Cailotto v Qantas Airways Limited [2001] NSWCC 42

Compensation Court of New South Wales

CITATION : Cailotto v Qantas Airways Limited [2001] NSWCC 42 PARTIES : Vittorio Cailotto v Qantas Airways Limited MATTER NUMBER(S) : 37352 of 2000 JUDGMENT OF: Ashford J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 01/02/01 EX TEMPORE JUDGMENT DATE : 02/01/2001

FOR APPLICANT: Mr A R Reoch instructed Teakle Ormsby Conn. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr I McLachlan instructed by Moray and Agnew.

JUDGMENT: 1. In these proceedings the applicant seeks payment of compensation from 30 March 2000 to date and continuing, as a result of injury to his left hand in the employ of the respondent on 27 April 1999. A claim is also made pursuant to the provisions of s 66 in respect of loss of the left arm at or above the elbow, permanent impairment of the neck, and loss of the right arm at or above the elbow, with a consequential claim made pursuant to the provisions of s 67. 2. In essence the principal issues for determination are those of incapacity as a result of that injury and the quantum of any losses claimed. 3. The applicant was born on 3 May 1963. His wife is presently in full-time employment and he claims three dependent children. 4. He commenced employment with the respondent on 13 September 1995 working as a storeman. Prior to that time he had engaged in duties involving truck driving, concrete finisher, and labouring type duties. At the time of commencing employment with the respondent, he had undergone a medical examination and had no difficulty in performing his full duties. 5. His duties with the respondent involved him working at the international terminal breaking down freight. He drove a forklift and a tug. His work involved him pushing containers and this involved the use of the hands and arms. He said he experienced no difficulty in performing that employment. 6. On 27 April 1999 in the course of his duties, his left thumb became caught whilst pushing a pallet onto a profile. His thumb was crushed. He experienced severe pain and bleeding and there was traumatic amputation of the tip of his left thumb. He said that at the time his left thumb had been caught, he had pulled back, in an attempt to free himself. 7. After some period of time he was taken to Sydney Hospital. At that time he said he was experiencing feelings of pressure in his chest, and to his neck and shoulders, and as a result various tests were undertaken. Operative treatment to his left thumb was delayed until the next day. 8. He was provided with a sling, and dressings were attended to for a period of time. He was provided with analgesia. He said he had difficulty in sleeping. He was later afforded physiotherapy. He said he has experienced pins and needles in his left arm and some numbness and shooting pain in his arm for a period of time. 9. It is obvious from looking at the applicant's left hand there has been some traumatic amputation of his left thumb, with some loss of pulp. There is also some obvious wasting at his thumb area. He demonstrated an inability to properly make a fist and also some difficulty in opposition of his thumb to his other digits. He gave evidence that he continues to take pain medication as required. He also utilises his splint and a glove when his hand is swollen. 10. He resumed employment on 30 August 1999 with gradual increase in his duties from that time. He was initially performing computer and office work. By November 1999 he resumed some forklift driving duties and was on full hours of employment by 24 November 1999. He continued to attend his general practitioner and also was under the care of Dr Wheen, who had performed the surgery. 11. He said he continues to have some swelling of his hand, particularly his thumb. There is loss of feeling at the tip of his thumb and some tingling in his index and middle fingers and wrist. EMG studies have been performed on two occasions and these are apparently normal. He gave evidence of difficulties in performing activities such as tying his shoe laces or doing up his right-hand sleeve buttons. He also has difficulty in gripping and using any force with his left hand. He continues to perform exercises which have been prescribed by his physiotherapist. 12. It was his evidence that he continues to experience stiffness and pain in his neck and in his shoulders to the extent that he is unable to raise his arms above his shoulders, with particular difficulty on the left side. 13. Between resumption of full duties in November 1999 and February 2000, he said he had some 5 or 6 days off work. On 30 March 2000 he was taken off work and was paid his leave allocations. At that time his services with the respondent were terminated. Payments of compensation of various kinds were made to him to 29 March 2000. It was his evidence that he had very much enjoyed his job with the respondent. He has not received any social security payment. 14. He commenced employment with Armaguard on 28 August 2000. This was not a full-time employment, but he performed shifts as available. These varied between one and two shifts a week, up to 3 days a week, and at Christmas time in the year 2000, he was able to perform more shifts as they were available. He continues in that employment. 