Erten v Kellogs (Australia) Pty Limited [2001] NSWCC 139

Compensation Court of New South Wales

CITATION : Erten v Kellogs (Australia) Pty Limited [2001] NSWCC 139 PARTIES : Oskan Erten Kellogs (Australia) Pty Limited MATTER NUMBER(S) : 42023 of 2000 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 27/02/01, 28/02/01 EX TEMPORE JUDGMENT DATE : 02/28/2001

FOR APPLICANT: Mr A G Jamieson instructed by Carters Law Firm LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr D Kelly instructed by Blake Dawson Waldron

JUDGMENT: 1. The applicant claims weekly payments and lump sums in respect of injuries to his back arising out of and in the course of his employment on 25 October 1997 and 3 January 2000. Mr Jamieson of counsel appeared for the applicant. Mr Kelly of counsel for the respondent. Counsels' addresses were recorded, and therefore unnecessary for me to refer to each submission merely to ensure that it is noted. The applicant is a 32 year old married man with two children. He worked for the respondent initially as a process worker and then as a machine operator from about July 1989. As a machine operator he worked long hours, his usual shifts being four shifts per week for 12 hours, and he worked a good deal of overtime. His evidence, which was not challenged or contradicted, was that he was a valuable employee, able to work a number of machines and over long periods. 2. On 25 October 1997 the applicant was leaning over twisting an empty pallet to align it with the tines of a forklift when he felt pain in his back and right leg. After a visit to the Prince Henry Hospital, he came under the care of his local doctor, Dr Ghabrial. She noted on first examination: Stiffness of the paravertebral muscles together with tenderness over the lower lumbar spine extending from the L3 and S1 to the right sacroiliac joint, restricted mobility of the lower spine, posture grating test on the right at 35 degrees and 60 degrees on the left. Neurological examination was positive, also indicating a right sacroiliac nerve root irritation. The right ankle reflex was slightly sluggish. 3. She noted that investigations in the form of a CT scan confirmed a central posterior subligamentous disc prolapse at level L4-5 and L5/S1. The doctor referred the applicant to Dr Guirgis, an orthopaedic surgeon, who first saw him on 4 December 1997. It was the doctor's view that the applicant had as a result of the accident suffered an injury to the discs at the level of L4-L5 and L5/S1 and he referred to the CT scan. He considered that the injury was further complicated by the development of entrapment at the right L5/S1 nerve root, and he arranged of electro physical tests. It is convenient to note that those tests referred to evidence of a partial L5/S1 to root irritation. The applicant was off on compensation and then returned to work through a quite sophisticated rehabilitation program. 4. On 3 January 2000 he was doing his usual duties, the normal hours, although he gave evidence which I accept that he had pain and restrictions in doing his work, and was assisted by fellow workers. On 3 January 2000 he was bending over attempting to lift a heavy and awkward stainless steel cover and suffered pain in the back, groin and right leg. He went to the Prince of Wales Hospital again, and was then seen by Dr Ghabrial and Dr Guirgis. There was no report from Dr Guirgis at that time. Dr Ghabrial, in her report of 23 January 2001, refers to the applicant consulting her from time to time with exacerbation of lower back pains and right sciatica. The applicant was off work on compensation for about 10 weeks, and then again returned on, as I have commented, the sophisticated rehabilitation scheme. 5. In August he was attempting a trial at work as a floor coater operator and it is interesting to look at the restrictions that were placed upon him by the doctor and others conducting that program. There was to be no lifting over 15 kilograms, no prolonged unsupported bending, to avoid fixed and prolonged back posture by moving about for comfort, to avoid significant periods of low/higher/outstretched activities, ideally no longer than 15 seconds, to avoid spinal twisting by moving the feet, to take frequent micro breaks (around 5 seconds) to change posture or carry out recommended gentle stretching exercises throughout the shift. The applicant was able, with difficulty, to undertake that work, but his evidence is, and it has not been contradicted, that his employer sought to have him work at more difficult machines and to work for longer periods. 6. The applicant gave evidence, which was not contradicted, that the respondent was short of machine operators, and was calling upon the applicant to do more - considerably more than was set out in that particular work trial. The applicant could not continue, he had a week off work, and was then dismissed. There is no evidence to suggest that any question of general or partial retrenchment came into this, he was dismissed and I accept that he was dismissed because he was unable to work to the satisfaction of the respondent. The applicant looked for work for six or seven weeks or so, and then set about setting up, and has now commenced to operate, a business selling car parts which he thinks will offer him the opportunity to sit and stand and work within his limitations. 