Neal v Lysaght [2002] NSWCC 20

Reported Decision : (2002) 23 NSWCCR 372

Compensation Court of New South Wales

CITATION : Neal v Lysaght [2002] NSWCC 20 PARTIES : Richard Neal Keith Kenneth Lysaght t/as Lysaght Refrigeration and Air Conditioning MATTER NUMBER(S) : 35104 of 2001 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 8/4/02 DATE OF JUDGMENT: 04/08/2002

FOR APPLICANT: Mr Goodridge instructed by Firths. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M Batten instructed by Nevill & Edwards.

JUDGMENT: 1. This is an application by Richard Neal against his former employer, Keith Kenneth Lysaght, trading as Lysaght Refrigeration and Air Conditioning, in which he claims injury on 2 August 1994 when lifting a compressor for an air conditioner onto a roof, at which time he claims to have suffered severe injury to his back. He claims the appropriate s 66 lump sum in respect of 15 per cent permanent impairment of the back together with s 60 expenses. As to the latter, no such claim has pressed on the evidence and I make no order in relation to it. The issues were indicated by Mr Batten of counsel helpfully for the respondent as being firstly injury, secondly the degree of the permanent impairment of the applicant's back, if any, thirdly the nexus, if any, between the injury the applicant claims to have suffered and any permanent impairment of his back and fourthly the application of s 68A. 2. As to the first issue, Mr Batten indicated that the issue was not so much whether the applicant reported or suffered an injury on 2 August 1994 as claimed, but as to which part of the back that injury affected. The applicant gave evidence and he struck me as an impressive man who had done his best to rehabilitate himself from his injury, and indeed had obtained employment elsewhere of a higher classification which incidentally enables him to use his back best, as I shall explain when dealing with his evidence. I thought he made a sensible and moderate account of his injuries and disabilities and I accept his evidence. It appeared to be a little affected by lack of recollection and I shall deal with that also in the course of discussing his evidence. 3. It would appear that the applicant joined the respondent in 1993. His tasks were those usual with a refrigeration mechanic, i.e. heavy lifting of a variety of objects. He did that work without problem until 2 August 1994 when he suffered the subject injury much as described in the Application for Determination from which I have quoted above. He said the object he lifted weighed between 30 and 50 kilos. It would appear that he worked on following the injury. That was not altogether clear from his evidence in chief, but I clarified it by a question I asked at a time when the applicant was being asked questions in cross-examination by Mr Batten. In fact it would appear that the applicant worked on, according to his best recollection, which was rather vague, from the date of injury until the date on which he obtained his first medical certificate, which was from a chiropractor named Mr Taylor on 6 October 1994. Thus a bit over two months elapsed between the happening of the injury and the applicant's first seeking medical attention, he having said that his best recollection was that Mr Taylor was the first person whom he saw for treatment. During that time the applicant said, and I accept, that his back got worse. 4. It would appear that the applicant submitted a claim form suggesting that he suffered injury over a period of time to his back rather than in any specific incident, but that is contradicted not only by the applicant's evidence in chief today but by a Report of Injury form submitted by his employer, as I shall reveal. It seems to me the most likely scenario is not that the applicant suffered further injury to his back after 2 August 1994 before he stopped work in October 1994 resulting from the nature and conditions of his employment, but rather that the back pain he felt after 2 August 1994 was simply a revelation of the effects of the initial injury on 2 August 1994 rather than marking the genesis of a new injury. 5. The applicant said that the pain he felt initially was in his low back but that it later travelled up (as Mr Batten conceded in addresses often occurs) to his mid back. This he thought occurred over a period of two days at the most. This seems to me not an unlikely scenario and Mr Batten conceded, as I have said, that it often occurs. Be that as it may, the applicant continued to work, as I have said, until he saw Mr Taylor, it would appear on or about the date of Mr Taylor's first certificate, which is 6 October 1994. At that time the applicant went off work on Mr Taylor's certificate, and remained off work upon certificates given first by Mr Taylor and later by Dr Kim Peters, a general practitioner, in total, the applicant thought, for a period of nine weeks. In fact a schedule of payments of compensation by the respondent's insurer was tendered by the applicant as Exhibit D, and it indicates that payments were made between 6 October and 9 December 1994 by way of weekly compensation by Employers Mutual