Marfleet v Alimoon [2001] NSWCC 22

Compensation Court of New South Wales

CITATION : Marfleet v Alimoon [2001] NSWCC 22 PARTIES : Mark D Marfleet v Alimoon Pty Limited MATTER NUMBER(S) : 33303 of 1998 JUDGMENT OF: Bishop J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 10 August 2000, 31 January 2001 DATE OF JUDGMENT: 04/27/2001

FOR APPLICANT: Mr S Dixon instructed by Kennedy & Cooke LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr G McCready instructed by Henry Davis York

JUDGMENT: 1. This case well illustrates the difficulties that can arise in assessing a claim under s 40 when inadequate attention is given to the necessary economic evidence. 2. The applicant is 37 years old and brings a claim based upon two injuries in the course of his employment and also on the nature and conditions thereof. The injuries in question were on 18 May 1989 when he lifted a stockpot in the course of his employment as a chef and the second was on 19 August 1993 when he bent down to open an oven. Weekly payments are sought from 25 March 1997 on a continuing basis together with an order for medical and other expenses under s 60 and a claim for lump sum compensation with respect to impairment of the back and loss of the efficient use of the legs. In this regard the application discloses that there was a prior payment of appropriate compensation for a ten per cent impairment of the applicant's back in February 1996. 3. It was indicated by the respondent that the effective issues were the assessment of the applicant's entitlement if any under s 40 and the question of whether there was any deterioration in his condition caused by the subject injuries leading to an entitlement to further lump sum compensation. THE APPLICANT'S EVIDENCE 4. This was given on two occasions initially at Batemens Bay and subsequently in Sydney. No other oral evidence was given. 5. The applicant who gave his evidence in a straightforward and acceptable fashion was born in England and indicated that he separated last year from his wife who is working but has one dependent daughter. He qualified as a chef and worked in various restaurants in the United Kingdom and then came to Australia after some travelling in 1984 and worked in various locations, but not always as a full time chef. He joined the employ of the respondent in December 1988 at which stage his health was good with no problems with his back or his legs. He was employed as the head chef and had sporting activities involving tennis, surfing and the like. 6. He described the injury on 19 May 1989 when he lifted a large stock pot which had some bones and water and vegetables in it from the ground up to a work bench. He immediately felt a sharp pain in the central lower back, stopped work immediately rested for a while and then saw a chiropractor. He had a manipulation and there was some other subsequent treatment but the applicant was able to continue his work taking it easy for a few days. The heavier duties could be handled by some of the other staff. 7. After a couple of weeks he said that his back became pretty good and he kept working although he would get periods of soreness from time to time. Until 1993 this did not require any medical treatment or any loss of time. In 1992 the applicant left the employ of the respondent went overseas for a while and then travelled to Queensland. He had no significant problems with his back and he recommenced with the respondent in the middle of 1993 in the position of second chef. This was a part-time job for four days a week, approximately 32 hours. He said that he did his normal duties and did some lifting but if anything was particularly heavy he would ask for some help. 8. On 19 August 1993 he picked up a tray of food from a bench and turned around to put it in the oven which was behind him. As he twisted his back went on him. The symptoms were in the same place as previously but the applicant described them as much more severe. His wife was called and he went home and the next day saw his local doctor and had some physiotherapy which after about three weeks started to show some benefits. He was paid compensation for this period and he noted that after this injury in August 1993 he had some pain going down into the right groin area. 9. After the initial period of a few weeks off he went back to the respondent on restricted duties for about a month as his back gradually settled down and he was able to increase his work capacity. He noticed that he would have stiffness and soreness in the mornings but his back became manageable unless he overdid things. Physiotherapy continued with some swimming and by the early part of 1994 he was basically doing his normal duties though he would ask for help if he was in trouble with his back which would occur from time to time. 10. Late in 1994 the applicant saw a rehabilitation specialist and underwent a further strengthening program. Later in 1994 he left the employ of the respondent for reasons unrelated to the subject injuries. 11. The applicant's subsequent employment history will be touched on briefly at this point. After leaving the respondent he went into a restaurant business with another person for about 12 months. He kept his exercises up and managed his problems successfully to keep going with his activities as the chef. There were a couple of flare ups of pain, sometimes for no reason at all, sometimes due to sneezing and coughing. Medical consultations continued and about the end of December 1995 he did some part time work at a cafe in Ulladulla which was lighter work than that of the normal chef being in a cafe only. This lasted about eight months. After August 1996 the applicant helped a friend in a restaurant in Sydney called Lothars at Pymble as a casual and he would drive from Ulladulla from Sydney to do that. This was for about three weeks, wearing a back brace and doing a couple of days a week although there was occasionally an eight hour shift. 12. In September 1996 the applicant bent to say goodnight to his child who was in a cot when his back went on him again and this time it was quite severe and in the same place as previously. This required some more concentrated medical treatment and there were also some symptoms in the right groin. There was for a period some pins and needles and abnormal feelings in the legs but this did not last. He then came under the care of a specialist with an MRI scan and some facet joint injections. He was about six months off work following this episode and was paid compensation. 13. After about six months he went back part time at another restaurant about ten hours a week. This would have been in the early part of 1997. He was doing lighter types of work but gradually built his activities up. At this point however he was getting a little bit depressed. During 1998 he was able to do about 12 hours a week. 14. In 1999 he had a discogram and an injection from Dr C E Graham. He then continued an exercise activity working part time at a cafe and building up to 16 hours a week. Nerve blocks have been helping him but a tens machine was not of any great benefit. 15. He indicated that his back has now settled down to a reasonable level but he still wears the brace if he is working, he is stiff in the morning and takes anti-inflammatories and keeps going with the injections. Symptoms are worsened with activity. He does do walking as much as he can manage and indicated that as at August last year he was not having any problems with his right leg and that the numbness that had gone into his legs had disappeared. However he was still having occasional pains in his right groin probably two to three times a year and when this occurs he indicated that he was a little cautious when walking. The left leg has also cleared up. He feels that his problems with his mood have lessened to a significant amount. Overall he is not as quick as he used to be. He has problems playing with his daughter. He has found tennis too risky and surfing although he has tried them. 16. At the present time he is working with a catering company in Sydney whilst living in Ulladulla and doing a light type of duties with food preparation for cocktail parties and small dinner parties. There is not much lifting involved in it. He can do an eight hour day and sometimes works three days straight. 17. He felt that he would not be able to do the full time job of a second chef. 18. The cross-examination of the applicant was really directed towards his earning situation and his work activities. He is now working at a cafe in Milton about three kilometres from where he lives. The pay slip indicated that he had worked as much as 11 hours in a particular day around the holiday period but indicated that he had breaks in between the shift. He also agreed that in the pre Christmas period he had worked in one week for the Sydney catering company 39.5 hours. This he said would have been over four days. The applicant maintained that whilst he was in the peak holiday period able to do these long stretches of employment he would not in his own view be able to keep it up on a continuing basis. 19. Finally he stressed he is really self managing his activities because he has come to know the situation with his back. He also indicated that full time jobs for chefs in the South Coast area were somewhat difficult to come across and where generally snapped up fairly quickly.