Betts v Prisk contractors [2001] NSWCC 146

Reported Decision : (2001) 22 NSWCCR 238

Compensation Court of New South Wales

CITATION : Betts v Prisk contractors [2001] NSWCC 146 PARTIES : Robert Betts Prisk Contractors Pty Ltd MATTER NUMBER(S) : 35865/2000 JUDGMENT OF: Geraghty J CATCHWORDS: Entitlements & Liability :- failed to cooperate with an injury management plan LEGISLATION CITED: Chapter 3 Workplace Injury Management S41 (2); S 42; S45; S47; S57; CASES CITED: DATES OF HEARING: 18/4/2001,20/4/2001,29/6/2001,12/7/2001,13/7/2001,16/7/2001 EX TEMPORE JUDGMENT DATE : 07/16/2001

FOR APPLICANT: Mr M THOMPSON instructed by Gerad Malouf & Partners LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr P PERRY instructed by Commins Hendriks

JUDGMENT: The Claim 1. Robert Betts seeks weekly benefits from 28 March 2001 to date and continuing, and lump sum compensation for neck and back impairments, loss of use of both arms at or above the elbows, and of the right leg above the knee. He also claims a general order s 60 for payment of medical expenses and he seeks a finding that the proposed pain management treatment and the costs for the modification of his motor vehicle are reasonably necessary, and should be paid. 2. Betts bases his claim in respect of his back on an incident on 23 July 1988; in respect of his right knee, on an incident in June 1995; in respect to both arms and the consequential effect on the neck, an incident on 23 October 1995. He further alleges that on 28 August 1996 he sustained a jarring injury to the neck, back and shoulders, and that this aggravated his already injured condition, and that in February 1998, he aggravated his shoulder condition. 3. The pleadings contain an allegation that on 14 October 1997, while using an air gun, the applicant sustained an injury to his wrist, though no evidence was led to support this claim. The pleadings also contain an allegation that the applicant sustained injury, due to the nature and conditions of his employment, from August 1987 to 30 December 1988, and from September 1992 to 27 June 1998, though no persuasive evidence was led to establish that he was injured due to the nature and condition of his employment, other than the incidents to which I have already referred. 4. The pleadings allege that Betts sustained injury to his neck, arms, back, right knee, that these injuries resulted in depression and, due to the medication he had been required to take to control the pain arising out of the injury, he has developed stomach ulcers. There was also evidence from the treating doctors that he has developed reflex sympathetic dystrophy in the arms. 5. The application for determination claims that the applicant is partially incapacitated and that this partial incapacity should be deemed total. I do not understand the meaning of this pleading. Why the applicant should be deemed total when he has pleaded partial is beyond me, since no pleading was made or evidence led to bring into force the deeming provisions of the Act. The Issues 6. Mr Perry identified the issues as follows: 7. Firstly, the respondent did not admit any of the incidents in which the applicant alleged he was injured, except that of 23 October 1995 when he sustained injury to his shoulders. Secondly, the respondent denied any incapacity for work beyond 1 February 2001, and if the Court should find there was any incapacity, the respondent placed in issue the extent of such incapacity. Thirdly, the respondent also placed in issue the fact as to whether the applicant has sustained any losses or any impairments and, if so, what the quantification of each of the impairments and losses are. Fourthly, the application of the provisions of s 68A were also pleaded. The respondent claimed that a substantial deduction should be made, at least in accordance with the opinions of Dr Limb and Dr Chang. 8. Furthermore, the respondent alleged in an amended answer that the applicant had failed to cooperate with an injury management plan and that, pursuant to s 47 and s 57, he was disentitled for any weekly benefits. Finally, the respondent placed in issue the reasonableness of the pain management treatment, and particularly of the motor vehicle modification costs, submitting that the Court should simply make a general order under s 60 and that these matters should be left for further argument. The Applicant's Evidence 9. Robert Betts is married. His wife is not employed outside the home because they have four small children, ranging between 9 years and 4 months. 10. In 1986, he was employed full-time as a heavy vehicle mechanic by the respondent. On 23 July 1988 he fell from the back of a dump truck, injuring his back. He said that he had been on the ground for half an hour to an hour, and felt tingling in his legs. He reported the injury to the daughter of the owner of the business, consulted Dr Brady but had no time off. There was an x-ray exposed in December 1988 (Exhibit D). Betts said that after this incident, he had taken it easy for a while. His back was sore for some time and never fully recovered. 11. He left the employment of the respondent in December 1988 and was, for a time, employed by different businesses. In September 1992, he returned to the respondent on a full-time basis, again maintaining heavy trucks, vehicles and heavy equipment, using large spanners and tools, frequently straining his arms and using them a good deal above shoulder height. He was promoted to foreman in 1994, but continued to do the same duties. 12. In June 1995, he jarred his right knee on the S-cam which he was removing with a sledge-hammer. He consulted Dr Coleman, underwent an x-ray at the Cobar Hospital and although he was hobbling around at work, he took no time off. He had plodded on. His knee gradually became better, but never fully recovered. 13. By 23 October 1995 he was working in the pit, lifting a gear box, when he pulled muscles in his chest. The shoulder pain did not come on immediately, but later, shortly after this incident, he started feeling pinching, stabbing, burning pain in his shoulders, and they tended to lock into the same position. He had had no such problem before October 1995 (which is significant, when I come to the application of s 68A). He consulted Dr Coleman, who referred him to an orthopaedic specialist, Dr Biggs. He saw him in November 1997. 14. In mid-1996 (maybe in August 1996), the applicant was working on a Mercedes Benz when a 90 mm spanner slipped and he jarred his neck, back and shoulders. He kept working, (as he described) plodding along, with shoulder and arm problems. On 19 December 1997 he underwent left arm surgery which was performed by Dr Biggs. He was off work over Christmas and for about an extra week. The applicant returned on light duties, organising the men in the workshop. From Christmas 1997, he did not return to his old job. He said that he was never fit to do the work which he had been doing before. He kept taking medication. He received physiotherapy for a while, but his condition, he said, became worse. 