Anderson v Ingram Shearing Pty Ltd [2001] NSWCC 88

Compensation Court of New South Wales

CITATION : Anderson v Ingram Shearing Pty Ltd [2001] NSWCC 88 John Frederick Anderson PARTIES : v Ingram Shearing Pty Limited MATTER NUMBER(S) : 39088 of 2000 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 11/04/01 EX TEMPORE JUDGMENT DATE : 04/11/2001

FOR APPLICANT: Mr M J Perry instructed by McCabe Partners appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr P J Menary instructed by McCulloch & Buggy appeared for the respondent.

JUDGMENT: 1. Mr John Frederick Anderson of Young claims weekly payments of compensation from 30 November 1999 to date and continuing for either total incapacity, partial incapacity, or partial incapacity to be treated as total. He also claims lump sums under s 66 for 25 per cent impairment of his neck, 35 per cent loss of efficient use of his right arm at or above the elbow, 100 per cent impairment of his back and 100 per cent loss of efficient use of his right leg at or above the knee, together with a consequential lump sum for pain and suffering of $40,000 out of the statutory maximum of $50,000. 2. It is now 5.45 pm - I have sat on as I go on leave tomorrow and will not be able to return to this case until after finishing leave and returning from circuit at Parramatta, which would not enable me to deal with the matter again until 9 April, by which time I will have dealt with so many matters I shall have forgotten the facts of this case. I trust that if my reasons for judgment are rather more brief than they usually are, that brevity will be forgiven. The other thing to bear in mind is that Mr Anderson has come here to Sydney from Young for the hearing of this case, although this Court regularly sits at Young. 3. Mr Anderson is a shearer. He was born on 4 September 1958 and is currently 42 years of age. He left school at the age of 16 and the inference I draw is that he left school at the end of 1974. For the following two years he worked in shearing sheds as a shed hand which would occupy the calendar years 1975 and 1976. The applicant then embarked on the career of a shearer. He has sheared sheep until 29 November 1999 except for one year, 1983, in which he worked as a barman in a licensed establishment. All told on my calculations, between 1977 and the end of November 1999, the applicant has sheared sheep for 20.83 years and of those 20.83 years, 8.5 years were spent shearing sheep prior to 30 June 1987. The two periods can be roughly divided - 40 per cent to pre-30 June 1987 and 60 per cent to post-30 June 1987. 4. Mr Anderson first experienced back pain whilst shearing sheep in the late 1980s or the early 1990s. His experience of back pain caused him to wear a shearing harness, or as it is more usually referred to, a sling. However, the applicant did not use a sling whilst crutching sheep. It is clear from the evidence that antecedent to 1999, the applicant was attending upon a chiropractor and also a masseuse for treatment of his "shearer's back". 5. The applicant has obviously worked for many different people over the years. Indeed, he has worked for many different people in any one year. His last employer is the current respondent, Ingram Shearing Pty Ltd which I infer is a shearing contractor. On 1 November 1999, the applicant was crutching sheep for the respondent at a property known as Fontenoy near the village of Wombat. The applicant told me that he felt a sharp stabbing pain in his right shoulder. He did not stop work immediately, but worked on until about 2.45 that afternoon. There was work still to be done so that the applicant clearly finished work early. He went to his masseuse and had a massage, but the next day thought it necessary to see a chiropractor, Mr Richard Gordon. The applicant had a few days off work and returned to working at Fontenoy on 4 November 1999, again with pain but still experiencing some pins and needles in his right arm going down his fingers as well pain in his shoulder. 6. The work at Fontenoy cut out on 5 November 1999 and the applicant then worked at a number of sheds in the Delegate area for the respondent until Friday, 26 November 1999. On 29 November 1999, the applicant whilst still employed by the respondent, commenced crutching sheep at a property at Young owned by the Cordwells. The applicant worked for about one hour on that morning but was unable to continue. The applicant told that he experienced far too much pain in his right shoulder to enable him to continue. 