Shane Arnold v Walcha Jockey Club Limited [2002] NSWCC 59

Compensation Court of New South Wales

CITATION : Shane Arnold v Walcha Jockey Club Limited [2002] NSWCC 59 Shane Arnold PARTIES : Walcha Jockey Club Limited Muswellbrook Race Club Limited Taree Race Club Limited MATTER NUMBER(S) : 38132 of 2001 JUDGMENT OF: Geraghty J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 01/05/02 DATE OF JUDGMENT: 05/01/2002

FOR APPLICANT: Mr B Mc Manamey instructed by MRM (Solicitors) LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr I MacFarlane instructed by P W Turk & Associates

JUDGMENT: 1. In his amended application for determination Shane Arnold claims a general award for payment of his medical expenses, pursuant to s 60, and a declaration as to reasonably necessary treatment already undertaken, particularly the treatment received since the insurer ceased payment of expenses in September last year. 2. The amended application for determination also seeks lump-sum compensation pursuant to s 66 and s 67, though this claim was not pursued and I stood it over to the pending list, reserving the question of costs. It would seem that at this stage any claim for compensation for brain damage has not been properly assessed. All losses and impediments should be assessed together. There are three respondents to this application, all three represented by Mr MacFarlane of counsel since they are all related to the New South Wales Thoroughbred Racing Board and come under their jurisdiction. 3. Mr Arnold has been a jockey for some years and has suffered a number of falls in the course of his employment with the three respondents. Mr MacFarlane conceded that he had suffered in these falls, so that the fact of injury and the circumstances surrounding the injury were not in question. He conceded that Arnold has suffered work injuries, that he continues to suffer the results of these injuries and that compensation payments by way of weekly benefits continued to date. Mysteriously, while these benefits continue, the insurer has ceased to pay the medical expenses. 4. Arnold gave evidence that he continues to have problems, especially suffering quite severe and frequent headaches and some confusion; especially with his neck, continuing to have constant pain and restriction (the restriction was demonstrated in court); and with his back, both his thoracic and lumbosacral spine, where, he said, he has constant pain and restrictions (again demonstrated in court). He also has problems with his right shoulder which none of the doctors have questioned. 5. Dr Ehrlich's reports are Exhibit 1. The first of these predates the cessation of payment of medical expenses and in it he diagnosed multiple strains and contusions to the past right shoulder rotator cuff syndrome. The second report followed an assessment in January 2002. Dr Ehrlich found that Arnold was hesitating a great deal with neck movement which was limited to little better than half the normal range of neck flexion; extension was possible; and rotation was limited to half the normal range. He observed that shoulder abduction was normal on the left side, but was about 30 degrees short of normal range on the right, and though the range was eventually quite normal, despite this, Dr Ehrlich considered that there was a 10 per cent loss of use of the right arm. 6. He observed that the upper limb reflexes were quite brisk and equal, without any sensory loss which he could identify. He recorded some restriction in the movement of the lumbar spine, though he noted that Arnold was able to sit upright on the couch with straight knees. In his conclusions, Dr Ehrlich found that Arnold's clinical features were characteristic of what he found in individuals who were attempting to project an image of being injured but without any underlying organic explanations. He observed that there was no clear reason why Arnold should have limitations of his neck or spine movements. These limitations could be demonstrated to be inconsistent. In view of his conclusions and findings, Dr Ehrlich was of the opinion that there was no real basis for any physical treatments. A period in a pain management in-patient unit might be useful, he thought, in order to demonstrate that a better range of movement and general activity was possible and to benefit from the general fitness improving programme. So he supported the recommendation that Arnold should be involved in some in-patient pain management unit. 7. He concluded, having seen a report of Dr Isaacs of 10 October 2001 (which he studied with interest), that he was unaware of what benefits physical therapies could have two years after any injury, particularly in view of the major doubts about the organicity, if any, in Arnold's situation. In summary, Dr Ehrlich stated: This gentleman has a history of multiple injuries in the past but now has widespread symptoms which cannot be explained in organic terms as the consequence of his past injuries and the examination findings are grossly inconsistent and not such as can be explained in organic terms. 