Nicol v Trazmet & Waterways & State Transit [2003] NSWCC 4

Compensation Court of New South Wales

CITATION : Nicol v Trazmet & Waterways & State Transit [2003] NSWCC 4 Adam Nicol v PARTIES : Trazmet (NSW) Pty Ltd Waterways Construction Pty Ltd State Transit MATTER NUMBER(S) : 56794 of 2000 JUDGMENT OF: Geraghty J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 13/11/02,12/02/03 EX TEMPORE JUDGMENT DATE : 02/12/2003

FOR APPLICANT: Mr A D Campbell instructed by Taylor & Scott FOR RESPONDENT: LEGAL REPRESENTATIVES: Mr J W Dodd instructed by Hunt & Hunt - 1st Respondent Mr G R Wilson instructed by Landers & Rogers - 2nd respondent Mr I S Judd instructed by Tress Cocks & Maddox - 3rd respondent

JUDGMENT: 1. Adam Nicol claims weekly benefits from 8 November 2000 to date and continuing, lump sum compensation for back impairment and loss of use of the left and right legs at or above the knees, payment of medical expenses, and an award of interest, presumably only on the accrued weekly benefits. 2. His claim is based, as against the first respondent, Trazmet (NSW) Pty Ltd, on an incident in October 1999 and on the nature and conditions of his employment as a formwork carpenter in or about October 1999. He was employed by the first respondent from 26 August to 8 November 1999. 3. His claim, as against the second respondent, is based on an incident which occurred, he claimed, on 19 June 2000. He was employed by the second respondent as a bridge and wharf construction worker for the period from 9 February to 7 August 2000. 4. His claim, as against the third respondent, is based on the nature and conditions of employment as a ferry wharf hand, working at Circular Quay from 14 August to 7 November 2000. 5. His claim is also based on the disease provisions of the Act, in s 15 and alternatively, s 16. 6. The issues for determination are: firstly and principally, whether any injury occurred while employed by the second respondent on 19 June 2000, and more generally, whether Nicol was injured in the employ of any one of the respondents, though his claim as against the first respondent was discontinued by agreement, with no order as to costs, after he had given evidence in-chief and after it seemed that his evidence did not implicate the first respondent. 7. It is true that when the applicant gave his evidence, the first respondent seemed not to be implicated, though on closer examination of the medical reports, this did not seem to be as clear. 8. The other issues for determination are: the question of nexus with any, or all of the various respondents; the extent of any incapacity arising from injury received; the quantification of impairment and losses; the provisions of s 68A, or s 68B, depending on whether I find the applicant has suffered from a disease to which his employment with any of the respondents made some contribution. 9. To begin with, I should observe that the applicant was a very difficult witness. He was slow and hesitant, vague and uncertain. He seemed to make clear statements about certain incidences or treatment, then to qualify them or to demonstrate some uncertainty. He was a poor historian. 10. It appeared from Exhibits 9 and 10 that for some years, the applicant has suffered a very serious psychiatric problem which obviously continues to be a heavy burden to bear, for which he has, from time to time, sought treatment and against which he has struggled. He has been diagnosed as having a schizophrenic condition with some delusional components. Nevertheless, it seemed to me that Nicol was a simple, truthful man despite his vagueness and uncertainty. He was described by his employers as a good worker. Despite his serious psychiatric problems, he has been employed consistently, mostly in carpentry work, up until his termination with the third respondent in November 2000. 11. It was important to observe the applicant over a period of some days, since one could easily gain the wrong impression from reading the transcript of evidence. He seemed a hesitant young man, very reluctant to assert himself. He delayed making complaint about any accident in which he was involved, to avoid earning a reputation as a workers compensation claimant. He seemed reluctant to complain, inclined to wish, to believe that his condition would improve. He was afraid of becoming stigmatised as a claimant. This, to my mind, explains why it might be that he did not tell doctors of incidents, why he did not make a claim for some weeks after the incident occurred. 12. Nicol was born in August 1965. He remains single, without any dependants, and has completed a carpentry apprentice programme began in 1982. Before his employment with the first respondent, he said, he was physically fit, involved in running and surfing, and had no back problems, though he did have occasional physiotherapy treatment which he thought might have been for his back. He said he had had no time off and that he could work without restrictions. He was then employed as a formwork carpenter for the first respondent and on 8 November 1999 (the last day of his employment), he was stripping timber under stairs. He said that it was raining and, it would seem because of the position he was working in, that his back became stiff. He said that nothing had really occurred but that he had felt the need to protect his back. He said he was frightened of hurting it, though he did not experience any pain. He only had a feeling of vulnerability. He said he continued to move, but slowly, and kept working. 