7. It is clear that the applicant attended upon Dr Stephen Ross on that day. The applicant told Dr Ross of developing right shoulder pain which had prevented him completing his day's activities. The applicant did not give the doctor any history of trauma to the right shoulder girdle, the history was of a gradual onset of pain in the right shoulder of approximately one month prior to the consultation of 29 November 1999. The applicant told Dr Ross that the first day when he had to leave work due to the right shoulder discomfort was 1 November 1999. It appears to me likely that the onset of pain in the applicant's right shoulder was gradual, building up to causing the applicant to stop work on 29 November 1999, that is the almost contemporaneous history reported to Dr Ross. That history of course is to be contrasted with other histories such as that given to Dr Burgess of a specific incident around 10 am on the morning of 1 November 1999 when the applicant was shearing ewes and was about to start to shear a sheep when he felt a tearing painful sensation in the right shoulder. The applicant went on to tell Dr Burgess this: Somewhat startled by this, he moved his arm around in an endeavour to ease the discomfort and in an attempt to ignore it he went on to finish shearing the sheep. He knocked off at 2.45 pm instead of 5.30 pm because of progressive and increasing pain and painful loss of movement affecting his right shoulder. 8. There was no complaint to Dr Ross contemporaneously of any specific incident with any specific sheep and it seems likely to me that the history recorded by Dr Burgess represents a reconstruction of what happened to the applicant on 1 November 1999. Such reconstruction of events is common when people have to see doctors and give them histories and things become rather dramatised with the passage of time. 9. On examination on 29 November 1999, Dr Ross noted that the applicant had unusual posture with his right shoulder being held higher than the left. The applicant appeared to have an abnormal "clunking" sensation with movement of the right shoulder with a significantly increased arc of abduction of greater than 110 degrees. Dr Ross queried whether there was a partial subluxation of the right shoulder joint and arranged for some radiological investigations. 10. A plain x-ray of the right shoulder was performed on 3 December 1999 at Canberra. That is reported as showing degenerative change at the acromioclavicular joint with marginal osteophyte formation. There were two small, well corticated ossicles adjacent to the superior aspect of the acromiclavicular joint. However, no erosive change was seen nor could the radiologist detect any other abnormality. On the same day an ultrasound of the right shoulder was performed by Dr Flynn. Dr Flynn found the right acromioclavicular joint to be abnormal with calcification seen within the proliferating synovium with movement. Abnormal mobility of the acromioclavicular joint was demonstrated and to the radiologist thought appeared to be the source of the applicant's pain. 11. It is clear that Dr Ross saw the applicant on 6 December 1999 about his right shoulder condition. The next consultation with Dr Ross was on 14 December 1999 when the applicant told the doctor that his shoulder had not significantly improved over the recent weeks when he was resting. The next consultation with Dr Ross was on 13 January 2000. Dr Ross records this history: He had been completely resting up over the previous four weeks without playing any sport or domestic activity. He felt that his right shoulder was then pain-free and had no ongoing symptomatology related to it. 12. That history was put to the applicant in cross-examination who disagreed that it was given. I think it highly likely that that history was given. 13. Dr Ross noted a full range of movement of the right shoulder. The only abnormality on physical examination appeared to be a creaking sensation on abduction over the acromioclavicular joint. However, static load testing with one half kg weight with the arm held in abduction could only be tolerated on the right side for 60 seconds provoking pain in the right infra-spinatus region. Dr Ross thought that there could be myofascial trigger point in the right infra-spinatus and made an injection. On that day, Dr Ross certified the applicant as fit for restricted duties. 14. However, the applicant went back to see Dr Ross on 28 January 2000 and told the doctor that he "was now seeking a legal opinion and was now complaining of " further problems. The applicant complained of a problem with his right knee, of neck discomfort and of low lumbar discomfort. It is clear that the applicant did not complain to Dr Ross of symptoms in those areas antecedent to 28 January 2000. However, it is equally clear that the applicant had at least a complaint about his back prior to the development of his right shoulder symptoms because the applicant's statements of having symptoms in his back and of the need to use the shearing sling was not the subject of any cross-examination. Furthermore, it is common for shearers to have back aches and pains because of the heavy and arduous nature of their work which requires repeated flexion of a very great degree. As I have said in many previous judgments it is notorious that shearing is a back-breaking activity. However, the applicant fairly conceded that it was not the problem with his back or any problem other than his right shoulder which put him off work. 15. On 21 February 2000, the applicant was seen by Professor Peter Hall, a specialist physician. Dr Hall thought the applicant fit for a graded return to work and thought the prognosis was guarded. His diagnosis was of degeneration and arthritis in the right acromioclavicular joint. Professor Hall said this: The current condition has resulted from work-related problems grafted onto a congenital problem in the acromioclavicular joint. The condition could be reasonably considered 50 per cent work-related and 50 per cent constitutional. 