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[2004] AATA 979
appellant. The determination under review was set aside. In substitution, the Tribunal found Mr Pratt eligible for 10 percent permanent impairment under the Seafarers Rehabilitation and Compensation Act 1992...
1 cited instrument linked from this judgment.
The Tribunal accepted that pushing a difficult freezer door at work on 1 September 2001 made Mr Pratt’s left-foot condition symptomatic. Although he had tarsal tunnel syndrome in both feet, only the left foot was symptomatic. The Tribunal accepted evidence that pain, numbness and difficulty with stairs and uneven ground continued after surgery. Because he could still stand and walk, including substantial walking at work, the Tribunal assessed his impairment at 10 percent rather than the 20 percent proposed by his medical assessor. It set aside the zero-percent decision and sent the matter back for compensation to be calculated.
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Brian Pratt was employed by Teekay Shipping (Australia) Pty Ltd as chief caterer aboard the Dampier Spirit. On 1 September 2001, he injured his left foot while pushing a difficult meat-freezer door shut. He initially described pain at the back of his heel, like a pulled tendon, with numbness when he stretched or moved the foot the wrong way ([4], [14]).
The medical investigations later identified bilateral tarsal tunnel syndrome. The right foot was asymptomatic, while the left became symptomatic. Mr Pratt underwent left tarsal tunnel decompression on 15 July 2002 and returned to work in November 2002. The respondent accepted liability for the surgery, orthotics and other medical treatment, but his claim for permanent impairment was rejected ([19]–[20]).
The determination under review treated the impairment as zero percent under Table 9.5 of the Seafarers Rehabilitation and Compensation Authority’s Guide. Because the assessed degree was below 10 percent, the employer found no permanent impairment compensation payable under s 39 ([1]). Mr Pratt applied to the Administrative Appeals Tribunal.
The Tribunal accepted Mr Pratt’s account of the incident and his continuing symptoms. It preferred Dr Sheehan’s evidence that the incident precipitated symptoms in the left foot over Dr Burke’s view that the described trauma was insufficient. The Tribunal found 10 percent permanent impairment, not the 20 percent Dr Sheehan assessed. It set aside the determination and remitted the matter for the respondent to calculate the compensation amounts ([25]–[31]). Costs were awarded under the Act and the Tribunal’s Practice Direction ([32]).
The Tribunal’s decision turned on two connected questions: whether the work incident caused the relevant symptoms, and how the ongoing effects fitted the functional categories in Table 9.5.
On causation, the Tribunal accepted that Mr Pratt used his foot as part of his usual way of closing the heavy freezer door. It accepted that he felt sharp pain in his left heel on 1 September 2001 and later experienced numbness ([18]). The Tribunal did not consider it material whether he used his toes or heel to push the door, because it accepted that the pushing action caused the previously asymptomatic left foot to become symptomatic ([18]).
The medical evidence differed. Dr Burke accepted that Mr Pratt had bilateral tarsal tunnel syndrome, but considered that the described event was not enough to make the left foot symptomatic. Dr Sheehan considered that the incident transmitted unexpected forces to the foot and precipitated symptoms. He also accepted that the trauma would have been less if the door had not stopped suddenly as he had envisaged ([23]–[25]). The Tribunal preferred Dr Sheehan’s evidence. It also accepted that Mr Pratt was not exaggerating his symptoms ([24], [26]).
The Tribunal briefly placed that causation assessment alongside two authorities. It stated that Zickar treated it as irrelevant that an injury or disease acted on an existing vulnerability, and that Treloar treated even a de minimis workplace contribution as sufficient despite the possible contribution of non-work factors ([27]). The reasons do not give a fuller analysis of either case, so the authorities should be understood here through the Tribunal’s own concise summaries.
For the impairment assessment, the Tribunal applied Table 9.5. The 10 percent category covered a person who could stand and walk but had difficulty with grades and steps. The 20 percent category added difficulty with distances ([28]). The Tribunal accepted evidence that Mr Pratt continued to experience pain and numbness, had difficulty with stairs and uneven grades, and faced those challenges as part of shipboard work ([21], [29]).
However, Mr Pratt remained able to walk quite a lot at work and managed that walking reasonably well. The Tribunal considered that this made the 20 percent category inappropriate, despite his restrictions in activities such as cycling and dancing. It therefore selected the 10 percent category ([22], [29]). The distinction between the two percentages was thus based on the Guide’s functional descriptions as applied to the evidence, not simply on the existence of continuing symptoms.
