Burton v Pinex Pty Limited [2002] NSWCC 53

Compensation Court of New South Wales

CITATION : Burton v Pinex Pty Limited [2002] NSWCC 53 Mervyn J Burton Pinex Pty Limited t/as Benchmark Building Supplies PARTIES : Bowmans Building Supplies Pty Ltd BBC Hardware Leasing BBC Hardware (Port Macquarie) Pty Ltd B & J MCNamara Pty Limited MATTER NUMBER(S) : 52570 of 2000 JUDGMENT OF: Geraghty J CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 29/04/02, 15/08/02 EX TEMPORE JUDGMENT DATE : 08/16/2002

FOR APPLICANT: Mr R Stanton instructed by Stacks (Forster) FOR RESPONDENT: LEGAL REPRESENTATIVES: Mr S Grant instructed by Sparke Helmore appearaed for the first respondent and for the second, third and fourth in the interest of Allianz Ms Goodman instructed by Leitch Hasson & Dent appeared for the second, third and fourth respondents in the interest of QBE Mr B Kelly instructed by Hicksons Lawyers appeared for the fifth respondent Mr S Flett instructed by Rankin & Nathan appeared for the sixth respondent

JUDGMENT:

20

1. Mervyn Burton claims weekly benefits from 17 June 1991 to 21 September 1992 (a period following his employment with the fifth respondent), weekly benefits from 19 February 2000 to date and continuing, lump-sum compensation for back impairment and loss of use of his left leg at or above the knee, payment of medical expenses and an award of interest pursuant to s 109 for the accumulated weekly benefits from 19 February 2000, but not for the earlier period. The Basis 2. The basis of the applicant's claim is that, due to the nature and conditions of his employment with the six respondents from 1 July 1987 to 31 March 1998, and in addition, as a result of two minor incidents with the sixth respondent in September and October 1997, he suffered a serious back injury which has incapacitated him. Periods of Employment 3. Burton was employed by Benchmark Building Supplies from 1 July 1987 to 30 June 1989. This business was owned over the period of employment by the first four respondents. These four respondents were insured by Allianz Workers Compensation (NSW) Limited from 1 July 1987 to 1 December 1988 (and in respect of that insurer I granted leave to Mr Grant of counsel to appear on behalf of the second, third and fourth respondents and he did not need leave to appear for the first respondent) and then by QBE Workers Compensation (NSW) Limited from 1 December 1988 to 30 June 1989 (and I granted leave to Ms Goodman of counsel to appear on behalf of this later insurer). Though the applicant was only working during the period of employment for five months (since he sustained a foot injury during with the fifth respondent and was away for several months while his injury stabilised and therefore was not working), Burton was employed by Forster Hardware, owned by Peter and Deborah Cary, from about October 1990 to 30 May 1991. The Carys are the fifth respondent. 4. This particular business was owned by another couple before October 1990 and for one month, the applicant had worked for them, though not doing any heavy work, only customer service. That couple, owners of Forster Hardware before October 1990, were not joined in these proceedings. Finally, Mr Burton was employed by B and J McNamara Pty Limited also in a hardware business, for five and 1/2 years, from 29 September 1992 until 31 March 1998. This company is the sixth respondent. Burton left this employ for reasons other than because of his incapacity. The Issues 5. The issues as they emerged in the hearing were as follows: the fifth respondent put in issue the fact of worker, questioning whether Burton ever worked for Peter and Deborah Cary in Foster Hardware. This matter was easy to determine since Mr Kelly of counsel had no positive instructions that Burton did not work for the fifth respondent. The question was simply put in issue. Burton said that he did. His evidence was convincing. He also said that he had a written reference from the Carys for the period of employment but that the reference was not brought to court. I was persuaded that the applicant, for the nominated period from about October 1990 to 30 May 1991, had been employed by the fifth respondent. 6. The principal issue was the question as to nexus between the applicant's present condition and his employment with any one of the six respondents. 7. The Court needs to decide whether the narrative told by Burton is best analysed as an injury simpliciter, or as a disease. If it were a disease, then B and J McNamara Pty Limited would carry the liability; if it were an injury simpliciter, then that company, the sixth respondent, might wear the liability, or it might be directed at Forster Hardware, the fifth respondent, or the first of the four respondents, or liability might have to be apportioned between all, or some of the employers. Consequently, an important issue was whether I should apply the provisions of s 16 and interpret the claim as based on an aggravation of a disease, or whether I should interpret the facts giving rise to the incapacity and impairment as an injury simpliciter and therefore consider the potential apportionment across the respondents. 8. Also in issue of course was the extent of any quantification of loss and impairment, the application of the provisions of s 68A, the extent of the applicant's incapacity. 