15. In February 1998, he fell over a stool and because he had to brace himself for a fall with his arms extended, experienced discomfort again in his shoulders. The applicant continued on light duties until 27 June 1998 when the business closed, when everyone in the workshop was declared redundant. He received workers compensation payments, he said, until 28 March 2001. 16. Betts changed his general practitioner from Dr Coleman to Dr Olcer in November 1998. Dr Olcer referred him to a physiotherapist and to Dr Biggs, the orthopaedic specialist. The physiotherapist referred him for a second opinion to Trish Wisbey-Roth, whose report is Exhibit L. He was also assessed by Dr Gronow in mid 1999, at the pain management clinic, where the doctor proposed some treatment but the insurer refused to provide the go-ahead. 17. The applicant started experiencing bouts of depression. He said that he was cheesed off easily. There has been no improvement in his condition. He said that he experiences pain in the arms and shoulders which is like a 240 volt hitting him. He describes a burning and grabbing sensation. He has received injections from Dr Biggs but no overall improvement. He said, (and I accept this) that he is certainly unable to perform his old duties. He needs to be fully fit, particularly in the arms, to do the heavy mechanical work in which he was involved. He cannot do the heavy work, or the repetitive work, and particularly the work at shoulder level. He said he was experiencing a throbbing, and an aching like a knife. There are problems with ordinary, simple household activities. Taps and openers are a problem, because he has suffered a loss of strength in his hands. He said that it is hard to steer his car, especially to park it, and he has difficulty at times changing gear. 18. He suffers significant restrictions in his day to day activities. He has problems shaving because he cannot raise his arms to chin level. Doing up shoes, putting on socks causes problems. He cannot pull his shirt over his head. The applicant also gave evidence of the ulcers and burning sensation in his stomach caused by his medication. When asked whether he could operate a telephone in some kind of salaried position, he replied that his arms play up after a while. He could, he thought, perhaps use a desk telephone. Could he write? Yes, for about 5 minutes, but writing causes hand cramps. He could also use a computer for about 5 minutes, but again he developed pain and cramps in his hands. 19. The medical evidence in this case was extensive and can be conveniently divided into (1) the results of x-rays and ultra-sounds; (2) the assessments provided by various doctors of the losses and impairments; (3) the reports of treating doctors and (4) the opinions provided by medico-legal reports. (1.) The Results of Investigative Procedures. 20. There are five reports, two addressing the shoulders, one relating to the back problems, and two dealing with the right knee. 21. Exhibit F is a report of x-ray and ultrasound of both shoulders which discloses that there was no evidence of any rotar cuff injury or tendonitis, but a restriction of movement and some impingement were identified during the dynamic assessment of the right shoulder. 22. Exhibit V is a ultrasound report of the left shoulder exposed in April 1998. It showed a partial re-section of the outer edge of the acromion. The rotar cuff of the left side was normal in appearance with no joint or bursar effusion and no impingement. There was some slight impingement with abduction on the right side. 23. Exhibit D is an x-ray report from December 1988 showing no pathological evidence of any back problem. The vertebrae presented with normal radiological features. 24. Exhibit S is an x-ray report of both knees dated August 2000, but it relates to an x-ray exposed in June 1995. The bone components presented with normal radiological features. There were no arthritic changes evident. No obvious intra-articular effusion, loose body formation or other joint abnormality, and no bone or joint abnormality demonstrated on x-ray as at June 1995. The position, however, was somewhat different in July 1999 as shown in the x-ray report (Exhibit P). In the right knee, there was a moderate sized knee joint effusion. Some early osteoarthritic changes noted in the lateral patello femoral and medio femoral compartments, as evidenced by the presence of osteophytes. (2.) The Assessments. 25. I propose to review the assessments in this order: Right leg above the knee, back, neck, right arm above the elbow, left arm above the elbow, though I should note that some of the doctors who provided assessments have only provided assessments of some of those parts. 26. Dr Endrey-Walder's assessment is dated May 1999. He assessed a back impairment of 15 per cent; neck impairment of 10 per cent; right and left arm losses of 20 per cent each. 27. Dr Chang's assessment dates from July 1999. He has assessed a right leg loss of 10 per cent (asserting that the loss, as a result of the injury, is between 2 and 7 per cent); back impairment of 12; and neck impairment of 10 per cent; right arm loss between 8 and 10 per cent, and left arm loss of 10 per cent (though he opined that a deduction of 50 per cent should be made from the neck, right and left arm assessments as a result of pre-existing conditions). 28. Dr Rivett's assessment dates from November 2000. He assessed a 10 per cent right leg loss; 21 per cent back impairment; 25 per cent neck impairment; 5 per cent right arm loss and 26 per cent left arm loss. These are high assessments (except for the right arm), and it seems to me that, on the evidence of the applicant, there is not such a great difference between the right and left arms as would be reflected by Dr Rivett's opinion. 29. Dr Biggs was the treating specialist. He assessed 10 per cent neck impairment; and 20 per cent loss of each arm. 30. Dr Gronow was also a treating doctor, though he only provided an opinion as to the advisability of a pain management course (his advice not followed by the insurer). Dr Gronow's assessment is contained in his report of July 1999. He assessed a 20 per cent right arm loss and a 30 per cent left arm loss. 31. Dr Davis's report of May 1999 provided no assessment because he thought the applicant was likely to improve. 