Chetcuti v BHP Stevedoring Pty Ltd [2001] NSWCC 76

Compensation Court of New South Wales

CITATION : Chetcuti v BHP Stevedoring Pty Ltd [2001] NSWCC 76 PARTIES : Francis Chetcuti BHP Stevedoring Pty Ltd MATTER NUMBER(S) : 32979 of 2000 JUDGMENT OF: Burke J CATCHWORDS: Assessment of Compensation - Entitlements & Liability :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 9 May 2001 EX TEMPORE JUDGMENT DATE : 05/10/2001

FOR APPLICANT: Mr B. Ingram instructed by Turner Freeman appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr P L Perry (Allianz) Mr J Trainor (Commonwealth Steamships Insurance Company and Self-Insurer)

JUDGMENT: 1. Mr Chetcuti, now aged 48, a waterside worker for decades, seeks compensation initially for a period of incapacity - but that is no longer pressed - but now for losses pursuant to s 67 of 30 per cent permanent impairment of the neck, 15 per cent loss of use of the right arm and 20 per cent loss of efficient use of sexual organs, together with a lump sum under s 67 equivalent to 80 per cent of that of a most extreme case - which is a rather big 'ask'. Mr Chetcuti has worked on the waterfront since 1974 - or 1973, I think. In-chief he said he started to have some neck/right shoulder problem about 1983. Later in cross-examination that became a specific incident of 14 April 1984 when lifting some dogs, I think it was, of rather substantial weight and he developed some symptoms. There is an air of verisimilitude about that. Exhibit A is a list of payments made by the respondent to the worker in respect of incapacity - does not say for what injury or what problems - but certainly was paid a week's compensation up to 29 May 1984 which seems to be reasonably consonant. Mr Chetcuti, any time he did have problems, does not seem to have gone off work until sometime after - so that could well be the same event. 2. He was then aged about 32, so he was reasonably young, appears to have lost about a week. Certainly he came under treatment and certainly thereafter, I think, he probably continued episodically to have problems with his neck and right shoulder. Now, true, when you look at that sheet of payments, they having started off with injury which is, I think, stated to be that week to 29 May - gives, I think, a date 1 July (which cannot be right) 1984 - but thereafter there are several other occasions when it is stated on the payment forms "Recurrence" with a date and then a short period of payments et cetera, and that goes on through 1984/1985. Then there is a decade 'blank' in respect of any payments up to 1995. 3. In that time certainly there is the report in evidence of Dr Yuen, who treated him with a course of acupuncture on the applicant's 'say so' over about a period of 12 months. It seems to have been a shorter period on Dr Yuen's note - this in 1986. The applicant apparently lost no time from work while having that treatment. The diagnosis was myositis of the shoulder muscles. The acupuncture was stated - late by the applicant in evidence and by Dr Yuen at the time - to achieve 90 per cent relief of his then problems. The applicant did depose that subsequently he again went back to Dr Yuen to try this acupuncture bit - but it made no difference whatsoever. However, he continued to work on as a waterside worker/stevedore. He says that he only had these intermittent problems. By the middle of 1995 - even writing was becoming a problem. He is right-hand dominant and it was his right side of his neck and right shoulder which were his recurring problem. By that time anyway he became a Grade 6 supervisor. This gave him obviously a choice to allocate heavier forms of work to others and while he says it was still a fair bit of hands-on, by and large he was able to choose, though on occasion if something had to be done, he said, well, you did it - sometimes with not too much success, I think. 4. The applicant deposes to an event in June of 1998. The gang had gone away and left a forklift still connected to the hook of the crane via a rather large chain. This, he said, "shouldn't be", so he got up on the roof of the forklift. The chain which supported the forklift, each link was about 2 feet long and the metal of which it was constructed was about 2 inch diameter - so each link was a rather substantial weight. He demonstrated how he had to ease it up over the hook of the chain and in doing so had a recrudescence of symptoms. True, on the payments sheet (Exhibit A) there is a recurrence on 1 July 1998. The proximity of this, the applicant stated - about June 1998 and that "1 July 1998" he suggested was probably the same event. In any event the applicant says that he reported it. It is not really suggested to him that it did not happen so I think that event did occur. It did have some consequential impact on his symptoms. 5. On 6 July 1998 (almost a week later) he attends the Bowral Street Medical Practice and it is noted that he is "in severe pain" with the history that "it started on 1 July 1998" - the right side, neck, shoulder, et cetera - so that all fits together with the event to which the applicant deposes with the forklift hooked up to the crane. The applicant's recollection of dates is a little parlous and probably equally his recollection of particular intervals of time. He said it was round about this time that he had a period of office work and from just the fixed posture and the writing - pain was increasing. Eventually, he says, one morning he awoke with a right arm that was in major pain and would not work. He just could not lift it - it dangled. 