Jonathon Edward Conrad v Fibreglass International Pty Ltd [2002] NSWCC 23

Compensation Court of New South Wales

CITATION : Jonathon Edward Conrad v Fibreglass International Pty Ltd [2002] NSWCC 23 PARTIES : Jonathon Edward Conrad Fibreglass International Pty Ltd MATTER NUMBER(S) : 32765 of 2000 JUDGMENT OF: Geraghty J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 25/02/2002; 26/02/2002 EX TEMPORE JUDGMENT DATE : 02/26/2002

FOR APPLICANT: Mr J Hatzistergos instructed by Steve Masselos & Co LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr G Hickey instructed by Leitch Hasson Dent

JUDGMENT: 1. Jonathon Edward Conrad claimed make-up pay, pursuant to s 40, from 25 March 1999 to date and continuing. He claimed also lump-sum compensation for loss of use of his left leg, and consequential pain and suffering compensation, together with payment of his medical expenses. 2. The basis of the applicant's claim is an incident at work on or about 16 November 1998. 3. In the course of the proceedings the issues in question emerged as follows: firstly, the fact of any injury to the applicant's left leg, though there was no dispute that an incident had occurred in which the applicant had suffered injury to the left thumb; secondly, the causal link between the applicant's present incapacity, if any (though his evidence was that he suffers no incapacity for his former employment), and the loss of use of his left leg; thirdly, the extent of any incapacity (though that matter was resolved by the evidence of the applicant himself), and the extent of the assessment of loss; and finally, if appropriate, the application of provisions of s 68A since the applicant suffered some problems with his left leg which predated November 1998, and more particularly, problems with his knee (which was clicking) at the time of the incident, and with his ankle (as a result of a spider-bite some time before November 1998). 4. Conrad is a 56-year-old gentleman. He spent about 12 years as a marine engineer with the Royal Australian Navy. Having been decommissioned, he entered the marine industry as an engineer, working for Halvorsen Cruisers for about six years, Stennard Tugs for a number of years, and in his own business for about four years. This summary of employment does not cover the whole period before his employment with the respondent commenced on 22 September 1997. He was employed to do store and laboratory work. 5. Before November 1998, the applicant had suffered, firstly a problem with a left toe which he stubbed, and a wound which probably resulted from a spider-bite in April 1998. For three months after this, he had an open weeping wound (treated by Dr Stevens) which had healed before November 1998. He also had had a left-knee problem. 6. On or about 16 November 1998, Conrad said, he was moving four drums from one pallet to another. These were drums of acetone, each weighing approximately 176 kilograms. He was moving them manually, tipping them on their edge and rolling them. He slipped while performing this mechanism. He was pulled down backwards, fell onto his buttocks, ripped his left thumb, and experienced no pain in any other part of his body. With a bleeding thumb, he went to the storeroom where he encountered the secretary Elise and a storeman, Ian Holmes. He himself was the first aid officer. He treated himself, continued to work and sought no treatment. He said that after about two or three days, as his left ankle was swollen, he consulted Dr Stevens. When asked whether he told Dr Stevens about the accident at work, he said that he did not remember. 7. Dr Stevens' clinical notes (Exhibit 1) were interpreted by him in court. The doctor said that the notes record pain and swelling in the left ankle, mostly laterally, and pain in the left knee. The former recent, about two weeks, the latter long-term. On examination, the ankle was tender, and the knee tender along the median joint line. There was no note of any work-related injury, or any history of trauma in the consultation of 18 November 1997, though Dr Stevens said that it was his practice to make a note of the cause of an injury if it was volunteered and, if not, his practice was to ask and to record information. He did not totally discount the possibility (being human) that he might have neglected to make a note of the cause on this occasion. The doctor appeared to be a very careful, thoughtful witness, and a disciplined doctor. This appears also from his notes. They are quite extensive and one would expect them to contain a history, if given, of a work-related injury. 