32. Finally, Dr Limb's assessment of September 1999 was a 7 per cent loss of the right arm and a 13 per cent loss of the left arm, though he thought a 40 per cent deduction should be made, pursuant to s 68A, for a pre-existing condition. (3.) The Treating Doctors 33. The treating doctors' opinions are confined to the reports of: Dr Coleman (Exhibit K) who treated the applicant between 24 October 1995 and November 1998; Dr Olcer (Exhibit O) who began treatment in November 1998; Dr Biggs (Exhibit E) the orthopaedic specialist, who treated on referral from Dr Coleman and later Dr Olcer, and who began his treatment in November 1997. There are also reports from two physiotherapists, a Rowena Field (Exhibit M) who treated the applicant from December 1997 until February 2000, and Trish Wisbey-Roth (Exhibit L) who provided a second opinion in August 1998. 34. Dr Coleman was the first to treat the applicant. He examined him on 24 October 1995, after the injury to which I have already referred, and diagnosed a painful arc syndrome. Betts returned to him on 29 July 1997, complaining of pain in the left shoulder, and now aggravating in the right shoulder. It was a result of this consultation that Dr Coleman referred Betts to Dr Biggs, who examined him in November 1997 and thought he had a sub-acromial impingement of both shoulders, with significantly curved acromions. He undertook an arthroscopic sub-acromial decompression on 19 December 1997. 35. Betts continued to see Dr Biggs, according to Dr Coleman, because of an impingement type pain in the left shoulder. He reported in June 1998 that Betts continued to complain of clicking and occasional pain in the left shoulder, with continuing pain in the right shoulder. The doctor provided a number of medical workcover certificates. 36. Dr Coleman's final report of September 2000 recorded that Betts continued to see him a number of times up until November 1998, and that at that stage, he had bilateral shoulder pain and dysfunction, with associated depressed moods. 37. In his report of 25 February 2000, Dr Olcer recorded that his patient had been assessed by Dr Biggs who had strongly recommended a pain clinic as the principal made of treatment. He first saw the applicant on 12 November 1998. He said that in the time during which he had been treating him, there had been no improvement. In fact (as so often happens with people suffering chronic pain) he had developed clinically depressive symptoms as a result of ongoing pain and reduced function. As at August 2000, when Dr Olcer authored his last report, Betts was complaining of daily pain in both shoulders which was associated with sympathetic dystrophy in the hands and which was causing sweating, swelling, pins and needles and colour changes. 38. Dr Biggs was the treating orthopaedic specialist. His reports refer to an x-ray which showed significantly curved (type 3) acromions, and to an ultrasound which reported as showing sub-acromial impingement. Even after surgery, Dr Biggs reported, the applicant was significantly symptomatic in his right shoulder as well and that this would require surgery once the left shoulder had settled. 39. In his report of July 1998, Dr Biggs said that, over the past 3 or 4 months, Betts had developed painful paraesthesia radiating down both arms into the fingers. Examination revealed a diffuse tenderness over the cervical thoracic spine, and over the medial border of both scapulae. The right shoulder showed signs of marked sub-acromial irritability. The left shoulder had similar residual signs. The pain which radiated into both arms was associated with forced lateral flexion to the right and left. The doctor concluded that, as at July 1998, Betts had signs of pain radiating into both arms from the neck, as well as bilateral thoracic outlet syndrome. 40. In his report of November 1998, he thought that there was a possible bilateral reflex sympathetic dystrophy. 41. In May 1999, Dr Biggs reported that, as at his most recent examination, Betts continued to experience activity-related bilateral shoulder pain. Functionally, he said, he was limited in that he could not perform a lot of normal recreational sporting activity, such as fishing. He was also unable to do normal household chores. The doctor believed that the applicant would continue to have significant problems with his cervico-thoracic spine, with both shoulders and upper arms. He thought he was significantly disabled. 42. In December 2000 Dr Biggs reported that an initial possibility had been transformed into a certainty and that unfortunately, Betts had developed a post-operative reflex-sympathetic dystrophy. This was referred to also in the report of Rowena Field (Exhibit M). 43. In her report of December 2000, Rowena Field, a physiotherapist, recorded that Betts had ongoing problems with his cervical and upper thoracic spine. Although various treatments had seemed to deliver some relief initially, ultimately there had been no sustained overall improvement. He continued to suffer regular exacerbations of shoulder problems, with pain in the upper limbs in response to even the most basic exercises. He had had three treatments (recent treatments) by December 2000, and none had resulted in any change. It had been suggested to Dr Olcer, the general practitioner, that the pain management option might be the most appropriate. 44. Trish Wisbey-Roth provided a second opinion in August 1998. In her report (Exhibit L), she recorded that on examination Betts had complained of bilateral shoulder pain. The right shoulder pain had been more a clicking, gripping type pain indicative of impingement, while the left was a constant burning pain, not a typical sign of impingement. She further recorded cervical pain, muscle tightness and joint stiffness, mainly on the left side. The patient also experienced bilateral referred pain in both arms, down to the hands, and she noted associated changes in skin colour or some blotchiness. Betts reported strong tingling in both arms at night. She commented that these symptoms indicated neural, and possibly sympathetic, nerve irritation and involvement in the conduction. There was a significant objective finding of a positive brachial plexus test for both arms. (4.) The Medico-Legal Evidence 45. The medico-legal reports extend to the report of Dr Davis (the same report being exhibited twice) Exhibit 8 and Exhibit H; Dr Endrey-Walder (Exhibit N) who examined the applicant in May 1999; Dr Gronow (Exhibit R) who examined Betts in July 1999; Dr Chang (Exhibit Q) who examined him in July 1999; Dr Limb (Exhibit 7) who examined him in September 1999; and Dr Rivett (Exhibit U) who examined him in November 2000. 