Compensation Court of New South Wales CITATION : Wilson v Premier Plaster Board Suppliers T/As Bonner Pty Limited [2001] NSWCC 20 PARTIES : Arthur Wilson Premier Plaster Board Suppliers T/As Bonner Pty Ltd MATTER NUMBER(S) : 48524 of 1999 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Proceedings to Obtain Compensation - Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 01/11/00, 15/02/01, 23/02/01, 20/04/01 DATE OF JUDGMENT: 04/20/2001 FOR APPLICANT:Mr S F Hughes instructed by Heazlewoods LEGAL REPRESENTATIVES: FOR RESPONDENT:Mr T N Small instructed by Vardanega Roberts JUDGMENT: 1. The applicant in this matter claims lump sums and weekly payments of compensation under the Workers Compensation Acts in respect of an injury to his back, neck and left shoulder which he alleges occurred on 30 March 1999 arising out of and in the course of his employment with the respondent. 2. Mr Hughes of Counsel appeared for the applicant and Mr Small of Counsel appeared for the respondent. Counsels' addresses have been recorded and there is therefore no need for me to refer to each submission merely to ensure that it is noted. 3. The applicant is a 41 year old married man with dependant children as set out in my findings. He has a good work record mainly in heavy manual occupations although with some training experience as a boner and work as a leading hand rigger. He left school at a relatively early age, however, he has a 3A driving licence, a fork lift driver's licence and licences for handling dangerous goods, asbestos removal and certificate for first aid. 4. The applicant was a keen rugby player playing to representative level on the Central Coast. At the time of his injury he had played for 18 years and planned to play for 20. He was for 3 years President of his Football Club and for 5 Manager - a position which I think it may be inferred was voluntary. 5. For some months prior to 30 March 1999 the applicant had been employed by the respondent in the heavy manual task of loading, delivery including unloading and carrying into the buildings being constructed gyprock boards usually 5.4 or 6 metres in length and weighing of the order of 55 kilos. 6. On 30 March 1999, a wet day, boards were being delivered into a house by the applicant and his supervisor Steven Godbold. Because of the mud planks had been arranged a short distance off the ground. As the two men, with Mr Godbold in front, went to negotiate the doorway the applicant, who was at the rear of the sheet, slipped off the plank being dragged forward at the same time as Mr Godbold took the sheet forward. 7. The applicant immediately felt severe pain in the middle of the back. Mr Godbold confirmed that the applicant complained of having hurt himself and that he did not move any more sheets thereafter. 8. Mr Godbold being in front did not see the applicant slip, however, he felt the rear of the sheet drop and concluded 'he slipped off what we were walking on'. 9. Mr Godbold duly reported the injury to his boss. The applicant merely worked at odds jobs for the rest of that day and half the next day which was a short day prior to Easter. 10. The applicant did not, apparently, refer to the fall when he saw a doctor on 6 April 1999. However, Mr Small properly conceded, no doubt having regard to Mr Godbold's evidence and his instructions that injury was established. Just what that injury was, however, is a more difficult matter. 11. The applicant said that he had hoped the problem would resolve over the Easter break, however it did not. On 6 April 1999 he saw Dr Sneeth at the practice of his usual general practitioner Dr Klineberg. 12. Dr Sneeth recorded in the notes of the practice, amongst other things:- · Headache 3/52 - (L) oocipal (L) neck pain. · More severe the last 4 days. · Only getting 10 minutes sleep at a time. · Also pain (L) shoulder blade. · And down (L) side of back. · Also numbness (L) thigh (? Connection) · Occurs when exercising or working hard. · Also pins and needles in hands. · Also thinks his reactions are slow and balance is a bit affected. 13. The doctor found some tenderness and reduction of movement. His provisional diagnosis was cervical ligament strain, spondylosis and meralgia. 14. The doctor prescribed medication and referred the applicant to Dr Bruce for x-rays. It appears the applicant saw Dr App on 12 April 1999. He thereafter had about nine weeks of physiotherapy about three days per week. There is no report tendered from Dr App. Dr Klineberg saw the applicant on 12 April 1999. His notes record, amongst other things: · (L) sided headache 1/12 · Photophobia (mild) · Blurring at times. · Pain in back between shoulder blades. · Tender C5/6 · Thoracic spine tender vertebrae and (L) para spinal (m)s. 15. The doctor's provisional diagnosis was back and neck sprain injury from heavy labouring work. He had a note which appears to be "casual labouring work (heavy) 4/12". The doctor had also added - it would seem - "? was carrying wide sheet of gyprock and slipped off plank on 30/4/99. 16. Dr Klineberg issued an initial certificate dated 16 April 1999 with a diagnosis of cervical and thoracic back strain with the cause of injury, as stated by the worker, noted as heavy lifting. 