8. Conrad continued working, though his left ankle was swollen. He had some time off over Christmas, then returned to work, but also went to see Dr Stevens on 12 January 1999. The doctor recorded that his patient was no better and referred him for an x-ray. Again, no history of work-related injury was recorded. There are two entries for 13 January, the second showing that the x-ray disclosed minor irregularities. On 15 January 1999, Dr Stevens examined the applicant again, recorded that he was no better and referred him to Dr Grujic who saw him for the first time on 20 January. 9. Dr Grujic's reports are Exhibit D. He recorded in a letter dated 20 January 1000 (which should perhaps be 1999) that the applicant had had one month's history of lateral mid-foot pain and swelling. He felt that the pain had developed after he had fallen backwards off a pallet while at work, about one - two months previously. Since that time, the left foot has been quite swollen and he had found it difficult, particularly on uneven surfaces. If one was to read Dr Grujic's report literally, the incident occurred one to two months prior to 20 January. This would place the incident between 20 November and 20 December, and the applicant had had a history of lateral mid-foot pain and swelling from about 20 December. In any event, the applicant kept working, even though Dr Grujic had put his foot in a plaster cast for six weeks and he was getting around on crutches. He said that about one week after the cast was removed, his ankle was swollen again and he was referred for a venoDoppler test which proved to be negative. 10. Dr Grujic operated on the left foot in March 1999. It was around this time that for the first time the applicant made a report to his employer, though he had referred earlier to what he thought was a work injury since Dr Grujic wrote, He felt the pain developed after he fell backwards and his report is dated 20 January 1999. It was over two months later that he made a report to his employer. When asked why he did not report his injury for some time, he said that he had thought the condition would go away. What seems strange about this explanation is that from about 25 January 1999, he was wearing a plaster cast. It seemed that the problem was certainly not going away. 11. Conrad said that he reported the work injury to the New South Wales manager, David Hay, and to the store manager, Ken Jack, and that he had filled out some papers after he had been admitted to hospital. He wore a second plaster cast for about eight weeks and returned to work on 25 May 1999. He was not paid for the two months he was away from work (presumably fully incapacitated) and thereafter, when he did return to work, his duties had been changed. He was performing similar duties, but Mark Smith was now doing the work which he had been doing and which had involved some overtime. Physiotherapy continued for about one year. After some time, it would seem from Dr Grujic's reports, that this treatment was beneficial. Conrad said that he was able to perform all his duties, including duties which he had been doing before, and that he is having no treatment. This was confirmed in cross-examination (which seemed to be rather dangerous), but in the end Conrad agreed that, while Mark Smith was doing his old work and his overtime, it was still work he felt that he was able to do. If he were offered, it there would be no reason, physically, why he would not be able to do it. 12. In cross-examination, the applicant agreed that he had not mentioned his work injury to anyone at work between 16 November 1998 and the end of March 1999, even though he had given a history of a work-related injury to Dr Grujic in January. He agreed that he had not mentioned any work relationship to Dr Stevens. He said that he had had increasing problems with his left leg late in 1999, that he was shuffling around at work, and that this had been remarked on by his fellow employees. It was then that he was confronted with a number of conversations which, it was alleged by the respondent, had occurred between himself and Paul Myers on the one hand, and Ken Jack on the other. He did not remember conversations with them before March 1999, and when asked whether he remembered that he had denied any work relationship with his foot injury, he totally rejected any such suggestion. 13. The evidence as to the conversations was led from Paul Myers, who said that late 1998 or early 1999, he had said to the applicant words to the effect, What have you done to yourself, you silly old bugger? He said that he had asked this question when he was smoking a cigarette on the driveway and because he had seen the applicant hobbling up the driveway. Mr Myers said that the applicant had replied in words to the effect that it was just an old injury which had flared up. Mr Myers did not make any written record of this conversation. He also said that early in 1999, two or three months later (- I presume that means after the accident), he had been talking to Ken Jack when Conrad had walked up to them. He had heard Mr Jack ask Conrad whether his condition was a work injury. There was some dispute as to what question was in fact asked, because later it was suggested by Mr Myers that Mr Jack had said, I hope that hadn't happened at work. In any event, Mr Myers gave evidence that the applicant has said it was an old injury. This conversation was denied by Conrad. 