15. He works in a truck with two other men and said his job is as 'look out'. He is able to pick up coin bags at times. He said he experiences no problem with that job, noting of course this does not involving him in active driving duties, nor in work which involves much activity with his left hand. 16. It was his evidence he is unable to drive a manual truck for long periods because of the swelling and sensitivity of his left hand. He said he normally carries items such as the coin bags in his right hand. He has applied for full-time work with the respondent. 17. In his view he would not be able to perform security work such as crowd control on a full-time basis but could do static work in such an organisation. He thought he would be able to drive a truck if it was automatic, but not if it involved any lifting or tarping of loads. He said he continues to experience stiffness of his neck, worse in cold weather and sensation of 'shocks' in his left hand and arm. 18. In cross-examination the applicant was unable to recall attendances upon the general practitioner for particular arm or shoulder problems on prior occasions, but agreed that if such events had been reported by Dr Brenner then they would have been correct. 19. From perusal of the notes of Dr Brenner, it appears the applicant has attended upon him a number of times with complaints of shoulder or arm problems. These however appear to have been discrete incidents, and it does not appear Dr Brenner felt these required any lengthy treatment nor any investigation. 20. Dr Brenner has provided medical reporting relating to the applicant's attendance upon him. It is noted the applicant first attended him in relation to this present injury on 5 May 1999. At that stage he obtained a history of traumatic amputation to the left thumb at work. He noted that Dr Wheen had performed operative treatment. 21. Dr Wheen was of the view the applicant's complaint of chest pain, as at the time of admission to hospital was significant, as it indicated the applicant may have jerked himself significantly in the injury causing chest and later neck and shoulder pain. His reporting details attendances upon him and of the treatment afforded. He notes a continuation of complaint of pain in the thumb and of swelling in the left hand. He also notes continuing complaint of pain to the neck and left shoulder, left wrist and thumb. 22. Some two months following injury Dr Wheen thought the wound was settling, although he noted there was a complaint of sensitivity at the scar area. In his reporting of 10 August 1999, he recorded there to be a persistent complaint of problems in the left thumb as well as in the elbow and shoulder. He performed other testing including reference for EMG studies. 23. Some twelve months following injury he noted the applicant to be working an eight hour day on a forklift, but that he continued to have symptoms of pain, intermittent swelling and tingling and numbness affecting the thumb, index and middle fingers. He noted that the applicant was not incorporating his thumb in coordinated use and movement of the hand, although the tip was generally non-sensitive. He thought there was a requirement for continuing exercising of the injured hand. 24. Dr Conrad has provided a medico-legal report relating to his examination of the applicant dated 31 August 2000. He obtained a history of injury to the left thumb on 27 April 1999 and that there had been crush amputation of the left thumb tip. He noted a continuing complaint of swelling and pain in the left hand, worse on use of the left arm, radiating into the left wrist, hand, arm and left neck and shoulder. 25. Following examination he was prepared to assess there to be a 25 per cent permanent loss of efficient use of the left arm at or above the left elbow, and a 10 per cent permanent impairment of the neck. It was his view that due to some favouring of the left arm, he had overused his right arm and as a result thought there to be a 10 per cent permanent loss of efficient use of the right arm at or above the elbow, mainly due to a right shoulder strain. He thought there to be no evidence of pre-existing degenerative disease or previous accidents and therefore thought all the impairments and losses were directly due to the accident described. From perusal of his report, particularly noting the paragraph headed 'Physical Examination', it does not appear he has carried out particular examination of the applicant's right shoulder. The evidence in relation to Dr Conrad's comments of favouring one hand and over-use of the other, was not clear from the applicant's evidence. 26. The respondent has provided medico-legal reporting relating to examinations of the applicant, together with the clinical notes of the applicant's general practitioner to which I have previously referred. 