8. All the treating doctors and therapists disagree. I have the reports of the general practitioner Dr Giordano (Exhibit A), the opinion of Dr Isaacs (Exhibit B), a well known orthopaedic surgeon, and another orthopaedic surgeon, Dr Bruce White. Reports are now Exhibit C. The report of the clinical neuropsychologist Sue Packer is Exhibit D; the report of a psychologist, Roslyn Barnard, of November 2001, Exhibit F; the report Julie Hendy, a neuropsychologist and case management expert, is Exhibit G; the physiotherapist who is providing treatment, Philip Grisold, Exhibit H; and finally a report of Dr Ian Gardner, consultant occupational physician, dated November 2001, is Exhibit J. 9. Up until September 2001 Arnold was being treated, at the expense of the insurer, with remedial massage two or three times a week. He said that this provided some benefit, that it eased the pain and resulted in his consuming less medication. He seemed able to do more things. This remedial massage concentrated on the right shoulder, low back and thoracic spine. Before September 2001, he was treated irregularly by a physiotherapist. He sought this treatment when he suffered a flare-up of his symptoms and the treatment, he said, provided some relief, particularly when it was accompanied by remedial massage. At the same time as he was having remedial massage and physiotherapy (this was somewhat confusing) he said he was also doing some hydrotherapy work, three times a week. This had been recommended by his physiotherapist. 10. It would seem that after he ceased the remedial massage and the physiotherapy, his physiotherapist recommended an exercise programme to build up his muscles and strength. He was using weights and walking on a treadmill. This gymnasium programme resulted in some gradual improvement. The aim was to build his strength so that he would be able to swim, and particularly, to remedy his right shoulder problem. 11. However, most of the treatment ceased in September 2001 when the insurer refused to pay any further treatment bills. Arnold said that since that time, there has been a big change in his condition. He has experienced weakness, particularly his right arm. He has been able to do less things. He has tried to use the ride-on mower at home (where he has two acres which need mowing) but he cannot do this any more. His back, legs, shoulder and hands are all worse. He has begun taking more medication. He said that at the moment he is on four Panadeine Forte a day, once Cerebrex a day and Zoloft once a day. He is also using a TENS machine. 12. Dr Isaacs and Dr Giordano have both recommended that Arnold attend a pain management clinic to be taught techniques to deal with pain so that he mightl be able to reduce the medication which is causing some physical difficulty. At one stage he was involved in hydrotherapy treatment. He said that he is doing that himself now, attending classes and, from time to time, being assessed and reviewed. He said that this keeps a little tone and strength in his body and, even though he continues with hydrotherapy, he said that he was a lot better 12 months ago. For a time he also attended the North Coast Head Injury Service where he was being counselled for panic and anxiety attacks and he said that he received some relief from this service. 13. Exhibit K is a schedule of various accounts and travel expenses. When I asked Arnold what he considered to be the best concoction of treatment modalities, he said that he found in the past that regular remedial massage once or twice a week, some occasional physiotherapy when needed, particularly when he had some aggravation or flare-up, plus some attendance at the pain management clinic. When I asked him, Arnold did not add hydrotherapy but, in cross-examination, I gained the impression that he thought the best relief came from massage regularly per week, some irregular physiotherapy, and regular hydrotherapy three times a week (which he does himself now). This seems to be a reasonable and necessary amalgamation of treatments. 14. The difficulty with this case is that the insurer ceased payment of medical expenses and at the time payment ceased, the applicant was benefiting from the treatment. Since the insurer ceased payments, he has gone backwards and has been reduced to a gymnasium programme to build up his strength and to hydrotherapy to prepare him for swimming. It seems to me that had the payments continued for physiotherapy from time to time, massage regularly, and for hydrotherapy, he may not be in the position he is now, and that he would not have needed, for example, to do the gymnasium work. However, it seems that those treatments were necessary and reasonable in the circumstances because he did not have the finances to pay for massage and physiotherapy. The applicant is clearly in need of treatment. He is obviously disabled and in pain. I do not think that he has exaggerated his condition. He seemed to me to be aware of what has been happening and somewhat angry about the way he has been treated. 15. The question is - what treatment was reasonably necessary, and what treatment is now reasonably necessary? It seems to me that all the procedures on schedule A were reasonably necessary at the time they were untaken. As to what treatment is now reasonably necessary - it seems to me that the applicant has identified this for himself, namely, regular massage twice a week, hydrotherapy three times a week and physiotherapy when needed. I also consider that the recommendation of his treating doctors that he attend a pain management clinic is reasonably necessary. 16. As to the claims for travelling expenses - I have not examined these in any great detail. I simply propose to make a general order that the insurer pay the applicant's medical expenses pursuant to s 60; to make a finding, firstly, that the treatments he has received to date were at the time they were received reasonably necessary; further, that as at the present time, what is reasonably necessary is a concoction of treatment involving massage, hydrotherapy and physiotherapy; and finally, that it is reasonably necessary that the applicant participate in a pain management programme. 17. I order the respondent pay the applicant's costs. Mr B McManamey instructed by MRM (Solicitors) appeared for the applicant Mr I MacFarlane instructed by P W Turk & Associates appeared for the respondent