Styles v Southern Meats [2001] NSWCC 82

Compensation Court of New South Wales

CITATION : Styles v Southern Meats [2001] NSWCC 82 revised - 04/09/2001 Zane Styles PARTIES : v Southern Meats Pty Limited MATTER NUMBER(S) : 36844 of 2000 JUDGMENT OF: Truss J CATCHWORDS: Proceedings to Obtain Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 20/03/01,16/05/01 DATE OF JUDGMENT: 05/23/2001

FOR APPLICANT: Mr R Hanrahan instructed by Galland Elder Lulham LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr T Gotterson instructed by Moray and Agnew

JUDGMENT: 1. The applicant claims weekly payments from 7 October 1998 together with lump sum compensation under s 66 and 67 for permanent loss of the efficient use of the right arm. He relies upon the nature and conditions of his employment between August 1992 and March 1999 as well as a frank incident on 23 September 1998. The principal issues in the case were the nature of the injury, incapacity and whether the applicant has sustained the permanent loss claimed. 2. The applicant was born on 13 June 1975 and is right handed. He has a dependent partner and child born 14 March 2000. He commenced with the respondent in August 1992 as a slaughterman/labourer. His hours were 6 am to 2 pm with two half hour breaks and occasionally he worked double shifts on Monday and Friday evenings. The applicant's evidence as to the nature of his duties was uncontested and involved alternating each half hour between removing sheep's stomachs and then lungs. He generally removed about three hundred of each every half hour. The carcasses came along the chain and the applicant held the carcass with his left hand and pulled hard on his right hand to remove the stomach which was then placed onto a conveyor. To remove the lungs he first made three cuts with a knife held in his right hand to remove the surrounding skin, pulled with his left hand and then cut around the heart which was removed and placed on a table. 3. There was some variation in the speed of the chain in that if there had been a breakdown it was then speeded up to make up for lost time. If the workers did above quota there was a bonus which was split between the slaughtermen of which there were up to 30 working on one chain. The applicant said that his team were generally over quota each day. 4. For a few months prior to September 1998 the applicant said he was experiencing pins and needles in the tips of the fingers of his right hand at the end of the working day. Then on 23 September 1998 whilst pulling a stomach out of a sheep he was aware of tingling, pins and needles and a snapping sensation in his right arm. He went to first aid where his wrist was bandaged and he finished the shift of which only about half an hour remained. He tried to work the next day but his hand locked up so he attended at the Goulburn Base Hospital where his wrist was noted to be mildly bruised, swollen and tender over the distal radius and lateral aspect and the extensor and abductor tendons of the thumb. Wrist and thumb movements were reported to be normal but the latter were accompanied by pain. The diagnosis was stated to be wrist strain due to overuse injury. He was given a certificate for two weeks and returned on 7 October 1998 working full hours but on light duties. These involved handing out uniforms with which he had some difficulty as it was necessary to use two hands and to work at a quick speed. He was also required to pick up rubbish and cigarette buts in the car park which he found demeaning and in fact contacted the union about it, cleaning the rails, working in the cool room, feeding sheep onto the rails and feeding carcasses into a mulcher. He said he found this difficult as he could not do it one handed and kept striking his right hand. He also worked in the canteen and locker rooms and did some sweeping. 5. On 12 January 1999 at his request resumed normal duties. He said he was able to keep working with the assistance of pain killers but he was suffering from considerable pain in his hands and was starting to feel depressed. On 8 March 1999, at the end of a run, he walked out telling the union delegate that he could continue no longer. For the period from October 1998 until March 1999 the applicant said he suffered a loss of earnings because he did not do any overtime nor was he paid any bonuses and this evidence was unchallenged. 6. On 31 May 1999 the respondent's paymaster wrote to the applicant and said:- I am writing to advise you that our records show that you have not worked since the 8th March 1999, at which time you went on Sick Leave. You were due to recommence work after a period of two weeks. Presently I have received no satisfactory explanation for your absence after your initial period of absence. I take it that you have abandoned your position and so will terminate you employment effective from your last day of work if I have not heard from you by the 6th June 1999. 7. On 22 June 1999 the applicant responded and said:- Thankyou for your understanding on the sudden departure from my position, as various happenings have occurred. Which are being slowly resolved through councilling (sic) and anti-depressants etc With this being over I would like to be able to return to work (whether in my old position or not) as soon as I possibly can. 8. It is to be noted that the letter makes no reference to any problems with the applicant's arm. He said that this was because Dr McConnell had told him it would get better. He also said that the counselling was for increased marijuana use, due to arm pain, a matter to which I will refer later. 9. Since ceasing with the respondent the applicant has not actively sought employment. As I understand his evidence he considers himself to be virtually unemployable. He said he has told the CES that he needs help to find work he can do with the left arm only. He is currently studying for the school certificate by correspondence. 