9. There was no dispute that the applicant would be successful in his claim. There was dispute as to the extent of any success, but the fact that he was injured in employment was beyond question. The question really was - who bears the liability? For reasons which follow, I have determined that the fifth respondent bears the large proportion of liability, and that the remainder is to be distributed between the first four respondents and their insurers. For reasons which I will give, it seems to me that the fifth respondent should bear 75 per cent of the liability, and of the remaining 25 per cent, I have apportioned liability - 20 per cent as to Allianz, and 5 per cent as to QBE, making no distinction between any of the first four respondents. The Applicant's Evidence 10. I found the applicant's evidence impressive and trustworthy. He seemed to be a man ready to make admissions against interest. He seemed to be seriously trying to be an accurate witness. I sensed no attempt to exaggerate or embellish his evidence, and I concluded that he was keen to perform to the level of his capacity, to work despite his injury, to live his life to the full within the limits of his condition. 11. Mr Burton is now 47. He left school in year 9, at the age of 15, and, apart from two or three months when he was unemployed, he worked consistently from 1961 to 1987. He began his career in a hardware store where he worked for two or three years. This was followed by a six-year stint at a Ford car dealership where he was doing sales and clerical duties. He then worked for about a year and 1/2 in sales and customer service with a Nissan dealer. Consequently he has extensive experience in the spare parts department, though he said in his evidence that there has been a radical change in the identification of parts and the whole service itself has been computerised since he was employed in the industry. 12. The spare parts employment was followed by a five-year stint with the Nepean River's County Council where he worked as a tradesman's assistant - bending and lifting, spadework and a good deal of labouring. He then returned to the auto parts industry, as a salesman at Forster, until he was eventually employed by the first respondent, Benchmark, doing what he described as heavy work, similar to the duties at Forster's hardware. 13. When he joined Benchmark Building Supplies, he said that he had been in good health. He could not remember any back problems. He was playing tennis, golf, fishing on the weekend, and swimming daily. Over the period of this employment, he said, the owners of the business changed three or four times. There were changes in name, invoices, shirts and signage, but he continued to work for the same hardware store, from 7.00 in the morning till 5.00 at night, five days a week, and Saturday mornings (which was optional) when he worked from 8.00 till 12.00. 14. Burton was required to perform clerical duties as well as some heavy physical work such as loading and unloading cement, plasterboard and timber. The cement bags weighed up to 40 kilograms; the plasterboard came in 30 millimetres by six metre sheets. Some days, he said, he would lug 12 to 30 bags of cement. He estimated the plaster sheets to weigh between 50 and 70 kilograms. He was also required to lift and stack, load and unload Oregon and hardwood timber which he described as quite heavy and which required two or three people to lift. He also used to carry paint in 20, 10 and four to five-litre drums, as well as boxes of small tins of paint. 15. Burton claimed that gradually he began to feel a slight pain in his lumbosacral region on the left side. He described these as twinges. At times his back was sore while he was working and he sought treatment first of all from Keith Bastion, a chiropractor, then, after four or five months, he changed to Helen James who later became known as Helen Wilcock. 16. In 1989, while employed by one of the first four respondents, when a door landed on his right foot, he was away from work for six weeks. During this time, he said, he rested and his back improved. When he returned to work, he found there was someone else in the position he had occupied, so he was moved to another department and required to perform heavier duties for a period. He resigned from the employ of Benchmark on 30 June 1989. He observed that before his resignation, the rest which had been necessitated by the injury to his right foot seemed to help his back, but before his foot injury, he was still experiencing twinges in his low back and it was stiff from time to time. 17. After leaving Benchmark Burton tried to establish his own business, a car detailing business. It opened in January 1990, and ceased in September the same year. It closed because of the recession, and because jobs had dried up, but while working as a car dealer, he said, he had odd twinges in his back. This is not surprising because detailers need to work in awkward positions. He said that he had been assisted by other people in his business and that he had managed the work without too much trouble. 18. From about September 1990, Burton was employed in Forster Hardware where he worked till May 1991. For about a month of that period it was not owned by the fifth respondent, but for the first part of his work he was only required to be a sales assistant. He worked casually for this hardware store for about 24 to 36 hours a week. Doing the best he could, he said that he averaged about 30 hours a week. After about a month he moved from customer service (which he described as very light) to work similar to what he was doing at Benchmark. He had no problems with the first four weeks, but when his duties changed to heavier duties, he began to experience problems. He was carrying bags weighing 40 to 50 kilograms, bags of cement. He was loading and unloading materials. Gradually he found that his back was deteriorating and he needed treatment. Q. How was your back working there at Forster Hard - A. Well, the first few months it wasn't too bad but then I just finally slowly felt it getting worse. All down my left side was just aching like anything. I started getting really bad pains down my left leg and I was getting that bad I could hardly walk on it and I started dragging my foot behind me a lot. I was still getting a lot of physiotherapy treatment, chiropractic treatment and also acupuncture, just depending on who I could get the relief from at the time. Q. Was the acupuncturist you saw Mr Frank Degan. A. Yes. Q. As you understand, he is now deceased. A. Yes. Q. Did you get chiropractic treatment from Helen James. A. Yes. Q. Did you also see the local physiotherapist Mr Todd Tyter and Mr Wayne Gooley. A. Yes. (Tr p 17.) I will come to Mr Gooley's report in due course. 