7. Mr Kelly did not dispute some discal injury, but does dispute the assessments relied upon by Mr Jamieson. Dr Guirgis does not give an assessment, but he accepts that there has been an injury to the discs at the levels I have previously referred to. Dr Ghabrial gave an assessment, but it is unrealistic and Mr Jamieson, very properly, has not sought to rely upon it. Dr Mahony examined the applicant on 1 May. He takes the view that at L4-L5 and L5/S1 there has been a central subligamentous disc prolapse with no nerve root impingement or canal stenosis or paravertebral soft tissue mass. He was of the view that the applicant had developed symptoms referable to a lumbar disc lesion at the L4-5 and lumbosacral levels with nerve root irritation affecting the lower like limb. He considered there to be permanent impairment of the back, being 25 per cent of a most extreme case, although he did not use that precise language, and twelve and a half per cent permanent loss of the efficient use of the right lower limb at or above the knee. 8. Dr Patrick examined the applicant on 16 May 2000. The doctor considered that the applicant had sustained a significant low back injury during the course of his work on 25 October 1997 when he was kneeling or crouching down and manipulating an empty, but heavy, wooden pallet. He thought there was an injury to the L5/S1 and L4-L5, and that there was a further aggravation in January. It is his view that the applicant has, as resulting from those injuries, a permanent impairment of the back of 18 per cent in comparison to a most extreme case, and permanent loss of efficient use of the right leg at or above the knee of 12 per cent. The doctor considered that those assessments were entirely work injury related, with no component relating to any pre-existing constitutional development or degenerative condition, nor to any injury sustained before October 1997. I should also note that Dr Mahony did not consider that there was any deductible amount because of pre-existing changes. 9. The views expressed by doctors who had examined the applicant for the respondent are remarkably dissimilar to those put by the applicant. Dr Davies was of the opinion that there was no permanent impairment of the back or leg as a result of either injury. The doctor did take the view that the applicant had had evidence of pre-existing degenerative changes at L4-5 and L5/S1, that is contrary to the view of the previous doctors to which I have referred. The doctor considered that the applicant suffered from no continuing incapacity when he saw him on 13 December 2000. The doctor considered that some of the applicant's examinations offered a number of embellishments and inconsistencies. Dr McGrowder, who examined the applicant on 5 July 2000, was of the view that the applicant at that time was capable of employment which he was doing in a restricted capacity. He thought the rehabilitation program was an appropriate one, but he did not deal with the question of permanent impairment. 10. In the course of giving judgment it became apparent to me, although perhaps it should have earlier, that what I assumed was the report of Dr McGrowder in the bundle of material tendered which set out a list of the doctors' reports was, in fact, a further report of Dr Davies. In fact, Dr McGrowder's report was omitted, as was a report of Dr Mitchell. The reports of Dr McGrowder of 6 March 2000, 26 June 2000 and the report of Dr Mitchell of 15 May 2000, do not add to the assessment question, except that it is probably fair to think that the nature of Dr Mitchell's report would suggest that the applicant was capable of engaging in the rehabilitation program which, in fact, he was carrying out. It does not really seem to go much beyond that. 11. Having read the further material I remain of the view, which I previously formed, that the material contained in the reports of the applicant's doctors, leaving aside Dr Ghabrial, give assessments which are corroborative and which are consistent with the evidence of the applicant which I accept. I find that the views of Dr Mahony and Dr Patrick, supported as they are by the radiographic and electro physical tests, are more compelling than those of Dr Davies, and since they do not proffer assessments of Dr McGrowder and also that of Dr Sinclair, which was included in the bundle tendered. Dr Sinclair did not consider, as did Dr Davies, that the applicant had any permanent loss of use of the right leg or of the back, although he does accept that it is possible that there is recurrent nerve root irritation, and he himself is of the view that the x-ray changes only show small insignificant bulges, which are not the cause of the sort of problem suffered by the applicant. That is not the view of the treating doctors or of Dr Mahony or Dr Patrick. 