10. He said that there has been no improvement in his arm since ceasing work and he is unable to drive, due to weakness in his arm and because vibration causes pain. He also said he unable to pick up his daughter, play the guitar or write with his right hand. He said he has difficulty combing his hair which is quite long and pulling on boots. He said the pain keeps going up his arm but is worse at the wrist. 11. In the early stages the applicant's treating doctor was Dr McConnell whom he first consulted on 19 October 1998 after having previously consulted Drs Thorpe and Sivukumaram. On 21 October 1998 Dr McConnell performed a cortico steroid injection and arranged an ultra sound which was performed on 26 October 1998 and reported as showing no abnormalities. However it was said to be inconclusive due to the lack of a dedicated tendon probe in Goulburn. On 27 October 1998 Dr McConnell arranged a further ultrasound in Canberra with a tendon probe and arranged a forearm splint. The second ultra sound was also reported as failing to show any abnormality. His diagnosis was right forearm tenosynovitis. In his report of 7 December 1999 he said:- He was seen again on 13 November 1998 and was making slow progress but was doing very little with the right arm. This appeared to be partly due to muscle weakening and partly psychological with Mr Styles admitting that he had been stressing out over it. 12. Sometime last year the applicant changed his general practitioner to Dr Wilden-Constantin, who in April 2001 referred him to Dr Andrews, a consultant neurologist in Canberra. He noted moderate weakness of the small muscles of the right hand which he was unable to explain and arranged an MRI scan and neurological studies which were normal and which excluded thoracic outlet syndrome or cervical nerve root entrapment. He considered the weakness was either due to pain or was functional and observed that there was no associated wasting. 13. The applicant presented as a pleasant and courteous young man who gave his evidence in a direct and straight forward fashion. It was my impression that he genuinely perceives himself as being significantly incapacitated although the situation has been clouded somewhat by the psychiatric evidence to which I refer later and his history of marijuana use. He claims problems and restrictions of considerable significance in relation to his arm, for example he was cross-examined at length about the difficulties he has picking up and holding a two litre carton of milk. He gave evidence of occasions when his hand locks up when he attempting to do so causing it to slide out of his fingers whereas on the other occasions he is unable to make a grip at all. 14. As I have stated already the applicant has undergone extensive testing which as failed to reveal any abnormality. None of the doctors have found any wasting and any clinical findings are of a subjective nature and are quite diffuse. The applicant relies upon the extensive findings recorded by Dr Champion on pages four and five of his report. However these are all findings which depend upon the applicant's subjective responses to various tests. He said that on examination the applicant's features represented a complex presentation of peripheral and central neuropathic abnormalities without any clearly defined primary musculo-skeletal disorders. 15. In February 2000 the applicant was examined by Dr Bracken at the request of his solicitors. He noted diffuse tenderness at the wrist as well as altered and diminished sensation involving what he described as the hand in glove type distribution. He also expressed the following opinion:- … it seems probable that, as a result of his work activities on 24 September 1998, this man suffered a sprain of his right wrist which could have involved the region of the radial wrist extensor insertions over the dorsum of the carpus. He now shows a fully fledged hysterical conversion reaction in respect of his right arm in his entirety, especially in respect of the wrist and hand. Under these circumstances, residual permanent loss of efficient use of the right arm cannot be estimated. Any further treatment should be by a psychologist or psychiatrist. There is no indication that any further physical treatment will be effective. 16. The applicant gets some support from Dr Millons who examined him at the respondent's request in December 2000. In his long report he said:- In summary then I accept that he may have developed some tendonitis around the right wrist around September 1998 but believe that symptoms ought to have subsided within a few weeks at most. He claims his have not. His problems are really quite subjective and one is reliant on his statement as to his level of incapacity. He clearly perceives incapacity to be considerable. I find it hard to accept that. 17. Dr Millons did think that the applicant's marijuana usage would have clouded the picture generally. He also said:- It will clearly be a hard road a head to convince him that things are not as black as they may appear. At this stage I would accept that he was unfit to return to work as a labourer/slaughterman but perhaps with encouragement, reassurance and work hardening and eventual return to labouring duties could be achieved. It will need considerable input from him if that is to happen. Until he comes to terms with everything somewhat better than he seems to have done the prognosis will remain poor and it seems likely that he will continue to complain. 