The reasons reproduce relevant parts of ss 39 and 41 of the Seafarers Rehabilitation and Compensation Act 1992. Section 39(1) provides, in the text reproduced, for compensation if an injury results in permanent impairment. Section 39(2) identifies matters relevant to whether an impairment is permanent, including its duration, likelihood of improvement and whether reasonable rehabilitative treatment has been undertaken. Section 39(5) requires the degree of impairment to be determined under the approved Guide and s 39(6) requires it to be expressed as a percentage ([8]).
The reproduced s 39(7) states that, subject to s 40, compensation under s 39 is not payable where the assessed degree of permanent impairment is less than 10 percent, while the judgment notes exceptions in s 39(8) without reproducing their details ([8]). Section 41, also reproduced, provides for additional compensation for non-economic loss where an injury results in permanent impairment and compensation is payable under s 39. The reasons do not set out the formula image or calculate an amount under s 41 ([8]).
The decision did not change the statutory text. It applied the Act and the Guide to the evidence before the Tribunal. The practical result in this review was a substituted finding that Mr Pratt met the 10 percent threshold, followed by remittal for calculation of compensation ([30]–[31]). The Tribunal’s determination was a first-instance administrative review decision; the supplied judgment does not describe any subsequent appeal or legislative change.
The Guide’s Table 9.5 was central to the result. Its lower-limb scale distinguishes people who can stand and walk but have difficulty with grades and steps, at 10 percent, from those who also have difficulty with distances, at 20 percent ([28]). The Tribunal’s use of that scale shows the importance it placed on matching the evidence of actual functional capacity to the Guide’s descriptions.
At [18], the Tribunal said it accepted that pushing the freezer door caused the asymptomatic left foot to become symptomatic. In plain English, the Tribunal found a causal connection between the work activity and the onset of symptoms, despite the underlying bilateral condition.
At [25], the Tribunal preferred Dr Sheehan’s view that the incident precipitated symptoms. This was a choice between competing medical explanations, informed by the history Mr Pratt gave about closing the door and the nature of the forces involved.
At [27], the Tribunal referred to Zickar and Treloar. Its summary was that an existing vulnerability did not necessarily defeat a work-related injury argument, and that a workplace contribution could be sufficient even if other factors also contributed. The judgment provides only that summary, rather than a detailed account of the authorities’ reasoning.
At [28], the Tribunal set out the relevant Table 9.5 categories. The 10 percent description concerned difficulty with grades and steps, while the 20 percent description added difficulty with distances. In plain English, this provided a functional comparison point for translating the evidence about Mr Pratt’s mobility into a percentage.
At [29], the Tribunal found that Mr Pratt could stand and walk but had difficulty with grades and steps. It did not accept 20 percent because he walked considerably as part of his job and managed that activity. The outcome reflects the Tribunal’s assessment of his capacity as a whole, including both limitations and retained function.
At [31], the Tribunal formally set aside the original determination and substituted a finding of eligibility for 10 percent permanent impairment arising from the 1 September 2001 injury. The amount of compensation remained to be calculated by the respondent.
The decision is most directly relevant to a fact pattern involving a claim for permanent impairment under the Seafarers Rehabilitation and Compensation Act 1992, where the impairment percentage must be assessed under the approved Guide. It illustrates how a tribunal may assess causation where a worker has an underlying or pre-existing vulnerability but symptoms emerge after a workplace incident ([18], [27]).
It may also be relevant where the parties disagree about how much physical force an incident involved, or whether the incident was significant enough to trigger symptoms. Here, the Tribunal accepted the worker’s account and preferred one medical opinion over another, while treating the precise part of the foot used to push the door as immaterial to its finding ([18], [23]–[25]).
For impairment assessment, the decision provides an example of applying a functional table where the worker remains able to stand and walk but reports difficulty with particular activities. The Tribunal distinguished the 10 percent and 20 percent categories by considering difficulty with grades, steps and distances, alongside the worker’s ability to walk at work ([28]–[29]).
The judgment does not establish that every similar incident, diagnosis or symptom pattern must produce the same result. Its outcome depended on the evidence accepted in this case, including Mr Pratt’s account, the competing medical opinions, and the Tribunal’s evaluation of his work and daily functioning ([15]–[26]).
The supplied judgment contains no information about later judicial or tribunal treatment of Pratt. It therefore cannot establish whether a later court or tribunal followed, distinguished, criticised or otherwise considered this decision.