6. Now, at this stage he did seek medical attention - was very quickly referred to Dr Michael Davies, neuro-surgeon, who investigated and on 13 July (that is within two weeks of that last little incident to which he deposed) Dr Davies performed a three-level fusion: An anterior cervical fusion from C4 to C7. It was a fairly substantial effort. All that held in place by hardware - wire cage, plates, a few screws. Now the applicant says he was off for 10 weeks for that - which is a pretty remarkably short time for what is really major surgery - and when he did go back, they wanted him to go back and do some light work. He was not enamoured of clerical work and, indeed, he said, 'look, my ordinary job as a supervisor was better that that clerical work' so he persuaded them to let him go about his job the same way as he had before that last injury. 7. For that 10 weeks off that payment sheet shows that the applicant was paid and a substantial amount of medical expenses was paid. I think he was in hospital for a week and it looks like the bill for that was something over $11,000. What is wrong with him? Everybody knows he has a sore neck and a consequential sore shoulder. There is not much problem about that. The real argument is its origin, who did it - or, to be more 'ungrammatical', whodunit? 8. A number of the doctors comment on serial x-rays or radiology. Dr Watson reports seeing an x-ray plate of 27 August 1985. This is way back - right near the beginning of the troubles to which the applicant has deposed. That showed some osteophyte formation on the anterior aspect of C5/6 with some narrowing of the disc space. In other words he was showing some degenerative changes in a limited area of the cervical spine. Dr Loxton reports on seeing a plate of July 1992 which shows degenerative narrowing of C5/6 with the loss of cervical lordosis - not remarkably different. Dr Michael Davies reports seeing an x-ray of 31 December 1996 which he says shows "advanced spondylosis at C5/6 with space narrowing and osteophyte formations" - still basically a one-level problem, though, much more advanced than it was ten years before. 9. Dr Watson reports a CT of 10 February 1997. This was also commented on by Dr Michael Davies and, I think, by Dr Loxton - who organised it. This report is suggestive of a focal right posterior herniation at C6/7, canal narrowing at C5/6 and narrowing of the foramina at that level. In other words we have another level involved and apparently some more extensive changes in the original C5/6 area. Having consulted Dr Michael Davies after that July 1998 event he arranged for an MRI which was done on 3 July 1998 - ten days before the surgery - and he reports that as showing "significant prolapse at C4/5 and C6/7 with cord compression at C5/6 due to osteophyte formation. " In other words we have now two major protrusions of two discs and the C5/6 is still affected by osteophytes and all the rest of it. 10. The radiology obviously shows there has been a progression of the changes - not so much in the early stages. 1985 to 1992 did not seem to show much. By 1996 what those earlier x-rays had shown is somewhat more advanced - and then there is really a downhill picture of developing problems at multiple levels not previously affected. Now, the fundamental argument between the parties really hinges on two elements. How do you classify his problem? In my view, I think Dr Michael Davies has got it right. He has spondylosis and disc disease - or spondylitis, if you prefer that term, although 'itis' suggests inflamation; I do not suppose it is. The osteophyte? The radiology shows an ongoing progression - not very much progressive for the first decade or so, but certainly markedly progressed thereafter - of a spondolytic neck with osteophyte formation and degeneration of the cervical discs, mainly at the C4/5- C6/7 - but the C5/6 did not seem to be too good either. 11. So I think what the applicant has is a disease process and the end result of a disease process, the question becomes: has the work been a substantial contributing factor since the injury would occur round about early July of 1998 - and, of course, there is then the Employers' Mutual Indemnity (Workers Compensation) Ltd v Mansell (CA) (1997). The element that is deductable because of the operation of Sch 6 Pt 6 cl 6 (2) which in effect says: Any effects of work prior to 4 pm on 30 June 1987 do not count in producing a loss under s 66 of the 1987 Act. 12. Now, as I have said, the initial x-rays in August 1985 showed some osteophyte and a bit of narrowing - in other words he had a degenerative process then (this is within about 12 months of the first incident to which he deposes - which seems to be about April 1984). There is no radical change radiologically as at July 1992. Whatever the work in between, what effects it was having, does not appear to have materially advanced the pathology to any discernible degree - but thereafter in the latter 1990s there is marked increase in the changes shown radiologically. The work that he was doing through that period up to 1995 was physically arduous and it was performed in the presence of the prior degenerative changes and effects of any prior injury - and it appears to me to have been the major factor in producing the considerable deterioration shown in between 1992, 1995, 1996. 13. The decade between 1985 and 1995 - he sought no compensation for periods off work, suggests that he was functioning adequately, though I doubt 'always' asymptomatically. I think he had an episodic problem. It is at the end of that period that he experiences problems of increasing degree - fairly major in the end - resulting in some further loss of time from work and ultimately the coming to surgery. It seems to me that the latter work, the work over the latter period of his employment, was a substantial contributing factor to the deterioration of his neck condition - and probably the major contributing factor. 