Indemnity (Workers Compensation) Limited. There is no doubt, it would appear, that the applicant had time off work over that period of time on the certificates of Mr Taylor and Dr Peters which are part of Exhibit A, which is the applicant's medical evidence in this case. 6. During that time the applicant's back apparently improved, for he was able on the respondent's request to perform his usual employment on resumption of work. His relationship with the respondent thereafter he described as "sketchy", by which I take it he means "scratchy", for at the end of 1994 he left the respondent's service. He had been initially employed by the respondent as an apprentice, and after leaving the respondent he succeeded in renewing his apprenticeship elsewhere with John Blaine Refrigeration, apparently at the end of 1994. He performed that work for about two years and then moved to Faircloth and Reynolds, a firm in Coffs Harbour. He was unsure of the time for which he was employed by that employer, but then moved, he said, to Saxby Soft Drinks, who I gather are yet another employer on the mid North Coast. He has worked there for nearly three years until the present time, initially as a refrigeration mechanic, he having I gather completed his apprenticeship in the meantime. 7. He said that with the three post-injury employers just mentioned his work as a refrigeration mechanic, or apprentice refrigeration mechanic, as the case may be, caused him some problem, in that he always felt pain in his mid back while performing heavy lifting work, and felt it on occasions also when lifting lighter objects when he lifted them incorrectly using back flexion, rather than his legs, to do so. Fortunately with his current employer he was then offered promotion, initially to sales representative and then to area manager. It would appear that the change to the area manager position was one in name only, because his duties remained as they had been before when he was working as a sales representative, i.e. visiting potential clients of the firm to secure orders for soft drink and the securing of those orders. 8. Another change apparently was that he was paid commission while he was working as a sales representative, but this arrangement has ceased now that he is an area manager, which is perhaps an exalted title of little benefit to the applicant. Be that as it may, he has since working as a sales representative for Saxby's been able to avoid heavy lifting, and for that reason his back has become somewhat better. He still experiences pain from time to time when he stands and sits for long periods. Otherwise his back is more or less symptom-free, as I understand his evidence, except that he experiences numbness in his left leg every morning in the shower, and on occasions at other times when he walks for too long a period. No permanent loss of use in the left leg, I should add, is claimed. The applicant also says that from time to time he suffers pain in the left hip which feels like a pinched nerve, but otherwise his ongoing pain he locates, when it occurs, in his mid back between the shoulder blades. 9. The applicant was skilfully cross-examined by Mr Batten for the respondent and he was taken through his history in some detail. I hope I will be excused if I do not refer to every aspect of that cross-examination for reasons of space but only to those which particularly affect my determination of the applicant's rights today. 10. The most significant concession Mr Batten obtained from the applicant in cross-examination was that his back pain was relatively episodic and that he had had no medical treatment whatsoever since late 1994 for his back, in order to ground the submission, which Mr Batten of course made, that the applicant's back pain cannot be very severe if he has not been advised to consult a medical practitioner for it in a context when he has been working actively ever since he ceased medical treatment. That is something which I must take into account in assessing the applicant's permanent impairment of the back, if any, and I have done so. 11. Coming to the applicant's medical evidence, which was contained in Exhibit A, a report of Mr David Taylor, chiropractor, dated 3 December 1999 is the first document in the exhibit. It reveals that the applicant was treated on a number of occasions between 6 and 24 October 1994 for a work-related injury to the mid thoracic spine, which corroborates the applicant's evidence in that regard. To complete my reference to Mr Taylor, it should also be noted that that practitioner's certificates dated 6 and 17 October (two of the latter date) and 24 October 1994 were also part of the exhibit, and they fit with the schedule of payments, Exhibit C, to which I have referred above, to establish the applicant's period of time off work, as do the certificates of Dr Peters dated 1 and 22 November 1994, also part of Exhibit A. 12. Dr Peters' report is the next document in the exhibit, and it is dated 26 May 2000 and it too establishes that the applicant had a mid thoracic spinal injury, but it also contains a history in precise accord with the applicant's evidence today that he originally had pain in his lower spine, which travelled subsequently upwards to the thoracic spine between the scapulae. This history seems to have been given on 25 October 1994 when the applicant first saw Dr Peters, and it is thus in reasonably close proximity to the occurrence of the original injury, at a time long before the applicant commenced legal proceedings, and it seems to me therefore to be reliable and to corroborate the applicant's evidence. Dr Peters relates giving the applicant certificates at different times corresponding to the certificates which are also part of the exhibit. She also refers to a referral to Dr Bosler. 