Compensation Court of New South Wales CITATION : Christopher Green v Royce Everson Transport Pty Ltd [2001] NSWCC 75 revised - 5/09/2001 Christopher Green PARTIES : v Royce Everson Transport Pty Ltd MATTER NUMBER(S) : 39982 of 1999 JUDGMENT OF: Geraghty J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 22/03/2001, 26/03/2001 EX TEMPORE JUDGMENT DATE : 03/28/2001 FOR APPLICANT: Mr A R Cooley instructe by Nevin Lenne & Gross LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr I S Judd instructed by Gillis Delaney Brown JUDGMENT: 1. Christopher Green claims weekly benefits from 10 February 1999 to date and continuing, payment of his medical expenses pursuant to s 60 and interest on past weekly benefits. 2. He based his claim on an incident on 16 February 1998 when he slipped and fell from the top of a tanker. His claim is also based, in the alternative, on the nature and conditions of his employment as a semi-trailer driver from November 1996 until 4 March 1999. I note that Green has been paid for all periods away from work before 22 November 1998, paid at his current weekly wage, rate pursuant to s 36 for 9.4 weeks. 3. I was informed by Mr Judd, counsel for the respondent, that injury was not in issue. I note that Exhibit G is a compensation claim addressed by the employer to QBE Insurance Company and in which details of dependants were provided (namely, two daughters, Emily Jane and Kimberley Jan) and in which the incident was described as attempting to climb down rear steps on top of tanker, slipped on wet surface and fell to ground 4. Injury was not in issue. However, the extent of the present incapacity, and particularly incapacity since March this year, was the principal issue. Late in the piece, it transpired that Mr Judd sought to question the cause of the applicant's incapacity: the fall on 16 February 1998, or because subsequently he was required to drive a new truck which was much more brutal on the road, and which exacerbated or aggravated his condition? In a sense it is not important in this jurisdiction what caused the injury, so long as it was related to work, though it transpired in the course of cross-examination that Mr Judd wished to establish that the driving of the new truck was the cause, since it seemed there were proceedings elsewhere for negligence arising from the fall in February 1998. 5. Mr Judd submitted that the applicant sought no treatment for his back from a period shortly after the fall in February 1998, until about January 1999 (a period of about ten months), during which time, Mr Judd submitted, the applicant had been relatively pain-free. When it was put to him that he had not complained to Dr Randall about any back condition from about late February-early March 1998 to January 1999,. Green asserted that this was not true, that he had seen Dr Randall on a number of occasions and that in the course of the consultation, he had complained about his back. It seems that throughout that period, Dr Randall was treating Green for a serious left knee condition for which he underwent an arthroscopy. 6. However, Dr Randall's notes (Exhibit 2) lack a great deal of detail of treatment, except for the interview in February 1998, after the applicant's fall. Details are very scarce and, while the notes do not record a complaint of back problem for that lengthy period, they do not record much else. I accept what Green had said, that he did complain, even though there is no record of such a complaint in the doctor's records. 7. Mr Judd submitted that on the basis of no treatment and no complaint, the January 1999 incident with the new truck was causative of the present problems. I do not accept this submission. 8. Dr Randall's notes (Exhibit 2) refer to a consultation on 23 February 1998 in which he recorded that the applicant had had a work-related accident, that he had fallen off the back of a truck on 16 February, and that he had informed his employer of this incident on 18 February. Dr Randall recorded that Green was experiencing low back pain with sciatica into the left leg, pins and needles in the toes, that his left knee was painful. He also was suffering testicular pain since the fall, but no increase in that pain, and he had not noticed any swelling. It was clear that the doctor went on to examine Green (though I note that the notes are recorded in different writing than that which appears on the first page, in the first entry of 23 February 1998). It is clear from this further entry that Green was suffering serious symptoms as a result of the incident in February 1998. He said in evidence that he had regularly visited Dr Randall and this appears in the doctor's records, and that he had complained of back pain. 9. Dr Randall explained the absence in his notes of back pain complaint by the fact that he was treating the applicant for a knee injury which was masking the back problem for a time. 10. I am persuaded that the incident in February 1998 was the cause of the applicant's present symptoms and incapacity, and that the later incident, the few days driving the rough truck in January 1999, was simply revelationary of his condition. 11. I found Green to be a careful, intelligent, accurate witness, just like his mother was. She also gave evidence in support of his condition. He displayed an uncommon ability to answer questions in a precise, nuanced manner. He said that he had been employed as a tanker driver by Royce Everson Transport from November 1996. He described work which seemed to me to be quite strenuous and which required a good deal of agility. He described an incident involving his left knee when water-skiing in 1991. He said that after one or two hours skiing, he had noticed his left knee had become sore and gradually worsened. This took him to Wodonga Hospital. He used crutches for one or two days, had no time off, his knee improved and he apparently had no further problem. 