Compensation Court of New South Wales CITATION : Brown v Roads and Traffic Authority [2001] NSWCC 73 PARTIES : Eric Brown Roads and Traffic Authority MATTER NUMBER(S) : 38880 of 1999 JUDGMENT OF: Burke J CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 9 May 2001 EX TEMPORE JUDGMENT DATE : 05/09/2001 FOR APPLICANT: Mr J W Ingram instructed by Maurice May & Co LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Trainor instructed by Leitch Hasson Dent JUDGMENT: 1. Mr Brown, now aged 53, seeks compensation in respect of incapacity alleged from 18 February 2000 to date and continuing, together with lump sums pursuant to s 66 in respect of a 25 per cent permanent loss of efficient use of the right arm (though Christopher Brown assessed 30 per cent), a 10 per cent permanent impairment of the neck and a lump sum under s 67 in respect of pain and suffering equivalent to 50 per cent of that applicable in the most extreme case. 2. The claim arises out of an injury received by the applicant on 14 May 1998. He was a surveyor's assistant. He had been working for the RTA from the early 70s - well over 25 years in their employ as at that time. He was working beside the road looking for survey pegs. Apparently a passing truck blew a tyre, ejected part of the tyre and Mr Brown, quietly minding his own business, was hit on the back of the right shoulder by a piece of the ejected material and knocked to the ground with the force of the impact. 3. Now the applicant says he had a sore shoulder - but you would expect, probably, to have a sore shoulder after a bang like that - so he worked on. What he found was that as the weeks were going past, instead of getting better - it was getting worse; becoming more troublesome - particularly if he wanted to reach overhead with his right arm; so on 17 August 1998 (about 3 months post-injury) he went along and saw his general practitioner, Dr Tan. The long reports of Dr Tan probably are a digest of a number of the specialists' reports which he obtained. He sent him off to Dr Gray. Dr Gray's report is dated 23 October 1998. He obviously saw him on that day, but he had obviously seen him earlier in the month, I would think, because that report notes the complaints of pain "at the base of the neck, the right shoulder, the weakness of the right grip, intermittent numbness in the right arm" and then proceeds later to say "on review today" - having had an injection which has obviously been administered at the instance of Dr Gray - "there was a moderate improvement" following the cortisone injection. The applicant says it was not too bad for about a week. Thereafter, it became much the same as ever. 4. Dr Gray eventually decided that he needed someone with a specialist knowledge of shoulders and referred him off to Dr Perko in Sydney. Now he has seen Dr Perko on quite a number of occasions. Firstly, as early as January 1999, Dr Perko diagnosed the condition as a "post-traumatic capsulitis". He recommended glenohumeral injection - rather than the injections that had been tried before. He had a couple of those at the instance of Dr Perko - a much similar result. The first one gave him a week's - some degree of relief . The second one did not seem to make much difference at all. Dr Perko notes that by May of 1999 he is much in status quo ante. He is still complaining of the shoulder - and not being able to abduct it or circumduct it, generally weak in the arm. Dr Perko deals with the matters taken up, I think, by Dr Perret. 5. I think it is Dr Perret's view - yes, the lack of medical consultation for 3 months suggests that probably there was no more than a minor contusion. The evolution of problems later was purely due to constitutional causes. Dr Perko takes up that issue and points out that the condition of capsulitis need not arise immediately - in fact it would be unusual if it did - but can develop progressively over a period of months, and that is precisely what happened as far as the applicant is concerned from the impact. There was then a progressive deterioration. By the time he gets to Dr Perko there seems to be a fairly wide agreement, though not everybody comes to the same conclusion, that the applicant does have a traumatic capsulitis of that shoulder. Dr Perko has no problems with the nexus of that condition to the incident relied upon - the exploding tyre. Like most, he regards the applicant as having an incapacity - he can do some light work, so long as his right hand is below shoulder level and it is not repetitive. The applicant is right-handed, of course. He also happens to be illiterate so he has no problem with writing, in any event. 