16. On 4 May 2000, the applicant was seen by Dr Jeffery Hughes, an orthopaedic surgeon specialising in surgery of the shoulder and elbow. Dr Hughes accepted that the applicant had right acromioclavicular joint arthrosis. Dr Hughes expressed this opinion: This is almost certainly as a result of his heavy upper limb use as part of his normal occupation over a number of years. 17. As I read Dr Hughes' report of 4 May 2000 and that of 29 January 2001, Dr Hughes' view would put the condition of the applicant's right shoulder within s 15 of the Workers Compensation Act 1987. In the latter report, Dr Hughes said this: In my opinion, this condition is directly attributed to the significant sustained use of the shoulders as part of his normal activities as a shearer. Although the degenerative process is of a gradual onset, the precipitation of his symptoms and escalation of disability as reported by this patient is typical and consistent with the arthritic process seen at the acromioclavicular joint. 18. Dr Hughes in the same report suggested that the applicant undergo rehabilitation or retraining into some occupation other than that of shearer which new occupation did not involve "heavy sustained use of the shoulders, especially at shoulder height or above". Dr Hughes diagnosed a 30 per cent permanent loss of efficient use of the applicant's right arm at or above the elbow. 19. The applicant's solicitors have qualified Dr P R Burgess of Bathurst. Dr Burgess is an orthopaedic surgeon. Dr Burgess refers to the condition of the applicant's shoulder as being due to "wear and tear". If I read Dr Burgess' opinion correctly, I take the view that Dr Burgess supports the thesis put forward by Dr Hughes that this case is within s 15 of the Act. The applicant has been seen for the respondent by Dr Kim Edwards who believes that the condition of the applicant's acromioclavicular joint is purely constitutional. Dr Edwards appears to have accepted that the constitutional condition could have been made worse by the type of work that the applicant did as a shearer but thought that any such aggravation would have ceased by the time he saw the applicant on 7 September 2000. However, Dr Edwards thought it would be wise for the applicant to consider retraining into some form of work other than that of a shearer because of the problem in the applicant's right acromioclavicular joint. 20. Here there are a number of opinions suggesting the condition of the applicant's right shoulder is a disease of gradual onset caused by the type of work the applicant has been performing as a shearer over many years. There is the opinion of Professor Hall that there is an underlying constitutional condition which has been aggravated and that half of the current problem should be seen as being due to the aggravation of the underlying problem. Equally there is the opinion of Dr Edwards that any aggravation has ceased. 21. Not only is the work of a shearer back-breaking as I have said, but anyone who has ever watched the process, as this Court has, would realise that the shearers are constantly using a hand piece running the length of the piece over the body of the sheep, requiring repeated forceful downward movement with the hand. The applicant is right-handed and nothing suggests he has a similar problem without symptoms in his non-dominant left arm. 22. Dr Hughes is a treating doctor whose opinions are usually given weight by this Court. Equally, of the all the specialists involved in this case, he is the most qualified to tell me about conditions with the applicant's shoulder. I accept that the applicant does have a degenerative condition in his right shoulder which is caused by his work as a shearer, such that s 15 of the Act applies in this case. I accept that the applicant was totally incapacitated for work between 30 November 1999 and 13 January 2000 and that the applicant has been fit for restricted work thereafter. I accept that the applicant with the condition that he has in his dominant right arm ought not return to the arduous work of a shearer. 23. It was conceded by the applicant that what is keeping him off work is not his "shearer's back" or any other symptoms but rather the condition of his right shoulder. The question is what work could the applicant have done in some suitable employment? What would he have earned in some such suitable employment? The applicant had one year's experience of bar work. He was cross-examined to suggest he could do that work and he said that he might be able to do that, although he did not know whether he could stand an eight hour shift. 