14. Sch 6, as explicated in Employers Mutual Indemnity v Mansell, says in deciding the causes of his ultimate losses I must excise any part of the loss that is attributable to injury prior to 30 June 1987. Now, he certainly had injury prior to 30 June 1987, and he probably had underlying degenerative changes, irrespective, in any event - but that gets picked up by s 68A. The question is to what degree did the work prior to 30 June 1987 contribute to the ultimate losses. Now, I do not think it was a large contributor at all. True, it was the start. True, Dr Silva attributes all to that original incident of 14 April 1984, but the applicant carried on, worked well, worked consistently, intermittent medical attention - not a great deal of that either - up until the mid 1990s, so I really do not think that the contribution of that and the radiology tends to confirm that. The man's actual activities tend to confirm that - but did not really do all that much. 15. I think just as between the pre-June 1987 and post-June 1987 work, the contribution is in the proportion of 10:90 - 10 per cent 'pre' and 90 per cent 'after'. Having said that, there then becomes the problem under s 68A. (This is why I apologised in advance to Mr Chetcuti. It becomes a mathematical calculus that is almost inhuman). The initial 1985 x-rays suggest that the initial injury operated in the context of an underlying degenerative condition. Dr Silva adverts to the fact that that would be a time of life - mid-30s - when you would expect some evidence of cervical degeneration. So, by and large, I think even before the 1984 injury he did have a degree of underlying cervical degenerative change. It seems likely that having had it, it continued to contribute to bringing about the ultimate result, the ultimate losses the applicant suffers. There is, in my view, therefore, a relevant pre-existing condition or abnormality to be considered in the aetiological equation. 16. As I said, Dr Silva suggests 25 per cent of the assessed losses are probably age-related - and the balance, 75 per cent, is attributable to the injury of 14 April 1984. That analysis completely ignores the effects of the 14 years intervening after 1984 of quite arduous and strenuous work in which the applicant has subjected his neck, right shoulder, et cetera to a multiplicity of insults, some of which were obviously reported to the employer, and in respect of some of which they paid short periods of compensation - a week here, a week there, a day here, a day there - and I do not think you can just excise from the aetiology the effects of that continued arduous work over a quite long period. I would think that if, indeed, it is the major contributing factor to the ultimate losses, in those circumstances I think in accordance with s 68A(6) - I find it difficult without getting all the doctors along to explain how they calculate et cetera the various contributing factors to determine the appropriate loss - and I think the default provision of s 68A(6) operates and that in terms of that provision the deductable proportion is 10 per cent. That is virtually saying the underlying condition provided a diathesis in which years of work operated - without which the underlying condition may have had little, if any, effect. 17. Now, in effect, I have determined there are two deductable elements: that under Sch 6 and that under s 68A. The first question is what are the losses? As far as the neck is concerned there is a fair degree of unanimity. Dr Michael Davies, the operating surgeon, says 30 per cent. His son, Mark Davies, also a neuro-surgeon (who took over his father's practice, I gather), says 20 per cent. Dr John Davies and Dr Thomas Silva each say 25 per cent. Now, really, that is a fairly narrow margin - much narrower than usually found. Two doctors saying 25 - one a bit under, one a bit over. In that sort of context the 25 per cent suggested by Dr Davies and Dr Silva seems to me to be compatible with the findings on examination - particularly of Dr Michael Davies and Dr Mark Davies after surgery and when things have simmered down a bit (as well as their own of course). It is compatible with the applicant's continued degree of activity, maintaining a working lifestyle - albeit, he can pick and choose a bit, though sometimes he obviously does not choose too well. There was another episode in, I think it was September last year, when he had a bit more of a problem when he got carried away with enthusiasm at work - but by and large that seems to be an appropriate measure of the loss and I think the applicant suffers a 25 per cent permanent impairment of the neck. 18. Now the two Dr Davies' assess there is no loss of the right arm - which is fairly remarkable. The applicant has been complaining of or at some stage has made complaint of symptoms in the arm, but certainly of major weakness and lack of ability to continue to use it without developing substantial symptoms - and again Dr Davies and Dr Silva are ad idem in assessing a 15 per cent permanent loss of use of the right arm. That correlates with the applicant's subjective complaints, his account of how the arm operates in practice, so I feel that the applicant suffers a 15 per cent permanent loss of efficient use of the right arm at or above the elbow. 