6. He saw Dr Perko then throughout the latter part of 1999. Again saw him on 1 November last year. Dr Perko, like most doctors, says the natural history of a post-traumatic capsulitis is resolution at least to some degree over 18 months to two years. This man has gone well past that limit. It does not seem to surprise Dr Perko - nor anybody else for that matter - and he is commending an arthroscopic capsular release. He obviously sought the blessings and benedictions of the respondent's insurer to carry out that procedure but by that time they had stopped paying Mr Brown anything and they were not going to pay for the surgery, so he has not had it. In fact, on 18 February payments were terminated. He was given light duties up till then. The 'return to work' program, which has been tendered in evidence, foreshadowed that very event. The idea of this was: you do very little and you do not use your right arm and all this sort of thing, and no hammering and shovelling and whatnot. The idea of it is to get you back to full fitness and the 'return to work' program itself said: and if you don't, you'll probably get sacked. It duly turned out to be. 7. A number of doctors have seen the applicant for the purposes of the litigation. He was seen by Dr Ehrlich in January of 1999 ( about 9 months post-injury). He thought he had a rotator cuff problem. Most investigations have excluded that - certainly the ultra-sound of the shoulder was unable to identify any pathology whatever in the rotator cuff area - but Dr Ehrlich was of the view that he had a rotator cuff problem, that it was unrelated to injury because the type of incident et cetera would not cause that sort of problem. In my view, he does not have that sort of problem - so it does not contribute much. 8. He was seen by Dr Deveridge on 23 July 1999, complaining about his neck and shoulder. He commended an MRI or arthroscopy. He thought he had an impingement with capsulitis - assessed an 18 per cent loss of the right arm and a 10 to 15 per cent impairment of the neck, though he would like to see an MRI to see what was wrong with it, or the shoulder for that matter, too. As was pointed out by Dr Perko, an MRI is not a medical necessity. He knows what is wrong with the man, he knows what the treatment is without the added costs of the MRI and Dr Deveridge ultimately agrees. What he actually is right about that is that it not needed for treatment - but it would be helpful in a medico-legal situation - but I do not think you have those sort of things for medico-legal purposes, theoretically. 9. On 10 August 1999 he was seen by Dr Perret. He was as usual -as most of them - reluctant to move his arm or his neck. Dr Perret was of the view that he had a tendonitis or impingement syndrome and the mechanism of injury just could not cause that - though it could cause some capsulitis - but he thought the real problem was an impingement syndrome and that was unrelated, though, he then assesses a 10 per cent loss of the arm and deducts two-thirds for the natural impingement syndrome, so he obviously thinks there was some effect of the trauma. 10. On 11 August 1999 he was seen by Dr Clarke. He agrees: Okay, the trauma could cause the capsulitis. It needs investigation, preferably an MRI (for medical purposes, presumably), and a manipulation under anaesthesia or at least an examination under anaesthesia. He thought the applicant was deliberately decreasing the range of movements et cetera and he also commended surveillance. That is repeated when Dr Clarke saw him again on 22 November 2000. If his medical commendation of surveillance was accepted by the respondent it obviously did not produce anything. They may have been just too lazy to do it. Dr Clarke thought there was probably a 5 per cent loss of the right arm anyway. 11. He was seen by Dr Berry on 24 February 2000. He goes along with the majority of diagnosis of adhesive capsulitis. He too thought surgery should effect some improvement, had no problem with the nexus to the trauma, assessed a 25 per cent permanent loss of use of the right arm - which is something to which I will return. He was seen by Dr Christopher Brown on 5 June 2000, also with the diagnosis of capsulitis - usually gradually resolves, at least in degree over 18 to 24 months, although there will be some residual impairment. Two years post-injury prognosis "poor" - but may or should benefit from appropriate treatment. He then goes on to assess a 30 per cent loss of the right arm which is likely to be permanent. Actually, he says there is a "present" 30 per cent permanent loss of use of the right arm. 12. He was seen by Dr Berry again on 1 November 2000. His neck has restricted range of movements on examination which he thought was probably some 'referral' from the shoulder. He thought arthroscopy should help the shoulder. He assessed a 10 per cent impairment of the neck and 25 per cent loss of the arm. He was seen by Dr Deveridge again on 17 November 