam submitted that according to the applicant, with regards to his continuing to complete his August swing, he told his surgeon that in continuing to work he avoided the heavier duties. She submitted that despite this the applicant did not report any injury although he knew that he was required to do so and that there are stringent requirements before one is able to go on board the vessel. She further submitted that to be eligible for employment the applicant had to pass a medical certification and AMPSA test. She stated that if he was unable to carry out his normal duties, he could be endangering the lives of his fellow employees.
200. Ms Aria-Retnam submitted that the applicant saw his general practitioner on 30 November 1998. As previously stated, the applicant did not report the incident then. However, he did at a later time send in medical certificates and a Workcover form to the respondent which had upon them a date stamp of 21 December 1998. Upon receipt of these the respondent forwarded to the applicant an SRCA form for completion and which the applicant returned to the respondent on or about 7 January 1999. In so returning the SRCA form the applicant did not provide any medical certificates, resulting in the respondent requesting more details from the applicant. In fact it was submitted that the applicant never made an SRCA claim which was supported by medical certificates.
201. Ms Aria-Retnam submitted that in the course of the hearing, the applicant's counsel, Ms Chambers, questioned the attitude of the respondent and its not writing to the applicant's general practitioner. She further submitted that it was not until after receiving the applicant's letter dated 13 January 1999 (T10), wherein he referred to being unable to give an exact date for his occupational stress and which he claimed was of gradual onset, that the respondent declined the claim.
202. In so far as the evidence of the applicant's doctors is concerned and in particular that of Mr G. Potter, orthopaedic surgeon, and Dr N. Ford, psychiatrist, it was submitted that as they are the applicant's treating practitioners then their evidence would support him. She submitted that neither have ever been on an AHTS vessel and that they are wholly reliant on the history given them by the applicant. It was further submitted that both Mr Potter and Dr Ford were not given the whole history and that important details were not given.
203. Ms Aria-Retnam submitted that on the evidence given by Dr Ford, he is very interested in post-traumatic syndrome and he also gave the Tribunal "some fairly horrific incidences of trauma." She submitted that the Tribunal needed to give more care and to consider the evidence of Dr Terace, who was well aware of post-traumatic incidences and questioned the applicant very carefully.
204. In concluding, Ms Aria-Retnam submitted that the applicant failed to comply with the SRCA, did not suffer a back injury and certainly not one of a lasting nature. She submitted that he may have suffered some general anxiety when returning to the vessel at the beginning of the swing but such in her view passed quickly. She also submitted that the applicant has not suffered any permanent psychiatric disability..
205. Ms Aria-Retnam questioned why the applicant did not resign if he in fact was finding it hard in employment on the vessel. She submitted that on the evidence it was clear that the applicant had worked on AHTS vessels since the mid-1980s and that he described the vessels as being virtually identical. She questioned what it was about the Pacific Conqueror that he did not like and that in any event he was industry employed. She submitted that at no time did he return to the roster for employment on another vessel, nor did he ask the respondent for a transfer to another vessel. She also submitted that the applicant, having ceased to work with the respondent, did not return to any form of remunerative employment because he did not want to do so.
DISCUSSION AND FINDINGS
206. The Tribunal in arriving at its decision has taken the evidence as a whole into account including all of the medical evidence and the submissions of Counsel. In considering whether an injury arose out of or in the course of employment, regard must be had to section 9 of the Act, which provides:
"Injury arising out of, or in the course of, employment
9.(1) This section does not limit the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment.
(2) An injury is also to be treated as having so arisen, for the purposes of this Act, if it happened:
...
(b) if the employee is a seafarer:
(i) while the employee was on board the prescribed ship on which he or she was employed or engaged; or
(ii) while the employee was temporarily absent from that ship during an ordinary recess in that employment and not at his or her place of residence;
...."
207. Section 3 of the Act provides the definition of "injury" as follows:
""injury" means:
(a) a disease; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include anything suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;"
208. The applicant as set out in the evidence hereto suffered on his evidence several injuries. The issues are those as set out in paragraph 3. However, before considering these it was also contended that the Tribunal determine whether or not the applicant complied with the provisions of the Act in making an application for compensation and, in particular, whether written notice of the injury was given to the employer as soon as practicable after the applicant became aware of the injury so as to comply with section 62 of the Act. The Tribunal now turns to consider this.