12. Bearing in mind that the applicant bears the onus, I accept the view of Dr Patrick that the applicant has suffered permanent impairment of the back, being 18 per cent of a most extreme case, and 12 per cent permanent loss of the efficient use of the right leg at or above the knee. Although, as I have indicated, there is reference by Dr Davies to pre-existing degenerative changes, the evidence as a whole does not support that proposition, and there is no deductible proportion under s 68A. The award I shall make crosses the threshold under s 67, and the applicant is entitled to an award under that section. The sum provided for a most extreme case is $50,000, the task of the court is to arrive at a sum which is duly proportionate to that amount. 13. The applicant is a young man, it is apparent that his work involved physical activity which he was able to carry out without any difficulty, and one can readily infer that he took a measure of pride in his ability to be, as he said, a very good machine man. He has continued to suffer from pain in his back and restriction of movement and pain in his right leg. I think it fair to put that he does not put that at an extreme position, but it is something that is always with him. Mr Kelly put that I should accept that he worked so much that he did not have time to engage in a number of hobbies which he referred to, indoor soccer, indoor cricket and the like, and there is some force in that. However, I accept that the effect of the loss as the applicant has suffered is that he is not able to engage in a variety of sporting and similar activities, what one would think that a man of the applicant's educational background would regard as his principal recreational activities. Doing the best I can, I think an appropriate award under s 67 which maintains due proportionality is an award in the sum of $12,500. 14. There remains the question of weekly payments. The comparable earnings are almost $1,500, therefore the upper limit provided in s 42A comes into operation, and that provides comparables as follows: (a)19 September 2000 to 30 September 2000 $1,197.20. (b)1 October 2000 to date $1,210.50 per week. 15. The statutory maximum for a man with a dependent spouse and two dependent children from 19 September 2000 to 30 September 2000 $474.40, and from 1 October 2000 to date $479.50 per week. 16. In my view, that sum is less than the difference between the applicant's ability to earn and the probable earnings. Mr Kelly submitted that the applicant working 48 hours a week would earn a figure in the vicinity of $960 per week. However, I do not think it is realistic to take the view that the applicant has an earning ability such as that. The sort of money that he was earning was coming from long and continuous work, maintaining machinery and production processes. He is not able any more to do that sort of work and to work in that sort of way, and it seems to me it may clearly be inferred from the fact that the respondent dismissed him from its employment when he was unable to do that sort of work, that he no longer has the capacity to do it. Indeed, if one reads the restrictions imposed upon him in August 2000 by the respondent's rehabilitation department, it is clear that he is not able to engage in physical work, for anything like that time, or of anything like that nature. 17. He left school at 15. There is reference to him having done some clerical work for the respondent on the rehabilitation program, but that is a very long way from establishing that he could do clerical work elsewhere. I cannot envisage a situation in which he would be able to be employed for more than say $600 a week, and that would be without allowing for some discount for the difficulty of obtaining work with the employment injuries and restrictions which he has suffered. Accordingly, there should be an award at the maximum statutory rate. There is, in my view, no discretionary reason to reduce the award made below the difference to which I have referred, or below the maximum statutory rate. 18. For those shortly stated reasons I find: (a) That the applicant suffered injury to his back on 25 October 1997 and 3 January 2000 arising out of or in the course of his employment with the respondent (b) He was thereby totally or partially incapacitated for various periods to 18 September 2000 and paid compensation or wages (c) Since 19 September 2000 the applicant has been partially incapacitated for work thereby (d) As a result of the said injury the applicant suffered permanent impairment of the back, being 18 per cent of a most extreme case (e) As a result of the said injury the applicant has suffered 12 per cent permanent loss of the efficient use of the right leg at or above the knee (f) The applicant's ability to earn at all material times has been less than the probable earnings as fixed by s 42A by more than the maximum applicable statutory rate (g) At all material times the applicant had a dependent spouse and two dependent children I make an award to the applicant: (a) Under s 40 at the rate of $474.40 per week as adjusted from 19 September 2000 to date and continuing (b) Under s 66 in the sum of $10,800 in respect of permanent impairment of the back (c) The sum of $9,000 in respect of 12 per cent permanent loss of the efficient use of the right leg at or above the knee (d) Under s 67 in the sum of $12,500 (e) Medical expenses s 60 (f) I expect the parties to agree upon the claim for interest, but grant liberty to apply should they be unable to do so (g) The respondent is to pay the applicant's costs. I will allow a second conference for $150