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. MEDICAL MATERIAL 20. A mass of this was put into evidence and it is not necessary to do in my view anything other to highlight certain aspects of it. 21. Professor Oakeshott examined the applicant for the respondent on 26 February 1997 with his reports being tendered as Exhibit 2. He felt after examination that the applicant had with the work incidents aggravated mild degenerative changes in his lumbar spine which aggravations had at the date of examination ceased. He felt that there was a five per cent impairment of the back of which he considered half should be related to the degenerative changes and half to the injuries in 1991 and 1993. This is not a very clearly expressed view from the point of view of what the court has to decide. It is hard to see how aggravations can be held to have ceased if despite this they are still contributing to a degree of permanent impairment. In addition the applicant has already compensated under s 66 for ten per cent total impairment of the back which is more than that assessed by the doctor. This particular medical opinion I do not find of assistance. 22. Radiological and like investigations were put into evidence. An MRI on 10 June 1998 found disc protrusions with annular tears at L4/5 and L5/S1. 23. The applicant's local doctor, Dr Devlin, found in 1998 no neurological abnormalities in the applicant's legs and expressed the view on 25 September 2000 that the applicant was fit to work three days a week on alternate days with breaks, no bending and limited lifting to a maximum of 20 hours per week. 24. The rehabilitation specialist, Dr Speldewinde, saw the applicant on a number of occasions and dealt with the injections which he carried out and noted on 13 March 1998 that the applicant's symptoms were gradually becoming more disabling. He considered that whilst it was not possible to indicate precisely when the disc protrusions occurred he considered that the applicant's condition was causally related to the 1989 and 1993 episodes. 25. Dr C E Graham's reports, Exhibit O, indicate that a discogram carried out on 9 March 1999 confirmed disruption of the two lower lumbar discs. A chymopapain injection was performed but without apparent relief. His assessment of losses in the legs and in the applicant's back was expressed in a context where the applicant was undergoing concentrated exercise therapy to improve the position and as such are not persuasive on the issue of permanence. 26. Dr Wolfenden who saw the applicant on a number of occasions and whose reports were Exhibit T concluded in January 2001 that the applicant's problems were entirely attributable to the injuries in 1989 and 1993 and that he had no history of any pre-existing back problem. He further commented that the existence of any significant degenerative changes prior to 1989 would in view of the applicant's age at that time be extremely unlikely. 27. Dr B J Ireland, Exhibit 1, commented with regard to the incident at home in September 1996 that it was: Nothing else than one of his flare ups which he describes as having been occurring and progressively getting worse over the years. I do not think it can be singled out as a traumatic episode that made any difference to his back. 28. Finally the late Dr Bryan, Exhibit 3, commented in the middle of 1999 that the applicant was unfit for his pre injury work in the kitchen as he would have difficulty with the heavy aspects of the work of a chef. The home incident he said was nothing more than an illustration of the underlying problem that had occurred as a result of the work injuries. 29. The overwhelming thrust of the medical material is that the applicant has a significant disability in his back caused by the two work incidents which disability impacts on his ability to carry out the full duties of a chef. I do not see any basis to implicate the nature and conditions of the applicant's employment, whatever that mantra is meant to signify. ECONOMIC MATERIAL 30. This has proved a most contentious aspect of the evidence. The applicant's wage schedule in its ultimate form has comparable earning figures from 1997 to date at $800 going up to $961 per week. The respondent's wages schedule has the comparable figures ranging from $642 to $673 per week. In addition group certificates and letters from various catering and hospitality establishments were put into evidence together with correspondence from the accountant's for the respondent which ceased business in February 1997. 31. An evaluation of this imprecise material appears below. SUBMISSIONS 32. The written submissions lodged by the parties outlined four different issues that require determination and it is useful to deal with them separately. 