19. So while in the employ of Forster Hardware, the applicant began to experience serious backache, stiffness and a bad pain in his left leg. He began to limp and drag his leg. By about April 1991, the problem was so serious that others at Forster Hardware began to give him a hand. He ceased work there in May 1991. Why did he cease? He was asked by a customer to lift a bag of manure, but his back was too painful and the boss told him that he did not want anyone who was not able to lift, so he quit. 20. He was receiving treatment before May 1991, and the treatment continued into June that year. He suffered a serious onset of pain while being treated by Helen James. Q. On about 17 June 1991 were you undergoing a treatment in her rooms A. Yes. Q. Describe to his Honour the pain that you experienced in ... A. It was very excruciating. The whole left side of me, it just felt like there was nothing there. I could just feel this sharp pain all the way down to the ankle, into the toes, the back. I couldn't walk properly. I sort of actually had a walking stick at the time which I helped support and I laid on the actual bed in the chiropractor's room and I remember she had it up, laid me back, laid me down, tried to do whatever they normally do, like massaging and stuff like that, and as the bed lifted up, I just totally screamed, I never felt pain like it before. 21. The local doctor was called to treat Burton, but he didn't arrive. The ambulance attendant gave him 'heaps of pethidine and morphine to try and numb the pain to get him onto a stretcher to put me in the ambulance which took him quite a while'. 22. Burton was conveyed to Manning Base Hospital where he was examined by Dr Hopcroft and referred on to Dr Christie in Newcastle who took him immediately to surgery. After the surgery, the applicant underwent physiotherapy treatment. He received social security benefits and was looked after by the Commonwealth Rehabilitation Service for about six months. 23. On 21 September 1992, Burton was employed by the sixth respondent. This seemed to me to be a grace and favour employment. It was employment arranged by the CRS and accepted by the applicant on the understanding that there would be no heavy work. It was another hardware store. Burton worked for about three weeks in the office before beginning light duties in the shop. His hours varied. He worked five days a week, from 6 am to 6.30 pm. Sometimes he did some representative work on the road, but for the most part he was in customer relations, giving advice, providing information, fielding telephone calls, issuing invoices. There was however, some light physical work. He had to fill orders, so from time to time he had to slide Gyprock onto pallets and load material for customers. He described having to sometimes lift 25-kilogram buckets. He said that his back continued to deteriorate slowly. He was experiencing problems from time to time, on the left side of the low back and in the left leg. He often sought physiotherapy treatment. 24. The applicant gave evidence of two incidents while working for the sixth respondent. The first was in about September 1997 when he was being assisted by two others to pull a sheet of plasterboard, six metres by 1.2 metres, weighing between 60 and 80 kilograms. He was supposed to be loading it into a utility. He said that he did not notice any pain at the particular time. He got into a utility, drove somewhere and, he said, he began to experience pain within 10 or 15 minutes. He told the boss; he received physiotherapy treatment; he was away from work for four or five weeks and then returned to his normal duties. 25. A similar incident occurred in October 1997. He was being assisted to fill a small order by one of the other employees. He was kneeling on the ground sliding a sheet out when he experienced back pain radiating into the left leg. He said that at that time he could not straighten up. He reported the incident; he was away from work again for four or five weeks; he received physiotherapy treatment; he consulted his general practitioner Dr Laddin, was referred to Dr White (whom he saw on 25 March 1998) and returned to work on light duties. 26. Burton ceased working for the sixth respondent on 31 March 1998, as a result of what he described as problems with the boss. He resigned and paid back the money he had taken from the till, an amount between $3000 and $5000. At that time, he said, he still had back pain, back stiffness from time to time, and he continued to have problems in the left leg. He was paid compensation from April 1998 to 18 February 2000, compensation paid by the insurer of the sixth respondent. 27. From about October 1998, some months after leaving the sixth respondent, to January 1999, Burton was employed by Betterware, dropping booklets into letterboxes, picking up orders. This period of employment is not mentioned to in the agreed wage schedule (Exhibit J). 28. From 17 May 1999 to January 2000, Burton was employed by Rainbow Safety Posters as a sales representative for schools. He used to work in the Teagarden and Wauchope area, working variable hours, subcontracting his labour and, he said, his employer owes him money. He was supposed to be earning $340 per week, but he received only $100 and his employer owes him, he said, $1100. 