12. Green described the details of the incident which occurred on 16 March 1998 when he fell from a truck, injured his left knee and suffered pain in the lumbar sacral spine. He said that he drove from the place of the incident to Melbourne and Sydney, finished the circuit and reported to his employer. He consulted Dr Randall on 23 March, was off work until 10 March 1998, underwent physiotherapy treatment and x-rays, and was receiving attention for pain in the left knee and lumbar spine, with pins and needles in his legs. He underwent an arthroscopy to the left knee on 26 October 1998, and was absent from work until 15 December. He worked in the same duties until 28 January 1999, though he said he still had problems with the left knee, the back, numbness in his left leg and pain in his buttocks. 13. On 28 January 1999 his vehicle was changed. He drove from Albury to Melbourne in an extremely rough and bumpy semi which aggravated his back. He worked on until 11 February when he returned to the other truck. The applicant was off work from 11 February until 21 February 1999 since he was unable to work. He was receiving treatment from Dr Randall and some physiotherapy. He returned to work on 21 February until 4 March, though during this period his back was deteriorating. He had problems sitting and he could not drive for any long periods. He returned to Dr Randall on 5 March, underwent a CT scan, was referred to Dr Hillier, and did not work any more for the respondent. 14. Green underwent back surgery on 20 October and was discharged on the 26th. He returned to hospital on 1 December, discharged again on 7 December. During this period, and for five months thereafter, it would seem he was totally incapacitated. However, the surgery improved his back condition. He said the numbness in his legs eased, the back pain became a dull ache, and while his left knee was still sore and at times swollen, the pins and needles in the left leg had eased. From about 6 July 2000 he noticed considerable improvement and began looking for work. 15. The applicant started driving a school bus part-time for about 8 weeks. It would seem from Exhibit F that he was receiving about $100 - $150 per week. He started the bus work in July, and from about 6 July he was employed by Ray & Sons, driving a semi - usually from Wodonga to Singleton - completing one trip a week, working three or four days and coping. However, if he had to do more than three or four days a week, sometimes forcing himself to work five and even six a week, he would notice the pain increase and would need to recuperate, taking some days off. If he does more than about three or four days per week, he notices constant aching in his back and problems with his left knee - especially in the city. He said that he has low back pain which is not severe, mostly a dull ache, though occasionally he experiences stabbing pain if he lifts anything heavy. He also has some left leg numbness, and sometimes his right foot swells. He has problems lifting, repetitive bending, and would certainly have problems climbing on the back of semi-trailers. 16. The respondent, through its counsel, submitted that the applicant would have been totally incapacitated for five or six months after surgery (that surgery occurring in October and December 1999). I have concluded that he was totally incapacitated from 21 October 1999 until 6 May 2000. 17. Mr Judd further submitted that by about March this year, Green's capacity to earn was at least equal to his pre-injury capacity. It was agreed that the probable weekly earnings, but for the injury, were $1,036 per week. Mr Judd submitted the applicant is able to earn at least that amount, and probably more, working for Ray & Sons, his present employer, where he has worked since 6 July 2000. Some weeks he has earned $1,079; on another week, $1,187; and on a third week, $1,042. 18. There is some evidence (scattered evidence) for what Mr Judd has submitted. He contended that this is a true reflection of his present ability to earn and that in fact, if one looks at his work history since July 2000, and particularly since March 2001, Green is shirking for financial gain. He is in fact, Mr Judd submitted, under-achieving in his earnings, and he based this submission on what he said were the opinions of Dr Broder, Dr Hillier and Dr Coomb as to the applicant's ability to earn. 19. However, in answer to this submission, I make the following observations: Firstly, Green has undergone an arthroscopy to his left knee and a fusion to his lumbosacral spine. Secondly, the doctors have assessed a degree of impairments and losses which is not insignificant. Thirdly, Mrs Green, the applicant's mother, gave evidence relating to the extent of the applicant's problems before January 1999, and more particularly that her son is not a whinger or complainer, that he tends to understate his physical problems and to get on with his life. I accept her evidence. Fourthly, Green gave evidence that in his present employment, there is work which is available but which he does not accept. His truck is driven by someone else when he is not driving it himself. I concluded that there was work available which he could do if he were fit but which he chose not to do. This is not typical of his commitment to work before the injury. 