17. Although two additional certificates were tendered all certificates appear to be missing pages. Nonetheless, it is clear that Dr Klineberg certified the applicant unfit for work up until, at least, the date in the last certificate, 27 June 1999. From his notes it would appear that a further certificate continued to 28 July 1999. On that day the notes tendered end. The doctor notes that liability was refused through MMI. 18. Dr Klineberg had noted the involvement of MMI and of Combrook (a rehabilitation provider) and the reference of the applicant to doctors by the respondent's insurer. 19. The applicant's evidence is that he has continued to see and be treated by Dr Klineberg. He, it would seem, apart from Dr Apps, has not seen other doctors for treatment. 20. Dr Dixon, an orthopaedic surgeon, examined the applicant for his solicitors on 22 November 1999. The doctor had an appropriate history of the injury, albeit he referred to right shoulder initially, however, he did not, so far as appears, have Dr Klineberg's notes or a report from the doctor. 21. On examination the doctor noted a restricted range of movement of his cervical spine.......a painful arc on abduction of his left shoulder.........interscapular tenderness at about T7 of his thoracic spine and thoraco-lumbar stiffness..........slow and jerky recovery following forward flexion. 22. Dr Dixon considered that a CT scan showed narrowing of the C5/6 disc space although teh radiologists considered the scan a normal study. 23. The doctor summarised his view as follows: In summary the patient sustained a significant cervico-thoracic and left shoulder strain while carrying sheets of Gyprock at work when he slipped off a builder's plank on 30th March 1999. He has been unable to return to work. Clinically he sustained a cervical traction injury. The x-rays of his cervical spine showed narrowing of the C5/6 disc space. A CT scan was arranged and a copy of that report will be appended. He has residual cervical brachalgia following cervico-thoracic strain as well as pain in the neck and in the interscapular area. He has sustained significant cervico-thoracic pain with residual pain in the lower cervical area and in the mid thoracic spine. 24. Dr Dixon considered that the applicant had suffered 15 per cent permanent impairment of his neck, 10 per cent permanent impairment of his back and 20 per cent permanent loss of the efficient use of his left arm at or above the elbow. 25. Dr Dixon is an experienced orthopaedic surgeon and I infer that his percentages in respect of the back and neck are assessed in comparison with a most extreme case. 26. The doctor on 18 May 2000 wrote a further report as follows: The patients cervico thoracic and shoulder injury impairment is the result of the accident of the 30th March 1999 as well as the nature and conditions of his employment from the 1st November 1998 to the 30th March 1999. 27. Mr Deggens did not put that the case should be approached on the basis of the nature and conditions of employment, nor did Mr Small put that this addition detracted from the doctor's views. 28. The applicant had been examined on 18 June 1999 by Dr Graham, an occupational physician, for MMI. Mr Small tendered his report of 21/6/99. 29. Dr Graham had a history that the applicant's initial pain was in the left loin and shoulder and that he was able to finish unloading the truck. This, I think, was the result of a misunderstanding for I accept the evidence of the applicant and Mr Goodbold that the applicant did not do further unloading. 30. The doctor noted x-rays of the cervical spine of 8 April 1999 and the thoracic spine of 12 April 1999 which he considered normal. He found all movements performed slowly with restrictions at the extremes. He noted bilateral reduction of grip strength and areas of tenderness including over the scapula bilaterally. He noted that the applicant was not particularly tender in the neck or along the midline in the back. 31. Dr Graham considered the large amount of physiotherapy inappropriate 32. Dr Potter, a rheumatologist, examined the applicant for MMI on 15 July 1999. In a short report of that day the doctor recommended an MRI scan. He also said: There certainly is not yet a proven diagnosis. There is an extraordinary array of different symptoms over time. Thus although there is a variety of complaints, the dominant complaint to me historically was triggered from an incident in the workplace 30 March 1999, is sited from a broad area in the back from C5 to L1. Clinically the maximum tenderness is at T5. Even though I don't have a precise explanation anatomically historically at least liability should continue. Dr Potter in a later report of 19 July 1999 said: This man has a lot of symptoms which don't fit. However, the core is that Mr Wilson indicates a component of work injury and the clinical feature suggest that there is a defect in the thoracic spine, in effect then, there is not sufficient data to make a final outcome. Temporarily he is not fit to work, temporarily liability should be offered. I can't identify a simple organic cause for his symptoms. 33. Dr Cant, a neurologist, examined the applicant for the respondent's solicitors on 23 November 1999. He had an essentially accurate history. 