The decision itself cites Zickar v MGH Plastic Industries Pty Ltd and Treloar v Australian Telecommunications Commission at [27]. The Tribunal summarises those authorities in relation to existing vulnerability and workplace contribution, but does not provide paragraph references to them or analyse their reasoning in depth. They are authorities referred to by the Tribunal, not evidence of how later courts treated Pratt.
For research or compliance purposes, the treatment of Pratt after 21 September 2004 remains an external question not answered by this text. No later cases, appeal history or subsequent statutory amendments are supplied here, so none can be stated as fact on this source alone.
The Tribunal resolved the claim before it, but the reasons leave several matters outside the scope of the decision. First, the respondent was directed to calculate compensation, and the judgment does not state the resulting amount or provide a completed calculation under ss 39 or 41 ([30]–[32]).
Second, the reasons reproduce s 39(8) only as an ellipsis and do not detail its exceptions. They also reproduce s 41’s formula as an image that is not readable in the supplied text. The decision therefore does not provide enough material to explain those exceptions or independently calculate non-economic loss compensation ([8]).
Third, the Tribunal found the permanent impairment arose from the injury of 1 September 2001, although the issue statement also referred to injuries on or about 3 February 2002 ([7], [30]–[31]). The reasons record a later reported injury but do not make a separate final impairment finding attributed to that date.
Fourth, the decision gives a short summary of Zickar and Treloar but does not identify the precise passages relied on or explore the limits of those authorities ([27]). The judgment also does not indicate whether there was a subsequent appeal or how later decision-makers applied its reasoning.
Finally, the assessment under Table 9.5 was specific to the functional evidence accepted in this case. The reasons do not provide a general method for resolving all disputes about walking distances, grades or steps; instead, they explain why this Tribunal selected 10 percent on this record ([28]–[29]).
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DECISION AND REASONS FOR DECISION [2004] AATA 979
Place Sydney
Decision The decision under review is set aside and in substitution therefor, the Tribunal finds that Mr Brian Anthony Pratt is eligible for a 10 percent permanent impairment pursuant to the Seafarers Rehabilitation and Compensation Act 1992, arising out of the injury of 1 September 2001. The matter is remitted to the Respondent for calculation of the amounts of compensation.
Costs are awarded in this matter pursuant to the Seafarers Rehabilitation and Compensation Act 1992, and the Tribunal's Practice Direction.
Compensation - permanent impairment in issue - kicked faulty freezer door with left foot, injuring left heel - tarsal tunnel syndrome - decompression performed - decision set aside - Applicant has problems with grades and steps - 10 percent permanent impairment found.
Seafarers Rehabilitation and Compensation Authority - Guide to the Assessment of the Degree of Permanent Impairment - Table 9.5
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316
The application before the Administrative Appeals Tribunal ("the Tribunal") was that of Mr Brian Pratt, the Applicant in these proceedings, appealing against the determination of Teekay Shipping (Australia) Pty Ltd ("Teekay") dated 24 November 2003 (T4). That determination found that Teekay had no liability under section 39 and 31 of the Seafarers Rehabilitation and Compensation Act 1992 ("the Act") because Mr Pratt's degree of permanent impairment as assessed in accordance with Table 9.5 of the Seafarers Rehabilitation and Compensation Authority, "Guide to the Assessment of the Degree of Permanent Impairment" ("the Guide"), was zero percent, and accordingly, less than 10 percent.
The Respondent indicated that solicitors acting for Mr Pratt requested a reconsideration of the determination, indicating that the Applicant was relying on a deemed refusal. The Respondent further indicated that before Comcare could provide its section 74 review, the Applicant filed an application at this Tribunal on the basis of having been issued with a deemed reviewable decision dated 8 December 2003, declining his claim.
At the Tribunal Hearings, the Applicant was represented by Mr G Beauchamp of counsel instructed by WG McNally & Co, Solicitors, and the Respondent, by Mr R Sheldon of counsel, instructed by Ebsworth & Ebsworth, Solicitors.
Mr Pratt, whose date of birth is 20 June 1957, and who was employed with the Respondent from September 1999, was chief caterer on board the 'Dampier Spirit' when he reported a left leg injury which occurred on 1 September 2001 (T8). He stated that it was that he was "using (sic) extra body to close meet freezer door". Mr Pratt described the injury as "Left heel, back of heel. Feels like a pulled tendon. When stretch or move the wrong way. And feels numb." He continued with his normal duties until he reported a further left leg injury on or about 3 February 2002 (T12), which was followed by attendance upon general practitioner, Dr Caska, who recorded that Mr Pratt had "kicked freezer door with L heel" (on 1 September 2001), and prescribed Orudis Gel. Mr Pratt told me that this did not help.