1. The respondent's position was that the applicant having already as mentioned above received a ten per cent assessment of permanent impairment to the back he carried an onus of establishing a deterioration and also its extent on the basis of a deterioration over and above the ten per cent that was specifically awarded. It was further argued that an examination of the transcript indicated that the applicant's current complaints with regard to any symptoms in his legs were either non existent or fell far short of establishing an entitlement to partial loss of the efficient use thereof. The applicant's submission reviewed all the medical material before the court and indicated that Dr Speldewinde had found a ten per cent impairment to the back shortly before the relevant award was entered. It was argued that the overwhelming mass of the material indicated that there had been a deterioration since and that report of Dr Ireland in particular specifically indicated that the extent of the current disability was worse than in 1996. It was further argued that despite the comments in the transcript there was sufficient evidence before the court to find a modest degree of partial loss of the efficient use of each leg. 2. The importance of the applicant's pre injury classification with the respondent is a of a very high order. On behalf of the respondent it was argued that the evidence indicated that prior to the first injury the applicant had been the head chef but he then left for this own purposes to travel and on his return was employed as a second or sous chef on a permanent part time basis of 32 hours per week. This it was argued was the correct basis for the ascertainment of probable earning figures. The applicant on the other hand submitted that the applicant would probably be in full time employment were it not for the injury and that his comparable earning figures should not be restricted to four days a week. 3. There is no agreement on the submissions on the probable earning figures. The nature of the figures set out in the wages schedules is referred to earlier. The respondent argued that the comparable figure indicated by the applicant was somewhat deficient if it was relying on the evidence from the respondent's accountant as to the person who took the applicant's job. The argument was that the sudden increase to $800 per week was consistent with that person taking over the applicant's job on a full time basis particularly when one bore in mind that the casual hourly rate for the applicant in 2000 in Sydney was $25 per week. The respondent therefore relied on its figures in its own wages schedule but made no specific submissions on the exhibits from other catering establishments. The applicant relied on the correspondence from the respondent's accountant but also pointed out that the comparable earning figures submitted by the respondent varied only be $85 per week over a five year period which was an unrealistic rate of increase. Reliance was also placed on the exhibits which comprised the correspondence with the other catering establishments. 4. On the question of actual earnings there was again no agreement. The respondent argued that on a proper analysis of the applicant's recent employment history he was effectively working at the present time close to the 32 hours per week he worked beforehand. This was particularly taking into account the travelling time when he was working with Sydney caterer. The applicant's submission was effectively that at the present time 25 hours per week is about the most that the applicant can do and that at the present time the highest situation with regard to his economic loss has him with actual earnings of $575 per week. Accordingly at the present time a maximum award under s 40 would be applicable. 33. Neither counsel's submissions paid any close attention to the gradation of figures from 25 March 1997 when the claim for weekly compensation commences. CONCLUSIONS 34. It is convenient to consider these in the same order as the issues were discussed in comparing these written submissions of counsel. 35. Dealing firstly with the question of lump sum compensation I am satisfied on the evidence that there has been a deterioration in the state of the applicant's back. That conclusion follows from the applicant's own evidence and as was pointed out in the submissions of counsel for the applicant, Dr Ireland whose report was tendered on behalf of the respondent, specifically confirmed this situation. Taking into account the applicant's own evidence and following a careful reading of the medical exhibits I am of the opinion that the applicant should be held to have at the present time 20 per cent permanent impairment of his back. Such a finding entitles him to an award under s 66 for ten per cent further impairment. I do not agree that the applicant is entitled to rely on the authority of Lourdes House Hospital v Wheeler (1996) 13 NSW CCR 495 to argue that the rates on which the further loss should be calculated should be those at the date of injury. I consider that in the terms of the amending Act that came into force in January 1997 the claim for additional permanent impairment and losses is a claim for additional compensation which is covered by that Act and requires the application of the current rates applicable to the table referred to in s 66. 36. For the sake of completeness I accept the opinion of Dr Wolfenden for the applicant to the effect that there is no room on the material before the court for the application of s 68A. The argument of the doctor that the radiology does not support such an argument in an applicant as young as this one at the time of injury is I consider quite compelling. 