13. He mentioned this experience to his treating general practitioner, Dr Devlin, in January 2000. It was on the basis of this evidence that the claim against the first respondent was, by agreement, dismissed, though some doctors have been of the opinion that the incident in November 1999 (or, as they say, October 1999) was the cause of his present condition. 14. The applicant was then employed as a formwork carpenter by W G E in November and December 1999, and by Christy's People Pty Ltd from December 1999 to February 2000. He said that during this time he had had no symptoms, no pain or restriction in the back and that nothing had stopped him working. 15. On 9 February 2000, he began employment with the second respondent, carrying out bridge and wharf construction. He said that when he had begun this employment, he had had no problems lifting or twisting, in fact that he could lift anything. This seems in some way contradictory to the evidence of Michael Vanroosmalen who said that the applicant in fact had said that he had a niggly back and was doing light duties for the respondent. However, the applicant said that on 19 June 2000, he was assisting approximately eight other people to lift a beam in a factory at Walsh Bay; that he was lifting one end to the height of about his navel; that afterwards, almost immediately, he felt pain in the right leg, on the outside and the back of the calf; that he continued working, though his leg felt funny; and that he did not remember reporting the incident at work on the day. 16. Some days later, in fact on 23 June, he was admitted to hospital, for surgery on his right knee. This had been arranged some time before 19 June. He had been off work for a few days before the surgery on 23 June. He said he had had sinus problems and felt tired, that he had a bad pain in his leg and the operation on his right knee was on the horizon. In any event, he sought treatment at Arncliffe Physiotherapy Treatment at Arncliffe on 20 June, which is recorded in Exhibit 16, though there is no record of any history of an incident the day before. 17. On 21 June or thereabouts, the applicant said, he spoke to Peter Yabsley and said words to the effect that he had had yesterday off and today. He said that he told Yabsley that he felt pretty bad and thought that he had hurt his back. In evidence-in-chief he said that this conversation had occurred before his knee surgery which, he said, had taken place on Saturday. The applicant then said that he returned to work on the Monday or Tuesday (it would seem the Monday was a public holiday) and that he returned to normal duties. He said that he had pain in the right leg, from the right hip down the leg, but no pain elsewhere. This leg pain continued. He continued performing his duties which were sometimes really heavy. This evidence was confirmed by his supervisor, Michael Vanroosmalen. 18. On 10 July 2000, Nicol consulted Dr Meakin who referred him for a back x-ray. The CAT scan was exposed on 12 July. The doctor did not record any history of an incident the previous month, though Nicol sought physiotherapy treatment on that same day and gave the physiotherapist a history of what had occurred on 19 June. These facts are puzzling. Why would Nicol provide a history of an incident on 19 June to the physiotherapist and not to Dr Meakin? Perhaps he did provide the history to Dr Meakin and the doctor did not take a note of it. I cannot, and do not assume this to be the case. In any event, the observations I have made as to the applicant's presentation before me would, in some part, explain why it might be that he did not provide a history if he did not. 19. The applicant worked on for the second respondent until 7 August 2000. He said that he left because he could not cope with the work. Then on 14 August (until 7 November) he worked for the third respondent, doing general duties on ferry wharves. He collected tickets, he tied up the boats, he moved the gangplank around and other general duties. He said that the work there was so much easier than the building industry work he had been doing before, but it was still aggravating his back. Moving the gangplanks around, even though they were on a lever system, seemed to aggravate his back. Exhibit 12 is an injury report completed in September 2000 which seemed to indicate that doing very light ordinary work with a gangplank, sliding it sideways, seemed to aggravate his back. 20. He said that there was one particular incident during the Olympic Games period in September when he had to lie down because he was crook in the stomach. He was not feeling very well and had constant discomfort in the right leg. He said that he lay down because he had a bad stomach, and his head was crook. He does not remember having any time off and he continued to perform his normal duties for the third respondent. 