Charles Opie v Rail Services Australia and State Rail Authority of New South Wales [2001] NSWCC 161

Compensation Court of New South Wales

CITATION : Charles Opie v Rail Services Australia and State Rail Authority of New South Wales [2001] NSWCC 161 Charles Opie PARTIES : Rail Services Australia State Rail Authority of New South Wales MATTER NUMBER(S) : 40070 of 2000 JUDGMENT OF: Geraghty J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 07/02/2001 EX TEMPORE JUDGMENT DATE : 02/07/2001

FOR APPLICANT: Mr A Reoch instructed by Ron Kramer Associates appeared for the applicant LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr G Beauchamp instructed by Dexter Healey appeared for the first respondent Ms Chapman instructed by Holman Webb appeared for the second respondent

JUDGMENT: 1. Leonard Charles Opie claims lump-sum compensation, pursuant to s 66 and s 67, for total loss of use of his right index finger, together with payment of his medical expenses and (dependent upon the finding of this Court, if it is found that the loss results from an injury in January 1990), interest from 15 March 2000. 2. The applicant based his claim on two incidents: the first in the employ of the second respondent, on 22 January 1990, and the second in the employ of the first respondent, on 30 October 1997. The applicant's was transferred from the second to the first respondent on 1 January 1996, there being no changes in his duties or the place of his employment. It was agreed between the parties Opie has lost his right index finger, and that the loss amounts to 100 per cent. 3. The issue between the parties amounted to a dispute between the first and second respondents as to whether any apportionment should be made and, if so, to what extent. 4. Opie was employed by the State Rail Authority in January 1977, as a labourer to begin with, and later as a machine operator. On 22 January 1990 he was hammering a tamping tool when the end of the tool splintered and entered his right forefinger. He consulted Dr Chan who referred him to Dr Kai Lee. He performed the first of a series of surgical interventions on 1 March 1990. 5. That first operation provided only temporary relief. Opie said that thereafter, his finger was somewhat stiff and sore. From time to time he noticed some swelling. Dr Chan referred his patient to Dr Caspary who carried out surgery on 24 July 1990. [See the report of Dr Caspary (Exhibit B)]. Opie returned to his duties and worked on until about 1997. He said that during this time, his finger was always stiff and sore, that he noticed it was slightly swollen. He carried on, he said, without problem performing his full duties, taking pain-killers from time to time. He said that on a number of occasions (quite a few times), he would bump his finger at work. He would notice a flare-up. His finger would be sore and painful, somewhat stiffer, for a number of days but the condition would resolve. 6. However, when working for the first respondent on 30 October 1997, he bumped his finger again getting into the bus and noticed that his finger was very swollen and very sore. He said that his wrist became sore and that he was in a lot of pain. He consulted Dr David Yee on 13 November 1997 and underwent further surgery on 5 December 1997. He continued to work from about January 1998, on selected duties, but these duties were selected because of unrelated and other injuries. He said that after December 1997 and after the surgery at the hand of Dr Yee, he had been in considerable pain. He began to lose movement in his right index finger and he could not, for example, hold a sledge hammer. However, Dr Yee's report of January 1998 (part of Exhibit C) reports that on review Opie's index finger was much better, though he did note there is very little swelling. 7. On 6 August 1998 there was a sudden flare-up, unexplained and not pleaded as a work incident. Dr Yee performed surgery again on 11 September. Further surgery was proposed, and a second opinion was sought from Dr David Dilley in October 1998. Opie underwent a fusion of the right index finger on 9 October. On 27 October, in surgery, the wires and pins were removed, but he continued to suffer continuous pain. On 12 March 1999, Dr Masson removed the right finger. Opie said that he now suffers a loss of grip, that there is tenderness in the hand, and sometimes down the arm and a phantom pain. 8. I raised with counsel the possibility that the applicant should have an assessment of the loss of use of his right hand. He has only claimed a loss of use of the index finger, and the application for determination has not been amended. It seems to me that the appropriate assessment should be the loss of use of the hand. However, since that was not pressed, I propose to confine my assessment to the loss of use of the right index finger. I have seen the applicant's hand. There is no doubt he has lost the whole of his right index finger, and the knuckle at the base of it. 9. The treating doctor, Dr Yee's, reports are Exhibit C. He reported that in November 1997 Opie had been examined by him, that he had been relatively well until a week previously when he very likely bumped the dorsum and it (the finger) swelled with increasing pain in the pip joint. A fortnight later the applicant had not improved, and Dr Yee thought that he would probably need a joint synorectomy and removal of foreign bodies. On 5 December 1997 Dr Yee carried out an exploration of the right index finger, with removal of a residual stitch and excision of gouty tropus. On 6 January he reported that his patient was much better, though there was some swelling, it would seem. On 8 September 1998 Dr Yee reported that there had been an acute flare-up of the right index finger with sudden pain and swelling on 6 August. There was very little motion and this was related to pain. The finger was very swollen. On 11 September 1998 the doctor reported an exploration of the right index finger pip joint. By the end of September 1998, he reported that Opie was having considerable pain in his finger and questions were beginning to be posed as to what he was going to do. He reported the arthrodesis on 9 October 1998, and some time after, the finger was removed. 10. Dr Hersch's reports are Exhibit G. He does not provide a percentage apportionment between the two incidents but he does state that the condition was consistent with the stated cause and subsequent treatment. He thought that the injury of 1997 had caused an exacerbation of a pre-existing condition. The only assessment of any apportionment is that of Dr Connelley (Exhibit 1) who apportions at 50-50 between the two incidents, and of Dr McKessar (Exhibit 2) who apportions it 100 per cent to the incident of January 1990. I do not consider that either of these opinions as to assessment reflects the history provided to me, and particularly, Dr Connelley's report does not seem to contain a proper history of the condition, particularly as at January 1998. However, it does seem to me that each incident did have some causative contribution to make to the condition and to the loss of his finger. 11. Doing the best I can with the evidence before me, it seems that the proper apportionment is as follows: the first incident is responsible for 80 per cent of the applicant's loss, and the second incident 20 per cent. I therefore make the following findings and award: 12. (1.) The applicant suffered an injury to his right index finger on 22 January 1990, and an exacerbation of that injury on 30 October 1997. 13. (2.) As a result of the incident of 30 October 1997, the applicant has sustained a permanent loss of his right index finger of 100 per cent. 14. I make an award against the first respondent in the sum of $21,000. 15. Having regard to the degree of pain and suffering, and the maximum amount to be paid in a most extreme case, I award against the first respondent pursuant to s 67, the sum of $12,000. 16. (3.) The applicant's loss was partly the result of the incident of 21 January 1990, and partly the result of the incident of 30 October 1997. 17. (4.) I apportion liability between the two incidents on the bases of 80 per cent and 20 per cent. 18. I order that the first respondent pay the applicant's medical expenses, and apportion medical expenses on the basis of 80 per cent and 20 per cent also. 19. I order the first respondent to pay the applicant's costs and apportion those costs on a 50-50 basis. 20. I note that the awards are against the first respondent, with an apportionment which means that the second respondent pay to the first respondent and amount equal to 80 per cent of the awards and 50 per cent of the costs. Mr A Reoch instructed by Ron Kramer Associates appeared for the applicant Mr G Beauchamp instructed by Dexter Healey appeared for the first respondent Ms Chapman instructed by Holman Webb appeared for the second respondent