37. There is also a claim for lump sum compensation with regard to partial loss of the efficient use of the legs. As was submitted by counsel for the respondent the applicant's own present testimony falls far short of establishing the existence of such losses at this juncture. I am of the opinion that the claim under s.66 with regard to the applicant's legs has not been made out. 38. The above finding of additional impairment to the back does result in the applicant passing the threshold from the point of view of s 67. Since the beginning of 1996 the deterioration in his condition has produced fairly long periods of active treatment by way of nerve blocks and the like together with a discogram and associated injection and I am satisfied has also resulted in a severe effect on the applicant's lifestyle. The worsening of symptoms following the incident with his child in the cot has been accepted by more than one of the doctors who have reported as being than no more as an illustration of what was going on with the applicant's back. I am of a similar view and consider that this falls into the ambit of the actual pain and distress suffered by the applicant. The condition has gone on for a sufficient length of time now to suggest no real prospect of long term significant improvement. I consider that the relativities under s 67 to be 1:5. 39. I turn now to the question of the correct classification of the applicant's pre injury job. His own evidence has been outlined above to the effect that he was originally employed by the respondent as a head chef, left for his own purposes and ultimately rejoined the respondent as a sous chef on a four day week basis. As pointed out earlier his employment history before first joining the respondent was not always as a full time chef. At no time did the applicant in his evidence indicate that he was treating that position as a short term occupation whilst he looked for a job as a full time head chef. For his own purposes perhaps related to the pleasant life style of the south coast the applicant appeared to me to have been content with his lot. I consider that his classification should be that of a sous chef working four days per week. 40. The establishment of probable earning figures has proved a very difficult problem in this case. The wages schedules initially filed were of little utility. More evidentiary material has been subsequently produced by way of correspondence from various restaurants or catering establishments both in Sydney or on the south coast producing very different figures. There is no direct comparable employee with the respondent at the present time. Considering all these figures I do not find that the Sydney figures are a useful guide as the applicant has clearly based himself on the south coast and it is that labour market that should be regarded as the relevant one. It is a labour market which has seasonal variations. Considering all the evidence I am of the view that the probable earning figures should be found as follows: March 1997 to June 1998 $700 per week July 1998 to June 2000 $725 per week July 200 to date $750 per week 41. There has been equal difficulty in determining the applicant's ability to earn. His actual earnings at various stages have proved very hard to determine because in certain jobs - for example the catering company in Sydney he was paid at an hourly rate and his hours tended to vary very markedly. He has also changed jobs post injury with fair regularity including a period when he was running an operation in partnership with another individual. It does seem on the evidence that his actual earnings increased quite significantly in February 2000 when he commenced with the Sydney catering company and have increased further since July 2000. I am of the opinion that his ability to earn should be found as follows: March 1997 to June 1998 approximately $100 per week July 1998 to February 2000 $125 per week March 2000 to June 2000 $400 per week July 2000 to date $575 per week 42. I find on the evidence no discretionary matters effecting these figures. The fact that he elected for his own reasons to leave the respondent after his injuries is balanced by the fact that the respondent is no longer in business. AWARD I find that the applicant received injury to his back in the course of his employment on 18 May 1989 and 19 August 1993. I find at all relevant times the applicant had one child totally dependant for support upon him and I find further that he has been partially incapacitated since 25 March 1997. Under s 40 I make an award in the applicant's favour at the following rates: $303.60 per week 25 March 1997 to 31 March 1997 $304.70 per week 1 April 1997 to 30 September 1997 $310.50 per week 1 October 1997 to 30 March 1998 $312.90 per week 1 April 1998 to 30 September 1998 $318.40 per week 1 October 1998 to 31 March 1999 $323.90 per week 1 April 1999 to 30 September 1999 $329.30 per week 1 October 1999 to 31 January 2000 $325.00 per week 1 February 2000 to 30 June 2000 $175.00 per week 1 July 2000 to date and continuing. Under s 66 I find that the applicant has sustained a further ten per cent permanent impairment to his back $6,000. Under s 67 I find the appropriate figure to be $10,000. Medical and hospital expenses s 60. Respondent to pay the applicant's costs which should include a fee for written submissions. Mr S Dixon instructed by Kennedy and Cooke appeared for the applicant. Mr G McCready instructed by Henry Davis York 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. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.