18. He was however prepared to give the applicant the benefit of the doubt and in his short report said:- I doubt whether genuine permanent impairment of Mr Styles right arm below the elbow would be anything more then 5% Non-organically it is probably considerably more than that. 19. The mainstay of the applicant's case is Dr Champion, rheumatologist. It is the applicant's case that he is incapacitated and the loss results from what Dr Champion describes as a chronic neuropathic or musculoskeletal pain syndrome. Counsel for the applicant submitted that this condition involves a malfunction of the central nervous system with consequent abnormal response to pain and involves a person becoming sensitised by behavioural factors. 20. In his report Dr Champion noted that the medical interpretation focused on musculoskeletal structures. He considered that some sort of peripheral neuropathic disorder was likely and that the most likely pathogenic mechanism was the stretch effect on the brachial plexus although he acknowledged that it was difficult to prove or refute the hypothesis and it is difficult to confirm it by investigations. Such diagnosis was expressly excluded by Dr Andrews the neurologist who arranged the tests to which I have referred. 21. Dr Champion said in his report in summary, Mr Styles has a work related chronic right arm disorder characterised by pain and dysfunction, mediated by peripheral and central neuropathic features. He considered the nature and conditions of his employment with the respondent in particular the incident on 23 September 1998 greatly increased the relative risk of this chronic pain disorder. He also states in his report that the management of peripheral neuropathic disorders is difficult but said that they have often been shown to benefit from tricyclic anti-depressant drugs, drug therapy with anti convulsants and a congnitive-behavoural pain management approach. 22. The applicant was referred by his solicitors to Dr Selwyn-Smith, psychiatrist, who reported on 2 August 2000. He said:- …It is important to emphasise that the symptomatology the patient displays is not intentionally produced nor feigned as in Factitious Disorder or malingering. The symptomatology cannot be fully explained by a general medical condition and causes clinically significant distress and impairments in social, occupational and other areas of functioning. Essentially the symptomatology is pseudo neurological in presentation and comes under the rubric of a somatoform disorder within the Diagnositic and Statisical Manual of Mental Disorders (4th Edition) of the American Psychiatric Association. In my opinion, Mr Styles psychiatric symptomatology can be more readily explained by the presence of a Chronic Pain Disorder resulting in psychiatric impairment and the more appropriate terminology in my opinion is that of an Adjustment Disorder with Depressed and Anxious mood arising from damage to his wrist. 23. The applicant's medical picture has been clouded by depression, which on his own evidence predated the work incident, as well as a long history of drug use. His counsel informed the court that it was the applicant's case that his psychological condition was probably originally aggravated by his work injury but there was improvement to the extent that it is no longer incapacitating. The applicant admitted in cross-examination that he was suffering from depression before he sustained any work injury. He attributed his depression to troubles with his girlfriend, the fact that his life was going nowhere and that at the meat works he was working long hours as a robot. On 25 February 1998 he had been treated at the Goulburn Base Hospital for a fracture to the fifth right metacarpal and possible fracture of the fourth when he struck his hand on the wall at home. He gave evidence that he was working on his car at the time, was feeling very frustrated and this was a reaction to both the problems he was having both with the car and with life generally. He said he was also upset about the fact that other workers at the respondent were being given upgrades to acting positions in front of him. 24. The applicant gave evidence that from at least 1996 he used about 20 to 30 cones of marijuana per day to help him relax and to relieve anxiety. He also claimed that following the injury he increased his use of marijuana to control the pain. However although his marijuana intake had become an issue in the early post accident period, it was not until he saw Drs Champion and Smith in 2000 that he claimed increased usage due to pain. In his report Dr McConnell said:- When seen on 11 March 1999 and it had become clear that he was suffering major depression associated with heavy marijuana use which had really predated the injury described above. Unfortunately treatment of this latter problem has been slow and frustrating with failure to use marijuana less than once a day. 25. In early June 1999 Dr McConnell referred the applicant to Dr Bandari, a psychiatrist who recorded that the applicant said he had been feeling depressed for approximately the previous 12 months and claimed that that injury in September 1998 made his mental state worse and that his mood deteriorated once he left work. Dr Bandari also recorded a heavy use of cannabis mainly for at least the previous three years which the applicant had used to self medicate both anxiety and depressive symptoms. There was no reference to it being used to alleviate pain. 26. In his report of 10 June 1999 Dr Bandari considered that the applicant was suffering from a substance induced mood and anxiety disorder and said that he also described many symptoms consistent with the amotivational syndrome which has been described with chronic cannabis abuse. He considered the applicant's diagnosis required further clarification and considered that he needed to decrease his use of illicit substances before a diagnosis of major depression could be made. Although the applicant saw Dr Bandari on two further occasions the evidence tendered only related to the first. The applicant said he did not benefit from his treatment. However he agreed in cross-examination that all of the doctors have told him to reduce his marijuana use which he said he has now done significantly in view of the responsibility of being a parent following the birth of his daughter in March last year. He said he now uses it only about once per week to a fortnight. 