46. Dr Davis reported that the applicant was suffering an impingement syndrome involving both shoulders. He said that this occurred in those who use their arms excessively above the horizontal, and in Mr Bett's case, it had occurred when he was working in a pit, manipulating a gearbox into a truck, which had involved the case of arms over his head. 47. In his report of 18 May 1999, Dr Davis (who was reporting to the respondent insurer) advised that a consultation should be sought regarding the management of the reflex sympathetic dystrophy. He suggested that perhaps a review at a pain management centre might be appropriate. The insurer clearly did not accept Dr Davis's opinion, since it refused a similar recommendation of Dr Gronow. 48. In his report of May 1999, Dr Endrey-Walder recorded a history of a fall from the dump truck in which the applicant had injured his back, the incident of 23 October 1995 in which he injured his shoulders and chest, and the fall over the stool in February 1998. He did not record any history of an injury to the right knee in June 1995. 49. In May 1999, Betts complained to Dr Endrey-Walder that he had neck pain which travelled down the middle to the shoulder blades - a throbbing sort of pain which also travelled all the way down the arms into the hands and fingers. His hands became blotchy and sweaty. He said that the neck pain had developed following arthroscopic surgery in December 1997. He described the right shoulder as grabbing when he attempted to elevate the arm. He said that sometimes even mundane activities (such as removing his handkerchief from his pocket) would cause an acute jab of pain. He also told the doctor that he had problems with the left shoulder so that every so often, when he got it up to a certain position, it clicked and grabbed. He complained of low-grade, ongoing, lower back symptoms which varied from grabbing to sharp occasional jabs. 50. Dr Endrey-Brown thought Betts had sustained an injury to his low back at work when he had fallen from a truck; an injury to the shoulders and the anterior chest wall in October 1995. He thought that his back impairment was partly due to residual symptoms in the low back, and partly to some radiation of pain in the upper thoracic region which was often associated with neck pain and symptoms at the shoulder girdle. He thought there was clinical evidence of ongoing functional impairment at the rotor cuffs of both shoulders, and that he would continue with significant work-related restrictions. He could not see Betts doing any more than light, sedentary work, perhaps process work, or some simple clerical duties. 51. Dr Gronow saw the applicant a few months later, in July 1999. The applicant provided a history of a dump tuck incident in July 1988 and told the doctor that he had only had occasional sharp back pain since then. This would seem to indicate that the back problem was of minor significance compared with the arms and neck problem. He also referred to an injury to the right knee, due to a direct blow, but he gave no history of any treatment or any ongoing complaint. 52. Dr Gronow considered the applicant had severe neuro-pathetic pain associated with the injury in October 1995. Associated with the neuro-pathetic pain, there were marked vasomotor changes. He had bilateral impingement syndrome of the shoulders. Dr Gronow thought that Betts needed an anaesthetic nerve block and that after the initial treatment, he would require to be supervised on a residual pain-management program. He thought Betts was not fit for his pre-injury work, or for any work, and that any delay in treatment would impact on his potential ability for full rehabilitation. In his report of February 2001, Dr Gronow also thought that the applicant would find it easier to drive with automatic transmission and power steering. 53. Dr Chang saw the applicant in the same month as Dr Gronow. His reports contain a rather complicated, nuanced assessment of proposed s 68A deductions. 54. The Chang report contains a brief history of the dump truck incident affecting the back, and of the injury to the inner aspect of the right knee which was described as probably occurring about 5 years previously. Betts made some complaint to Dr Chang about the right knee, saying that the knee was crunchy and hot, and often would lock. The position it locked was between 30 and 60 degrees, and there was also a noise inside. What seems extraordinary is that if this were the case, he has not sought treatment, though there is a proposal for arthroscopic treatment. But the injury occurred in June 1995, and here we are in July 1999 when he is describing rather dramatic symptoms to a doctor who is not his treating doctor. 55. Dr Betts also complained to Dr Chang of pain at the L5 level of the back. He described muscle pain on both sides of the neck and tenderness over the mid-lumbar spine. He was able to raise his legs only to 70 degrees. When the doctor examined Betts's right knee, there was movement between 10 to 140 degree, but with pain. Crepitus was present on the patello femoral surface and tenderness over the patellar region. 56. Dr Chang diagnosed impingement of the left and right shoulders, a meniscal injury to the right knee causing osteoarthritic change, and a lumbar disc lesion, probably at the L4/5 level. However, he stressed that apart from the impingement of the left and right shoulder (which had been confirmed on ultrasound), the other diagnosis in respect of the right knee and back were on a clinical basis since they had not been confirmed by ultrasound, CT scanning or x-ray. 57. Dr Limb examined the applicant in September 1999 and thought that the applicant had minor degenerative changes of a soft tissue nature in both shoulders. He considered that the occupational duties performed by Betts had probably contributed to the degenerative changes in the shoulders, to a significant degree. However, he said there were some non-work-related factors. The report of Dr Biggs of May 1999 had mentioned Betts had a significantly curved acromia. This abnormality had probably contributed to the generation of the soft-tissues in both shoulders. He said that Betts had minor soft tissue changes in both shoulders which were caused by a combination of accumulative mechanical stresses (principally occupational duties) and the abnormal shape of his acromia. The patient had mild impingement in both shoulders as a result of the soft-tissue changes. He thought the applicant was fit to undertake suitable occupational duties, not including heavy lifting. He should avoid strenuous pulling and pushing with his arms, digging and hammering, and the use of his arms elevated close to or above his chest level. These are quite significant restrictions, it seems to me, particularly for a man who has been used to earning his living by physical activity. 