Brind v Bayswater [2001] NSWCC 68

Compensation Court of New South Wales

CITATION : Brind v Bayswater [2001] NSWCC 68 PARTIES : Raymond E Brind v Bayswater Colliery Co Pty Limited MATTER NUMBER(S) : 47490 of 1999 JUDGMENT OF: Bishop J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 6th December 2000 DATE OF JUDGMENT: 12/08/2000

FOR APPLICANT: Mr B O'Sullivan instructed by Whitelaw McDonald LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr S L C Flett instructed by Sparke Helmore

JUDGMENT: 1. The applicant aged 58 brings a claim based upon injuries occurring on 4 December 1991, November and December 1996, in November 1996 and August 1997 and due to the nature and conditions of his employment from August 1982 up to his termination. 2. The only issue for the determination of the Court today is the applicant's entitlement if any to lump sum compensation with regard to impairments or losses to his back, legs, neck and arms and if appropriate, an entitlement under s 67. 3. The applicant indicated that he was left hand dominant and before he joined the respondent in 1982, he said that there was nothing prior of note in his health other than the fact in his early years when he was playing football, he had had an injury to his left knee. This he said was minor and caused no ongoing problems and he passed his pre-employment medical when he joined the respondent. 4. He outlined the general nature of his duties which were, as is common in the industry, very physical. He initially operated a drilling machine and described the changing and carrying of heavy drill bits. He was also doing shot firing for a period as well as subsequently truck driving and the like. He commented on the uneven ground that was involved in the area. His first injury was in December 1991. On this occasion, he was installing a sink in a washroom. He was getting out from beneath the sink and he found it difficult to straighten up because of pain in his low back. He may have had a few days off work, but could not recall, but essentially he continued working. 5. The second injury to which he made reference was on 14 November 1996 when he twisted his left leg while performing a heavy lift. His knee swelled, he had a lot of pain. He consulted Dr Laird who ultimately carried out an arthroscope on the knee and finally, two or three years later, a knee replacement. 6. He referred to an injury in June 1997 while he was driving a truck on the afternoon shift and he had a break and went to the crib room. He was sitting at the table when he had a sudden attack of pain in his left arm and his neck which he reported but lost no time. About one month later, he was driving his truck and he was in the cabin when a very large rock was dropped into the truck causing him to be thrown about and again he had symptoms in the neck and the left arm. About two months after this truck incident, he was again driving and the truck went into a large hole and jolted him causing back problems down as far as the ankles. 7. He ceased his employment with the mine in August 1997 at which stage he had ongoing symptoms, in particular in the back going down the left leg. 8. The applicant's current problems he described as being restriction of movement in the neck and pains in the shoulders, together with pins and needles in both hands but not affecting the little fingers. He had a loss of strength in the left arm and intermittent aching in the left thumb. With regard to his lower back, he described problems getting up from a bent position and lifting. His left knee, he said, had gradually got worse after the arthroscope and as mentioned earlier, the knee replacement was carried out. As a result, he says he cannot run. He has problems with ladders, and in particular, he commented on his difficulty in pushing the wheelchair of his disabled daughter. His knee problem, he said, had caused him to give up playing bowls because of an apprehension as to his stability in the movements required in that sport. He said that his shoulder movements are restricted. He has difficulty raising his arms above his shoulders. He has difficulty with his jobs at home. Driving has a problem in moving his neck. He has difficulty with the lids of jars, with writing and signing cheques and has to be supported by special pillows when he is sleeping. He described a degree of despondency about all these particular things that have happened to him. 9. In his cross-examination, it was put to him that he had had a left knee problem in June 1989 with a three or four year history of gradual prior pain in the left knee, and in fact had been treated by Dr Laird. He indicated that he was unable to recall this, but said that if it was in the records it must be right. He also agreed that he had had a left hip replacement in February 1993 which was not the subject of this claim. 10. He agreed that he had had some resolution of his symptoms by the early part of 1998 after leaving the mine. His symptoms at the present time, he said, wax and wane in severity but they are always there. At times, if he exercises care his symptoms are not too bad. After he left the mine, he worked for a period as a part-time handyman at the Denman Hotel up to about the middle of 1999. 