20. Fifthly, it seems to me that Green has worked regularly and consistently (two, three, four days per week) since commencing employment with his present employer in July 2000. Sometimes he has even worked five or six days a week, explaining firstly, that sometimes he needed to make more money to support his family, secondly, that he could not just jump a tram or a train and return from where his truck was, that it had to travel from one place to another, pick up a load, go somewhere else, pick up another load and go further before he could return home. Consequently, sometimes he is over-committed and forced by circumstances to do more than three or four days a week. When he does more than he should, he inevitably suffers the consequences and had to rest to recuperate. Truck driving is notoriously heavy, repetitive work. It is probably not suitable for this man in his condition - but he is a stoic, hardworking man. 21. I turn to the medical evidence, particularly as to the applicant's capacity for work. 22. Exhibit C contains reports of Dr Randall, the general practitioner, in which he records details of treatment of Green's left knee, of his referral to Dr Kerwin for a cartilage repair in October 1998. He says: Since that time his knee has not been mentioned much, with the back becoming the predominant issue. I do not think that this reflects full knee recovery to normal, rather that this man tends not to complain. His tendency to push on to work and through his pain has in fact been a feature that had to be overcome to facilitate treatment and improvement. 23. Further in the report, Dr Randall states: After being reported initially, the knee injury restrictions tended to mask this aspect (low back pain). 24. Dr Hillier had no hesitation in stating that the knee and low back injury were a direct result of the fall in February 1998. He wrote in his further report that Dr Hillier had reviewed Green in mid-March 2000 and supported a commencement of a graduated return to work. He returned on a trial of moderate truck driving. 25. Dr Hillier began treatment of Green in March 1999. His report is Exhibit E. He said the applicant was asymptomatic until the injury in February 1998 and therefore he accepted that that injury had provoked his ongoing pattern of pain. 26. In his report of March 2000, Dr Hillier advised Green needed to minimise excessive stress to his lumbar spine and, for that reason, he would not envision him as being able to resume all aspects of his previous employment for at least a further three months. He thought, as in March 2000, that he would be able to undertake straightforward driving work which did not involve cleaning out of tankers, loading and unloading equipment. He assessed the back impairment at 15 per cent loss and 5 per cent left leg loss. 27. Dr Brooder's report is Exhibit B. He began treatment in May 2000 and in his first report said that Green had sustained multiple injuries in February 1998. He thought it would be inappropriate for him to return to his previous full-functional level as a truck driver as any ongoing activities of a heavy physical nature would carry a substantial risk of further aggravating the low back injury. He thought he might be able to undertake work activities limited only to driving. However, it would be more appropriate for him to undergo a period of vocational re-training and rehabilitation in generally lighter, alternative form of employment, and he assessed a 15 per cent left leg loss, a 20 per cent back impairment. 28. While there is no claim for impairments or losses, I simply record these figures to give some indication of the level of incapacity. 29. Dr Brooder examined Green again in March 2001 and noted that following his initial assessment, the low back pain had continued to improve. He noted that in July 2000, Green had returned to his previous employment as an inter-state truck driver. He was aware that driving for more than two hours would result in increased aching and discomfort in the low back region. There was also a transient increase of low back pain with increased physical activity, particularly when loading and unloading his truck. Lifting the trailer gates, for instance, was prone to aggravate pain, so he tended to limit any heavy lifting. The doctor noted also that there was a tendency to develop an intermittent aching pain and swelling in the left knee, particularly with repetitive movement of the left leg when using the vehicle's clutch in prolonged driving. 30. Dr Brooder noted that Green had progressively increased his work activities to a virtually full-time basis. I do not understand what the word virtually means in this context. It seems to imply that he did not ever get back to full-time work, but that he was approaching maybe four days a week. Dr Brooder found that Green's overall level of work would depend upon the severity of his low back pain. With any overall increase in the low back pain, he would remain off work for one or two days. This seems to me just the very evidence that Green himself gave in Court. At one stage, Dr Brooder says several months ago, he had required three weeks off work due to an episode of persistent low back pain associated with a marked impairment of his mobility. 