27. Dr Aldridge saw the applicant on behalf of the respondent in September 1999. At that stage he thought there had been improvement of the thumb injury. He noted that a bone scan had been performed indicating some minor degenerative changes of the left wrist and hand, with similar changes in the right wrist and hand. He noted also that scans had been performed of the cervical spine and of his shoulders. At that time he thought the applicant could fully oppose the thumb against the little finger and had good power in the hand, although he did note some tenderness at the tip of the thumb around the amputation site. He thought that he should increase the hours he was performing at work. 28. Dr Slezak provided a report in November 1999. He noted there had been a crush injury amputation to the tip of the left thumb and thought from the mechanism of injury described that there could well have been some minor musculoligamentous injury of the neck and of the right shoulder. He thought however such symptoms would have gradually improved over a period following injury. He thought there to be some exaggeration of presentation. It was his view that it was premature to assess any permanent functional impairment of the left hand or left upper limb. It does not appear that he performed any further assessment of the applicant. 29. Dr Walker saw him in March 2000. His report was tendered. Following examination he thought there was some defect of left thumb. He thought there was some minor loss of extension at the PIP joint of the thumb, but hand movements otherwise to be equal and normal. He thought the wrist movements and elbow movements were normal as were neck and shoulder. He thought him fully fit for pre-injury employment. He was prepared to assess there to be a 20 per cent loss of use to the left thumb equivalent to an 8 per cent loss of use of the left hand related to the injury. 30. Dr Richard Honner is a specialist in hand and upper limb complaints. He provided a report of 10 November 2000. He noted there had been some amputation to the left thumb. He noted that the applicant had a gradual resumption of employment, but that he had ultimately been terminated from his work on 20 June 2000. He noted the applicant to provide a history that after operation to repair the thumb, there had been development of pain in the neck and this pain continued, starting in the left hand, radiating to the elbow and to the neck and also development of pain in both shoulders. He noted there had been x-rays of the left thumb upon which he commented, along with x-rays of the cervical spine and ultrasound of the left shoulder. He also sighted the results of bone scans which had been performed. In his opinion there had been amputation to the tip of the non-dominant left thumb in the accident described and any impairment or loss of the thumb was as a result of that injury. 31. He was prepared to assess there to be 15 per cent loss of efficient use of the left arm at or above the elbow allocating 9 per cent permanent loss as a result of degenerative changes which had slowly progressed in the left arm and therefore a 6 per cent loss of the use of the left arm at or above the elbow as a result of work injury. He also found there to be a 5 per cent permanent impairment of the neck due to underlying degenerative changes, and a 3 per cent impairment of the right arm at or above the elbow, also due to degenerative changes. 32. The respondent has tendered a report of injury form signed by the applicant. This does not refer to an injury to the neck or to the shoulders but only the thumb injury of 27 April 1999. This form was completed some very short time after injury, but whilst the applicant agreed he had signed the form, he said this had been completed by others. 33. Wages material has been tendered setting out the earnings of comparable employees in the employ of the respondent from 30 March 2000. At that time comparable employees were said to earn in the sum of $793.49 per week. This has risen to the sum of $817.29 per week from 1 July 2000 and continuing. 34. The applicant's actual earnings with Armaguard are set out in the wage schedule tendered. These earnings vary, the highest amount shown being the sum of $561.16 for the week of 28 August 2000 to 3 September 2000, to a lowest amount of $122.19 for the week of 18 September 2000 to 24 September 2000. The schedule in my view is largely in accord with the applicant's evidence that he worked some one or two shifts per week as available, and up to three shifts at busier periods of time. His evidence was that his hourly rate of pay was $14.80 per hour, although it was suggested in cross-examination that this was in fact $15.30 per hour. 35. The applicant in my view gave his evidence in a very straight forward manner. I did not believe him to exaggerate his evidence and I thought him to be a witness whose evidence I can accept. 36. I am satisfied he did sustain traumatic amputation to the tip of his left thumb in the manner described by him in the course of his duties with the respondent on 27 April 1999. This was clearly a frightening episode when his thumb became caught in the machinery. It was his evidence that he had jerked to free his thumb and in fact the tip of his thumb had come away and he placed his right hand onto the freight to steady himself. This in my view is a description of a mechanism of injury which would be consistent with there being some musculoligamentous type strain injury at least to his neck. More probably than not, some strain injury of his left arm and shoulder was also involved. 