209. The Tribunal is satisfied that the applicant was not consistent in his approach to the respondent concerning his various conditions. His reporting of incidents as they occurred seems to be less than accurate. The Tribunal is satisfied that such was not deliberate nor with intent but rather within the character of the applicant who did not comply with the requirement of written notice. The Tribunal is satisfied that he erred by either informing his seniors verbally or by bringing it to the respondent's attention through medical certificates after having been examined by a doctor. The Tribunal is satisfied on the evidence before it that the applicant, however, did not comply with the written requirement. Notwithstanding this, subsection 62(1)(a) refers to such notice being given as soon as practicable after the employee becomes aware of the injury. On the evidence before the Tribunal the explanation given by the applicant is feasible and acceptable. The attendance by the applicant for medical treatment and the ultimate notice and claim (T7/24-29) for back injury and anxiety (S1999/346) occurred in the view of the Tribunal within a time span that can be said to be "as soon as practicable".. The Tribunal is satisfied that such is the case and hence appropriate notice was given.
210. Similarly, the Tribunal is of the view that the claims for permanent injury in respect of lower back pain and occupational stress, anxiety and depression were appropriately made.
211. The Tribunal is satisfied that Ms Maggie Armstrong was a credible witness who referred to the applicant's personality and behaviour prior to and since his commencement of employment on the "Pacific Conqueror". She stated that his personality has changed and explained the changes. The Tribunal notes the evidence of Ms Armstrong which apart from explaining the applicant's personality offers no other assistance.
212. The Tribunal takes into account the evidence of the applicant as well as the evidence of the lay witnesses. In so doing the Tribunal is satisfied and accepts the evidence of the applicant concerning the working conditions on board the "Pacific Conqueror", the injuries described by him and the effect of such upon him. The Tribunal is satisfied and finds that the confinement of working and social areas, the type of work undertaken and the working conditions all contributed to his injuries in the course of his employment. However, in so finding the Tribunal also takes into account the medical evidence before it.
213. Dr A. Tan, occupational physician, first saw the applicant on 30 November 1998 being approximately within three months of the time when the applicant first stated he suffered pain to his back. He thereafter saw the applicant at regular intervals complaining of stress, anxiety and depression and lower back pains. Dr Tan had prepared three reports (Exhibits A13, A14 and A15). He stated therein that the conditions in which the applicant worked were unreasonable and have led to his present psychological state. He further stated as to the lower back pains that these were due to the heavy physical demands in the job, such as heavy lifting and working in confined spaces.
214. Mr George Potter and Mr Frank Bell, both orthopaedic surgeons, gave evidence. Mr Potter had one consultation with the applicant. In his oral evidence he stated that the applicant's history and localised tenderness suggested that he had sustained an "ill defined non specific low back injury with the most likely cause of this being a facet joint injury". He stated that a radiologist's report indicated that the applicant had slight degenerative changes in the applicant's spine. During his oral evidence after taking into account further information put to him he changed his diagnosis to "facet joint pain" rather than "facet joint injury".. Notwithstanding this Mr Potter gave the opinion that despite this change in diagnosis, he was still of the view that the applicant was left with a permanent disability as the surface of the joint cannot repair itself. He further stated that in a person aged 50 years undertaking heavy manual work it would be unusual not to have a history without any back pain.
215. Mr Bell, like Mr Potter, saw the applicant on one occasion. In his evidence he stated that the applicant's back condition was not caused by his employment and that he did not find that the applicant had suffered a significant facet joint injury and that the range of movement was more consistent with "facet joint pain".. He was of the view that the applicant was experiencing back-ache as a result of his depressed mental stated. He further stated that this was common. Mr Bell also stated that the only other possible clinical basis for the back pain would be the applicant's psoriasis which he stated can cause degenerative change.
216. The Tribunal in considering the evidence of both Mr Potter and Mr Bell prefers that of Mr Potter. Both concluded that the applicant experienced facet joint pain. Mr Bell dismissed this lightly whereas Mr Potter gave the view that notwithstanding this condition the applicant was left with a permanent disability on the basis that the surface of the joint cannot repair itself. The Tribunal finds this to be the more plausible explanation.