13. The report of Dr John Bosler dated 29 March 2000 is the next document in Exhibit A. It annexes various investigations and records that Dr Bosler first saw the applicant on 1 December 1994. It is imprecise as to the precise area of the applicant's back where pain was experienced, although it remarks by way of current complaints that if the applicant pushed his head forward, he would experience a stabbing pain in the back which seems to accord with a mid thoracic rather than a low back injury. Dr Bosler referred to having the applicant undergo various tests at his request and remarks that he has not seen the applicant since 12 December 1994 and is therefore unaware of his present condition. 14. Certain pathological reports, two in number, and a bone scan report which were annexed to Dr Bosner's report are not elucidated in it and I was not addressed on them by counsel, and I do not understand them to advance either the applicant's or the respondent's cases as to the nature of the injury or the existence or otherwise of any pre-existing condition. 15. The next report in exhibit A is that of Dr Raymond Wallace dated 5 October 2000 with a short annexure of the same date. Dr Wallace received a history of the onset of lumbar spinal pain in November 1993 which is of course incorrect, but the applicant nevertheless reports lifting a compressor when sustaining injury, which accords with the injury presently alleged, so it would simply appear that when he saw Dr Wallace he got the date of injury wrong. Dr Wallace nevertheless diagnosed, in view of the applicant's complaints on examination, a significant musculoligamentous strain to the thoracic spine consistent with the mechanism of injury described by the applicant. I differ with Dr Wallace as to the nature of the injury because, as I shall reveal, I think in fact the applicant had an aggravation of degenerative changes in his thoracic spine rather than a simple musculoligamentous injury. Dr Wallace nevertheless remarked on Scheuermann's disease in the thoracic spine, to which I shall return later. He thought there was a 15 per cent permanent impairment of the back directly attributable to a work injury. 16. I should note in passing that although Dr Wallace referred to heavy lifting at work in November 1993, he also referred to an injury on 2 August 1994. The applicant's history to Dr Wallace is indeed rather confused and it may be that he did get the date of injury wrong, as I have said, but one way or the other there emerged neither in his evidence nor in any other medical evidence any suggestion of injury earlier than 2 August 1994, so I am satisfied that there was no injury before that date. 17. The next document in exhibit A is the report and short annexure of Dr Neil Berry, general surgeon, both dated 5 August 2001. Dr Berry received a history of injury much as the applicant gave in the witness box, remarked on a mild kyphosis in the thoracic spine, diagnosed an injury to the thoracic spine, remarked on evidence of Scheuermann's disease, and made a diagnosis of musculoligamentous strain sounding in 15 per cent permanent impairment of the back. Dr Berry said that there was pre-existing Scheuermann's disease but it did not appear to be symptomatic, and it was in the lower thoracic spine. In fact I think that the applicant has suffered an injury by way of an aggravation of pre-existing Scheuermann's disease in his thoracic spine as I accept the opinion of Dr Hopcroft in that regard, and I shall shortly come to that. 18. Exhibit 1 in the respondent's case is the respondent's medical reports. The first, of Dr David Millons of 6 February 2002 with a short annexure, records a history much as the applicant related in his evidence. It offers the opinion that the applicant has a 10 per cent permanent impairment of the back and attributes half of that to the incident of August 1994 and the remainder to the nature and conditions of the applicant's work and the normal activities of daily living, not apportioning between those last two. Dr Millons apparently did not have the opportunity of examining any x-rays, which is no doubt why he does not refer to Scheuermann's disease. 