37. It has been suggested he did not report such symptoms for a long period of time and such symptoms were not disclosed on the claim form. I do not believe there should be any adverse inference drawn by the non-disclosure on the claim form, considering the short period of time after injury this was completed, and considering this was done by others. I am satisfied the applicant did sustain injury to his neck and to his left shoulder in the injury described. 38. I am not satisfied on the evidence before me that there was any injury to the right shoulder occasioned by that event, and it seems consistently reported that left shoulder and neck symptoms were present some short time after injury. The right shoulder does not feature to any great extent in medical reporting. 39. In looking to the assessments of loss or impairment which are before me, I have set these out in full. It is my view, looking to the applicant's evidence and looking to the assessments which are before me, that I should find the applicant to have a loss of the left arm at or above the elbow of 20 per cent. 40. It has been suggested there should be a deduction pursuant to the provisions of s 68A. Whilst as I have said there has been some notation in Dr Brenner's notes of prior events involving the applicant's shoulders or neck, it does not appear to me that these gave rise to any loss or impairment and they certainly gave caused no problem in relation to the applicant's employment, which he performed for a period of time without any difficulty and without any complaint or problem. I therefore find no reason to make any deduction pursuant to the provisions of s 68A. 41. In relation to the applicant's neck, it is my view there is some minor permanent impairment of the neck in comparison to a most extreme case. To that end it is my view the applicant more likely than not, has occasioned some musculoligamentous strain of his neck and that this results in a permanent impairment of 5 per cent. Again I find no reason to make any deduction pursuant to the provisions of s 68A. 42. I am not satisfied on the evidence before me that it has been demonstrated there is any present loss of use of the right arm at or above the elbow as a result of any injury in the employ of the respondent. 43. I have referred to the wages material noting the earning of comparable employees and noting the applicant's actual earnings in his present employment. There is some evidence which suggests the applicant is fit for his full pre-injury duties. I do not share that view. I accept his complaints of pain and note some deformity of his left thumb. His employment has been largely of a physical kind. I am satisfied that the work he performed with the respondent prior to injury is not suitable work. 44. Dr Honner is of the view the applicant is fit to work as a storeperson, forklift driver, or on the open labour market generally, but not fit for jobs requiring gripping with the left thumb. It is the applicant's evidence he had some difficulty in gripping with his left hand, and I accept that evidence. 45. It also appears he would have difficulty in driving a manual vehicle for any length of time or in loading or unloading, if this involved use of his left hand to any significant degree. Also it seems the applicant continues to have problems with his left shoulder and again this in my view would cause him problems in performing such manual type work. 46. The work he is presently performing with Armaguard seems to me to be satisfactory employment, given the restrictions of the areas in which he is working. I accept his evidence that he would have some difficulty if he were required to work in areas such as crowd control, but static observation duty would be satisfactory and also work on vehicles, in which he is presently engaged seems satisfactory. At this stage he is not afforded very many shifts per week. 47. In looking to the wages material before me, and in the exercise of my discretion, I am of the opinion the applicant has an ability to earn on an open and available labour market in the sum of $500 per week in activities which do not involve him in forceful bending or lifting using his left hand and arm. 48. In the exercise of my discretion, I award $300 per week, pursuant to the provisions of s 40 from 30 March 2000 to date and continuing, pursuant to the provisions of s 40. $15,000 in respect of 20 per cent loss of the left arm at or above the elbow, and $2,000 in respect of 5 per cent permanent impairment of the neck in comparison to a most extreme case, both pursuant to s 66. 49. The applicant has given evidence in relation to actual pain and suffering. I am satisfied this was a traumatic event, that he suffered much pain at the time of the initial injury and that as a result of injury he has continued to experience actual pain and suffering, such that he is unable to perform many activities he previously performed. In that regard I am of the view in comparison to a most extreme case this should be assessed as 25 per cent of that most extreme case. 50. Accordingly there will be an award pursuant to s 67 in the sum of $12,500. 51. Section 60 expenses. 52. The applicant has claimed interest on the s 40 amounts. He has not been in receipt of social security. I am satisfied that I should award interest on the s 40 amount at 3 per cent on half the arrears. 53. Costs part 29. Mr A R Reoch instructed by Teakle Ormsby Conn appeared for the applicant Mr I McLachlan instructed by Moray and Agnew appeared for the respondent