34. Dr Cant on examination found the applicant to have an unusual mild limp. The doctor noted, amongst other things, that there was a full range of flexion and extension of the cervical spine but rotations of his head to either side was mildly limited. There was a limitation of active and passive elevation of the left upper limb. The doctor noted tenderness, which he later described as considerable, at about T5 or T6 with lesser tenderness over the left trapezius. 35. Dr Cant did not think that the x-rays showed any abnormality. He did not see the CT scan. 36. The doctor observed: Since then he has had pain between his scapulas. Initially he had severe headaches and now he complains of pain in his left shoulder with external rotation of his left upper limb. The history and physical findings do not lend themselves to any simple explanation. Although Mr Wilson was carrying a relatively heavy sheet of plasterboard, it is unlikely that a man who played first grade rugby and went through an extremely demanding exercise program would have suffered a significant injury when his foot dropped unexpectedly by about 12cm. Dr Klineberg's report makes no mention of Mr Wilson originally complaining of an injury and he describes much more diffuse symptoms in which neck pain and headaches appear to have been a prominent feature. Now, the major physical finding is tenderness at about T5 but it is difficult to understand how a mid thoracic lesion of any type could cause the symptom complex Mr Wilson has had. 37. It is not clear whether Dr Cant is drawing attention to the absence of report of the injury as impugning the fact of injury or rather as indicating that it did not appear to the applicant to be a major matter. 38. Dr Cant said that he would like to see the further investigation - which he thought was likely to be on MRI but was obviously the CT scan of 22 November 1999 - before giving a more definite opinion but that his present view was that the applicant had some type of medical disorder that may have made him sensitive to being jarred but that it was unlikely that his disability results from an injury. 39. Dr Smith, orthopaedic surgeon, assessed the applicant for the respondent's solicitors on 23 November 1999. 40. That doctor took a markedly different view to all the other doctors. He thought that the applicant sustained a disc lesion at C5/6 or aggravated changes at that level and that by the time of the examination, indeed much earlier, the aggravation has settled and the applicant was fit to return to work. The doctor said: His physical examination in fact demonstrates nothing objectively wrong with his neck at all and he is manufacturing physical signs in addition. It would not have occurred to me that he had any infective illness such as Ross River Fever or the like as being suggested by other doctors. 41. Dr Smith did think it would be worthwhile having a new x-ray of the neck and also an MRI. He did not expect that symptoms will re-occur. 42. The doctor did not detect any evidence of impairment in the neck or either upper limb. 43. A feature of the respondent's case was video of the applicant in March, April and May 2000. I was shown a three quarter hour agreed extract which I have viewed on a number of occasions. 44. It was not suggested that the applicant had been aware that he was being videoed. The video was convincing evidence that the applicant was not the fit vigorous man that he must have been to engage in his work and sporting activities before Easter 1999. 45. Throughout the video the applicant appeared frequently to be in difficulties. At times he limped. It is apparent that he spends much time sitting in a chair on his verandah. He appeared to sit and rise with care and a fluctuating level of difficulty. On one occasion he was shown getting into the driver's seat of a van. He did that slowly and with obvious caution. He was shown pruning a bush and appeared to use secutars in his left hand without difficulty, however, he moved slowly and cautiously in pending to pick up the cut material. 46. Mr Small, naturally enough, placed much reliance upon the use by the applicant of a punching bag suspended in his garage. The applicant said that he bought it after the accident to attempt to strengthen his arm and shoulder muscles. 47. On one occasion the applicant, who obviously spends a good deal of time sitting in his garage, threw a few desultory punches at the bag. On another occasion he addressed it more physically for a short time, however, the contrast between what took place and how one would expect a man of the applicant's background to deal with a punching bag was most marked. The roller door of the garage was partially down and the applicant manoeuvred under it with some care. 48. The video strongly suggests that the applicant is significantly disabled. Mr Small did not press upon me Dr Smith's view that he is not. He did, however, submit that I should not be satisfied that more probably than not that disability results from the injury relied upon. He pointed to the views of Dr Graham, Dr Potter and Dr Cant that some other factor may well be responsible for the applicant's problem particularly having regard to the widespread nature of his symptoms. 