29. From January 2000, Burton was employed as a sales representative for Apollo Blinds. He travels to homes and measures up blinds, working, he said, about 40 hours a week, receiving between $100 and $400 per week. His salary varies because he works on commission. It would seem from the agreed wage schedule (Exhibit J) that he is receiving about $262 per week. This figure is taken from his present taxation returns. 30. Burton complains that he continues to have pain on the left side of his lower back and in the left leg. He has hydrotherapy treatment five times a week and receives some physiotherapy. He said that some days he is free of pain, sometimes for two or three days at a time. The level of the pain varies and it becomes worse on activity. Walking uphill, for example, tightens his back; standing on concrete, standing for 30 or 40 minutes at a time, increases the pain. He is unable to run. His sleep is disturbed: he often wakes three or four times of a night. However, he continues to play minimal golf, three or four times a year. He is restricted because he has no time and no money and, he said, he has modified his golf swing to look more like a cricket-bat swing. He continues to exercise. He said that he is able to walk around the golf course and still able to coach junior soccer. The Medical Evidence 31. Exhibits F and 4 are radiological reports from April 1991 to May 1998. 32. The report dated 8 April 1991 showed a slight osteoarthritis and scoliosis of the facet joints at two levels, and that the lumbosacral disc space was slightly narrowed. CAT scan of 17 April 1991 showed some posterior protrusion of a disc - the protrusion being central and slightly to the left. There was also a mild impression within the spinal canal. The L4/5 disc showed a slight prominence in the central aspect, causing a minimal impression of the adjacent dural sac. The CT scan of 25 June 1991 (after treatment on 17 June by the chiropractor) showed considerable posterior protrusion of the central and left lateral aspect of the disc at L5-S1, including severe encroachment on and narrowing of the AP diameter of the spinal canal, especially to the left and centre. There was also severe compression of the left lateral nerve root with a mild impression on the contrast-filled dural sac. The CT scan of June 1991 formed the basis of the surgery conducted by Dr Christie. 33. There was a period when the applicant did not undergo any radiological investigation, from June 1991 to October 1997. On 7 October 1997, an x-ray showed mild scoliosis of the mid-dorsal region concave to the left, and an anterior wedging of the vertebral body at D8 which Dr Sheriff noted could be related to an old injury. There was also mild anterior wedging at D6. There was no severe compression, or structural bony abnormality, or paravertebral mass lesion. The disc space at L4-S1 appeared to be narrowed which, the radiographer said, probably related to disc degeneration. Disc prolapse, he thought, could not be excluded. 34. A CT scan in March 1998 showed some localised diffuse bulging of L3/4 disc into the left lateral recess. There was generalised bulging of the L4/5 disc, with a localised right posterior disc protrusion. This was causing an impression on the thecal sac at the same level. 35. Another x-ray in September 2001 showed some degenerative changes with osteophyte formation on the lumbar vertebral bodies. There was also some moderate narrowing at the L4/5, and some marked narrowing at the lumbosacral level. 36. Finally, a MRI scan of May 1998 showed some disc bulge at two levels, with some possible outer annular tear at both levels. There was no evidence of any recurrent disc protrusion at the lumbosacral level, but a small central disc bulge was detected. Dr Pedersen thought that there was some possible irritation to the left, at the L3 nerve root. 37. These radiological reports show serious problems in June 1991, problems which were somewhat remedied by surgery but not completely ameliorated. 38. The report of Mr Wayne Gooley from the Forster Tuncurry Physiotherapy Centre is Exhibit G. He reports that he began treatment on 23 April 1991. Burton had reported symptoms which were of four weeks' duration, taking him back into the employ of the fifth respondent. Mr Gooley also reported that Burton had given him a past history of recurrent problems over a period of four or five years. He continued to treat the applicant with physiotherapy. He recorded that over the four-year period, from the middle of 1991 through to June 1995, Burton was treated on 13 separate occasions for aggravation of symptoms relating to his lumbar spine. He noted that on 6 September 1995, Burton received further treatment as the result of a lifting injury at work two weeks previously. That injury had resulted in left-sided back pain and intermittent calf and ankle pain. He was treated again in October 1995, reporting a work-related injury which resulted in left, back and buttock pain. Those two incidents were referred to in the applicant's evidence. 39. Mr Gooley noted that his treatment was passive joint mobilisation and local modalities, and that the treatment would always settle symptoms, often after only one or two treatments was Burton's evidence. I should note that Dr Gooley's report of accidents in September and October 1995 undoubtedly refer to those which occurred in September and October 1997. His report continued. On 30 May 1996, Burton reported a further work-related, lifting injury with severe pain to the right iliac crest and groin. Bearing in mind the inaccurate dates of Mr Gooley, it would seem that 30 May 1996 should really read 30 May 1998, namely the day on which the applicant left the employ of the fifth respondent, for reasons other than an injury. In any event, Mr Gooley recorded that there were eight treatments over a period of three weeks, enabling Burton to return to his regular exercise programme. Wayne Gooley considered his patient