2000. By this time he had obviously had some information from Dr Perko, noted that he wished to proceed with the arthroscopic surgery. On examination he thought the applicant tended to freeze up - in other words he was much less willing to perform the movements on a clinical examination that he would do more naturally. He certainly carried the neck tilted to the right - the applicant obviously had a bit of an odd sort of posture as far as his neck was concerned when giving evidence - and there was a restricted range of movements in the neck. He agreed that the MRI was not really necessary for treatment. He thought the man was much in status quo ante to when he had previously seen him back in the February before - 9 months earlier. He assessed an 18 per cent loss of the right arm and a 10 per cent impairment of the neck. 13. He was seen by Dr Perret and Dr Clarke - again, on the same day, 22 November last year. Dr Perret notes complaints of occasional referred pain to the neck. Once again he emphasised a lack of medical consultation in the first 3 months tends to negative any traumatic injury. In any event he did not hurt his neck in that process anyway. Dr Clarke thought he was much in status quo as when he previously saw him - some complaints of pain, stiffness in the neck - mainly on the right side of the neck - some occasional numbness in the hand, much the constellation of symptoms to which the applicant deposed in evidence. So he could have a capsulitis, could be some chronic musculoligamentous strain in the neck, some slight restriction and pain - certainly not as bad as the applicant was representing. He thought there was a bit of - 'over-statement' is not quite the right word. He thought the degree of complaint was probably more than was justified by the pathology. He also suggested further continuing investigation and/or treatment such as "examination under anaesthesia" and whatnot, "MRI" as he had before. 14. The problem with the losses is this: The applicant has losses. I do not have much doubt about that. I think probably the neck may have been a bit over-stated by the applicant in one sense - but I think he has a small impairment of the neck, probably in the order of 5 per cent . I think he has probably got a substantial loss of use of the right arm as at the moment - but, notwithstanding, all the doctors use the word "permanent". They all come back to 'this should be done' or 'that should be done' and 'this could improve it' and 'that could improve it'. Particularly, I think, Dr Perko's projected surgery, which is not of major degree by any means, is obviously commended by probably the most specialised specialist, whose reports are in evidence. Shoulders are his thing. Dr Cross does the knees, he does the shoulders et cetera, but a man with an expertise in shoulders per se says this is the line of treatment - and the treatment is undertaken with a view to improving the situation - and he obviously thinks there is a reasonable prospect of some improvement. I do not think he expects a miracle in the sense that everything will be nice and lovely, but it is in that context that I find it very difficult to say that any particular degree of loss is permanent. 15. While I accept he has a 25 or 30 per cent loss of use of the arm presently, I think appropriate treatment may lessen that loss. I doubt if it would obviate it altogether. I guess there is always the possibility it could make it worse - but until you try it you do not know - and the Act requires some degree of permanency. With so many doctors advocating so many processes with a view to mitigating the degree of loss, I find it impossible on that evidence to say that there is any particular permanent degree of loss. I think probably the 5 per cent of the neck is - but it is not worth worrying about for the time being. Therefore, I do not propose to make any present award in respect of the permanent losses and/or the correlative s 67. 16. I certainly will make a general order under s 60, and it is fairly clear, in my view, on the totality of the evidence, there are a number of investigations and procedures which should be undertaken and taken care of as soon as possible with a view to minimising the losses. It is one of the great problems of our compensation system that a man like Mr Brown with a specialist recommending a particular type of surgery just does not get it because of the liability dispute as to whether someone should pay for it or not. Mr Della Bosca is trying to fix that up but I am not too sure he is doing any good - on the contrary - and I notice how the former attorney general had a few thousand words to say on the subject. So I think with a little bit of treatment Mr Brown's shoulder may be better than it is - it may not be too - but at least one would then be more sanguine of the fact that whatever loss there was was in fact permanent. 