11. The applicant impressed me as being a direct and straightforward witness. He did not have a particularly good memory for detail and dates. This is evidenced by the fact that his history of injury does not really totally coincide with that pleaded in the application for determination. However, no point was taken on this and these slight differences in dates and the like appear under the circumstances not to be particularly important. As I said, I found him an acceptable witness. 12. The medical material produced quite a degree of variation in a number of aspects. I will deal firstly with the position relative to the applicant's back pain. There appears little doubt that he has disc degeneration at the L3/4 and L4/5 level. There is no clear-cut evidence of an actual disc lesion. Dr Plowman, who saw him on a couple of occasions, expressed the view that this degenerative process had been aggravated by the 1991 injury with the sink and thereafter. He considered that the symptoms would affect the applicant's ability to bend and lift and to be sitting for long periods, but felt overall that the problem was relatively minor but was there. He considered that there was a 15 per cent impairment to the back of which he would attribute one-third to the pre-existing degenerative process. 13. Dr Ghabrial also was qualified for the applicant, and agreed with the diagnosis and found the impairment at the level of 25 per cent. However, he appeared to attribute all of that to the applicant's employment. 14. Dr Kleinman in a report of 16 January 1992, that is very soon after the applicant's initial back injury, considered that the x-rays and radiology showed "a very worn-out looking back which has been like that for many years". 15. The respondent's medical reports from Drs Carr and Rowe confirmed the existence of an impairment of the back assessed by Dr Carr at 7 per cent, the cause being non-specific and by Dr Rowe at 15 per cent which he considered was totally constitutional. 16. With regard to the applicant's claim for impairment to his back, the question of causation depends very much on the acceptance of the applicant's own history of symptoms. I think it is clear on the radiology particularly in the light of the comments of Dr Kleinman that the applicant had a pre-existing problem and I accept the views of Dr Plowman and Dr Kleinman with regard to this. It seems to me that the applicant's evidence that since that 1991 injury he had had continuing problems with his back supports the existence of a work involvement in his back problem. I consider with regard to the measurement of the extent of that impairment, particularly in the light of the applicant's own concession of improvement when he left the respondent, that the assessment of Drs Plowman and Rowe of a 15 per cent impairment should be accepted, and I also accept Dr Plowman's view of a deductible proportion of one-third. 17. I turn now to the question of the left leg. Dr Plowman considered and indeed this seems supported elsewhere that the knee replacement has produced a good result. Dr Plowman assessed the post-replacement loss of use in the leg at 37 per cent and in a pre-replacement report considered that 50 per cent would be due to the pre-existing degeneration in that joint. 18. Dr Ghabrial's reports with regard to the leg I found of very little assistance. He considered that there was a 5 per cent loss of the efficient use of the left leg, presumably related to the back. He made no comment whatever with regard to the contribution of the specific knee injury. 19. Dr Carr in his reports of both initially and in a later report, found no signs of radiculopathy in the left leg. Dr Rowe expressed the view there was a 30 per cent loss of use of the left leg due to both the knee and the applicant's unrelated left hip replacement. One of the difficulties in assessing the applicant's entitlement to lump sum compensation with regard to the knee relates to the fact that with the exception of Dr Rowe, the doctors make no particular comment as to the contribution made by the left hip problem. I suspect that Dr Plowman has built that into his assessment. 20. It was submitted on behalf of the applicant that I should discount Dr Plowman's pre-replacement suggestion of a 50 per cent deductible proportion because the increase in the loss of use following the replacement was due to that surgical procedure rather than the pre-existing condition. Initially I thought that there was some support for that argument, but I think because of the involvement of the left hip replacement in the effective use of the knee, this discount should not be granted. It seems to me on the medical material there is no adequate evidence of a sciatic component in the applicant's left knee problems. I think bearing in mind the hip condition, the assessment of the loss of use of the left leg should be found at 30 per cent with a 50 per cent deductible proportion. The only specialist who makes any reference to a loss of the efficient use of the right leg is Dr Ghabrial. I am concerned about that assessment in that it is not echoed in other medical reports, and indeed, the applicant himself made no particular reference in his evidence about any problems with the right leg. In addition, as I have commented, Dr Carr on no less than two occasions on examination found no signs of leg radiculopathy. 