217. Dr Nicholas Ford, psychiatrist, gave evidence that he has seen the applicant on numerous occasions and also prepared five reports. His diagnosis of the applicant was of his having generalised anxiety disorder. He stated that seafaring is a high risk occupation as far as psychiatric problems are concerned and that seafarers experience mixed anxiety and depressive conditions and that their tolerance to stress decreases over time.
218. Dr Ford gave the opinion that he thought that the applicant's anxiety started on the "Sandra Marie" and increased over time. He further stated that the situation aboard the "Pacific Conqueror" may have exacerbated a pre-existing condition and that perhaps in another situation the condition may not have developed. He also in considering the factors which contributed to the applicant's condition aboard the "Pacific Conqueror" referred to the noise, sleep deprivation and heat and the traumatic incidents the applicant experienced. He stated that these included the time he was nearly washed overboard, nearly having his head taken off by a cable and having cargo swinging above him. He stated that the applicant's feelings of anxiety led to increased sensitivity to noise, problems sleeping and difficulty getting on with others. Dr Ford stated that because of his anxiety condition, the applicant could have become hyper-sensitive to noise and displayed a startle response even though the noise on the "Pacific Conqueror" was no louder than aboard any other vessel.
219. Dr Ford stated that he was not surprised that the applicant made no mention of being anxious to his employer.. He further stated that he applicant was such that he would not acknowledge his anxiety symptoms but rather would become irritable and would withdraw into himself. In relation to permanent impairment, Dr Ford stated that in line with the Guide, he assessed the applicant as having a level of 20% disability relating to his anxiety disorder. The Tribunal in taking the evidence of Dr Ford as a whole into account, including his comments concerning discipline, is satisfied this is the case and so finds.
220. Dr Lawrence Terace, psychiatrist, saw the applicant only on one occasion. He stated that the interview did not show the applicant to be acutely or profoundly disturbed about issues such as to cause a psychiatric condition. In his oral evidence Dr Terace had the temerity to state that in diagnosing he is in a better position than a treating psychiatrist because his lack of predisposition increased the validity of the report in the sense that such would not be clouded. The Tribunal does not accept such a claim and rejects in outright. By making such statement Dr Terace has not shown an open mind in reaching his conclusion but rather a biased attitude. He in fact considered himself to be in as good a position in relation to diagnosis and causation as the treating psychiatrist, Dr Ford. He also stated that he had considered things such as working in rough seas as a significant stressor but had found no causal link and gave the opinion that most of the time significant stressors do not lead to the development of a psychiatric disorder.
221. The Tribunal in considering the evidence of the two psychiatrists has no hesitation, whatsoever, in preferring the evidence of Dr Ford to that of Dr Terace. It found Dr Ford to be more in tune with the circumstances and as the treating psychiatrist, more understanding of the applicant's condition and in his diagnosis.
222. The Tribunal finds on the medical evidence that the applicant's condition as previously set out is an injury. It is further satisfied and finds that the applicant suffers from several injuries within the meaning of section 3 of the Act, namely, lower back pain and occupational stress, depression and anxiety.
223. The Tribunal is satisfied and accepts the facts as presented to it and in particular as outlined by the applicant. As previously stated when considering the medical evidence as a whole the Tribunal is quite clear in its preference of the opinions of Mr Potter and Dr Ford.
224. The applicant was unable to identify precise dates when his injuries occurred, saying they developed gradually. The Tribunal is satisfied that the injuries were sustained by the end of the applicant's last swing on the "Pacific Conqueror", that is, by 18 November 1998, and that that is the most appropriate date of commencement for any liability on the part of the respondent.