21. His supervisor, Anthony Michael Hayman gave evidence. He told the Court about the duties Nicol was performing were as a gate attendant mainly, though also some wharf work. He said that on 3 November 2000, he had had a conversation with Nicol about being rostered at Manly, and Nicol had told him that he had a sore back. Hayman told Nicol that his position required him to work in all areas. Nicol said that he could not work on the wharves and, as a result, he was advised by Hayman to resign, which he did by letter dated 3 November (Exhibit 8). 22. The applicant has not worked since November. He said he has been looking for work, and his applications are recorded in Exhibit A. He has made applications for parking patrol officer duties, a temporary ranger, a customer service operator, a supervisor for Bankstown Council, for a position at Taronga Park, a controlling officer in State Transit. There is a long list of applications the applicant made for positions which he thought might be within his capability. 23. When Nicol gave evidence before me in November 2002, he said that he was not receiving any treatment, though he saw Dr Meakin from time to time. He said he was swimming four or five times a week, and receiving some physiotherapy relief from time to time, on an on and off basis. He said that he did not have constant pain in the leg and that he felt quite a lot better, though he could not lift or twist. He said that while he had no pain in his right leg, he did experience some numbness in the foot, and this feeling varied from time to time. Sometimes his right leg did ache. He said he was unable to do any surfing, that he did not do any running or lifting. He felt unable to do formwork because it was too physical and could not work for the third respondent, or do that kind of work again, because it required manipulating the gangplank, which again was too physical. 24. When he gave further evidence in February this year, he again said that he had experienced a gradual improvement, even since November of last year. He thought he was slowly getting better, though he still needed to be careful and still had numbness in his right foot. He attributed feeling an improvement, in part at least, to the warmer weather. He said that in January this year, he had been employed for 5 days at the Mollymook Club and had earned about $480. He was working there as a kitchen-hand. This work was too heavy, however. It was much too physical; there was too much lifting and twisting; and he had to give it away. 25. Then in February this year, he started to be trained on the cash register at the Club, and to deliver a few meals to patrons. He said that he was doubtful whether he was able to continue this work because he thought he might be too slow and had kept people waiting. Again, he felt, I think, under pressure. 26. Nicol was closely questioned in cross-examination about the alleged incident on 19 June 2000; about his complaints and lack of them; about his failure to provide a history to various doctors, or at least, the doctors' failure to record any history - always with a view to the second respondent asserting that the incident had not occurred. 27. The second respondent called Michael Vanroosmalen to give evidence. He was the supervisor and leading hand who was working with the applicant at Walsh Bay in or around 19 June 2000. Nicol was responsible to him during this period of work. Vanroosmalen said that they had had a conversation about the applicant's knee operation. This conversation had occurred 2 or 3 months before the surgery and Vanroosmalen had told Nicol to remind him closer to the event as he was likely to forget. Vanroosmalen also said there had been a conversation during which Nicol had mentioned that he had had a sore back, that it was playing up, that he had had a previous injury and it was niggling him a little. As a result of this conversation, Vanroosmalen said he had put him on lighter duties, sweeping and not doing heavy lifting. 28. This conversation was never put to the applicant by counsel for the second respondent, though when the conversation was being led from Vanroosmalen, no objection was taken by counsel for the applicant. No submissions were made as to the weight I should put on this conversation. In fact this evidence was completely ignored. 29. Vanroosmalen said that, a couple of days before the surgery, Nicol did not come to work, though he telephoned him the day before surgery to tell him that he was going to hospital the next day. This was in answer to the request some months before that he should be reminded closer to the event. Vanroosmalen said that Nicol had said on the telephone that You told me to tell you about the knee surgery. 