unfit for work of heavy nature requiring bending and lifting. This opinion is reflected in all the medical reports. He thought it was unlikely Burton would tolerate a sedentary job which required prolonged sitting. He observed that over the years he had treated his patient, Burton had shown a willingness and persistence to work despite his obvious difficulties. This was also clear to me. Mr Gooley expressed the opinion that any incapacity for work duties was significantly worse following the lifting injuries in September and October 1995, and May 1996 (should be 1997 and 1998). He assessed 60 per cent permanent back impairment, 10 per cent loss of use of the left leg. 40. The medical practitioners were somewhat more conservative in their assessment. Dr Davis assessed 30 per cent back impairment and 10 per cent left leg loss; Dr Hyde-Page, 15 per cent back impairment and 5 per cent left leg loss; Dr Khan, 24 per cent back impairment and 10 per cent left leg loss; and Dr Clark, 15 per cent back impairment and 10 per cent left leg loss. On the applicant's evidence and on the various assessments, and - doing the best I can, the applicant has suffered a 20 per cent back impairment and a 10 per cent left leg loss. I propose to make those findings. And despite what Dr Khan has said, and any other opinion as to a s 68A deduction, it seems to me there is no evidence to support a s 68A deduction. The applicant had no memory of any back problem before his employment with the first four respondents. There was little evidence of any problem probably before 1987. He said that he had been in good health before 1987, and he was playing a lot of sport. I do not propose to make any deduction pursuant to s 68A. 41. Dr Christie was the treating surgeon, from July 1991. His reports are Exhibit A. He received a history of five years of intermittent back and left sciatica pain. That would trace the applicant's problem back to about 1986. However, Dr Christie observed that the problem had become much more severe in the six weeks preceding July 1991 and was now involving his left foot. Dr Christie said that the myelogram and post-myelogram CT scan showed a left-sided L5-S1 disc prolapse which cut-off the S1 nerve root. He operated and continued to treat the applicant, for example, on April 1998 when he said that as far as work were concerned, it had become fairly obvious that he would be unable to tolerate any work which involved heavy lifting, prolonged bending or twisting. In April 1998, the applicant had consulted Dr Christie with increased symptoms of back pain which he thought worsened in September 1997 after a lifting some plaster at work. The doctor said that prior to this incident, he seemed to have been managing reasonably well and was working as a sales representative. He reported episodic low back pain which in general had been managed fairly well with physiotherapy. 42. In any event, after the injury of October 1997 while in the employ of the sixth respondent, the applicant had returned to work and had worked on until the end of March 1998. He said that had he not been involved with honesty problems at work, he would still have continued there, and may even be there today. So he was obviously coping with that work. It seemed to me, as I have said, that this was a grace and favour position which, from time to time unfortunately, required a little extra strain, lifting boards. This would place strain on his back and cause some aggravation. I regard this aggravation as temporary, ceasing at least before payment of workers compensation ceased on 18 February 2000. 43. Exhibit B and Exhibit C and Exhibit 2 are reports of Dr White who treated the applicant in March 1998. Burton told the doctor that his back had been re-injured in October 1997 when he was lifting some plasterboard onto a truck. He had turned suddenly and felt pain in his left lumbar region, extending into his buttocks. The doctor noted that as at March 1998, Burton was still working on light duties. In Exhibit 2, he said that he pointed out to Burton: H e will have the exacerbations of his back pain like this in the future, however, they should be episodic and should resolve. 44. Such is the evidence of the treating doctors. 45. I turn briefly to the evidence of the medico-legal team. 46. Dr Davis saw Burton in February 1999. His report is Exhibit C. Mr Burton has a history of suffering an onset of low back pain which was consistent with a lumbar disc injury and consistent with the heavy nature of the work which he undertook at Benchmark Hardware. This injury was further aggravated and accelerated by the general nature and conditions of his employment and also by the work which he undertook whilst employed at Forster Hardware. He developed quite significant neurological symptoms affecting his left lower limb and treatment by laminectomy and decompression was entirely appropriate. Although he initially received quite a good result from this surgery he nevertheless suffered a further injury in aggravation of his difficulties while employed by B and M McNamara where he worked as the manager of the plasterboard shed and also as a sales representative driving a ute whereby his lower back was subjected to significant compression forces and static flexion. 47. Dr Davis thought, like all the doctors, that Burton was permanently unfit for his pre-injury employment. He also said, in a brief report of 12 February 1999, that the degree of incapacity was certainly related to nature and conditions and specific incidents at work. 48. Dr Scarf's was a report tendered by the fifth respondent. It is Exhibit C. There is mention of an original report of 18 September 2001 which does not form part of the evidence. However, Dr Scarf was of the opinion that the applicant condition was a disease of gradual onset. The lumbar spondylosis resulted from the reactionary changes associated with disc degeneration, and degenerative change in the facet joints was described as facet joint arthritis. He said that contributing to the deteriorating disease of gradual onset was the nature and conditions of work, that is, repetitive bending and lifting. He thought that the condition was made up of complex factors: one being the normal progressive deteriorating changes of age, superimposed upon the accelerating factors of the nature and conditions of employment over the years. 