Solari v Franklins Limited [2001] NSWCC 21

Compensation Court of New South Wales

CITATION : Solari v Franklins Limited [2001] NSWCC 21 PARTIES : Margaret Solari v Franklins Limited MATTER NUMBER(S) : 38210 of 2000 JUDGMENT OF: Ashford J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 28/03/01 DATE OF JUDGMENT: 04/26/2001

FOR APPLICANT: Mr T Ower instructed by McCrohon Bergseng FOR RESPONDENT: LEGAL REPRESENTATIVES: Mr R Page instructed by Glover and Glover appeared for the respondent in the interest of GIO Workers Compensation (NSW) Limited Mr G Neilson instructed by Hickson Wisewoulds appeared for the respondent in the interest of Allianz Australia Workers Compensation (NSW) Limited

JUDGMENT: 1. In these proceedings the applicant seeks payment of compensation pursuant to the provisions of s 66 in respect of alleged permanent impairment of the neck and loss of use of the right arm at or above the elbow as a result of injury in the employ of the respondent. A consequential claim is made pursuant to the provisions of s 67. 2. The question of any permanent loss or impairment is in issue, and which, if either, of the insurers is responsible for any such payment. Between 22 June 1993 and 15 August 1997 the respondent was insured by GIO Workers Compensation (NSW) Limited, and from 15 August 1997 to 22 December 1999 by Allianz Australia Workers Compensation (NSW) Limited. 3. The applicant was born 16 December 1955. She is a married woman who commenced employment with the respondent in 1992, initially for a three month period as a casual packer, and then in permanent employment. At that time she began to work at the respondent's Chullora premises operating a stocktaking machine. In effect this was data entry with the applicant holding the stocktaking machine in her left hand and entering items on the machine with her right hand. 4. At the time of commencing employment with the respondent the applicant said she suffered no right arm or neck problem. She is right hand dominant. 5. On 28 November 1995 the applicant said she complained of right arm soreness to her supervisor. She continued working and her symptoms became worse. She said she attended the respondent's doctor and following that time changed her work practice in that she attempted to use a pencil to hit the entry pad keys. She said this did not give her any relief. She continued employment with no time off until 31 January 1997. At that time she attended her general practitioner, Dr Girgis, and said she was experiencing severe pain in her right arm and hand. She was afforded some treatment. She continued in her employment, at that time using her left hand for the counting operation. Strapping had been applied to her right arm and hand and when this was removed she again did some keying work with her right hand. She continued her employment until October 1999. In the period between 1997 and 1999 she said she performed lighter duties because of her problems, but still used a stocktaking machine at times with complaints of pain on doing so. 6. About six months to 1 year after the onset of right arm pain, the applicant said she began to notice pain in her neck which gradually worsened, and she also experienced some stiffness in her neck. In October 1999 she ceased employment with the respondent when she was stood down from her work. Thereafter she found employment with another company performing clerical duties including phone answering, keyboard and varied tasks. She said there was improvement in her condition although she did experience pain if she overused her right hand or arm. She continues to attend physiotherapy. It was her evidence she continues to experience some neck problems, including some stiffness in her neck which is not as bad as it had been during the time of employment with the respondent. She said she has some difficulty in gripping items with her right hand and still experiences pain if she uses her right hand and arm for prolonged periods. She takes occasional pain medication. 7. In cross examination the applicant agreed she attended her general practitioner in October 1996 advising of a fall some few weeks prior to that time at work when she had fallen from a ladder onto wine boxes, and whilst she agreed she had experienced such a fall she said she did not remember having seen her doctor. She agreed she had experienced some left sided arm and neck pain following that fall. 8. Dr M Girgis has treated the applicant in relation to right hand, arm and neck problem since January 1997. It is recorded that on 31 January 1997 the applicant complained of a painful right hand and that her work mainly involved punching stock numbers into a machine using her right hand. She was afforded treatment and was certified fit to perform suitable duties avoiding use of the right hand. Dr Girgis apparently issued light duty certificates for the applicant during January to April 1997. In June 1997 there was noted to be a complaint of severe pain in the right side of the neck down to the hand and she was again certified as fit for selected duties. 9. Dr Girgis was of the view the applicant has soft tissue injury due to repetitive movements of her right hand, elbow and shoulder during the course of employment with the respondent as a stocktaker using the Telxon machine and looking up and down for stocks placed at different heights on shelves. 