30. Vanroosmalen said that in this telephone conversation, he had said to Nicol Where have you been? and that Nicol had replied that he had just been generally crook. Vanroosmalen had concluded the conversation by saying - I'll see you when you come back to work. This conversation was never put to the applicant by counsel for the second respondent. When the evidence was being lead from Vanroosmalen about the conversation, no objection was taken by counsel for the applicant. No submissions were made as to the weight that I should put on this conversation. It was again, completely ignored. 31. Vanroosmalen had filled out a leave application for Nicol. It is dated 22 June 2000. (Exhibit 11). He said that he filled out this form on the day he had had the conversation with Nicol and that when Nicol had returned to work, he signed it. He said that on 22 June 2000, when having a conversation with Nicol, Nicol had made no mention of his back, and that on 26 June he returned to work, to perform normal duties which, in any event, Vanroosmalen said were light duties because he had told him he had an injured back. 32. Vanroosmalen said that Nicol had not been involved in moving heavy beams because at the time, he was on light duties, doing spotter work. He said (always talking in the subjunctive mood) I would have been involved, though he also said, he did not remember moving the beams. In any event, he said that the work the employees were doing for the second respondent had been physically demanding work. He described it as heavy and awkward. They were moving heavy hardwood beams, some of them about 1 ton in weight. I asked Mr Vanroosmalen whether he knew the various employees identified by Nicol in his claim for compensation form (Exhibit 1). He knew the man identified as the witness to whom Nicol said he had spoken, namely Peter Yabsley. He also knew Troy Hitchcock, Warren Henderson, Don Dixon and Clayton Stringer, all of whom are identified by Mr Nicol in his form (Exhibit 1) dated 2 August 2000, as people who had witnessed the accident. None of these people were called to give evidence. 33. Peter Yabsley is the person identified as the one who received the notice of injury on 22 June 2000. He was not called to give evidence and his absence was left unexplained. That is, I was not informed by any of the witnesses that Peter Yabsley was no longer available, that attempts had been made to find him and that these were unsuccessful. None of these people were called to give evidence to assert that Nicol had not been involved in the manoeuvre in which he alleged he was injured, and Vanroosmalen could only say that as far as he was concerned, Nicol would not have been involved in the said manoeuvre. He did not say he was not, and could not have said that because he was not a witness to the incident, or could remember it. 34. The second respondent submitted that the applicant had given no history of any incident on 19 June until he had consulted the physiotherapist on 10 July. He had made no claim for compensation until 2 August 2000. He had consulted Dr Meakin on 10 July 2000 and the doctor had not recorded any history of an incident. The applicant had sought physiotherapy treatment the day after 19 June (Exhibit 16) and the physiotherapist did not record in her notes any history of an incident. 35. Vanroosmalen said that he had spoken with the applicant on 22 June, and again there was no mention of any back incident. Furthermore, the applicant had undergone right knee surgery on 23 June 2000. He had taken time off several days beforehand, and had said that he was not feeling well, that he was suffering from sinus. Then he returned to work on Tuesday 26 June, to normal duties. 36. Vanroosmalen said that as far as he was concerned, the applicant had had a bad back before he came to work for the second respondent; that he was involved in light duties for the second respondent; and that he knew of no incident. The second respondent pressed strongly that this evidence should result in a finding that no incident had occurred. 37. However, in addition to the observations I have made about the applicant's personality and his ability to give clear answers, it seems beyond doubt that he was a good worker; that he received treatment on 20 June 2000 from the physiotherapist; that he nominated in his injury form a number of witnesses none of whom have been called to give evidence; and identified Peter Yabsley as the person to whom notice of injury had been given on 22 June. 38. Exhibit D is an employer report of injury form which again nominates Peter Yabsley as the person who received the notice of injury on 22 June, and adds: Waterways Construction were never informed of any incident whereby Adam injured his back. Adam mentioned to his supervisor (Peter Yabsley) in June 2000 that his back was sore. No mention was given as to how he aggravated his previous back injury. 