49. Dr Clark examined the applicant in September 2001. His report is Exhibit 1. He considered Burton had sustained a musculoligamentous strain in the low back some time in 1989 while employed with one of the first four respondents. The applicant had told him that in about May or June 1991, while undergoing treatment by a chiropractor, he had developed sudden, severe pain which radiated down the left leg. Dr Clark thought that following his post-operative recovery, the work over five years, in a job carrying plasterboard, he had developed further back pain which led to periods away from work. Dr Clark felt that Burton might have sustained a soft-tissue musculoligamentous strain on a number of occasions in 1989, but that his left postero-lateral disc protrusion at the L5-S1 level had occurred in May or June 1991, that that was the direct cause of his surgery, and that the 15 per cent back impairment and 10 per cent left leg loss as assessed were the direct result of that protrusion and subsequent surgery. 50. Dr Clare Khan examined the applicant in September 2001. His report (Exhibit D) is rather complex in its assessment. He thought that as a result of the work-related activities in the employ of the sixth respondent, Burton appeared to have sustained an aggravation of his back condition while loading a number of sheets of plasterboard and while driving a utility truck. He thought that these activities had led to recurrent back and left-sided sciatica symptoms. He observed that his conditions had been treated conservatively and that he had been cleared to return to selected duties for a while, but that he had resigned in March 1998. He has not had, any further back aggravations or injuries. Dr Khan thought that a pre-existing condition of degenerative lumbar spondylosis, a previous injury and back surgery in 1991 had partially contributed to any incapacity for work, by as much as 50 per cent. He then sets out in a smaller report of September 2001 his way of apportioning between the various employers and pre-existing constitutional degenerative changes. 51. Finally, Dr Hyde-Page examined the applicant in March 2002. His report is Exhibit E. The doctor thought that the disc prolapse was attributable to work done at Forster Hardware from 1990 to 1991. He did not believe that the applicant had suffered a disc prolapse while he was working for Benchmark. Furthermore, he did not believe that his employment after 1991, with the sixth respondent, or anywhere else since 1991, had any significant contribution to the applicant's present chronic back problems. Any aggravation that may have occurred while working for B and J McNamara in September 1997 and October 1997, has now ceased and the back symptoms he presently suffers are still directly a result of the injury suffered in 1991. 52. Having read all the medical evidence, I concur with Dr Hyde-Page in his opinion as to causation. The Question of Causation 53. There are a number of possible options on the question of causation. 54. Mr Kelly submitted that the best analysis of the facts is that the applicant suffers from a disease of gradual onset and that therefore the provisions of s 16 should be applied. He said that the applicant's back was aggravated by work with the first four respondents, with the fifth respondent (his client) (which led to surgery and improvement), that it was further aggravated with the sixth respondent, and that therefore the sixth respondent was the last employment to which this disease was due, since that respondent made a contribution, a real contribution, to the worker's condition. This is of course a possible scenario. However, in this case, it seems to me that the cause of the applicant's present condition is obviously in the employment of the fifth respondent. 55. The question of causation is a question of fact, to be determined by the dictates of common sense. It seems to me that the applicant clearly performed heavy work while employed by the first four respondents, and that while doing this work, experienced problems. He was able to continue with the work, but from time to time, he had some pain and back stiffness and some problem with his left leg which emerged in the late part of this employment. However, he did not suffer a serious disc prolapse with either of the first four respondents. He left them for other reasons, to begin his own business where he was able to cope with the work. Then in about June 1991, after having been employed by the fifth respondent, he suffered really quite severe, significant back symptoms and left foot drop. He was doing heavy work for the fifth respondent and, while there was no specific episode, his back got worse and worse, until it required treatment. It was in the course of one of these periods of treatment that Burton sustained a prolapse of the L4/5 which led to surgery. 56. The applicant worked for the sixth respondent in what I regarded as a grace and favour situation, and from time to time he suffered flare-ups. It was only what one would expect from the condition the applicant had sustained in June 1991. However, in general terms, he was able to perform his duties for the sixth respondent and, as Mr Gooley pointed out, when the flare-ups occurred, he was treated with one or two sessions and his symptoms would then ameliorate. 