14. In his evidence, Kenneth Douglas Jack said that he used to see the applicant, on an average, three or four times a day, definitely on a daily basis; that they had numerous conversations over a period which involved general topics as well as work-related topics. He said that, despite their daily contact, no complaint was made to him of a work-related injury before March 1999. He said that, in late January 1999, he had had a conversation with Conrad as he was coming up the driveway. Conrad was wearing a leg plaster and he had asked him whether it was a work-related injury. He replied that it was an existing injury. He said that this conversation had been brief. He said that when he had found out in March 1999 that the applicant was claiming a work-related injury, he spoke to him in his office. Conrad said that he had come to claim about his foot. Mr Jack replied, according to his evidence, that he (Conrad) had said earlier that it was an existing injury. Mr Jack said that Conrad denied that he had said this, No, I never said that, and with that Mr Jack said that he invited Conrad to go with him to see David Hay, to begin filling out the paperwork. 15. Conrad alleged that he did not report the injury at work for some time because of the attitude of the employer and the people in charge. He said that they had made remarks about people who had made compensation claims, about people who had taken sick leave without, as they thought, proper justification. Mr Jack was confronted with this allegation. His position was rather ambiguous in this sense: firstly, he said that he regarded compensation claims as a safety-net for injured workers (a perfectly proper expression of principle), and that he had a positive attitude to people who made claims. He said that he did not discourage employees from taking sick leave, though he did entertain suspicions about the justification of some claims. This seemed to me to be an acceptable approach, if in fact Mr Jack did take such an approach. He did not, in any event, simply express a positive attitude to compensation claims. He was ready to nuance his evidence somewhat. 16. Conrad said in re-examination that he occasionally saw Mr Myers, but that he had no contact with Mr Jack. When I questioned him more closely, he said that his contact with Mr Jack was only occasional. He said that he used to work alongside of Mark Smith, as another employee, and that he had no daily contact with David Hay, the New South Wales manager. 17. Giving some details of what he did in the course of a day, Mr Myers said that he might have 50 contacts with the applicant, and Mr Jack, also giving further details, said that in the course of any day he would have seen him on an average of three or four times. The conflict in the evidence on this matter was significant. 18. In October 1999, Dr Endrey-Walder examined the applicant and recorded a history that in mid-November 1998: I was moving a drum of acetone (approximately 176 kilograms) from one pallet to another, and in doing so I lost my balance and consequently ended up on my rear. As I did that I actually cut my thumb (left). What I did then, I went down to where I kept my work gear and wrapped my thumb up and went back to work. I didn't know that I'd hurt my foot that time until my ankle (left) started swelling up. 19. As he recalled, the ankle began to swell within a few days. 20. In October 2000, Dr Bentivoglio recorded a history: On 16 December 1998 he was moving drums when he lost his balance and his left foot was jammed in a pallet. He does not know the exact mechanism of the injury to his foot. 21. In November 2000, Dr Wilding recorded a history that in November 1998 Conrad had been rolling a drum from one pallet to another when he had slipped and fallen backwards off the pallet onto his buttocks. In the process he had lacerated the pulp of the left thumb on its radial aspect. Later the same day, his left ankle had begun to swell and he had experienced a slight soreness in the region of the left ankle when he was walking, but that he would not admit to any significant pain in the ankle. 22. He had initially ignored his symptoms, but when they persisted, he had consulted Dr B Stevens, his family doctor at Avalon, a few days later. 