24. Under further cross-examination, the applicant conceded that given the normal work breaks and considering the fact that he can spend four hours standing up walking around a golf links, that he could probably do the work of a barman. The applicant himself said in re-examination that he had asked for work as a barman at the golf club of which he is a member but without success. I accept that the applicant could do and has been able to perform since 14 January 2000 work as a barman. The question is, what would the applicant earn in such employment? In my experience, such work is remunerated at approximately $13 per hour. For a 38 hour week, that represents an income of $494 per week and for 40 hours a week, represents an income of $520 per week. There is some force however in the submission that work of such nature might be casual or might require broken shifts. A feature of casual work, of course, is that it is remunerated at a much higher rate than the ordinary rate for a barman and broken shifts of course increase the earnings. I believe that the appropriate finding is that the applicant could earn in some suitable employment as a barman $500 per week. 25. Equally, the applicant conceded he could probably work as a console operator. The award rate for such work the last time I looked at it was about $428 for a 38 hour week, but average weekly earnings in that industry were for console operators greater than $500 per week. Hence I feel quite confident in finding that the applicant's residual earning capacity is $500 per week. It is agreed that probably his earnings but for injury had been at all material times $638 per week, such that the applicant's economic loss is $138 per week. During the total incapacity I found, he is entitled to the current weekly wage rate. That has been agreed as being $801.07 per week which is rather surprising. It is rather surprising the applicant is entitled to a current weekly wage rate which exceeds by far his average weekly earnings, but such is the capricious operation of the Act. 26. I turn now to the applicant's claim for lump sum compensation. I have three assessments of the loss of efficient use of the applicant's right arm at or above the elbow. They are a 30 per cent loss from Dr Hughes, a 35 per cent from Dr Burgess and a mere 4 per cent from Dr Edwards. To a large extent doctors are in the hands of their patients when they make assessments of such losses and impairments. So is the Court. Here the applicant has been cross-examined at some length about his golfing activities. The applicant did not appear to me to present with the candour that I expect of injured workers. For example, the applicant gave this history to Dr Edwards: He said he passes his time by doing little of an active nature. He said he has had ` a few games of golf' but said he can only play 9 holes and then the pain is ` too much' . His last game was two weeks ago. He said he just sits around. 27. It is clear that the applicant put himself forward to Dr Edwards as only being able to manage 9 holes of golf. The reality is otherwise. The applicant admits to returning to playing golf in May 2000. He admits to probably playing at least once a week, sometimes twice a week. He admits to playing 18 holes of golf. He admits to going to other towns in which to play in competitions for his golf club. The applicant was not at all comfortable in answering the cross-examiner's questions as to the accuracy and reliability of the history that he gave to Dr Edwards. It is important to bear in mind furthermore that Dr Edwards thought that the applicant's presentation to him was marked by some histrionics, the doctor referring to the applicant's movements being accompanied by deep sighs. 28. It is clear the applicant became aware that his activities were being observed. The activity that he was then performing was playing golf. He admits that he played 9 holes of golf and then had started playing on the first hole which was the 10th hole to him when he noted the investigator's vehicle draw up near in a position to observe him and he then left the golf links for the clubhouse. The inference to be drawn is the applicant feared that his activities might show something inconsistent with his presentation. If the applicant had nothing to hide, there was no reason for him not to have continued to play golf. The applicant's dealing with that issue raised questions in my mind about his accuracy and reliability. I have come to the view that the applicant's symptoms are overstated. However accepting the pathology which the applicant has in his right shoulder, I think the loss is greater than 4 per cent, but not so much as the 30 per cent certified by Dr Hughes. 29. Doing the best I can, I believe that the applicant has a 20 per cent loss of efficient use of his right arm at or above the elbow. 