39. If this were true, as a proper history of complaint to Peter Yabsley, he should have been called to confirm it, because he was identified as someone to whom notice of injury had been given. In his compensation claim (Exhibit 1) Nicol alleged that he was lifting structural steel with six other people, seemed to take more weight as I was lifting onto handrail. When asked who was responsible for the accident, he wrote I was responsible because I was lifting. The description the applicant gave of the incident on 19 June was confirmed as a manoeuvre which was being carried out by the workers in and about that time. When I asked Vanroosmalen whether the description rang a bell, he said that this was the type of thing they were doing. I am persuaded on balance that an incident occurred on 19 June; that the applicant, while working for the second respondent, injured his back, or rather aggravated a back which was already significantly vulnerable; and that the injury resulted in some symptoms in the applicant's right leg. The applicant sustained an injury in June 2000, though he already had a significant pre-existing condition. 40. When Nicol was employed by the third respondent, it seemed to me that from time to time he used to aggravate his back, but only temporarily. He already said that his back had improved significantly by November last year, and then in February this year, improved even further. It seems that the effect of the work the applicant was performing when working for the third respondent had no lasting effect. No incapacity resulted from the work for the third respondent. It seems to me that any incapacity resulted from working with the second respondent. He sustained no increase of loss or impairment resulting from work with the third respondent. 41. The applicant had already a significantly diseased back when he had begun work for the second respondent. He aggravated this disease in an incident on 19 June 2000. This aggravation has continued until today, though it has gradually ameliorated. 42. The assessments of the various medical practitioners are as follows: the general practitioner considers the applicant has 20 per cent back impairment; Dr Meakin (also treating doctor) considers he has 15 per cent back impairment, and a 5 per cent loss of use of the right leg, though he attributes two-thirds of the assessments to a pre-existing condition, and furthermore, thought that the balance of the impairment was the result of an incident in October 1999; Dr Weisz considers that the applicant has a 20 per cent back impairment and a 5 per cent loss of each leg. 43. He said that these figures reflect the impairment and loss resulting from work and that therefore no deduction should be made pursuant to s 68A]; Dr Lyons considers the applicant had an 18 per cent back impairment and a 5 per cent right leg loss and that a deduction of two-thirds should be made, pursuant to s 68A. Dr Nash assessed a 12 per cent back impairment, with one-third resulting from an injury, he thought, in October 1999, and two-third traceable to a pre-existing constitutional condition. 44. Exhibits E and 20 are CAT scan reports of the lumbar spine carried out in July 2000. The scan disclosed a right centro-lateral disc bulge at the L4/5 level. There was some mild apophyseal joint disease at all levels, and quite prominent apophyseal joint disease at the level of L5-S1. There was bilateral exit foraminal narrowing at the L5-S1 level. 45. Dr Timothy Devlin's report is Exhibit B. He first examined the applicant for his current complaints in January 2000, some 5 or 6 months before the incident on the 19th. Nicol presented complaining of right leg pain which he described as a dull ache down the back of his leg to the foot, which had been present for some time (he could not remember how long) and which was constant until exacerbated by activities. When he saw the applicant again on 20 December 2000, he was still complaining of the same problem. He saw the applicant on numerous occasions over the 12 months before July 2001, reviewing him finally on 19 June 2001. He said that Nicol had a right L4/5 disc prolapse which has been slowly resolving. 46. Dr Meakin's reports are Exhibits F and 19. He first saw the applicant in March 2000 to treat his right knee condition. He said that at a consultation on 10 July 2000, Nicol informed him for the first time that he had been having some low back discomfort since an injury at his work in October 1999. One can see how complicated this history becomes. He told Dr Meakin that he had daily low back discomfort of a moderate nature, with radiation in the postero-lateral aspect of the right buttock and right thigh. Nicol also told him that before October 1999, he had had no history of back discomfort or back injury. This history seems contrary to the evidence in-chief, namely, that the effect of any problem Nicol had with the first respondent in November 1999 simply put him on notice that he had a vulnerable back, but without any pain. 47. Dr Meakin concluded that the applicant had long-standing degenerative changes at the lower three levels of the lumbar spine, particularly at the L5-S1 level. He concluded that the incident in October 1999 had caused the symptomatic aggravation of this pre-existing pathology. It seems to me, on the applicant's evidence, that what had caused the symptomatic aggravation had not occurred in October 1999 (as far as the applicant was concerned when he gave evidence before me), but was the result of what had taken place on 19 June 2000. 