10. Dr Adler examined her on 25 May 1999 at the request of the applicant's solicitors. He obtained a history of employment using a hand held data imput machine in the left hand, inputting stocktaking data with her right hand. He recorded there was onset of right forearm aching from about August 1995 and that whilst the applicant had performed lighter duties for a period of time, on return to her prior stocktaking duties there was recurrence of her right forearm and wrist pain, and onset of neck pain as well. In his view the applicant developed cumulative trauma occupational overuse injury to the right arm flexors with chronic tenosynovitis injuries involving the proximal musculotendinous junctions of the forearm flexor muscles. He also thought there to be some lower cervical irritation. In his view the onset of the forearm and hand pain clearly occurred in association with repetitive keying into a data input machine, and was entirely due to that work. He thought her unfit for that pre-injury employment. He assessed there to be ten percent permanent impairment of the neck and 18 percent permanent loss of efficient use of the right arm as a result of injury. 11. Dr D Glenn examined the applicant on behalf of the respondent on 5 May 2000 and his report was tendered by the applicant. He recorded a history of employment with respondent as a stocktaker, repetitively punching numbers into a keyboard with her right hand. He noted onset of aching in the right forearm in mid 1995 which subsequently extended into the right wrist and hand and later on the onset of neck pain. In his view the applicant appears to have suffered overuse syndrome of the right upper limb as a result of her employment with the respondent. He accepted there to be 10 percent loss of efficient use of the right arm at or above the elbow, attributing one half to the period of employment prior to August 1997 and the remaining half to the period of employment from August 1997 to October 1999. He found no evidence of any impairment of the neck relating to her employment. 12. Dr W Patrick assessed the applicant on behalf of the applicant's solicitors providing a report dated 21 March 2001. He obtained a history of injury largely in accordance with the applicant's evidence. In his view the applicant sustained significant occupational overuse injury affecting her right hand, forearm, upper limb and neck as a result of the nature and conditions of her work with the respondent from August 1995. He assessed there to be 10 percent impairment of the neck and 16 percent loss of efficient use of the right arm at or above the elbow, believing her employment to be the substantial contributing factor to her injury and continuing symptoms. 13. Dr D Manohar saw the applicant at the request of her general practitioner and provided a report dated 12 March 1999. He obtained a history of complaint of pain in the right hand extending up into the right arm and neck and that her employment involved use of a data entry machine operated by her right hand. He noted onset of problems around August 1995 and that whilst she had been given other work for a period of time, she had resumed data entry work and continued to experience pain in her hand and arm. In his view the applicant suffered strain of the forearm flexors and trapezius. 14. By reporting of 9 April 1999 he noted continuation of symptoms and thought MRI scan should be organised. It appears that examination was not undertaken because of difficulties experienced by the applicant in undertaking such testing. 15. Dr R Cameron saw the applicant providing a report of 12 January 1998 at the request of the first insurer in time. He obtained a history of right upper limb pain dating from August 1995 and that the applicant's employment involved work as stocktaker holding a machine in her left hand and keying in amounts with her right hand. He noted also complaint of onset of neck pain from about 1997 and that the applicant had been afforded physiotherapy and some splinting of her arm in 1997. In his view the applicant initially suffered a musculoligamentous strain with later development of an acute inflammatory condition in the region of the second metacarpophalangeal joint of the right hand. He thought it possible there had been an acute tendonitis relating to her work, but on the balance of probabilities thought she had acute arthritis of that joint. He thought neck symptoms were likely temporary aggravation of constitutional degenerative cervical spondylosis. In his view the applicant remains fit for the work of a stocktaker although he thought it reasonable that she avoid use of the counting machines. 16. He assessed there to be one percent loss of efficient use of the right arm at or above the elbow relating to the applicant's right index finger condition. He thought the loss likely to be permanent but the cause unproven, and likely to be of constitutional origin. He also found there to be five percent loss of use of the upper limb relating to a right shoulder condition which he thought likely to resolve, and a current impairment of the neck at that time of two percent which he also thought likely to resolve over a period of a few months. 17. Dr B Stephenson saw the applicant on behalf of the first insurer in time reporting on 5 February 2000. He obtained a history of onset of right forearm discomfort following use of a hand held computer and that later pain extended from her forearm to the neck. He recorded the applicant had attended physiotherapy which had assisted her, but there was continuing complaint of pain in her right hand and forearm up to the side of the neck and jaw. In his view the employment with the respondent may have been related to the onset of some symptoms of strain in the upper limb when using equipment and working. He thought her fit for clerical work. He did not conclude there was any assessible disability of the upper limbs or neck. He did not sight any x-rays. 18. Dr E Schutz saw the applicant on behalf of the second insurer in time reporting on 8 March 2001. He obtained a history of employment with the respondent as a stocktaker which involved her in keyboarding entry on a