Mr Pratt continued with his normal work, then came under the care of Dr J Graham, neurologist, and Dr M Glaze, orthopaedic surgeon, who performed a left tarsal tunnel decompression on 15 July 2002 (T23).
Liability was accepted, and the Applicant convalesced, returning to work at the end of October 2002. His pain and numbness continued, and he had further examinations by Drs Sheehan and Burke who also gave evidence before this Tribunal. Mr Pratt made a claim for permanent impairment which was rejected, and against which he has appealed to this Tribunal, (T1).
The Tribunal had to decide whether the Applicant has suffered permanent impairment which is compensable pursuant to sections 39 and 41 of the Act arising out of the injuries to Mr Pratt's left foot suffered on board the 'Dampier Spirit' on 1 September 2001 and on or about 3 February 2002.
The relevant legislation in this matter is the Seafarers Rehabilitation and Compensation Act 1992, in particular sections 39 and 41 which deal with the issues of permanent impairment and compensation for non-economic loss.
Compensation for injuries resulting in permanent
impairment
(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 is 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.
" SECT 41
Compensation for non-economic loss
(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:
[ IMAGE ]
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."
Documents were lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, ('the AAT Act"), the ("T-Documents") (Exhibit R1). A number of other documents were also admitted into evidence and are referred to during the course of these Reasons for Decision.
Oral evidence was given by Mr Pratt, Dr T Sheehan, medico-legal consultant and Dr P Burke, surgeon.
I moved then to consider the parties' submissions.
In summary Mr Beauchamp submitted on behalf of Mr Pratt that:
•
Credit of the Applicant was not in issue; he had an impeccable work record. Mr Pratt had suffered a number of work related injuries, and had elected to engage in hard work. He was fortunate that with the organisation of the swings in that he had certain times off work, and was stoic about pain.
•
Mr Pratt had the underlying condition on both feet, and with the regular pushing of the defective freezer door, and the insult suffered on 1 September 2001, which Mr Pratt did not report immediately because he thought it would settle, the left foot became symptomatic.
•
The Respondent had accepted liability for the operation, and the post-operative period. Mr Pratt had to wear orthotics which were supplied by the Respondent.
•
Although with his broken shifts, and his duties, Mr Pratt could organise his own schedule at times, he had difficulty climbing ladders, and walking on uneven ground. The Applicant's evidence was that he suffered pain on carrying out activities, and never had a day without numbness.
•
Mr Pratt was now restricted in his social activities such as cycling and dancing.
•
Dr Sheehan had assessed permanent impairment of the left foot at 20 percent according to Table 9.5 of the Guide.
A summary of Mr Sheldon's submissions made on behalf of the Respondent was as follows:
•
He submitted that both causation, and the extent, if any, of the permanent impairment claimed, were in issue.
•
As to causation; Mr Sheldon submitted that both Drs Burke and Sheehan had referred to a bilateral pre-existing condition which could become symptomatic as a result of trauma, submitting however that the incident with the freezer door could not be classed as a significant trauma. There was no evidence, he submitted, that the door had stopped suddenly during the closing operation, or that he had shut the door with his heel (Dr Burke).
•
Mr Sheldon submitted the Tribunal should rely on Dr Burke as Dr Sheehan's evidence regarding trauma had been vague. He also submitted that it was unlikely Mr Pratt had used his heel rather than the front of his foot if he kicked the door.
•
As to the percentage of any permanent impairment; Mr Sheldon submitted that Dr Sheehan did not have proper evidence of any difficulties Mr Pratt said he now suffered, for example walking on grades.
•
Mr Sheldon submitted that the Respondent accepted that Mr Pratt's behaviour in returning to difficult work was a credit to him, but that working in his job for six hours a day in two shifts, and going up and down the stairs as he was required to do, did not sit well with the claimed 20 percent permanent impairment.
•
Mr Sheldon explored the tests in Table 9.5 in relation to Mr Pratt's capabilities.
Having heard the evidence, I had to take that into account, as well as the submissions, case law and legislation to decide whether the Respondent is liable for permanent impairment as claimed by Mr Pratt.