21. In my opinion, the applicant's claim for lump sum compensation for loss of the efficient use of his right leg is not made out. 22. I turn now to the question of the applicant's neck. There is no doubt from the radiology that he has quite a significant problem with his neck. Dr Plowman assessed the level of that impairment at 20 per cent, Dr Ghabrial at 30 per cent and Dr Rowe at 20 per cent. Dr Plowman's figure for some reason not clearly expressed seems to be a figure net of any deduction for a constitutional component. Dr Ghabrial found that the loss was all due to the applicant's employment, and Dr Rowe allowed a 50 per cent deductible proportion. I think it is regrettable that the doctors have not been more specific as to the contribution which is undoubted by the applicant's pre-existing constitutional condition. Considering the applicant's own evidence and doing the best I can on fairly inadequate medical material, I consider that it should be found that the applicant has a 25 per cent impairment to his neck and that a deductible proportion should be found at one-third due to constitutional osteoarthritic condition. 23. I turn finally to the question of the applicant's claim for lump sum compensation to his arms. The medical material here too is somewhat confusing. There is electrophysiological evidence of bilateral carpal tunnel syndrome. Dr Ghabrial does not expressly link this with the applicant's employment with the respondent. Dr Carr expresses the view that its causation is not really known and that indeed, surgery may offer some form of relief for that particular problem. Nevertheless, I accept the evidence of the applicant that he has problems with both his arms if he tries to raise them above shoulder level because of the production of symptoms in his neck. This I think equates to a partial loss of the efficient use of the arms. 24. The applicant has also given some evidence as to shaking in the arms and as to difficulty writing. Doing the best I can once again on fairly imprecise medical material, I do not consider that the causation of the carpal tunnel problem has been linked with the applicant's employment, but I consider that there is satisfactory evidence of partial loss of the efficient use of each arm relative to the applicant's neck condition and I think this should be found at 10 per cent with regard to each arm. 25. These figures will enable the applicant to surmount the threshold for s 67. There are a number of matters that have to be taken into account including the applicant's age and his other quite significant health problems. He is not a demonstrative man, but I formed a very distinct impression that he was quite distressed about the way in which his ability to deal with his problems in life has been adversely affected by his orthopaedic difficulties. I think that this was expressed particularly with regard to his giving up of bowls and with regard to the difficulties with his disabled daughter. 26. I consider that the degree of actual pain and distress is of a moderate level and the relativity should be an approximate area of 1:4. The award I make in the applicant's favour is in the following terms: I find that the applicant received injury to his back on 4 December 1991 and in approximately August 1997. Under s 66 I find permanent impairment of the back of 15 per cent which, after deduction of a deductible proportion of one-third, results in $7,938. I find that the applicant received injury to his left leg on 14 November 1996, and due to the nature and conditions of his employment up to August 1997. I find a 30 per cent permanent loss of the efficient use of the left leg at or above the knee which, after deduction of 50 per cent, produces a figure of $14,883.75. I find that the applicant received injury to his neck in the course of his employment between June and August of 1997. Under s 66, I find permanent impairment of the neck of 25 per cent, less a deductible proportion of one-third $8,821.76. I find further a 10 per cent permanent loss of the efficient use of the left dominant arm at or above the elbow and after a similar deductible proportion this results in $7,091.28. I find further a 10 per cent permanent loss of use of the right arm at or above the elbow, and after a similar deductible proportion, this results in $6,648. Under s 67, I find the appropriate figure to be $16,550. The respondent is to pay the applicant's costs and I recommend an additional conference $200. Mr B O'Sullivan instructed by Whitelaw McDonald appeared for the applicant Mr S L C Flett instructed by Sparke Helmore appeared for the respondent