58. Finally, Dr Rivett's report (Exhibit U) resulted from an examination in November 2000. He received a history of the back injury in 1987; the knee injury in June 1995 which, he said, resulted in difficulties at work but no treatment; the injury in October 1995; jarring to the neck and back in August 1996; an injury with an airgun in October 1997 for which no evidence was offered in Court; and a tripping over a stool in February 1998, aggravating pain in the neck and shoulders. 59. Dr Rivett thought Betts was unfit for his normal job, for heavy lifting, excessive bending, prolonged sitting or standing, pushing, pulling or twisting, as well as postural strain, excessive movements of the neck and heavy concentrated or above the shoulder work with the upper limbs. He was not fit for excessive walking, negotiating numerous stairs, walking on irregular ground. Again, significant restrictions. 60. I observed the applicant seated in Court with his arms across his chest, obviously to relieve pain in his shoulders, arms and thoracic region. He sat like this throughout the evidence and while ever he was in Court. It seemed to me that he was in pain and, though some commentators thought that he has some hypochondriacal tendencies (and that might very well be the case), he did seem to be in serious discomfort. In any event, throughout his adult life he has been a conscientious worker. No-one has disputed his good work history. He injured his back in July 1998, but kept working and did not seek any treatment. This has to be to his credit. He injured his knee in June 1995, continued to have some discomfort, but kept working, received no treatment and has made few complaints. He injured his shoulders seriously in October 1995. This led to surgery to his left shoulder and a promise of surgery to his right, but he kept working on light duties after the surgery and until the workers in the workshop were all made redundant. He has obviously not avoided work. 61. The respondent does not deny the fact of injury on 23 October 1995. It does not deny that the applicant has sustained a loss of use of the arms, particularly the left arm, though the respondent did put in issue the effect of the incident on the applicant's neck, and any quantification of losses. I do not propose to deal with this October 1995 incident any further since the respondent has conceded it occurred and has had permanent consequences. 62. As to the injury on 23 July 1998, I am persuaded that the applicant suffered a back injury and that it has had some permanent, though minor, consequences. He had no time away from work. He has received no treatment. He complained to none of his treating doctors. He had an x-ray in December 1998. Dr Chang has questioned whether there is a disc lesion at the C4/5 level, adding that his suggestion is on clinical grounds, and he received a list of symptoms which no other doctor recorded. I accept that the applicant has never fully recovered from this injury. It seems to me, doing the best I can, that the applicant has sustained a 10 per cent back impairment as a result of this incident. 63. As to the incident in June 1995 and its consequences for the applicant's right knee, again I am persuaded that this incident occurred. I accept the applicant as a person of credit. An x-ray was exposed in June 1995 which did not reveal any problems. A further x-ray in July 1999 showed some osteoarthritis and some osteophytes in the right knee, though I do not know whether they were also present in the left knee, since in July 1999 only one knee was x-rayed. There is a proposed arthroscopy procedure indicated in Exhibit X. The applicant has never fully recovered from this incident, but he did not seek any treatment. While some doctors have recorded some rather dramatic complaints of symptoms, no treating doctors have replicated those complaints and, it seems to me overall that the right knee condition is not a serious problem. I have assessed a 5 per cent loss of use of the right leg at or above the knee. 64. It is clear the applicant is seriously disabled. Of course he is unable to do his old job. I have contemplated whether he should be assessed as totally incapacitated for work, particularly in view of the fact that his arms are so easily aggravated by mundane activity, and particularly since he suffers a reflex sympathetic dystrophy. Perhaps he could do some light part-time work, a few hours a day, though he would need, in my estimation, a rather sympathetic employer. However, re-considering the extent of the applicant's incapacity, all the doctors believe he could do something, that he would be better off working. I believe he would be able to earn $50 a day, or $250 a week. Since he probably would not be able to work every day, I would reduce the $250 a week to $200 a week. He would be able to work, it seems to me, on average, a few hours a day, four days a week. Section 68A 65. As to the provisions of s 68A, I note that there are some complex assessments suggested by Dr Chang. (Exhibit Q), and Dr Limb (Exhibit 7). There was general agreement among the doctors that there are some congenital or non-work-related factors in the shoulder condition, and consequential symptoms in the neck. Dr Chang recommended a deduction of 50 per cent, while Dr Limb recommended 40 per cent. No other doctor addressed the issue. However, it seems to me that the applicant was not experiencing symptoms before the injury, that they had come on immediately after the injury and have been there ever since. The recommended deductions, in the circumstances, seem rather excessive. I propose to apply the 10 per cent statutory deduction to the arm losses and the neck impairment. There will be no deduction for the back impairment since that issue was not addressed by anyone and the applicant is young. There has been no x-rays or CAT scans. The Chapter 3 Issue 66. I turn now to the question of failure to co-operate in the injury management plan. 67. The respondent conceded that it bore the onus in establishing the applicant's failure to co-operate. The failure was based on the evidence of Jeff Yeo, who was the Manager and Director of Western Region Injury Management (a rehabilitation service for all types of injuries), and that of Rosalia Kroega, an occupational therapist, who was engaged to assess the applicant and to report to Jeff Yeo. 68. The applicant submitted (1) that in law, the activity of Yeo and Kroega did not constitute an injury management plan and, (2) that in any event, in fact the applicant had not failed to comply, that the respondent's agent had closed its file prematurely. The evidence which addressed this particular issue is to be found in Exhibits 3, 4, 5, 1, 2, 6 and B, together with the oral evidence of the applicant, of Jeff Yeo and Rosaria Kroega. 