I was satisfied that Mr Pratt suffered injury during the course of his work to his left foot while pushing a meat freezer door shut on 1 September 2001, and on or about 3 February 2002. I was also satisfied that he is a hard worker and did not exaggerate his condition, indeed has continued to manage his work, and manage stairs and other difficulties. He first reported the injury on 4 September 2001, stating at T8, "using (sic) extra body to close meat freezer door. ... Left heel back of heel. Feels like a pulled tendon. When streth (sic) or move the wrong way. And feels numb."
I was satisfied with Mr Pratt's description of his duties as chief caterer, which he gave in his oral evidence, noting that these consisted of cleaning, cooking, making salads, washing up, mopping and related duties. There were no issues of credit in relation to Mr Pratt, and I was satisfied he was a witness of truth.
I was satisfied that Mr Pratt had suffered no previous injuries to his left foot, noting however that he had suffered serious injuries to his neck and back at various times, and that the Respondent had accepted liability for hernia operations in 2003 and 2004. I was satisfied these were unrelated to the left foot subject of these proceedings.
I was satisfied from Mr Pratt's evidence that the steel door of the meat freezer which he used daily, was hard to close, and that he used his foot to assist in the operation. I was satisfied from his evidence that on 1 September 2001, in closing the freezer in his usual way, which included leaning on it and then pushing with his left foot, he felt a sharp pain in his left heel which persisted, (T8, T11 & T12), and that he later felt numbness. I was mindful also of disagreement regarding whether Mr Pratt would have used the front of his foot, his toes rather than his heel to push the door shut, and was not satisfied that the injury did not occur as described by the Applicant. In any case, as will be seen after the evidence of the doctors has been discussed below, I did not think whether the toes or heel was used was material, as I accepted that the action of pushing the freezer door on 1 September 2001, caused the asymptomatic left foot to become symptomatic.
• In Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 it was held to be irrelevant that injury or disease acted upon an existing vulnerability which in Mr Pratt's case was his bilateral tarsal tunnel syndrome.
• In Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316, it was held that a de minimus contribution of the workplace suffices and it is irrelevant that other non-work related factors may have also contributed to the injury or disease.
Having accepted that the incident with the freezer door on 1 September 2001 caused Mr Pratt's asymptomatic left foot to become symptomatic, and noting that liability had been accepted and the operation paid for by the Respondent, I revisited Table 9.5 of the Guide which I have reproduced below to assess the claim for permanent impairment. As relevant it follows:
"9 MUSCULO-SKELETAL SYSTEM
TABLE 9.5
Limb Function - Lower Limb
(Percentage Whole Person Impairment)
% DESCRIPTION OF LEVEL OF IMPAIRMENT
10 Can rise to standing position and walk BUT has difficulty with grades and steps.
20 Can rise to standing position and walk BUT has difficulty with grades, steps and
distances.
30 Can rise to standing position and walk with difficulty BUT is limited to level surfaces.
50 Can rise to standing position and maintain it with difficulty BUT cannot walk.
65 Cannot stand or walk."
I was satisfied from the evidence of Mr Pratt and that of Dr Sheehan that Mr Pratt had suffered permanent impairment in that even after his tarsal tunnel syndrome had been decompressed, he reported ongoing difficulties with pain, numbness, climbing stairs and walking on uneven grades. I accepted Dr Sheehan who opined that the condition was long term. Notwithstanding Dr Sheehan's opinion, I did not think Mr Pratt satisfied the tests for 20 percent permanent impairment because although he told me he was restricted in his social activities such as dancing and riding a bicycle, he in fact walks quite a lot in connection with his work. The evidence was that he manages that quite well. Accordingly, I find that Mr Pratt is eligible for 10 percent permanent impairment in that he can rise to a standing position and walk, but has difficulty with grades and steps.
Accordingly I set aside the decision of the Respondent and find that Mr Pratt is eligible for a 10 percent permanent impairment arising out of the injury of 1 September 2001. I remit the matter to the Respondent for calculation of the amounts of compensation.
The decision under review is set aside and in substitution therefor, the Tribunal finds that Mr Brian Anthony Pratt is eligible for a 10 percent permanent impairment pursuant to the Seafarers Rehabilitation and Compensation Act 1992, arising out of the injury of 1 September 2001. The matter is remitted to the Respondent for calculation of the amounts of compensation.