57. Burton left the sixth respondent, not because he could not do the work but for other reasons. 58. Mr Kelly submitted that if I was persuaded the applicant's present condition was the result of anything that happened before his employment with the sixth respondent, then it must have been the treatment in June 1991 which was the cause and not the employment with his client, and that while the treatment was of course the proximate cause of the applicant undergoing surgery, there is a direct line of causation back to the work he was doing with the fifth respondent. In doing his work, his back was getting worse. When his back worsened, he started receiving treatment, and it was in the course of that process of treatment (even after he had left the fifth respondent) that the applicant sustained the disc prolapse which led to surgery. The treatment was the direct result of the serious, significant deterioration which had occurred with the fifth respondent. 59. Doing the best I can, and applying what I regard as common-sense conclusions, it seems clear that the cause of the applicant's incapacity, impairment and loss was the work he was doing for the fifth respondent. Capacity and Comparables 60. A claim is made for a period from June 1991 to September 1992. It is for the period after the treatment Burton received at the physiotherapist (which resulted in the disc prolapse) and the period following the surgery conducted by Dr Christie on 4 July 1991. It was not contested that the applicant would have been total, if not for the whole period, for the major part of it. I had no assistance from any medical expert or from the applicant himself to assist me in determining when the period of total incapacity ceased. I only know that the applicant returned to the employment on 21 September 1992. He must have been at most only partially incapacitated for some time before that. Doing the best I can, I propose to find the applicant was totally incapacitated for six months after 17 June 1991, until 16 December 1991, and thereafter was partially incapacitated until he began employment with the sixth respondent. I note that the applicant has already been paid his current weekly wage rate of $350 per week or thereabouts paid by the insurer of the sixth respondent after his injury, by way of temporary aggravation, with that employer. 61. In the light of the findings I propose to make, namely, that the present incapacity results from the injury with the fifth respondent, and particularly as a result of the total incapacity from June 1991 resulting from work with the fifth respondent, I propose to award $350 per week as the current weekly wage rate for the 26 weeks of total incapacity as against the fifth respondent. 62. The question of comparables is resolved by the agreed wage schedule (Exhibit J), and I note that the agreed comparables range between $684 and $712 over the period. 63. I turn to the applicant's ability to earn. 64. Mr Flett submitted that the applicant's actual wage as set out in the agreed wage schedule is not a true reflection of his ability to earn, that he is working in the business of Apollo Blinds as a sales representative, on a commission basis only, and that he works 40 hours a week. Mr Flett submitted that he would be able to work as a clerk or as a shop assistant, 40 hours a week. It would seem to me, with his back condition, he would need some time off, from time to time, and that he does have serious limitations. 65. Mr Stanton submitted that normally I should accept the applicant's actual earnings as a true reflection of his ability to earn and that, if I do not, I should have to regard the applicant as avoiding work. I do not, in any circumstances, regard him as a shirker. I thought he was an enthusiastic, willing, keen worker. Mr Stanton referred me to J C Ludowici and Son Limited v Cutri 8 NSWCCR 219, particularly to a passage of the President's judgment at p 236. The amount that the worker 'is earning' will be the best measure of that capacity unless it is shown that what is earned is an inadequate reflection of the ability to earn. In that event only an alternative measure is substituted; . 66. It seems to me in the circumstances that what the applicant is presently earning, and in the circumstances of that employment, his present earning is an inadequate reflection of his ability to earn. Both Kirby P and Sheller JA considered that the correct approach was that if what the worker was earning, is not a true indication of what he is able to earn and is in fact less than that ability to earn then, and only then, should the Court make use of the second limb of par (40)(b) and consider what the worker was able to earn in some suitable employment. I am of the opinion that what the applicant is in fact earning, is not a true reflection of his ability to earn. I consider that in some suitable employment the applicant would be able to earn as much as $450, a notional amount. 67. I turn to the question of the exercise of my discretion. There are two reasons for exercising a discretion to diminish the mathematical difference between the comparable weekly earnings and the applicant's ability to earn. The first reason is the basis on which the applicant left the sixth respondent. It had nothing to do with his incapacity. He said that had he not been involved in some dishonesty with the sixth respondent, he might still be employed and still able to do his work there. Furthermore, there are serious limitations to the availability to work in the area in which the applicant resides. In the light of the exercise of my discretion under s 40 it seems to me that it seems to me that the mathematical difference should be diminished to $200 per week over the period. The Question of Apportionment. 