49. I have, however, come to the conclusion that I should accept the view of Dr Dixon. His view explains the applicant's major symptoms. It proffers a similar view to that of Dr Klineberg the treating doctor. Dr Patter's working assumption is a sprain pattern occurring to the applicant's thoracic spine area. 50. Dr Klineberg had blood tests done and, despite the doubts of Doctors Graham, Potter and Cant, no diagnosis of any specific disease or other condition has been advanced to explain the symptoms which Dr Dixon considers can be explained by his diagnosis. An MRI was recommended by Dr Potter and Dr Smith. Dr Cant thought one had been carried out. Dr Dixon arranged and appears to have been content with the CT scan. 51. Whilst there are certainly other possibilities, on the material before me I am satisfied that it is more probable than not that the applicant suffered the injury postulated by Dr Dixon and that the applicant's subsequent incapacity has resulted from that injury. 52. Dr Dixon has made the assessments as to impairments I have referred to above. Dr Smith has expressed the view that there are no permanent impairments. The other doctors clearly consider that thee are some present impairments but have not expressed any view as their permanence or degree. That they have not done so is, of course, consistent with the doubts they have expressed as to diagnosis. 53. The applicant's evidence and the video seems to me to be consistent with Dr Dixon's assessments and I consider, on the whole of the evidence, I should accept that they are more probable than not correct. 54. Dr Dixon does not deal with the question of a deductable proportion under section 68A. In so far as Doctors Graham, Potter and Cant speak of a possible disease or medical condition it is possible that there may be a pre-existing condition or abnormality to which a proportion of the loss is due, however, on the evidence before me the respondent has not discharged the onus of showing that more probably than not that is so. 55. It was, in the report of the x-ray of 8 April 1999, suggested that there is a slight reduction is the disc space height at C5/6 suggestive of disc pathology at this level. Dr Smith thought the x-ray to demonstrate C5/6 to be a little narrow with minimal degenerative change. 56. Dr Smith had referred to "sustained a disc lesion at C5/6 or aggravated degenerative changes". He did not express a preference for one of those possibilities as against the other. 57. Dr Dixon referred to the x-rays showing narrowing of the C5/6 disc space, but did not express the view that what had occurred was an aggravation of a pre-existing condition. The CT said "...there is little if any degenerative disease demonstrated anywhere in the cervical spine". 58. I do not consider that the respondent has discharged the onus of establishing that a degenerative condition of the applicant's cervical spine was a pre-existing condition or abnormality to which the permanent impairment of the neck was due. X-rays of the thoracic spine were normal and the same applied to the back. 59. Accordingly, there will be no deductable proportion under section 68A. 60. The current weekly wage rate and, I assume, probable earnings were agreed at $567.20. Although the evidence is not entirely clear I assume that the applicant was paid until 5 April 1999. 61. Dr Klineberg's certificates and notes, which I accept on this point, have the applicant totally incapacitated for work until 28 July 1999. The notes beyond that point were not tendered. Dr Potter said that the applicant was temporarily not fit to work in July 1999. 62. The applicant said that he first felt well enough to return to some work about 6 months before he gave evidence on 1 November 2000. 63. Mr Hughes submitted that I should adopt that time as the conclusion of the period of total incapacity. However, Dr Dixon had said following his examination of 22 November 1999: His prognosis for returning to manual duties is guarded. He will be restricted in carrying objects on his left shoulder and neck and would be restricted in lifting and carrying objects greater than 20kg over any distance. He would have difficulty working above shoulder height. He would be able to do light manual work or supervisory duties or clerical activity but would have difficulty with manual work per se involving lifting, carrying, loading and packing above shoulder height. He does not appear fit for his pre-injury employment at this stage. His prognosis for resuming such a remunerative occupation is guarded. 64. I propose to make an award on the basis of total incapacity up until 22 November 1999 and thereafter on the basis of partial incapacity for work. 65. The applicant has not worked and it is necessary to determine his ability to earn. Mr Hughes has submitted that is zero, Mr Small put it as closer to $500. I do not accept either view. 66. It seems that the insurer must have involved Combrook which very early sought suitable work from the respondent which was unable or unwilling to provide it. 67. After he decided he could work again, the applicant applied to four different employment companies, but was unable to obtain work. At the time of the Court appearance in November 2000 the applicant had a certificate as to light work and training and IPC Employment was to be involved, however, it appears that nothing came of that. The applicant did do a computer course, he is also studying real estate. Having regard to his level of education and the type of work he has always done he would have to be very fortunate to obtain an opportunity in these fields. 