31. When reviewed again in March 2001, that is, ten months after the first review, Dr Brooder noted that over that particular period Green had remained aware of persistent, although somewhat variable, symptoms. At times he noticed variable discomfort, and at other times, aching pain involving his low back region. The severity of these symptoms depended upon his level of physical activity, particularly his work activity. This does not read like a man who is fully able to do his old work. Dr Brooder concluded that he would consider it inappropriate for Green to return to his previous, full-functional level as a truck driver, as any work activities of a heavy physical nature would carry a substantial risk of further aggravation of his low back. 32. I detail these doctors' opinions because Mr Judd paid so much attention to the fact that they supported his submission that Green is now able to earn as much as he did before his injury, submitting that he was in fact shirking work for financial gain. 33. Dr Combe examined the applicant in May 2000 and assessed a 20 per cent back impairment and 15 per cent left leg loss. He saw him again in March 2001 and noted that Green had low back discomfort in response to driving a truck, that on occasions his back was painful, and that he did not work when his back pain was more severe. He described continuing pain in the left knee which was aggravated by walking up stairs. He said the trucks were manual and that driving in the city, using the clutch, caused left knee pain. He noted that Green was careful when getting in and out of the driver's cabin, that he did not jump off the back of the trucks, that after prolonged driving he could experience numbness in both feet, more marked in the left. This does not read like a man who should be doing more work than what he is doing. 34. Dr Combe observes that Green had had a very good result from lumbar surgery and was predominantly free of back pain, though since returning to driving work in July 2000, he had experienced more troublesome back pain: I doubt his ability to return to full-time work as a transport driver. 35. The only expert who thought that Green was completely recovered is the respondent's doctor, Dr Davis, and he did not even think that the back condition was ever traceable to the injury in February 1998. Dr Davis's reports are Exhibit 1. He thought that Green had aggravated a condition which was already present, and that the fall from the back of the truck was not even a substantial contributing factor to his problems: In my opinion he is fit for his pre-injuries duties. 36. I reject Dr Davis's findings and opinion since it does not conform with the applicant's evidence, the evidence of his mother, or any of the other doctors (particularly the treating doctors) and does not conform with the notes of Dr Randall (Exhibit 2) which shows back pain, sciatica, pins and needles, left knee pain and testicular pain in February 1998. Dr Davis must not have had access to the clinical notes. 37. Exhibit F shows a pattern of earning from July 2000 to March 2001. The earnings vary quite widely. Sometimes there was no income for a period. This would reflect the applicant's own evidence about if he worked too hard in one or two weeks, he had to recuperate. I have concluded that Exhibit F shows a sufficiently long period to provide an idea of the applicant's ability to earn over a period. It shows his pattern of work, and his time away from work. I have no evidence of his shirking or under-achieving, and prima facie his actual earnings are to be considered a true reflection of his ability to earn. Whatever about prima facie, I consider that he is probably doing work which he should not do, for lengths of periods which he should not work I find that Exhibit F does provide satisfactory evidence of the applicant's ability to earn. He has always been a worker, and had worked even when injured. 38. On the basis of Exhibit F, it seems that for the period from 10 July 2000 until March 2001, the applicant's average weekly earnings varied from about $560 a week to $680 a week. It seems to me that the applicant is able to earn $600 per week, and was able to earn that amount from May 2000 to March 2001. 39. As to his ability to earn before surgery, doing the best I can, I have concluded that during this period, he would have been able to earn $400 per week. 40. I note that the agreed current weekly wage rate is $551.40 per week. 41. For these reasons, I make the following findings and award: 42. (1) The applicant injured his back and left knee when he fell from his trailer on 16 February 1998. 43. (2) He has, and has had at all material times, two children dependent upon him for support. 44. (3) He was partially incapacitated for work from 11 February to 21 February 1999, and from 4 March to 19 October 1999. Thereafter, from 20 October 1999 to 6 May 2000, he was totally incapacitated, and after that, from 7 May 2000 to date and continuing, he remained partially incapacitated. 45. (4) For the period in February 1999, and from March to October 1999, the applicant was able to earn, in some suitable employment reasonably accessible to him, $400 per week. 46. (5) The probable weekly earnings of Green, but for the injury, had he continued to be employed in the same or some comparable employment, are agreed at $1,036. 47. (6) From 6 May 2000 to date and continuing, he would be able to earn, in some suitable employment reasonably accessible to him, the sum of $600 per week. 48. I therefore make an award, pursuant to s 40: from 11 February 1999 to 21 February 1999, in the sum of $393.90 per week (which is the statutory rate for a worker and two dependent children); from 4 February 1999 to 19 October 1999, pursuant to s 36, 49. the sum of $531.40 per week (the current weekly wage rate as agreed); from 20 October 1999 for 16 weeks until 6 May 2000, the full statutory rate of $393.90 per week; and from 6 May 2000 to date and continuing, the sum of $420 per week as adjusted. 50. I order the respondent to pay the applicant's medical expenses. 51. I order the respondent to pay interest on the past weekly benefits at 4 per cent, from a date to be agreed. 52. I order the respondent to pay the applicant's costs. 53. I direct that counsel's fees may include a second conference in the sum of $250. Mr A R Cooley instructed by Nevin Lenne & Gross. appeared for the applicant Mr I S Judd instructed by Gillis Delancy Brown. 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.