19. Now when you apply the mathematics of the deductable proportion under s 68A, the non-compensible element under Sch 6, you get down to some figures with two places of decimals - which I have just rounded out fractionally. Deducting 10 per cent from the 25 per cent for the pre-1987 contribution you would have 22.5 per cent impairment of the neck. Deducting the 10 per cent deductable proportion under s 68A you would end up with 20.25 per cent. For practical purposes I am satisfied that the compensible element of the applicant's permanent impairment of the neck is 20 per cent. 20. Doing similar mathematics in respect of the right arm you end up with a mathematical 12.15 per cent which for practical purposes I think is 12 per cent - and I am satisfied that the applicant has a compensible 12 per cent permanent loss of efficient use of the right arm at or above the elbow. 21. There is also included in the applicant's claim a 'prayer' for compensation in respect of 20 per cent loss of efficient use of sexual organs. Dr Davies is the only one who adverts to any complaints about that. The applicant when in a reasonably leading fashion it was suggested to him that perhaps he might like to develop this possibility of loss of sexual function simply said that there was nothing wrong with the function: "I can get an erection - no problem. The only thing is after a day's work et cetera I just don't feel like it". Now, there can be secondary losses resulting from primary losses but a loss of libido, a loss of inclination as such while having perfectly functioning sexual organs is not, in my view, a relevant loss, and I do not think that Mr Checuti really thought it was either - so I do not think there is any compensible element under that head of claim. 22. However, the losses in relation to the neck and the arm certainly pass the threshold of s 67(2). I am told to have regard to the severity of the losses, the degree of pain and distress and the likely duration. The losses, as ultimately derived, are moderate. They are certainly not slight. They are certainly not major. They are moderate - 20 per cent of the neck and 12 per cent of the dominant arm. It is certainly more than 'nuisance' value. 23. The degree of pain and suffering? Now on occasion it has been extreme. Mr Chetcuti has had some very bad periods as far as physical pain was concerned. He is down to the stage now (after all that operation) that it tends to more episodic, particularly on any use. He is still working as a stevedore and if he does a bit of physical work he tends to get a bit more of a problem with his neck and his right arm - so there is always that substratum of ache which can become frank pain if he persists in doing something physical. 24. As against that, he had a "passion" for hang-gliding and skiing. He has still been hang-gliding up until relatively recently. He expressed the view that, "you know, perhaps it is getting to the end of my 17 year interest in hang-gliding". Skiing? He still likes skiing. I think counsel put to him that he now only did it on the 'beginners' slopes at which he bridled a little - but he certainly is rather careful of where he skies and how he skies, having been warned by the doctors that any decent knock round the head or something and "your neck could be a real problem" because now, as the applicant said too, "I was a bit surprised in the first place, I've only got two discs left in my neck" - which is about right too - and, as Dr Michael Davies has indicated, those two discs are at greater risk because of the fusion from C4 to C7 - all stresses go on the one above and below - and so he has been warned to take care. So, this restricts his skiing activity. Gardening is his other interest. He still gardens and he said some of the heavier bits you just do not do -it is easier to get someone else to do it. 25. Work? He is maybe not addicted to work but he certainly does not stay away from work without fairly substantial provocation. He is still working which of course certainly lessens the impact of the distress element that could occur with the consequences of losses of this order. The duration? He is now 48. He was bit younger of course when the 'notional' date of injury was, but he had suffered a heck of a lot pain and suffering before that too - but, by and large, I think the duration is moderate. Combining those factors, I think you come out with what seems to be a relatively small sum in the circumstances. I think relative to a most extreme case of pain and suffering Mr Chetcuti's represents 20 per cent. 26. For those reasons, I find: 1. Up to 1 July 1998 the applicant received injury in the course of his employment by way of aggravation, acceleration, exacerbation or deterioration of underlying degenerative disease of the neck and discs. 2. The applicant has been incapacitated thereby to varying degree at varying times and paid all entitlements in respect of weekly payment. 3. As a result of such injury the applicant suffers a 25 per cent permanent impairment of the neck and a 15 per cent permanent loss of efficient use of the right arm at or above the elbow. 4. The deductable proportion in terms of s 68A is 10 per cent. 5. The deductable element by operation of Sch 6 Pt 6 c 6(2) is 10 per cent. 6. As a result of such losses, the applicant has, does, will experience pain and suffering equivalent to 20 per cent of that of a most extreme case. 27. I hereby order and award that the respondent pay to the applicant : 1. A lump sum payment pursuant to s 66 of $8,000 in respect of a residual 20 per cent permanent impairment of the neck. 2. A lump sum payment pursuant to s 66 of 9,600 in respect of a residual 4 per cent permanent loss of efficient use of the right arm at or above the elbow. 3. A lump sum payment pursuant to s67 of $10,000 in respect of pain and suffering resulting from such losses. 4. Costs. 5. Costs to include certificate for a further conference at $200.