68. On the other hand the applicant has had a good deal of experience with the Rugby Club. He could, I would think, do work assisting with such a Club or a larger Club. His evidence was that he had had an alcohol problem and I accept that working regularly in a Bar would be unsuitable for him. He suggested that with retraining he could work in sports management, or as an occupational health and safety officer. 69. Mr Small did submit that service station work would be suitable, however, I doubt that the applicant could do that work for long enough at a time to make employment likely. 70. The fact that the applicant has not found a job needs to be treated with some caution. I accept that he does, as he says, want to work. However, I thought an answer he gave revealing. He said: If I did try a job and I couldn't do it, what happens? What happens to me? 71. I think a concern that a failure at an attempt at work might seriously disadvantage him made the applicant less resourceful in seeking work than he otherwise would have been. 72. The applicant is a personable man with a sporting background. I think he could work in a Club in a variety of assistant roles or do other light manual work, such as working in a shop, for relatively restricted periods. Five hours a day, five days a week at $11 an hour would amount to $275. Such work is usually intermittent and continuous employment is difficult. Allowing for such factors, doing the best I can, I find that the applicant has had an ability to earn since 23 November 1999 of $250 per week. 73. I do not consider there be any adequate discretionary reason to reduce the award I shall make below the difference between the actual earnings or ability to earn and the probable earnings. 74. The awards I shall make cross the threshold under section 67(2) and the applicant is entitled to an award under section 67. 75. The amount provided for a most extreme case is $50,000. There is no one most extreme case, however, the Court tends to think in terms of young quadriplegics or paraplegics or massive brain damage. This case is far from that. Nevertheless, the losses have caused the applicant a very significant changes to his lifestyle, he is demonstratively a far less active man than he was. He has lost the opportunity to complete his rugby career and has suffered the distress and anxiety resulting from that loss. He suffers and will suffer restrictions on his other activities and a measure of pain and discomfort. 76. Doing the best I can I consider that an appropriate proportionality is maintained by an award under section 67 of $12,500. 77. My findings may be summarised as follows: (a)The applicant suffered injury to his neck, upper back and left shoulder on 30 March 1999 arising out of and in the course of his employment with the respondent. (b)As a result of the said injuries the applicant was totally or partially incapacitated for work for various periods from 1 April 1999 to 5 April 1999 and paid wages. (c)As a result of the said injuries the applicant was totally incapacitated for work from 6 April 1999 to 23 November 1999. (d)As a result of the said injuries the applicant has been partially incapacitated for work since 24 November 1999. (e)As a result of the said injuries the applicant has suffered permanent injury of the neck being 15 per cent of a most extreme case. (f)As a result of the said injuries the applicant has suffering permanent injury of his back being 10 per cent of a most extreme case. (g)As a result of the said injuries the applicant has suffered 20 per cent permanent loss of the efficient use of his left arm at or above the elbow. (h)Current weekly wage rate and probable earnings at all material times $567.20 per week. (i)Applicant's ability to earn from 24 November 1999 to date $250 per week. (j)The applicant at all material times had a dependent daughter. From 20 March 1999 to 23 November 1999 the applicant had one dependent son. From 27 January 2001 to date the applicant has had one dependent son. 78. I make an award for the applicant: Under section 36 at the rate of $567.20 per week from 6 April 1999 to 5 October 1999 Under section 37 at the rate of $393.90 from 6 October 1999 to 23 November 1999 Under section 40 at the rate of $317.20 per week from 24 November 1999 to date and continuing. Under section 66: In the sum of $6,000 in respect of permanent impairment of the neck In the sum of $6,000 in respect of permanent impairment of the back In the sum of $15,000 in respect of 20 per cent permanent loss of the efficient use of the left arm at or above the elbow. Under section 67 in the sum of $12,500 Medical expenses section 60. The respondent is to pay the applicant's costs. Mr S F Hughes instructed by Heazlewoods appeared for the applicant MrT N Small instructed by Vardanega Roberts appeared for the respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.