O'Malley v Workcover [2001] NSWCC 86

Compensation Court of New South Wales

CITATION : O'Malley v Workcover [2001] NSWCC 86 PARTIES : Michael F O'Malley Workcover Authority of New South Wales (Bushfire Fighters Compensation Fund) MATTER NUMBER(S) : 38783 of 1999 JUDGMENT OF: Johns J CATCHWORDS: Proceedings to Obtain Compensation :- LEGISLATION CITED: Workers Compensation Act 1987 CASES CITED: DATES OF HEARING: 31/01.00 DATE OF JUDGMENT: 01/31/2000

FOR APPLICANT:Mr G Curran instructed by Matthews Williams LEGAL REPRESENTATIVES: FOR RESPONDENT:Mr P. Deggens instructed by william Clinton

JUDGMENT: 1. The applicant in these proceedings makes a claim for weekly entitlements as a consequence of an injury that he suffered on 21 January 1999. The applicant is a 47 year old man married with one child, both of whom are dependent. His history in relation to bushfire brigade activities began in the 1970s in conjunction with his father and he has for many years been locally involved in fighting fires on what he described as an ad hoc basis. Trucks are kept on different properties, there is UHF radio transmitter to those who are engaged in this voluntary work and if there is a fire there is contact, made and those who are able and in the near vicinity, attend. 2. He has worked for some 25 years as a truck driver, driving semis (what he describes as combos) which are articulated vehicles which are adjoined, and also fuel-carrying trucks. The three years immediately before mid-1998 he was employed with Koala Petrol which is a firm located in Leppington in Sydney. He lives and has always lived with his family in Parkes. He drove between Parkes and Sydney because that was the run. His work entailed the loading and unloading at the terminals, involved prolonged sitting, long hours of driving, a round trip for example would be 12 hours to Sydney and return. He was required to have sufficient agility to mount the top of the tanker and to drag hoses which were not insignificant in size or in weight. Previous to this he had driven containers, all of which involved prolonged sitting and as well as scaling of loads. He left his employment with Koala because he was required to be located permanently in Sydney. In the circumstances it was understandable. 3. Since June of 1998 he has looked for employment, not with a great deal of success, although disappointingly, I suppose, after he suffered his injury he had opportunity on two occasions to undertake employment of a truckdriving kind for which, he did not have the capacity. He has been in regular employment for much of his working life. Such is the past employment history of the applicant. 4. On 22 January 1999 he was called to a fire on a property not very far from where he lives. He, himself, spotted the fire, and called the captain. He went to the scene and waited for the fire truck. They tried to put the fire out but they could not get to a particular limb which was on fire. They agreed to get a cherry picker in order to saw it down. Whilst they were attending upon the sawing of this particular limb, it weakened the other side of the tree and a limb of considerable proportions fell striking him on the right side of the head down on the shoulder and knocking the applicant with, what was obviously, considerable force to the ground. Such was the force of the blow that he suffered fractures to his shoulder and two fractures to his vertebra which were obviously the consequence of a significant degree of compression. The limb was of considerable size. It was 8 to 10 inches in diameter. It was of significant size in length and it fell some 20 feet. He felt immediate pain in his right shoulder, a gash to the right side of his head and pain in his mid and lower back. 5. He says that he had no prior problems to speak of in the past. Whilst some evidence, or some cross-examination, was put to him of some difficulty in the past, it was not thought of sufficient degree of importance to the respondent to either tender the notes or to obtain a report from that particular doctor. One can only say that he may have had some intermittent and occasional problem in the past as he himself has given evidence but it is, in my view, of little consequence in terms of the relevant matters which I have to decide. It may be of greater consequence in the future if and when the applicant determines to make a claim for some lump sum entitlements. 6. For all relevant purposes the applicant prior to the incident that occurred had no incapacity for work and he was capable, it seems to me, to engage in the nature of the work which he has described in the past. Whatever may have been the episodic episodes in relation to his back in the past, they were, to say the least, transient. This was as I have described a significant and forceful trauma that occurred to him. The applicant was transported to Parkes Hospital. He then was taken to Orange Base Hospital as he had a pneumothorax which needed to be treated as well as fractures to his vertebra and to his humerus. 7. He was attended by Dr Mutton on a number of occasions. He was ultimately referred to physiotherapy. He was discharged in a sling. His medical costs were paid but no weekly payments were ever made. He had physiotherapy to his shoulder and his back for some 40 weeks, which at least gave him some benefit, and after a number of months he came to the level of disability that he now has, probably from 1 October 1999. It seems to me for all intents and purposes up until that time he was totally incapacitated for work. 8. The nature of his injuries and the seriousness of them are described in the medical evidence before me. There was not much contention in relation to them. The applicant was seen by Dr Bodel on behalf of the respondent. His evidence is not before me. I can only assume that that evidence would not have assisted the respondent's case. He was also seen and assessed by rehabilitation specialists. Some evidence was put to him in cross-examination of what he could do and what he could