30. This brings me to the application of s 68A and s 68B. S 68A of course has no application in this case because I found the condition was caused by the work and there is no suggestion of any other injury or the like. However, s 68B must be applied. I am required to lower my finding under s 66 to reduce it by that part of the loss that can be attributed to work performed prior to 30 June 1987. In that regard, one can refer to my decisions in Miller v Skinner (1998) 16 NSWCCR 222 and Brown v Barnard & Brown Pty Ltd (1998) 17 NSWCCR 275. The extent of the deductible proportion is of course a question of fact and not of law. Factual evidence might be adduced and certainly was in the case of Brown but has not been adduced in this case. It appears to me that the approach I adopted in Miller v Skinner ought be applied in this case. That approach is set out in par [20] of the judgment at page 228. 31. Mr Mark Perry for the applicant in this case makes the same submission that Mr Taylor made in Miller v Skinner, that is, that I should more heavily weigh the end period of time because that is when the condition became symptomatic. However, there are other considerations to be borne in mind and they, for example, are set out in the same paragraph in that earlier judgment and I need not reiterate them. It is all the applicant's work as a shearer which is implicated in the development of the current arthritic condition in his right shoulder. As I have earlier stated, 40 per cent of the applicant's work was prior to 30 June 1987, so that my finding under s 66 requires that it be reduced to 60 per cent of the 20 per cent, which if my mathematics be correct, is 12 per cent loss of efficient use of the applicant's right arm at or above the elbow. 32. The applicant's remaining claims are for his neck and back. The applicant's neck is affected with cervical spondylosis. It would be unsurprising if a shearer in his early 40s who had been shearing sheep since the age of 18 did not have cervical and lumbar spondylosis. It is clear that the applicant has complained at times of some referred symptoms into at least his right arm. For example, when the applicant saw Professor Hall on 21 February 2000, the applicant told Professor Hall that he had had two attacks of pins and needles in the right arm radiating down to all five fingertips. Such symptoms would not be explicable by arthritis in the shoulder but rather by some radicular problem. 33. Dr Hughes also has a history of the applicant having some pins and needles and he specifically noted that they were in the distribution of C6/C7, but Dr Hughes noted when he saw the applicant on 4 May 2000 that those symptoms had gone away. With cervical spondylosis one can accept that there would be referred pain from time to time of that nature. 34. Dr Burgess asked for the applicant to undergo some radiological investigations of his neck. Both plain x-ray and CT scan were performed on 8 June 2000. They clearly show widespread osteoarthritic changes throughout the applicant's cervical spine. It is to be recalled in the process of shearing, the shearer holds his neck flexed forward for prolonged periods of time. Dr Burgess thought the applicant had a 25 per cent impairment of the neck. Dr Burgess thought the applicant had frankly injured his neck on 1 November 1999, but I am unable to accept that. He thought that the applicant's problems could be put down to "wear and tear" by which I infer he means the sort of activities that a shearer does in the course of his work. 35. Dr Edwards on the other hand thought that the applicant had degenerative changes of a constitutional nature in the cervical spine. He thought that if the applicant's limited movements which he noted on physical examination were genuine, that the applicant had 8 per cent impairment of his neck compared to a most extreme case. An 8 per cent impairment of the neck would explain some minor ongoing symptoms. Dr Burgess' 20 per cent impairment of the neck would indicate some major discal pathology which is not warranted considering the nature of the symptoms of which the applicant has complained. I accept the applicant does have an 8 per cent impairment of his neck caused by osteoarthritis due to the work of shearing. That must also be reduced by 40 per cent for reasons I have given concerning the condition of the applicant's right arm. If my mathematics be correct, that means the applicant is entitled to an award for 4.8 per cent impairment of his neck. 36. The back problem clearly has caused the applicant intermittent symptoms with the passage of time. Here, Dr Burgess arranged for some x-rays which again showed widespread osteoarthritic changes throughout the lumbar spine, although it is suggested radiologically that there was a broad based disc bulge at the L4/5 level which appeared to fill the right L4 neural exit foramen. The radiologist goes on to comment: Presumably there is significant impingement on the nerve root at [that] level. That is a major presumption for a radiologist to make. I have only two reports about the applicant's back. Noteworthy is not so much the opinion but the findings on examination. Dr Edwards said this about his examination of the applicant's back: