Compensation Court of New South Wales CITATION : Brownrigg v Colgate [2001] NSWCC 101 PARTIES : Eric Brownrigg Colgate Palmolive Pty Limited MATTER NUMBER(S) : 42638 of 1999 JUDGMENT OF: Truss J CATCHWORDS: Entitlements & Liability :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 15 May 2001 EX TEMPORE JUDGMENT DATE : 05/18/2001 FOR APPLICANT: Mr J Fernan instrucgted by Steve Masselos & Co FOR RESPONDENT: Mr A Candy instructed by Connery & Partners on behalf of American Home Assurance Co on risk from 1 May 1983 to 1 April 1986 LEGAL REPRESENTATIVES: Mr D Priestley instructed by Hunt & Hunt on behalf of AMP Workers Compensation on risk from 1 April 1986 to 31 December 1986 Mr M McGrowdie instructed by W K Chambers on behalf of GIO Workers Compensation (NSW) Limited on risk from 31 December 1986 to 31 December 1996 Mr G Maddocks instructed by Dibbs Barker Gosling Lawyers on behalf of Royal & SUn Alliance Wrokers Compensation NSw Ltd on risk from 31 December 1996 JUDGMENT: 1. The applicant claims weekly payments for a closed period 9 April 1999 to 29 June 1999 together with lump sum compensation under s 66 and s 67 for permanent impairment of the back and loss of the efficient use of the right leg. It was not disputed by the respondent in its various interests that for the period claimed he was initially totally and then partially incapacitated nor that he has a permanent impairment of the back although the claim for loss of use of the right leg was disputed. The principal issue in this case was causation. The applicant was born on 29 June 1956 and has three dependent children. In view of his evidence that his wife was performing intermittent temporary work at the relevant time I am also satisfied that she was totally or mainly dependent upon him for support. 2. After engaging in variety of occupations the applicant commenced with the respondent in 1981 as a process worker and continues in that employ. In 1982 he was transferred to the powder spray tower where heavy detergents are manufactured. He was involved in the reclamation and recycling of waste products. The applicant's evidence as to the nature of his duties was unchallenged and I am satisfied that the nature of his work required him to be on his feet all day and involved a lot of bending and heavy lifting, in particular in association with opening and closing valves of the various kinds he described which involved a significant degree of exertion and which were frequently located in awkward positions. The applicant gave evidence that on a normal shift he operated about 16 valves but this number increased significantly when the plant shut down which was about once per week. The applicant said that he had no problems with his back before September 1984. 3. He alleges that he first sustained injury to his back on 4 September 1984 which is denied by the insurer on risk at the time. The applicant said that in the course of emptying a slop tank he was required to open a gate valve which was at knee height and surrounded by a safety rail. This required him to lean through the rail and grab the valve at an angle. He said he had completed about a quarter of a turn when he was aware of a sharp pain in his back just below the beltline and slightly to the right. He was unable to straighten and went to the foreman's office to report that he had hurt his back. He then went home consulted Dr Tsui the next morning was prescribed bed rest and medication and had a week off. Dr Tsui's notes confirmed that he saw the applicant on 5 September 1984. Although his notes are somewhat difficult to read they appear to indicate that he had been suffering from low back pain for a week and had sprained the right sacroiliac joint. 4. In his report of 9 November 2000 which was of course prepared some 16 years after the event Dr Tsui said: The patient was first seen on 5 September 1984 for lower back pain. He claimed that the symptoms could be due to turning valves at work. There was local tenderness in the right sacroiliac region and range of movements of lumbosacral spines were restricted. Diagnosis was sprained right sacroiliac joint and was compatible with the history given. Treatment given was Naprosyn and sick leave for one week. The progress was excellent. Patient could return to normal duty as scheduled. 5. When cross-examined about the incident, hardly surpassingly due to the fluxion of time, the applicant said he was unable to recall the specific date of injury but was relying upon what was in the doctor's notes. He said that the reference by Dr Tsui to suffering low back pain for a week was not in accordance with his recollection. 6. As I understand the applicant's evidence he received a certificate from Dr Tsui which he submitted to the respondent but did not claim workers compensation. His explanation was that he reported the incident to the foreman, presented the certificate and assumed that the matter would be processed by the respondent. When Dr Tsui saw the applicant again on 8 September 1994 his notes simply say improving and I infer that he was referring to the applicant's back. Although there were some inconsistencies between the applicant's evidence and what was recorded by Dr Tsui I am nevertheless satisfied that when the applicant attended him on 5 September 1984 he was suffering from low back pain which was a consequence of operating valves in the course of his employment the previous day. 7. When the applicant returned to work he performed his normal duties and gave evidence that after he stopped taking the medication and continued to perform his duties he was still troubled by pain but it was not as intense as in early September 1984. He said that ever since then his back has never been trouble-free and he has had to be more careful with his activities and got his workmates to help out if he had difficulty with any particular tasks. He also gave evidence that he had what he described as ongoing twinges niggles and stabs of pain in the right side of his back over the next five years. He said he occasionally took naprosyn and he also had digesic for migraine which with the approval of Dr Tsui he took for the back pain as well. Apart from this he did not consider it necessary to consult Dr Tsui about his back although he did see him for a number of health problems over this period. The applicant said that the activities which caused particular problems for him were bending, sitting and lifting. 8. On 11 April 1989 the applicant was required to perform one shift in liquid plant where he and another worker were manhandling 44 drums off a pallet into heat-steamed chests. In the course of moving one of the drums it shifted and the applicant took the whole of its weight. On this occasion he felt a sharp pain in the same area of his back but this time the pain also extended to the right buttock. He mentioned this to his offsider but otherwise did not report it. The following day he consulted Dr Tsui again and was prescribed naprosyn and given a certificate for 3 or 4 days. Sometime later in 1989 the applicant was transferred to the base plant where he was still required to operate the valves but he now spends a lot of time sitting at a console. He said that in a normal shift he is still required to operate about 12 valves and that when a changeover occurs it is about 30. He also gave evidence that steam was used to neutralise the products and this causes the valves to become stiff. 9. The next incident relied upon was on 4 August 1994. The applicant said that he was sitting at the console and attempted to get up to operate some valves. He had only partly risen from the chair when again he was aware of severe pain in his back in the same area as previously. It was close to the end of his shift. He reported the incident and completed the shift. He gave evidence that he consulted Dr Morton who gave him two weeks off and referred him to physiotherapy. On this occasion the applicant was paid workers compensation. It appears from Dr Tsui's report that the applicant also consulted him for back pain on 12 August 1994 and the Court was informed by counsel for the applicant without objection that attempts to obtain a report from Dr Morton were unsuccessful due to illness. 10. Upon resumption the applicant again performed his normal duties and said that he continued to suffer pain as a consequence of both the sitting, although he was able to get up and move around when necessary and operating the valves. Again the particular problems he had were with bending, lifting, twisting and climbing ladders. He said that his back got worse over the years but over the five year period between 1989 and 1994 there was no evidence of any medical treatment or lost time. 11. In March 1999 the applicant went on two weeks leave which he spent in his onsite caravan at Gerroa. Prior to going on leave he performed the normal duties which I have already described. On Friday 9 April 1999 which was the last day of his holiday the applicant said he woke up and as he was getting out of bed he became aware of severe pain in his back which did not diminish after taking naprosyn and digesic. He was unable to recall specifically his activities the previous day but said he went to Gerroa to relax and the time was generally spent going to the beach, socialising, going to the club and performing odd jobs around his caravan. On the Saturday he was still in intense pain and that evening suffered an onset of what he described as excruciating back pain which extended through his left leg to the foot. He consulted Dr Taylor the following day. The applicant was then referred for an intensive physiotherapy program including traction. He was off work altogether until 2 June 1999 when he returned under a rehabilitation program working initially two hours per day two days per week in the office performing computer entries. Gradually his hours were increased until he resumed his normal duties on 30 June 1999. 12. The applicant continues in the employ of the respondent. He said that his back has continued to be a problem in that he is always careful about what he does. He takes medication when necessary. He gave evidence that the problems with his back have had a significant impact on his life in that before he tackles any activity, whether it be at home or at work, he is always conscious of his back. The applicant owns a fishing boat and before injury he used to fish all day on rivers. He has now put seats in to the boat and can only fish for about two hours at a time. He said that the problems with his back have slowed him down at home for example activities such as washing the cars and gardening now take a lot longer. 13. In 1991 the applicant undertook an auxiliary position with the local fire brigade. To do so it was necessary for him to undertake a medical examination. When cross-examined about this he said that his duties are performed on a team basis and for this reason he is able to manage. The only medical treatment other than from general practitioners which the applicant has received was from Dr Geoffrey Needham who describes himself as a rehabilitation specialist and who saw the applicant between May and October 1999. 14. I have no hesitation in accepting the applicant as a witness of truth. He has now been employed by the respondent for 20 years and has had what I consider to be minimal time off as a consequence of the problems with his back. He impressed me as a person who is well motivated and gave his evidence in a direct and straightforward fashion without embellishment and readily made concessions adverse to his case. S 66 - back 15. I am satisfied that for the period claimed he was totally incapacitated from 9 April 1999 to 1 June 1999 and then partially incapacitated until 29 June 1999. The respondent did not submit to the contrary. I am also satisfied that he has established a permanent impairment of his back. As I have already indicated the primary issue in the case was causation namely from what did the incapacity and impairment result. The first radiological investigations were plain x-rays performed in March 1989 when the only finding reported by the radiologist was very mild lumboscolios concave to the right. However Dr Evans who examined the applicant at the request of his solicitors stated that the films indicated minimum narrowing of the L4-5 disc space. Although none of the other radiological reports were tendered, according to Dr Evans the films taken in January 1994 were identical with those taken in March 1989 and that the more recent x-rays in April 1999 indicated slight narrowing of the L5-S1 disc space. 16. The CT scan performed in April 1999 was reported as revealing generalised bulging of the three lower lumbar levels with associated degenerative changes at the facet joint of L5-S1. The overall comment of the radiologist was degenerative changes in the lumbar spine without definite evidence of nerve root impingement. Essentially the seven specialists whose reports were tendered with the exception of Dr Stephenson considered that the applicant's symptoms and restrictions were referable to degenerative disease of the spine. Dr Stevenson considered the diagnosis was consistent with lumbar discal pathology the symptoms of which may have become an issue manifest as the result of the initial incident when the applicant was attempting to move a difficult valve. He did not consider that the condition should be characterised as a disease of gradual onset but rather was due to work-related back strain and symptoms which manifested the pathology in 1986 with gradual worsening of symptoms. He related all of the impairments to the incident in 1986 which I take to be the incident in 1984. 17. Both Drs Harvey and Hughes considered that the applicant's back impairment was referable to degenerative lumbar disc disease and did not consider that the nature of his employment was a factor in the development thereof. They both considered that any aggravation of the degenerative condition as a consequence of the incidents relied upon was merely temporary. However in addition to the frank incidents the applicant also relies upon the nature and conditions of his employment over a period of 15 years which as I have described was of a significant physical nature in particular operation of the valves and in my view both the doctors appear to have focused on specific incidents and have not had proper regard to the nature of the applicant's duties. 18. As to the remaining medical opinions as to causation, as none of these were identical it is necessary for me to deal with each one in turn. a) When he saw the applicant in 1999 Dr Needham was of the view that his symptoms were entirely consistent with an exacerbation of internal disruption of a lumbar disc which had been damaged by the original injury in what he described as 1985 which I take to be the incident in September 1984. He took a history of a full recovery both from that incident and the 1995 incident by which I assume he means 1994 which the applicant disputes. On this issue I prefer the applicant's evidence to what was recorded by Dr Needham. He considered that the applicant had a 10 per cent impairment and had what he referred to as a propensity for future episodes of lower back and sciatic pain. He also said that there could possibly be some regressive disease but hopefully it could be minimised if the applicant had proper and effective treatment of exacerbations. b) Dr Evans considered that the applicant initially sustained damage to his back in the first incident and noted that there had been multiple aggravations over the years, sometimes with significant stresses and sometimes not. He considered the applicant to have a 20 per cent permanent impairment of the back of which one-fifth was referable to the 1984 incident and four fifths as a consequence of the nature and conditions of his work between that time and the present with a contribution from each working year equal. c) Dr Bodel took a slightly different view of the x-rays from Dr Evans in that he considered that the plain x-rays of 1989 were relatively normal but that by January 1994 there was evidence of established degenerative changes and narrowing of the L4/5 disc. He considered that in April 1999 the applicant had suffered an external rupture of the disc which fortunately settled with conservative care. He considered that the applicant had a 12 per cent permanent impairment of the back of which one-third was due to the original injury in 1985, one third to the incident in 1994 and the remaining third to the non-work related episode which occurred on 9 April 1999. d) Finally Dr Mathieson considered that the pathological process of the applicant's spine was essentially constitutional although work had played a part in helping it slowly deteriorate. He considered the applicant had a permanent impairment of 25 per cent of which 50 per cent was constitutional in origin due to Scheuermann's disease, 30 per cent referable to the period 1983 to 1986 and 20 per cent to the period thereafter where he became somewhat worse and developed leg pain. 19. Having regard to the totality of the evidence including the assessments to which I have referred and before considering s 68A and s 68B I consider the proper finding in relation to the applicant's permanent impairment of the back to be 1:5. I am satisfied and find that the impairment is a consequence of degenerative disease of the lumbar spine which appears to have been set in train by the incident of September 1994 when I consider it more probable than not that the applicant sustained some sort of disc disruption. I further consider that the disease was then aggravated accelerated or exacerbated by the incidents in 1984 1989 and 1994 of which the applicant gave evidence, in particular the first two, as well as the nature of the work he performed until he went on leave in March 1999. 20. I consider that the applicant's symptoms to be typical of the disease process as do all of the doctors and in my view are explicable by the diffuse radiological changes at three levels. I further consider that the onset of back pain which occurred in April 1999 ought be characterised as a manifestation of the progression of the disease process rather than an aggravating incident per se. In any event with rest and treatment the severe back and leg symptoms experienced at that time abated. 21. I am mindful of the fact that the applicant's duties from 1989 have involved less physical exertion than in the earlier period. However in any given shift he is still required to operate roughly the same number of valves and I also have regard to his evidence that sitting for lengthy periods at the console also aggravates his condition. Whilst I accept that by March 1999 the applicant's back had progressed to a state where it was very prone to flair-ups I am nevertheless satisfied that his employment was a substantial contributing factor to the aggravation or acceleration of the disease process. 22. I am not persuaded that I should make any deduction under s 68A to reflect any pre-existing condition or abnormality as on the evidence I am not persuaded that there was any such condition prior to the first incident in 1984. No x-rays were taken at that time and the applicant was then aged only 28 years. I also have regard to the applicant's evidence that he has never been free of symptoms or restrictions since September 1984 although the symptoms and restrictions have become more severe in later years. By virtue of Sch 6 Pt 6 cl 6 the Court is required to make a deduction for that part of the impairment as results from injury received prior to 30 June 1987 in particular the injury in September 1984 and having regard to the totality of the evidence I consider the proper deduction to be 25 per cent. The applicant is therefore entitled to be compensated for a permanent impairment in proportion to a most extreme case of 15:100. 23. The respondent was represented by the interests of four insurers. My finding as to causation brings into play s 16 and the decision of the Court of Appeal in Colliar & Colliar (trading as Mid-North Coast Mushrooms) v Bulley and Another, (2000) 19NSWCCR 302. By virtue of that decision when s 16 applies as it does in this case it operates as a code to the exclusion of s 22. Accordingly the awards for lump sum compensation are payable by the insurer last on risk since I am satisfied that until March 1999 the applicant was employed in employment which was a substantial contributing factor to the aggravation or acceleration of the disease process. S 66 - right leg 24. The applicant also makes a claim for loss of the efficient use of the right leg. The only doctors who have given assessments are Dr Evans of 4 per cent and Dr Mathieson of 5 per cent. The applicant's evidence in relation to the leg was fairly modest. He did not have any symptoms in the leg as opposed to the buttocks until the incident in April 1999. Thereafter he initially had significant symptoms in the whole of the leg which eventually eased to pins and needles and then abated. He gave evidence, which I accept, that over the last eight months in addition to the pain in his right buttock when he walks any distance he suffers from cramps in the leg although this does not restrict him to any great extent. 25. Having regard to the totality of the evidence I am satisfied that the applicant has suffered a permanent loss of the efficient use of the leg although I do not consider the loss to be significant and consider the proper finding to be 4 per cent. The loss is of course a consequence of the permanent impairment of the back. Again pursuant to Sch 6 Pt 6 cl 6 is it appropriate to make a deduction of 25 per cent to reflect that part of the loss as results from injury prior to 30 June 1987. This entitles the applicant to compensation under s 66 for a loss of 3 per cent. In addition he is also entitled to an award against the insurer on risk in 1984 for a 1 per cent loss to be determined in accordance with s 16 of the 1926 Act. S 67 26. My findings entitle the applicant to an award under s 67 for pain and suffering. I take into account the pain he has suffered since 30 June 1987, in particular in more recent times, and the fact that the medical evidence suggests that in the future he is likely to continue to suffer pain in his back in particular with the prospect of the pain increasing rather than diminishing. I take into account his age, presently 44, and the long period of pain and suffering ahead of him as well as the continuing need for medication. I also have regard to the restrictions imposed upon the applicant's lifestyle both at home and in the workplace as a consequence of the impairment and accept his evidence that the problem with his back is always on his mind and that always needs to be careful to avoid unguarded movements so as to minimise pain. 27. I also have regard to his evidence that the pain makes him cranky with children who he said do not understand his problems and that he also tends to snap at his wife who is nevertheless generally sympathetic and understanding. He also said that the continual concern about his back has placed what he referred to as a dampener on his work activities. It further emerged from medical reports that the applicant has suffered from depression as a consequence of the pain and in fact whilst he was off work in 1999 was prescribed Zoloft an anti-depressant. 28. Taking all of these matters into account and determining where the applicant's case rests proportionate to a most extreme case having regard to the degree and duration of pain and suffering and severity of the losses for which I have awarded him in my view the appropriate proportion is 1:5. I therefore award him $10000 for pain and suffering. Weekly payments 29. As I have indicated already there is no issue about the fact that he was initially totally and then subsequently partially incapacitated for the period claimed. His current weekly wage rate, probable earnings but for injury and actual earnings have been agreed and are set out in Exhibit G. I am satisfied that the period of partial incapacity his actual earnings represent his ability to earn on the open labour market and the respondent did not submit to the contrary. Accordingly the applicant is entitled to be compensated in accordance with the calculations contained in Exhibit G. As to causation, on the evidence before me I consider that the appropriate finding should be the same as that made in relation to the claims for lump sum compensation. The findings are: 1. The applicant suffered injury to his back namely aggravation or acceleration of degenerative disease in the course of his employment with the respondent on or about 4 September 1984, 11 April 1989, 4 August 1994 and by virtue of the nature and conditions of his employment with the respondent between September 1984 and March 1999 and his employment was a substantial contributing factor to the aggravation or acceleration of the disease. 2. He was totally incapacitated thereby from 9 April 1999 to 1 June 1999. 3. He was partially incapacitated thereby from 2 to 30 June 1999. 4. His current weekly wage rate and probable earnings uninjured for the period claimed were $1,159. 5. His ability to earn in some suitable employment is:- $148.42 per week from 2 to 8 June 1999 $168.60 per week from 9 to 15 June 1999 $434.61 per week from 16 to 22 June 1999 $467.95 per week from 23 to 29 June 1999. 6. As a result of the said injury the applicant has suffered:- a) permanent impairment of the back equivalent to a most extreme case of back impairment in a proportion of 15:100 after deduction pursuant to Sch 6.6.6 of 25 per cent of the impairment as found. b) permanent loss of the efficient use of the right leg at or above the knee equivalent to 4 per cent of the total loss thereof. 7. As a result of the said losses the applicant has, does and will continue to experience pain and suffering which represents in proportion to a most extreme case of 1:5. I make the following awards and orders in the applicant's favour: 8. Award for weekly payments:- a) pursuant to s 36 at the rate of $1159 per week from 9 April 1999 to 1 June 1999. b) pursuant to s 40 at the following rates:- $1010.58 per week from 2 to 8 June 1999 $990.40 per week from 9 to 15 June 1999 $724.39 per week from 16 to 22 June 1999 $691.05 per week from 23 to 29 June 1999. 9. Award for lump sum compensation pursuant to s 66 in respect of: a) permanent impairment of the back for $9,000. b) permanent loss of the efficient use of the right leg at or above the knee for:- i) $2250 in respect of 3 per cent loss resulting from injury received after 30 June 1987. ii) $220 in respect of 1 per cent loss resulting from injury on 5 September 1984 determined in accordance with s 16 of the 1926 Act. 10. Award pursuant to s 67 for $10000. 11. I order the respondent to pay the applicant's medical and the like expenses pursuant to s 60. 12. I order the respondent to pay the applicant's costs to include a fee for counsel for second conference; for a second advice and for attending today to take judgment. 13. I order Royal & Sun Alliance Workers Compensation NSW Ltd to pay the compensation awarded in paras 8; 9(a); 9(b)(i) and 10 hereof as well as the s 60 expenses and costs. 14. I order American Home Assurance Co. to pay the compensation awarded in para 9(b)(ii) hereof. Mr J Fernan instructed by Steve Masselos & Co appeared for the applicant Mr A Candy instructed by Connery and Partners appeared for the respondent on behalf of American Home Assurance Co on risk from 1 May 1983 to 1 April 1986. Mr D Priestly instructed by Hunt & Hunt appeared for the respondent on behalf of AMP Workers Compensation on risk from 1 April 1986 to 31 December 1986 Mr M McGrowdie instructed by W K Chambers appeared for the respondent on behalf of GIO Workers Compensation (NSW) Limited on risk from 31 December 1986 to 31 December 1996 Mr G Maddocks instructed by Dibbs Barker Gosling Lawyers appeared for the respondent on behalf of Royal & Sun Alliance Workers Compensation NSW Ltd on risk after 31 December 1996. 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.