not do in this assessment. The significance however in this regard, to me, is the fact that this assessment has not been put before me in evidence. The nature of the conclusions of those particular bodies, in the face of what he was able to do, and what remains a mystery, as to what he could not do seems to me to mitigate against the weight of anything that was put to the applicant in relation to what he could do in this assessment. The nature of these particular abilities that were put to him is of no consequence, in my view, in the assessment of the applicant's capacity for work. 9. I found the applicant typically laconic, which is not unusual in country centres, but as is not uncommon in country areas, necessarily straightforward, and I have no hesitation in accepting his evidence in regard to that which he has suffered, in terms of pain and symptoms and that which he is suffering in terms of pain and symptoms at present, and the degree to which he says he is able or not able to engage in ordinary everyday things. 10. It is always a vexed question in certain circumstances such as this as to whether or not, given the nature of his disabilities as he describes them and as they are commented upon by medical opinion, as to whether or not in the nature of this type of case the applicant has the capacity to engage in any suitable employment which is reasonably accessible to him. Mr Deggens has pointed out, not without some force, that the applicant has confirmed that he has a certain degree or a capacity to drive, perhaps a taxi, for some hours, but when one reflects upon that and the realistic likelihood of that being available to him in terms of whether it is reasonably accessible to him, it seems to me that it is simply answered by asking the question: what taxi proprietor would, in a country centre where employment is difficult to get, look to a man such as the applicant, to do some part time driving, rather than to a man who is not incapacitated at all as against the applicant who is as incapacitated as he is, and realistically in those circumstances come to a conclusion that this man has the ability to do this type of work. 11. It seems to me that whilst he has a capacity, he does not have a capacity to do this work, nor is it work that I think is reasonably accessible to him. I accept that when looking at this particular question, one does not merely identify a particular job or category of employment in which the applicant can in fact operate and thereby determine that the income generated in that job represents his ability to earn. One normally in these circumstances is concerned with taking a broad range of the labour market that is open to the individual, the types of earnings that those types of jobs would produce and get a sort of weighted average and the ones that are more readily available weigh high and the ones that are rarely available weigh low. I accept that, and in assessing this man it is an approach which I would take as it was described in Castle's case, but the nature of this man's injuries are extensive. The incapacity, therefore, is very significant. 12. Dr Burgess seems to suggest that what this man can look forward to is an invalid pension. That may be overly dramatising the state of affairs but nonetheless it seems to me to give credence to the conclusion that the extent of this man's incapacity is so great that it would be unrealistic to engage in an exercise in which one would conclude that he has a capacity that would remunerate him in some suitable employment. What also has been put to him is the fact that he could engage as a console operator given the nature of his background, for example, in fuel, the fact that he has tinkered somewhat with mechanics and some motors of which he says he is not very good at, and that there is a certain familiarisation with what goes on in and around a service station. Again the nature of this work has to be assessed upon the basis of whether it would be reasonably accessible to him in a country centre. 13. I think for the same reasons that I have commented upon in the taxi work, this is not work that would be reasonably accessible to him. I think the nature of his incapacity is such that if this man sat or stood for any length of time, perhaps an hour or two, he would suffer significant symptoms in his back, I think, on a regular basis three or four days a week, even on a daily basis, it would be work that is quite beyond him, even as a console operator. So when I consider it in terms of those conclusions, it seems to me that the extent of this man's incapacity, is such that he would not have a capacity that would avail him of the opportunity of engaging in any income in some suitable employment. I think in the circumstances for all intents and purposes this man is totally incapacitated for work. When one realistically considers the extent of his capacity he ought to be compensated accordingly. 14. I therefore make the following formal findings: I find that the applicant is a deemed worker in accordance with Sch 1 cl 13 of the WIM Act. I find that the applicant on 22 January of 1999 suffered injury whilst attending at the site of a fire. I find that the applicant is totally incapacitated for work. I also find that the applicant was not working under a contract of service immediately before fighting the bushfire and that such amount which he would have earned but for this injury, such amount as would be reasonable in the circumstances is the sum of $450 per week. I find the applicant's wife and child dependent upon him for support. 15. I hereby order and award that the respondent pay the applicant: The sum of $450 per week from 22.1.99 to 22.7.99 The sum of $395.80 from 23.7.99 to date and continuing as adjusted. 16. I order the respondent to pay the applicant's costs. 17. I recommend a second conference for counsel in the sum of $180. Mr G B Curran instructed by Matthews Williams Appeared for the applicant Mr P Deggens instructed by William Clinton Appeared for the respondent