69. In this respect, there is little dispute between the evidence of the applicant on the one hand, and that of Mr Yeo and Ms Kroega on the other. There was no dispute, for example, that Betts co-operated in an assessment, that he provided the names of employers in and around Cobar who might be willing to employ him, that he had been informed (whether by letter or by telephone) of an assessment at the premises of Allan Sullivan in Cobar, and that when he arrived there and was dealing with Ms Kroega, he was unhappy, angry, annoyed, in pain. There were arguments, and he walked away and left the assessment. 70. However, when it was put to Betts that he had refused to attend a work trial, he denied this and said that he had attended. According to him, he had not received a letter to notify him, (part of Exhibit 5), but when Kroega rang him, he had gone down to the premises of Allan Sullivan, as invited, and had a conversation there with Ms Kroega. He also agreed in his evidence that he had been telephoned in January 2000 by Jeff Yeo who had told him that he had been retained by the Commercial Union insurer; that Jeff Yeo had come to his home on 22 January 2000; that he had been involved in a functional capacity assessment on 4 February 2000 (which resulted in the report, Exhibit 3); that he had filled in a questionnaire and answered the questions; that he had demonstrated what he was able to do, performing the various movements and co-operating. He agreed that Mr Yeo had authority to consult his general practitioner, Dr Olcer. 71. Betts said that on 13 July 2000, he and his wife had been at a meeting with Jeff Yeo, and a psychologist, Natalie Green, at which they talked about a work trial. Betts provided a list of potential employers in the area. He agreed that in early 2001, about 22 January, Mr Yeo had rung to tell him that he had identified an interested employer, Allan Sullivan, whom he knew. He said that he had told Mr Yeo on this occasion that he had had an accident involving the tendon of his right shoulder and that Mr Yeo had not shown much interest. He said that on 1 February 2001, he had gone to the Sullivan hardware workshop, where he had met Kroega. 72. She said that she would like to take him through the duties which Mr Sullivan could provide but he told her that he had a medical certificate to state he was totally incapacitated. It was suggested to him that he said he had no intention of looking at the work, but he denied this. He told her of his total incapacity, to which, he said, Allan Sullivan replied that if he had known this, he would not have agreed to the proposal. He agreed that he did say something like, that Jeff Yeo was pushing him around, that he was sick of it, that he had a certificate to the effect that he was totally unfit. He also agreed that he had said that he knew when he would be able to return to work. He agreed that he was hot under the collar and speaking firmly. He told Ms Kroega that he was still having trouble and she replied in words to the effect Don't panic, you don't really have to do it if you can't. 73. He complained to Kroega that Jeff Yeo had talked over the top of him and that he (Yeo) would not listen. He told her that when he was fit enough, he would go back to work. He agreed he had had no trouble with Kroega at all. He said he had been working for 20 odd years and that he was sore. 74. When Jeff Yeo gave evidence, he agreed that Betts had shown no reluctance to participate in the program of assessment which had resulted in Exhibit 3, in providing a list of possible employees (Exhibit 4), and that as a result, he had contacted all those identified, none of which were willing to take Betts on. He had, on his own initiative, found Allan Sullivan and arranged an assessment, sending off letters dated 24 January 2001 (Exhibit 5). The applicant said he did not receive his letter. He said he had noticed no reluctance whatsoever on the part of the applicant, in co-operating, up to that point. 75. However, he arranged an assessment of the workplace in early February 2001 and subsequently received a report from Rosalie Kroega. The initial report in her own handwriting is Exhibit 1 and the formal report of what had occurred, a report written for Mr Yeo, is Exhibit 2. As a result of this second report, he said, he had closed his file and reported to the insurance company. (Exhibit 6). Betts was contacted by the insurance company, by letter dated 13 February 2001 (Exhibit B), telling him that they had been informed he had refused the proposed work trial and any further rehabilitation, that he had not been seeking work, and that therefore liability for his claim would be denied from 28 March 2001 (Exhibit 1). 76. The applicant submitted that in law, the interaction of Yeo and Kroega with him had not constituted an injury management plan. 77. Chapter 3 of the Workplace Injury Management and Worker's Compensation Act 1998 is titled Workplace Injury Management. S 41(2) provides that: The various provisions of this chapter [being chapter 3] apply only in respect of injuries that happen after the commencement of the provisions concerned. 78. The injury in question occurred on 23 October 1995. Act 86 of 1998 was assented to on 14 July 1998 and commenced its operation on 1 August 1998, (except for chapter 3). Chapter 3, dealing with workplace injury management, commenced on 1 June 1998. It is obvious that these provisions do not therefore apply to the applicant. This point was not made by the respondent or the applicant. Therefore, for the sake of thoroughness, I propose to go through the relevant provisions to determine whether, even if they were applicable to an injury of 23 October 1995, the activities of the parties would constitute an injury management plan. 79. The injury management plan is defined in s 42 as a plan: for co-ordinating and managing those aspects of injury management that concern the treatment, rehabilitation and re-training of an injured worker for the purposes of achieving a timely, safe and durable return to work for the worker. 