27. Having regard to the totality of the evidence I am satisfied that as a consequence of the work which the applicant performed for the respondent and in particular the frank incident on 23 September 1998 he sustained tendonitis to the right wrist. Whilst I further accept that in the early stages the injury is likely to have produced symptoms and restrictions of some significance I do not consider that the current symptoms and restrictions of which the applicant complains are readily explicable by the diagnosis of tenosynovitis especially given his evidence that for the last two years he has tried to avoid using his arm. It is abundantly clear from the evidence that psychological factors now play a significant role in the applicant's presentation although I am not persuaded that he is deliberately malingering or feigning his condition and I have already referred to his pre-existing depressive state and to his drug use. I am not persuaded by Dr Champion's opinion nor by his large assessment of 40 per cent which I consider to be extremely high given that there are no objective findings and that all investigations to date have proved to be normal. Nevertheless, like Dr Millons I am prepared to give the applicant the benefit of the doubt and to accept that he still has some symptoms and restrictions referable to mild tenosynovitis which should be reflected in a very modest award under s 66 which I determine at 5 per cent. This finding does not entitle the applicant to an award for pain and suffering under s 67. 28. I now turn to the claim for weekly payments. As I have already observed, the applicant considers himself to be virtually unemployable, as does Dr Champion. I consider him unfit for his pre-injury duties which as I have already observed involved forceful and swift repetitive movements of the right arm. However I do consider the applicant to be fit for a wide range of full time employment in respect of which the only qualification I would impose is heavy and repetitive use of the right arm. 29. S 40 requires the Court to assess the weekly amount which the applicant has been able to earn in some suitable employment in the general labour market reasonably accessible to him having regard to the matters referred to in s 43A. The applicant left school before completing year nine and for three years was a trainee in the management program at McDonalds. He then worked as an apprentice butcher before joining the respondent in 1992. I consider that the applicant would be fit for full time work including light process work as a storeman or in a store or restaurant. I also see no reason why he could not work in a butcher shop if his duties involved both preparation of meat and serving customers. The only form of potential employment which occurred to the applicant was at a radio station. 30. For the period 7 October 1998 to 8 March 1999 I am satisfied that the applicant's actual earnings represent the extent of his ability to earn on the open labour market. As to the period 9 March 1999 to date, taking all of these matters into account and in the exercise of my discretion I find that the amount that the applicant has been able to earn in suitable employment is $450 per week. His probable weekly earnings are agreed at $583.70 up to 30 June 2000 and thereafter at $595.40 and in my view the arithmetical differences between the two sets of figures bears such relation to the amount of reduction in his weekly earnings as appears proper in the circumstances of the case. I am unaware of any factors which require me to exercise my discretion to further reduce the arithmetical differences. I FIND THAT: 1. On and prior to 23 September 1998 the applicant suffered injury to his right forearm in the course of his employment with the respondent and his employment was a substantial contributing factor to the injury. 2. He was totally or partially incapacitated thereby and paid wages or compensation until 6 October 1998. 3. He has been partially incapacitated thereby from 7 October 1998 to date and continuing. 4. His probable earnings uninjured are:- $572.28 per week from 7 October 1998 to 8 March 1999 $583.73 per week from 9 March 1999 to 30 June 2000 $595.40 per week from 1 July 2000 5. His ability to earn in some suitable employment is:- $451 from 7 October 1998 to 8 March 1999 $450 per week from 9 March 1999 6. As a result of the said injury the applicant has suffered permanent loss of efficient use of the right (dominant) arm below the elbow equivalent to 5 per cent of the total loss thereof. I MAKE THE FOLLOWING AWARDS AND ORDERS in the applicant's favour: 7. AWARD for weekly payments pursuant to s 40 at the following rates:- $121.28 per week from 7 October 1998 to 8 March 1999 $133.73 per week from 9 March 1999 to 30 June 2000 $145.40 per week from 1 July 2000 to date and continuing. 8. AWARD for lump sum compensation pursuant to s 66 in respect of permanent loss of efficient use of the right arm below the elbow for $3,750. 9. I ORDER the respondent to pay the applicant's medical and the like expenses pursuant to s 60. 10. I ORDER the respondent to pay the applicant's costs. Mr R Hanrahan instructed by Galland Elder Lulham appeared for the applicant Mr T Gotterson instructed by Moray and Agnew appeared for the respondent