19. Dr Hopcroft, whose report of 5 March 2001 is also part of Exhibit 1, he being a general surgeon practising in orthopaedics, did however examine the applicant's x-rays and indeed found Scheuermann's disease in the thoracic spine. He did not think that the applicant's employment caused that problem, but said that it made it symptomatic. Notwithstanding that, he did not attribute any of the permanent impairment of the applicant's back of 10 per cent which he found to work injury, of which he received a history much as the applicant related in his evidence in the witness box, saying that all of that permanent impairment was due to the underlying changes of Scheuermann's osteochondritis, even though that was likely to have been made symptomatic in the course of the applicant's work. That is a rather curious opinion, since he apparently accepts that the symptoms continue. I accept the view that the applicant has experienced an aggravation of Scheuermann's disease as Dr Hopcroft appears to say, for that accords most with common sense in my view, it being unnecessary in those circumstances to postulate a separate musculoligamentous injury, of which there is no evidence apart from various doctors' opinions, but I do not accept Dr Hopcroft's apparent view that the effects of this aggravation have ceased. 20. Also in Exhibit 1 was two reports of Dr K Wilding, orthopaedic surgeon, one long and one short, of 4 February 2002. Briefly, Dr Wilding did not think there was any permanent impairment of the back at all, although he was prepared to say that the applicant suffered a musculoligamentous strain on 2 August 1994 in the incident described by the applicant to him, which was much as described in the applicant's evidence before me. I disagree with Dr Wilding's view that there is no ongoing permanent impairment of the back, and also with his view that there was only a musculoligamentous strain at the time of the original injury in August 1994, partly because of the chronicity of the applicant's symptoms until the present time, if one believes him, which I do, and partly because of the clear evidence of Scheuermann's disease, and Dr Hopcroft's opinion, which I accept, that the injury was in the nature of an aggravation of that condition. 21. I should remark in passing on two other exhibits, which were the employer's report of injury, Exhibit B in the applicant's case, which records the employer's reporting of frank injury to the applicant on 2 August 1994 when he injured his mid back, and the applicant's own claim form, Exhibit 2, which puzzlingly refers to injury occurring over a period of time caused by lifting heavy objects, the injury being said to be to the upper back. I think, as I have said, for reasons already given, the truth is that the applicant suffered an initial injury to his upper back, although it manifested in early symptoms in his low back which quickly changed to the upper back on 2 August 1994, and that any pain thereafter was more likely a revelation of the occurrence of the initial injury rather than representative of further injury. I think the applicant's claim form, which is dated 17 October 1994, was an attempt after the event by the applicant to explain what had occurred, but that it did not in fact represent the true situation which, in accordance with the early histories, in particular to Dr Peters and Dr Bosler, seems to have been of a particular injury at a particular time. 22. Reconciling medical opinions is always difficult, but doing the best I can, it is my view that the applicant has a total permanent impairment of his back of 12 per cent. Of that I think 2 per cent is attributable to the underlying Scheuermann's disease aggravated in the initial incident, and 10 per cent is due to that aggravation, i.e. to the incident itself, and is therefore work-caused. I am assisted particularly by the opinions of Drs Wallace, Berry and Millons in so finding. The result is that there will be a deduction under s 68A of 2 per cent from my total impairment finding of 12 per cent, resulting in an award in the applicant's favour of 10 per cent permanent impairment of the back. 23. When I indicated to counsel at the conclusion of addresses that this was my proposed award, Mr Batten for the respondent made an application in respect of the applicant's costs. He first tendered as Exhibit 11 a letter from his instructing solicitors to the applicant's instructing solicitors dated 8 January 2002, offering $6,000 under s 66 in respect of 10 per cent permanent impairment of the back. He then took me to s 115(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998 which, together with subs (1) of the section, requires that if the Compensation Court is satisfied that any costs in any proceedings are unreasonably incurred, no such costs are to be awarded to the applicant, and that costs "are considered" (an inelegant bureaucratic phrase to which I have earlier drawn attention, and which is inappropriate in a statute, rather than a memorandum between public servants) to have been unreasonably incurred if they are incurred by a party after a reasonable offer of settlement in the proceedings as made. 24. Mr Batten of course says that in view of my finding that the applicant has a net 10 per cent permanent impairment of his back, entitling him to $6,000 under s 66 by way of lump sum compensation, the respondent's offer by letter of 8 January 2002 evidenced in Exhibit 11 was obviously reasonable. This is an