80. S 45 is in the following terms, except for subsections (6) and (7): (1) When it appears that a workplace injury is a significant injury, an insurer who is or maybe liable to pay compensation to the injured worker must establish an injury management plan for the injured worker. (2) The injury management plan must be established in consultation with the employer (except when the insurer is a self-insurer), the treating doctor and the worker concerned, to the maximum extent that their co-operation and participation allow. (3) The insurer must provide both the employer and the insured worker with information with respect to the injury management plan. (4) The information that the insurer must provide to the injured worker includes a statement to the effect that the worker may have no entitlement to a weekly payment of compensation if the worker fails unreasonably to comply with the requirements of this chapter after being requested to do so by the employer. (5) The insurer must keep the employer of a worker who has received a significant injury informed of significant steps taken or proposed to be taken under the injury management plan for the worker. This subsection does not apply when the insurer is a self-insurer . 81. I make the following observations about s 45. 82. Firstly, the plan must be established in consultation with the employer, the treating doctor and the worker to the maximum extent that their co-operation and participation allow. As at 27 June 1998, the business of the employer had closed at Cobar. Every one of the employees was made redundant. However, as far as I could determine, the respondent employer is still in existence. There was no suggestion that it is in liquidation and that the insurer should replace the nominated respondent in these proceedings. The question must be asked - what does the phrase mean to the maximum extent that co-operation and participation allow . I am left in the dark as to the status of the respondent and as to what participation and co-operation the respondent employer could be reasonably required to contribute. 83. Secondly, the insurer must provide the employer and the worker with information about the plan. I have heard no evidence of any information provided to the respondent employer. The worker, it seems, received some notifications, and was involved in the development of the alleged plan, but was he informed about the injury management plan. He was involved, but did he receive the information which is referred to in s 45? I do not know. 84. Thirdly, the obligatory information must include a statement as to the disentitlement of the worker if he should fail unreasonably to comply. I have heard no evidence of the fulfillment of these provisions. It seems that the worker was not informed of the possibility of his disentitlement. Therefore, if the insurer has not complied with its obligation to warn the worker, would that mean that the insurer would be precluded from relying on the provisions disentitling the worker. I consider that the insurer is unable to rely on those provisions. 85. Fourthly, I have seen no evidence of any compliance by the insurer of its obligation in subsection (5), namely, that it must keep the employer of any worker who has received a significant injury informed of significant steps taken or proposed to be taken. 86. S 46 provides that the employer must participate and co-operate in the establishment of the injury management plan which must be established for an injured worker, and the employer must comply with the obligations imposed on it by or under the injury management plan. I have seen no evidence of any compliance with these provisions. 87. S 47 deals with the worker's obligation under the management plan. 88. S 47 (1) provides that an injured worker must participate and co-operate in the establishment of a plan, and (2) that he must comply with the obligations imposed by or under any plan. I think that this provision and the others contained in chapter 3 envisage that the plan should involve the employer in whose employment the worker was injured. It seems to me that these provisions cannot be read in any other way. If one refers to the provisions, for example, of s 42(1)(ii), which envisages the situation where two or more employers may be liable to pay compensation, it provides that a reference in chapter 3 to the employer, is a reference to whichever of those employers last employed the worker. If one refers to s 44(1), s 45(2), s 46(1) and (2), s 48 (which provides that an injured worker must make all reasonable efforts to return to work with his or her pre-injury employer), s 49 and s 56, I am forced to conclude that this chapter does not provide for the situation where the employer of an injured worker is in liquidation or out of business. It only envisages the situation where there is a mutual obligation between the employer who employed the worker when he was injured, and the injured worker himself. Both bear an obligation: one, to return to work; the other, to encourage, co-operate and participate in a return to work. This chapter is limited in its scope. 89. S 57 provides that if a worker unreasonably fails to comply with the return to work procedures, with a plan, he is thereby disentitled. I have concluded, in these circumstances, that Betts was not involved in an injury management plan in accordance with the provisions of the Act and that therefore he cannot be disentitled in accordance with s 57, in brief for the reason the provision do not apply to this injury, and because they do not apply to these circumstances. 90. However, if I am wrong about my interpretation of the chapter, I note that the applicant has also submitted that, as a matter of fact, he did not unreasonably fail to comply. 91. Betts attended the assessments. He provided the name of possible employers. Jeff Yeo observed that Betts was keen to trial the work, and in fact it appears in the letter to Mr Sullivan (Exhibit 5) that he informed Mr Sullivan that the worker was keen: I have informed Robert of your interest in assisting him and he is also keen to trial the work. 92. Betts said that he had been to see the Sullivans several times. On 1 February 2001 he was in pain and had been provided with a total disability certificate. He had actually told Mr Yeo that he had suffered some aggravation, and he observed that Mr Yeo was not quite interested in this. Pain had caused depression and distress. He had driven back from a hearing of this court case at Parramatta and had not recovered from the long drive to Cobar. He did not receive the letter on 21 January 2001, as he said, but had attended at the Sullivans to speak with Kroega. After the difficulties at the Sullivan premises on 1 February 2001 no further attempt was made by the insurer or its agent to involve the worker further after he had improved and cooled down. In the circumstances, I believe the insurer did close its file prematurely. It seems to me that Betts had co-operated, and in fact did not unreasonably fail to co-operate with the development of the return to work plan. Consequently, if the provisions of s 57 apply (and I do not think