handheld computer using her right hand. He recorded a complaint of onset of symptoms in the right forearm in about 1995 with development of symptoms in the right hand, later extending to the right side of the neck and shoulders. He noted there was a continuation of symptoms although the applicant was now in other employment. In his view the applicant may have had a myositis with a tendency to inflammation but he found no current significant abnormality. He did not find there to be any particular problems of the neck, right shoulder or right upper arm. Whilst he thought there may be soft tissue symptoms of the neck causing at times some five percent impairment of the neck, he did not find this to be of a permanent nature. He thought there to be no more than two percent loss of use of the right arm below the elbow taking into account the applicant's reported symptoms, and whilst noting that symptoms appear to have started pre August 1997 but to have continued and become worse, he thought it reasonable to apportion 50 percent to each period of risk. 19. Dr G McGroder provided a report of 17 July 1997. He obtained a history of injury largely in accordance with the applicant's evidence. Noting the applicant to have had right neck, shoulder and arm pain since 1995 he thought this to be a fatigue type pain consistent with static load of the upper limb. He thought this consistent with her work as she described it. He thought it reasonable the applicant was attending physiotherapy at that time. 20. Dr Christie also saw her in August 1997 and provided a report. He also obtained a history in accordance with the applicant's evidence. It was his view that the applicant almost certainly had an extensor tenosynovitis of the right hand consistent with her occupation and particularly the keying type work that she performed. He thought this had mostly settled but thought her unfit to return to repetitive work, particularly the keying work, although he eventually anticipated full resolution. 21. Reporting of Dr S Potter dated 25 August 2000 was also tendered. He noted a history of injury and employment largely in accordance with the applicant's evidence, and noted her to now be in other employment. Following examination he was of the view there were no objective physical finding and no possible structural or physical cause for the applicant's pain syndrome of the right hand, wrist, arm and neck. He thought her fully fit for normal duties without restrictions. He found no permanent loss or impairment of any limb or function. 22. Dr J Watson provided a report of 17 July 2000. He also obtained a history in accordance with the applicant's evidence. He noted continuing complaint of aching in the right side of the neck and shoulder and into the right upper limb. He found no evidence to suggest she had organic pathology in the right upper limb. He was unable to determine any organic pathology to account for the applicant's subjective symptoms in relation to her right upper limb. 23. The applicant in my view was a straightforward historian who gave her evidence without apparent embellishment. Indeed no real attack on her credit was made. 24. On the evidence before me I am satisfied the work she performed by way of data entry holding a machine in her left hand and operating it by punching in numbers with her right hand was constant and repetitive work and also required her to look up and down constantly. I am satisfied the applicant did sustain injury to her right hand and arm and to her neck in the course of that employment with the respondent. I accept her evidence of onset of right hand and arm symptoms in about 1995, and that by January 1997 problems of pain in her right arm and neck had been well established, and after that time symptoms waxed and waned depending upon the work she performed, and when she performed the data entry work in particular she experienced further pain. 25. From the evidence before me I do not believe her injury should be categorised as a disease, but rather series of injuries as a result of her employment, and thus I believe an apportionment exercise should be undertaken. Whilst there was an onset of symptoms in November 1995, worsened in the period to January 1997, the applicant continued to perform data entry and repetitive work up to October 1999. In my view each insurer should bear the liability in equal proportions noting each period of risk, and noting onset of symptoms in late 1995. 26. I am satisfied the applicant has 10 percent loss of the right arm at or above the elbow and I also accept her to have 7.5 percent permanent impairment of the neck in comparison to a most extreme case. 27. The provisions of s 68A have been raised. I am not satisfied on the evidence the applicant has any pre existing condition which would give rise to the operation of this section. 28. In respect of the provisions of s 67 I am of the view her claim falls in the lower end of the range. To that end I find her claim to be 1-5 in comparison to a most extreme case. 29. Accordingly there will be an award for the applicant in the sum of: $8000 in respect of 10 percent loss of the right arm at or above the elbow, and $3000 in respect of 7.5 percent permanent impairment of the neck in comparison to a most extreme case, both pursuant to s 66. 30. $10,000 in respect of s 67. 31. Costs pt 29. 32. I apportion payment of the compensation awarded in equal parts to each insurer. Mr T Ower instructed by McCrohon Bergseng appeared for the applicant. Mr R Page instructed by Glover and Glover appeared for the respondent in the interest of GIO Workers Compensation (NSW) Limited. Mr G Neilson instructed by Hickson Wisewoulds appeared for the respondent in the interest of Allianz Australia Workers Compensation (NSW) Limited.