attractive submission, but it was countered by Mr Goodridge for the applicant by tendering Exhibit AA which was a letter dated 4 April 2002 which Mr Goodridge said from the bar table, without opposition from Mr Batten, was in fact only received by the applicant's solicitors last Friday, today being a Monday. It served for the first time Dr Wilding's and Dr Millons' reports to which I have already referred, together with the applicant's claim form which became Exhibit 2. It was asserted by Mr Batten and conceded by Mr Goodridge that the report of Dr Hopcroft was however in the applicant's solicitors' possession, having been earlier served by the respondent's solicitors, before their letter of 8 January 2002 (Exhibit 11) was sent. 25. Mr Batten of course asserts that the offer contained in Exhibit 11 was reasonable in view of the applicant's solicitor's possession of Dr Hopcroft's report. Mr Goodridge counters this submission by saying that the reasonableness of the respondent's offer in Exhibit 11 is to be judged at the present time against the background of all of the reports upon which the Court has concluded that 10 per cent is the appropriate assessment on the basis of which to make a s 66 award in the applicant's favour. Mr Batten's submission in reply to that is that the time at which to judge the reasonableness of the offer is as at its date, which is 8 January 2002, assuming (and this was not disputed by Mr Goodridge) that the letter was received by the applicant's solicitors on or about its date. I agree with this submission, but it does not lead to the result contended for by Mr Batten. 26. As to the question of reasonableness of an offer for the purposes of s 115(2)(a), I have formed the view that where a respondent makes an offer and later serves the reports on the basis of which the Court eventually concludes that the applicant should receive compensation no higher than the offer, the opportunity of the applicant to consider the respondent's offer in the absence of the reports upon which the Court's view was eventually based is a matter affecting the reasonableness of the offer within s 115(2)(a), in that reasonableness connotes not only that the amount of the offer was reasonable, but that the applicant had a reasonable opportunity to consider it. Mr Batten stated from the bar table without dispute from Mr Goodridge that in fact the reports of Dr Wilding and Dr Millons, despite their being both dated February 2002, were not in fact received until shortly before they were served on 4 April 2002. It is obvious in those circumstances that Mr Batten's solicitors have not been guilty of any delay in serving the reports. That may be so, but had the respondent's solicitors been successful in obtaining the reports of Dr Wilding and Dr Millons in February 2002 on or about the dates they bear, and had they then been therefore able to serve the reports promptly upon the applicant's solicitors, these reports would have been very material to the applicant's solicitors' task in advising their client upon the respondent's offer by letter of 8 January 2002, Exhibit 11. The materiality of those reports is indeed demonstrated by the weight I have given them, particularly that of Dr Millons, one of those only received last Friday by the applicant's solicitors, in considering the cause and the level of the applicant's permanent back impairment. 27. I consider that the reasonableness of the respondent's offer within s 115(2)(a) is to be judged not only by the amount of the offer but by the reasonable opportunity the applicant was given to consider it. I think in fact that the applicant through his solicitors was impeded in considering the offer by the absence from their file of the reports of Dr Millons and Dr Wilding: after all, until that time they had only the report of Dr Hopcroft saying the applicant had no entitlement under s 66 at all. I think that the first reasonable opportunity the applicant's solicitors had to advise him on the reports of Drs Millons and Wilding was today, because they had only been received last Friday, today being a Monday, that is to say, only one working day before today's hearing. 28. In those circumstances I do not think that the applicant's costs incurred up to today's date were incurred unreasonably within s 115(1), because I do not think that in all of the circumstances the respondent made a reasonable offer of settlement within s 115(2)(a). I do not therefore propose to accede to Mr Batten's application that the applicant have no costs since 8 January 2002. 29. I make the following findings: 1. Injury to applicant on 2 August 1994 arising out of and in course of employment of respondent. 2. Resulting from such injury applicant has permanent impairment of his back of 12 per cent in proportion to a most extreme case. 3. Of such impairment 2 per cent is due to pre-existing Scheuermann's osteochondritis of thoracic spine. 30. I make the following award in the applicant's favour: 1. $6,000 for 10 per cent permanent impairment of back under s 66. 2. Respondent to pay applicant's costs. Recommend such costs include counsel's fees for advice on evidence.