they do), they do not apply in this case because the applicant, as a matter of fact did, not fail unreasonably to comply with reasonable requests. The s 60 Items 93. I propose to make a general order pursuant to s 60, and to find that the proposed pain management treatment, in the circumstances, is reasonably necessary. The applicant experiences serious, frequent pain in his shoulder and arms and cannot conduct the simplest movements. The reasonableness of the pain management treatment appears from all the evidence, and from the recommendation of doctors such as Dr Gronow, Dr Olcer, the treating general practitioner, and even the respondent's doctor, Dr Colin Davis. In this regard, I do not have to say anything more. 94. The motor vehicle modification costs are more problematic. s 59 of the Workers Compensation Act defines medical or related treatment as including the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity. The medical practitioner, Dr Gronow, has recommended it, and, having regard to the nature of Bett's incapacity, it seems to me that he would be greatly advantaged in his treatment by driving a car with power steering and automatic car. Betts said he has had difficulty driving and, bearing in mind that he is the father of four children and lives in Cobar, and that he has to travel long distances at least for treatment, in such circumstances, it seems to be reasonably necessary for him to have the benefit of a zero steering modification and an automatic transmission. 95. However, I have studied at some length Exhibit Y. It is a rather prolix report from the NRMA, and very obscure. However, doing the best I can, it seems to calculate a weekly differential between the car Betts presently drives, a 1996 Nissan utility, and a 2001 Nissan Navarra automatic utility. The report makes a complicated assessment because, as they say, while the applicant owns a 1996 vehicle, it would be financially prohibitive to modify this to a zero steering and an automatic transmission. While I accept this general observation, I do not accept that it is reasonable to claim a weekly differential between the running costs of one and the running of the other. It seems to me that it would be reasonable, when Betts changes his car, for the insurer to pay for the cost of the zero steering modification (which I note is about $1,100), and the difference between the cost of a manual and an automatic transmission. These two costs could be borne by the insurer on a one off basis since once the applicant has acquired these two features, when he trades in the next time, there will be a normal changeover. 96. I know that this result will complicate the issue, and for that reason, after I have announced my findings and award, I propose to grant leave to mention the matter further, since the question of the s 60 expenses was not argued at any great length. I was not impressed with the methodology of Exhibit Y, and I wish that to be known immediately. 97. In the light of these reasons, I make the following findings and award: 98. (1) The applicant injured both his shoulders, suffering consequential injury to his neck, in a work-related injury on 23 October 1995, and his injury and its treatment have resulted in a reflex sympathetic dystrophy condition. 99. (2) The applicant injured his back at work on 23 July 1988, and his right knee at work, in June 1995. 100. (3) The applicant has a dependent wife and four dependent children. 101. (4) He is partially incapacitated for work, and has been since before 28 March 2001. 102. (5) The probable weekly earnings of the applicant but for the injury, had he continued to be employed in the same or some comparable employment, are as stated in the schedule of the respondent, $627 per week. 103. I note the applicant was paid compensation from 27 June 1998 to 28 March 2001. 104. (6) I assess the sum of $200 per week as the average weekly amount Betts is able to earn in some suitable employment, that is, in the general labour market reasonably accessible to him. 105. (7) Having regard to the circumstances, I find $427 per week is a proper amount for weekly payment of compensation. 106. (8) There has been no failure on the part of the applicant to co-operate with the provisions of s 47 of the Workplace Injury Management Act. 107. (9) Chapter 3 of the Act does not apply to the injury of 23 October 1995. 108. I make an award in favour of the applicant in the sum of $427 per week, from 29 March 2001 to date and continuing. 109. (10) As a result of the injury of 23 October 1995, the applicant sustained a permanent loss of use of his right dominant arm, at or above the elbow, of 20 per cent, of his left non-dominant arm of 20 per cent, and a permanent neck impairment which, having regard to the severity of the matter, bears to a most extreme case a proportion of 10 per cent. 110. (11) As a result of the injury of 23 July 1988, the applicant suffered a permanent back impairment which, having regard to the severity of the matter, bears to a most extreme case a proportion of 10 per cent. 111. (12) As a result of the injury sustained in June 1995, the applicant suffered a loss of efficient use of the right leg, at or above the knee, of 5 per cent. 112. (13) I propose to deduct 10 per cent, pursuant to s 68A, from the assessments of the arms and neck. 113. I make an award in favour of the applicant, pursuant to s 66 in the sum of $40,254. 114. [The back is $5,004. The right leg is $3,750. The assessment of the arms is $16,000 for the right and $15,000 for the left, and of the neck is $4,000, (making $35,000) from which I deduct $3,500, making $31,500.] 115. Having regard to the degree of pain and suffering and the severity of the losses to the arms and the permanent impairment of the neck, making no allowance for any injury other than the one of October 1995, and bearing in mind the maximum amount to be paid in a most extreme case, I award pursuant to s 67, the sum of $25,000. 116. I order the respondent to pay the applicant's medical expenses, pursuant to s 60, and in that regard I find: 1. That the pain management treatment is reasonably necessary, and 2. The motor vehicle modification is also reasonably necessary, though how that is properly calculated remains a matter for further submissions. 117. I order the respondent to pay the applicant's costs. 118. I grant leave to mention the matter further. 119. I certify a second conference in the sum of $400, and an amount for counsel's attendance on 29 June 2001 and for counsel taking judgment on 16 July,2001. Mr A.M.N. THOMPSON instructed by Gerard Malouf & Partners appeared for the applicant Mr R.P.L. PERRY instructed by Commins Hendriks appeared for the respondent