225. The Tribunal is satisfied that the accepted injuries resulted in the applicant being incapacitated for work pursuant to section 31 of the Act. Section 8 of the Act states that such incapacity may be such as prevents a person from engaging in any work, or such as prevents a person working at the same level they worked at prior to sustaining the injury. In this case, the applicant has not worked since November 1998. On the evidence of Dr Ford, the applicant was and will indefinitely remain unable to work in a marine environment. In the interim the applicant has sought rehabilitative treatment, has attempted to retrain and has applied for work in areas outside that in which he previously worked. Furthermore, in his report dated 18 August 2001 (T23/61), Dr Ford stated that the applicant was "able to function in study but not to work." Hence the Tribunal is satisfied that pursuant to section 31, with reference to section 32, the applicant has been unable to earn any income in "suitable employment" to the date of the hearing. The precise date of commencement is here not relevant, nor is it relevant whether in the future the applicant may obtain employment in another field. Section 31 allows for compensation to be paid for the first 45 weeks in which a compensable injury prevents a person from working. At the date of the hearing of this matter, that 45 week period had well elapsed. Pursuant to section 31(5)(a), the applicant, being unemployed since his injury, is entitled to compensation at a rate of 75% of his normal weekly earnings prior to the accident for a 45 week period, with "normal weekly earnings" bearing the meaning it is given in section 13 of the Act.
226. Accepting the evidence of Dr Ford and Mr Potter, The Tribunal is further satisfied that as a consequence of both his lower back injury and his psychiatric injury, the applicant has suffered permanent impairments under section 39 of the Act. The Tribunal accepts the evidence of Dr Ford that the applicant's generalised anxiety disorder has caused a permanent impairment of 15% under the Guide issued by the Authority. The Tribunal accepts the evidence of Dr Potter (T22/58) that the applicant's back injury has caused a permanent impairment of 10% under that Guide.
227. The applicant sought non-economic loss pursuant to section 41 of the Act on the basis of the assessment of Dr Potter. Counsel for the applicant submitted that this evidence established an impairment assessment of 5 under Part B of the Guide. In his report dated 24 April 2001 (T22/58) Dr Potter assessed the elements of the applicant's non-economic loss. His assessments were:
* Pain: 1 or 2
* Suffering: 2
* Mobility: 2
* Social Relationships: 1
* Recreation and leisure activities: 2
On the evidence of the applicant, the Tribunal finds that the pain score is more appropriately assessed as "2", as the Tribunal is satisfied that the applicant's pain does not fit the criterion "can be ignored with activity commences", which a pain rating of "1" would require (see Table 1 of the Guide). Moreover, the Tribunal is satisfied that the applicant fits the description necessary for a pain score of "2". Applying these scores under Table 5 of the Authority guidelines gives an overall score of "5".
228. Having made these findings, the Tribunal remits the matter to the respondent to calculate the amount of compensation payable.
DECISION
229. For the foregoing reasons, the decisions under review are set aside, and the matter is remitted to the respondent for the calculation of the compensation payable to the applicant, in accordance with the following findings:
i) the applicant suffered injury to his lower back in the course of his employment with the respondent, with that injury occurring by 18 November 1998;
ii) the applicant suffered psychiatric injury in the course of his employment with the respondent, with that injury occurring by 18 November 1998;
iii) the applicant's injuries entirely incapacitated him for work for a 45 week period under section 31 of the Act. The applicant was unable to work in "suitable employment" during that period, and consequently is entitled to compensation at a rate of 75% of his normal weekly earnings prior to the accident for that 45 week period;
iv) the applicant suffered a permanent impairment of 10% under the Guide as a consequence of his compensable lower back injury;
v) the applicant suffered a permanent impairment of 15% under the Guide as a consequence of his compensable psychiatric injury; and
vi) the applicant has suffered non-economic loss as a result of his permanent impairments, giving rise to a combined impairment score of "5" under Table 5 of Part B of the Guide.
COSTS
230. Pursuant to section 92 of the Act, the respondent is to pay the costs of the applicant. In the absence of agreement between the parties, costs are to be taxed by the Tribunal.
I certify that the 230 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed: (signed)
John Howell, Associate
Dates of Hearing 15, 17 & 18 April 2002
Date of Decision 31 January 2003
Counsel for the Applicant Ms K. Chambers
Solicitor for the Applicant Moody Rossi & Co
Counsel for the Respondent Ms R. Aria-Retnam
Solicitor for the Respondent Jackson McDonald Barristers & Solicitors
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URL: http://www.austlii.edu.au/au/cases/cth/AATA/2003/92.html