48. In a report of 1 May 2002, Dr Meakin said that Nicol had returned to discuss medical matters relating to his low back and right leg. He reported minimal back disorder, with only minimal symptomatology in the right lower leg in the form of a very slight paraesthesia of the lateral border of the right foot. It is clear from what the applicant said, that he was improving. 49. The report of Dr Weisz is Exhibit C and resulted from an examination in May 2001. Nicol told Dr Weisz that some 2 years before his accident in 2000, he had experienced low back pain at the end of a hard day, but that he had had no time off. He then gave a history of an incident on 19 June 2000, stating that he was off work for a month (this does not seem to have been the case, at least according to the applicant's evidence before me). Dr Weisz records that the radiological investigation showed advanced long-standing degenerative disc disease at the L4-S1 lumbosacral junction, with scoliosis and osteophyte formation. He said the CT scan detected no disc protrusion, only degenerative disc and facet joint disease. The degenerative condition, he said, could be classified as occupational disease of such a nature as to be contracted by gradual process which was plausibly made symptomatic by the accident in June 2000. 50. Dr Lyons' reports are Exhibit 13. They followed an examination on 7 February 2001. The doctor said he considered the worker's disability was due to very long-standing degenerative changes, probably partly constitutional in aetiology, and possibly related to long-standing major injury. He recorded a detailed history of the applicant's work conditions, both with the second and the third respondents. He said that theoretically, the applicant was on light duties with the second respondent, but that no such light duties were available in the construction injury. The applicant told him that he could not continue with the second respondent because of severe right leg pain and intermittent back pain. He told Dr Lyons that while working for the third respondent, he was collecting tickets, flagging the ferries and planking them when they berthed. He described the work as not heavy, and overall, he said, the work was quite light. But despite this lighter work, he continued to have symptoms in the back and particularly in his right leg. 51. Curiously, Nicol denied any back pain before the incident in June 2000, though later he noted that he used to get a few backaches and consulted doctors from time to time. The histories provided by Nicol were confusing. Dr Lyons said that if the incident of 20 June 2000 had occurred, it may have caused some aggravation of the gross, underlying pre-existing pathology at the lumbosacral level. He thought it was extremely difficult to avoid the conclusion that he had had considerable symptoms, probably over many years. He thought that the incident on 20 June 2000 had been a simple straining incident, causing some aggravation of long-standing pre-existing degenerative changes and that such an aggravation could be expected to settle over a period of weeks, or perhaps 3 months. 52. Dr Lyons thought that he could not relate the symptoms to any work with the State Transit Authority, and certainly on no occasion, Dr Lyons observed, did Nicol suffer any incident of injury while employed by it. That may be so, though there is, in Exhibit 12, some record of an aggravation. However, I concluded that the work the applicant was doing with the third respondent was light, and that the applicant had already had a long-standing problem which had been, I think, permanently aggravated by an incident of 19 June. 53. The report of Dr Millons is Exhibit 14. He examined Nicol in April 2002 and concluded that there had possibly been an episode in June 2000 following which he had had more pain in his right leg. Dr Millons considered the applicant was only suited to light work. On the history provided, he thought that Nicol's condition could be considered to be a disease of gradual onset, not occasioned by his work, but possibly temporarily aggravated by the incident at Trazmet. 54. On the history that I obtained, his problems seem to stem more from the incident in June 2000 when he was lifting the piece of steel. 55. On 4 September 2000, the applicant was examined by Dr Pillemer (Exhibit 17). He too thought that Nicol had had long-standing problems in his low back. He was of the opinion that any incident of 19 June 2000 would simply have been an aggravating factor, adding: This would seem to be supported by the fact that he did not report the incident at that stage but simply took himself off for physiotherapy. It sounds as if this was a regular approach by him previously. 56. Dr Pillemer thought he was not fit for work in the construction industry. He examined him again on 25 October 2002 and reported that in his opinion, the particularly incident on 19 June 2000 would not have left him with any permanent back impairment. 