23. Finally, Dr Khan examined the applicant also in November 2000 and recorded the history that some time in November 1998 he had been moving drums of acetone from one pallet to another when he had slipped as the drums were wet. He had fallen down, cutting his left thumb on the drum cap, and hurting the left foot. He was wearing safety boots. When the left ankle had swelled, he had consulted his GP, Dr Stevens. 24. There are some minor puzzling differences in the histories, both as to what happened, and why and when the ankle began to swell. For example, Dr Bentivoglio recorded that the applicant had jammed his left foot in the pallet; another doctor recorded that he had slipped off the pallet (Dr Wilding); whereas Dr Khan recorded that the drums had been wet and this was why he had slipped. Dr Wilding recorded that it was later the same day when the left ankle began to swell and that he had consulted a doctor a few days later, though Dr Stevens recorded that he was consulted about two weeks after the incident. 25. There were a number of important conflicts in the evidence. Dr Wilding recorded, for example, that Conrad had seen his general practitioner a few days later, though the swelling had occurred on the same day as the accident. As I have already observed, Dr Stevens recorded that it was about two weeks later, though there could have been some misunderstanding. The applicant said in evidence that the foot did not swell until about two or three days after the incident. 26. Secondly, Dr Bentivoglio recorded in October 2000 that the left foot had been jammed in the pallet. No such details were provided in any other history. 27. Thirdly, whereas Conrad wanted to minimise the regular daily contact he had with his supervisors and fellow employees, particularly with Myers and Jack, saying that he only saw them occasionally, the evidence of those two witnesses was, on the one hand, that Myers saw him maybe 50 times a day, and Jack at least three or four times a day. Their evidence seemed more spontaneous and less constructed. 28. There is no doubt that the applicant suffered an injury, probably in November 1998, when he injured his thumb. He claimed however that he had two injuries: to his left thumb and left ankle. He said that the incident had occurred in mid-November 1998, and agreed that he always knew that the ankle was a work-related injury. This is significant because he delayed reporting this injury for some months. He gave no history to his doctor of a work-related injury, though it was the doctor's practice to record the circumstances of any injury. By way of explanation, Conrad said that his condition was relatively minor, that he expected the matter would get better. In late January 1999 the specialist put the applicant's foot in a plaster cast for six weeks. He did not provide a history of the work-related incident until he spoke to Dr Grujic on 20 January 1999, and he did not report the incident to his employer until March 1999, though the thumb injury was reported to Ian Holmes and (though I have not seen the incident book), I understand it was also recorded in the accident book. 29. There is no doubt Conrad had a problem with his left leg in late 1998. He had been shuffling at work and this had been remarked on by his fellow employees. The applicant agreed to that. He had a plaster cast on his left leg in late January 1999, and despite this, it would seem he did not mention to anyone at work that it was a work-related injury. There was a conflict between the evidence of Myers and Jack and the evidence of the applicant. They said that they had sought information as to whether his condition was a work-related injury and that the applicant had denied it. The applicant said those questions were never asked. 30. Conrad's explanation as to why he did not report the injury to his employer was because of the company's attitude to compensation claims. This allegation was denied by Mr Jack, but in any event, it seemed to me that Conrad was a man of some experience. He was an engineer; he had spent 12 years or more in the navy; he had run his own business; and he was a senior person. His reason as to why he did not report the injury as a work-related injury does not seem credible. 31. On the evidence before me, I am not satisfied that the applicant injured his left ankle at work. He bears the onus to satisfy the Court, on the balance of probabilities, that his injury was work-related. It is clear that he did have an injury to his left thumb but, because of the conflicts of the histories and of the emergence of the symptoms, of the conversations with his fellow employees, because no collaboration (for instance, Ian Holmes or Elisa), it seems probable on the evidence that the applicant did not suffer an injury to his left ankle at work. 32. I enter an award for the respondent. Mr J Hatzistergos instructed by Steve Masselos & Co. appeared for the applicant Mr G Hickey instructed by Leitch Hasson Dent appeared for the respondent