68. I have found that the applicant's incapacity, impairment and loss results in the relevant sense from his employment with the fifth respondent. However, it seems to me that I must consider from what the incapacity, impairment and loss partly result. To a very large extent these result from the employment with the fifth respondent, but not entirely. The applicant sustained injury, by way of aggravation, due to the nature and conditions of his employment with the first four respondents. Doing the best I can, I have concluded that liability should be reflected in a portion of 75 per cent to the fifth respondent, and 25 per cent to the first four respondents. I have considered the period over which the applicant worked for the first four respondents, and that the serious condition emerged in the employ of the fifth respondent, and particularly as a result of treatment arising therefrom. 69. Furthermore, doing the best I can to apportion between the various insurers, it seems to me that bearing in mind the extent to which the applicant worked during the period of exposure by QBE, and particularly the fact that he had time off as a result of his foot injury, that QBE should bear 5 per cent of the 25 per cent liability, and Allianz 20 per cent. Costs 70. The only other question to resolve is that of costs, and particularly the costs of 29 April 2001. Allianz did not appear for the second, third or fourth respondent on that day, or for the fifth respondent. Allianz was present in the person of Mr Grant only for the first respondent. Allianz had been notified on a number of occasions by the applicant as to the need to put on answers and to be present for the hearing. It was submitted that as a result of its absence, the matter was part-heard in Port Macquarie and needed to come back to Sydney for completion. However, the matter could not have completed on that day in Port Macquarie. It took a full day of hearing on 15 June. It seems to me, despite the force of the application, that Allianz, in the circumstances, should not be required to bear the costs of 24 April, but that costs should just follow the normal course. Findings and Awards 71. (1.) That the applicant was employed by the fifth respondent from about October 1990 to 30 May 1991. 72. (2.) The applicant's incapacity, impairment and loss resulted, in the relevant sense, from his employment with the fifth respondent, due to the nature and conditions of that employment, so that his work for the fifth respondent had a cumulative effect on his capacity for work, his impairment and loss so that the last minor trauma or injury in that employment made a causative contribution to the resultant total incapacity, impairment and loss. 73. (3.) The applicant's debilitated condition was temporarily aggravated twice in the employ of the sixth respondent in September and October 1997, and on both occasions, the aggravation had ceased by early 1998. 74. (4.) The applicant was totally incapacitated for work from 17 June to 16 December 1991, and partially incapacitated from 17 December 1991 to 21 September 1992, and from 19 February 2000 to date and continuing. 75. (5.) I note the agreed comparable wage figures range from $684 to $712 per week. 76. (6.) I assess the sum of $450 per week as the average weekly amount the applicant is able to earn in some suitable employment, that is, in the general labour market reasonably accessible to him. 77. (7.) In the exercise of my discretion pursuant to s 40, I find that mathematical difference should be decreased to $200 per week. I find this to be is a proper amount for weekly payment of compensation. 78. I make an award against the fifth respondent, from 17 June to 16 December 1991, in the sum of $350 per week, that being the current weekly wage rate; from 17 December 1991 to 21 September 1992, in the sum of $200 per week, and from 19 February 2000 to date and continuing, also in the sum of $200 per week. 79. I order interest to accrue on the weekly benefits which have accrued for the period from 19 February 2000 to date only, at the rate of 4 per cent per annum. Interest to run from 7 July 2001. 80. (8.) As a result of the injury sustained, Burton has suffered a permanent impairment of the back which, having regard to the severity of the matter, bears to a most extreme case the proportion of 20 per cent, and a loss of his left leg, at or above the knee, of 10 per cent. 81. (9.) For reasons given, I do not propose to make any deduction pursuant to s 68A. 82. I make an award against the fifth respondent, pursuant to s 66, in the sum of $19,500. 83. Having regard to the degree of pain and suffering and severity of the loss and permanent impairment and to the maximum amount to be paid in a most extreme case, I award against the fifth respondent, pursuant to s 67, the sum of $20,000. 84. I order the fifth respondent to pay the applicant's medical expenses and the applicant's costs. 85. (10.) I find that the incapacity, impairment and loss were partly the result of the nature and conditions of employment in the employ of the fifth respondent, to the extent of 75 per cent, and partly the result of the nature and condition of the employment with the first four respondents, to the extent of 25 per cent. I apportion the liability of the first four respondents between the two insurers, such that Allianz bears 20 per cent of that liability and QBE 5. 86. I enter an award in favour of the sixth respondent. Mr Stanton instructed by Stacks (Forster) appeared for the applicant Mr J Grant instructed by Sparke Helmore appeared for the first respondent, and for the second, third & fourth in the interest of Allianz Ms C Goodman instructed by Leitch Hasson & Dent appeared for the second, third & fourth respondents in the interest of QBE. Mr B Kelly instructed by Hicksons Lawyers appeared for the fifth respondent Mr S Flett instructed by Rankin & Nathan appeared for the sixth respondent