57. Finally, Dr Nash examined the worker in November 2001. His reports are Exhibit 18: In my opinion, the injury he described to me today as occurring some time in June/July 2000 was essentially an aggravation of pre-existing degenerative changes. In my opinion, such aggravation would be expected to last 10 to 12 weeks and his back would return to its previous status. 58. He did not consider that any permanent disability had resulted from the incident of June 2000. 59. It seems to me that an incident did occur on 19 June and that, as a result of this incident, the applicant sustained some permanent aggravation to an already significantly vulnerable back. I have concluded that the pre-existing condition should be reflected in a deduction of two-thirds. The applicant sought treatment in January 2000 from his general practitioner, Dr Devlin. He sensed some problem on the last day of his employment with the first respondent which reflected at least a vulnerable back. He was doing light work for the second respondent, as far as Vanroosmalen was concerned. While one doctor observed there was not too much light work in the construction industry, doctors seem to be generally agreed that the pre-existing condition amounted to two-thirds of the problem. I agree. 60. Exhibit H is a wage schedule which annexes wage records. The applicant alleges that but for the injury, he would have been earning $1,041 per week. This figure is based upon the average wage earnings between 25 May and 25 July 2000. I have concluded the worker would be able to work, doing full-time work as a light cleaner or a light handyman, or in some of the positions reflected in the exhibit which sets out the employment applications made (Exhibit A). He would be able to earn approximately $480 per week. 61. The respondents sought to persuade me that I should exercise my discretion to diminish the mathematical difference between what the applicant would have earned but for the injury, and what he is now able to earn. I do not believe however, there is any basis for the exercise of this discretion. It is true the applicant has a serious psychiatric condition, against which he has struggled for some years. But it appears that this has not affected his work in the past. He is qualified and has always performed outdoor work, work of a physical nature. The demons against which he struggles do not seem to affect this kind of work. I do not propose to exercise my discretion to diminish any mathematical difference. 62. I make the following findings and awards. 63. (1) The applicant was injured at work on 19 June 2000, in the employ of the second respondent, when he sustained an injury to the back and right leg by way of an aggravation of a pre-existing condition. 64. (2) The applicant did not sustain any permanent injury in the employ of the third respondent. 65. (3) In the circumstances, there is no basis on which to apply the provisions of s 15 or s 16, since, although the applicant has suffered from a disease to his back, the disease condition was permanently aggravated by an incident on 19 June 2000. 66. (4) The applicant has not sustained an injury due to the nature and conditions of employment with the third respondent. 67. (5) The applicant is partially incapacitated for work, and has been since 8 November 2000. 68. (6) The probable weekly earning but for the injury, had he continued to be employed in the same or some comparable employment, I assess at $1,041 per week. 69. (7) I assess the sum of $480 a week as the average amount he is able to earn in some suitable employment, that is, in the general labour market reasonably accessible to him. 70. (8) There is no basis on which to exercise the discretion to reduce the mathematical difference. 71. I make an award against the second respondent in favour of the applicant, in the sum of $237.20 per week, as adjusted, from 8 November 2000 to date and continuing. 72. I order interest to accrue, at the rate of 4 per cent, on the accrued weekly benefits from a date to be determined, that is, from the date on which the claim was made. 73. (9) As a result of the injury, the applicant has suffered a permanent back impairment which, having regard to the severity of the matter, bears to a most extreme case the proportion of 15 per cent. I agree with the assessment of Dr Meakin. He also has suffered a permanent loss of efficient use of his right leg, at or above the knee, of 5 per cent. Again, I agree with Dr Meakin, the treating doctor. 74. (10) For reasons already stated, I propose to deduct two-thirds from the impairment and loss, to reflect the applicant's serious pre-existing condition. 75. I make an award against the second respondent pursuant to s 66, in the sum of $4,250. 76. I order that the second respondent pay the applicant's medical expenses and costs. 77. I enter an award for the third respondent. 78. I direct that counsel fees may include a second conference in the sum of $250. Mr A D Campbell instructed by Taylor & Scott.appeared for the applicant Mr J W Dodd instructed by.Hunt & Hunt.appeared for 1st respondent Mr G R Wilson instructed by.Landers & Rogers Lawyers.appeared for 2nd respondent Mr I S Judd instructed by.Tress Cocks & Maddox.appeared for 3rd respondent