17. Incapacity? No doubt he is incapacitated. I think everybody virtually says that. I think there is one dissenting voice, which is perfectly okay, and it was probably Fred Ehrlich. 18. There are two schedules. The respondent says $575 is the probable earnings, the applicant says $650. As Mr Ingram pointed out when he tendered the respondent's investigating officer's report, it notes the then wage rate for a 38 hour week at $575 - which is patently the figure nominated by the respondent. The applicant has deposed - and it has not been suggested to him in cross-examination that he is in error in any way - that he, on average, did about 4 hours per week overtime prior to his injury. If one assumes that that is at 'time-and-a-half', you would probably come to a fraction over the $650 alleged by the applicant. If it is on 'ordinary' time - and it does not seem likely - it might be a fraction under. So I think on the totality of the evidence the probable earnings are more likely to be the $650 - and, indeed, I find that they are. 19. The applicant's ability to earn. I have the vague feeling that his ability to earn is more 'nominal' than real. The applicant, almost 30 years with the respondent, was put off because he could only do light work and they were not going to give him light work. They are not going to give him light work after 30 years of employment. One would not be sanguine of his hopes of getting it from some other putative employer. Throw into the equation the fact that the man is illiterate. A lot of the lighter forms of work just are not available to him - and, bearing in mind, that he has at present a substantial disability of his right dominant arm (the one that you do most things with) it is a little bit difficult to visualise any permanent place in the labour market without some beneficence from the employer. As I said, if his employer of 30 years was not going to be too beneficent, one does not hope for much in the general labour market . Mr Brown still has two legs and one arm that work, one arm that has got some limited degree of use. I think Mr Brown, while he keeps his elbow into the side and shoulder and abduct it, he can manipulate - but he points out that anything else, even driving a car, he has a taken a drive for a while - and regarding any real distance' I get my wife to drive' because the arm just gets useless after he has had the hand raised upwards for a while. 20. So, I suppose because Mr Brown has an ability to locomote and to perform some very moderate types of manual operations at or about waist level, I assume he has a theoretical capacity to earn - though, with s 52 A in the background I suppose Mr Brown like everybody else has got to go through a facade of attempting to persuade some employer to give him some job. I think Mr Brown probably thinks there is 'no show' in life. He virtually expressed that. I certainly do not like his chances either but I guess he could do some sort of light work for 20 hours a week if he could find it, probably return something in the order of $200 - $250. The difference between that and the probable earnings of $650 of course exceed any maximum rate of compensation. In that sense it does not matter whether he is total or partial, but I think 'technically' he is partially incapacitated. Has that very minor capacity to earn. He is entitled to compensation from February 2000. 21. For those reasons I find: 1. On 14 May 1998 the applicant received injury to his right shoulder/neck in the course of his employment. 2. The applicant incapacitated thereby in varying degrees and paid such entitlements up to and including 18 February 2000. 3. The applicant partially incapacitated 19 February 2000 to date and continuing. 4. Probable earnings uninjured - $650. 5. Ability to earn - $200, perhaps $250 (even that is nominal). 6. The applicant presently has losses of about 5 per cent impairment of the neck and 25 to 30 per cent loss of the right arm - but the evidence suggests such losses may not be permanent if particular treatments are undertaken successfully. 22. For those reasons, I hereby order and award that the respondent pay to the applicant: 1. A weekly payment pursuant to s 40 of $350.10 per week as adjusted from 19 February 2000 to date and continuing 2. Medical, hospital and other expenses of treatment pursuant to s 60. 3. The applicant's costs of, and incidental to, this application, such to include a certificate for a further conference of $200. Mr J W Ingram instructed by Maurice May & Co appeared for the applicant. Mr J Trainor instructed by Leitch Hasson Dent appeared for the respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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