32. Costs are awarded in this matter pursuant to the Seafarers Rehabilitation and Compensation Act 1992, and the Tribunal's Practice Direction.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:
Associate
Solicitor for the Applicant WG McNally & Co, Solicitors
Counsel for the Applicant Mr G Beauchamp
Counsel for the Respondent Mr R Sheldon
Solicitor for the Respondent Ebsworth & Ebsworth, Solicitors
(1996) 187 CLR 310
(1990) 26 FCR 316
The determination under review was set aside. In substitution, the Tribunal found Mr Pratt eligible for 10 percent permanent impairment under the Seafarers Rehabilitation and Compensation Act 1992 arising from the injury of 1 September 2001, and remitted the matter to the respondent to calculate compensation. Costs were awarded ([31]–[32]).
(8)
Subsection (7) does not apply to one or more of the following:
(a) - (d) ...
There was no dispute, and I accepted that Mr Pratt consulted Drs J Caska, general practitioner, J Graham, neurologist (Exhibit A1), M Glase, orthopaedic surgeon (T14 - T18,T20, T22,T23), T Sheehan, medico-legal consultant, (T10), P Burke, surgeon (T5 & T6), and that he underwent radiological and related investigations. Neurophysiological studies in May 2002 revealed the presence of bilateral tarsal tunnel syndromes, which was not disputed by any of the doctors.
The surgery Mr Pratt underwent, being left tarsal tunnel decompression, (the right foot was asymptomatic), was performed by Dr Glase on 15 July 2002, and Mr Pratt returned to work in November 2002. Liability was accepted for the surgery, orthotics, and other medical treatment.
Mr Pratt's evidence which I accepted, was that the numbness, although less intense, has persisted, and is exacerbated on exertion and exercise. Mr Pratt's evidence was that his work boots also cause him pain. He also finds walking stairs or grades difficult, and has to do that because the ship is on four levels and his cleaning duties take him to each. The duties while on board are rostered for each day (seven days a week), although there are whole weeks of shore leave which follow the swing. The evidence was that this assisted the Applicant because there were periods of rest in between the intense work activity which was daily, for some weeks at a time.
Mr Pratt reported taking analgesics. I accepted Mr Pratt's description of his difficulties engaging in his hobbies of walking, bicycle riding and dancing. He also told me that he cannot drive as much as previously.
I was mindful of the reports of Dr Burke at T5 and T6, in which he opined that the development of tarsal tunnel syndrome in either foot was not related to Mr Pratt's work aboard the Respondent's ship, neither was it clear that there was any sufficient trauma to have caused the asymptomatic left foot to become symptomatic. He found a permanent impairment of 1.5 percent, stating that all there was, post operatively, was a residual small area of numbness in Mr Pratt's left heel.
I was also mindful that Dr Burke acknowledged a bilateral tarsal tunnel syndrome with the right foot asymptomatic. Dr Burke did not however consider that the trauma as described would cause the left foot to become symptomatic. He opined that the pressure of standing on the right foot while the Applicant pushed the freezer door with his left foot would cause more pressure than the closing of the door itself. Dr Burke was adamant that far greater pressure than that described by Mr Pratt would have been required to render the asymptomatic left foot symptomatic. Nevertheless Dr Burke was satisfied that Mr Pratt was not exaggerating his symptoms, and was in fact motivated to continue working.
I preferred the medical evidence of Dr Sheehan that the trauma Mr Pratt sustained in pushing the freezer closed with his left foot on 1 September 2001, precipitated symptoms related to the tarsal tunnel syndrome in his left foot. Dr Sheehan explained in his oral evidence that given the history he had from Mr Pratt about the closing of the freezer door, he interpreted that as a trauma to the left foot, a transmission of unexpected forces. Dr Sheehan agreed that if the door had not stopped suddenly as he had envisaged, that would have lessened the trauma.
Dr Sheehan was satisfied that "obvious clinical signs were found on examination", and that Mr Pratt did not overstate his symptoms and was not exaggerating (T10). Dr Sheehan, having considered Table 9.5 of the Guide, found that Mr Pratt had suffered 20 percent permanent impairment, the result of a compensable incident. I was mindful that the Respondent indicated that Dr Sheehan's examination of Mr Pratt was inadequate in that he did not deal with any disability in regard to grades or stairs. I was however satisfied from Dr Sheehan's oral evidence that notwithstanding the non-inclusion of comment on difficulties with stairs and grades, Dr Sheehan had tacitly considered that aspect of Mr Pratt's disabilities. I also noted that in his report, he had commented on difficulties Mr Pratt had with riding a bicycle.
There is of course well established authority, which deals with causation, and with aggravation or acceleration of injury, and contribution of the workplace in workers' compensation cases, and I have noted certain case law below.