Compensation Court of New South Wales CITATION : McNamara v Baiada Poultry Pty Limited [2001] NSWCC 141 PARTIES : Bernard Francis McNamara Baiada Poultry Pty Limited MATTER NUMBER(S) : 50440 of 1999 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 27/10/00, 06/11/00, 01/03/01, 02/03/01 EX TEMPORE JUDGMENT DATE : 03/02/2001 FOR APPLICANT: Mr D Jenkins instructed by Everingham Solomans LEGAL REPRESENTATIVES: FOR RESPONDENT: Mt T M Rowles instructed by Hickson Wisewoulds JUDGMENT: 1. The applicant claims lump sums under the Workers Compensation Acts and weekly payments in respect of an injury to his ankles alleged to have occurred on 9 September 1994, an injury to his back alleged to have occurred on 5 December 1996, and aggravation of those conditions by the nature and conditions of his employment with the respondent from 2 October 1990, although not in effect coming into operation until the date of injuries, until 18 July 1997, when he ceased physically working for the respondent. His employment was not terminated until December of that year. 2. Mr Jenkins, of counsel, appeared for the applicant and Mr Rowles, of counsel, for the respondent. Addresses have been recorded and it is therefore unnecessary for me to deal with each submission, merely to ensure that it is noted. Counsel have dealt with the matter with a relevance to the issues for which I am grateful and which allows me to deal with those issues in relatively short form. 3. The applicant is a 34 year old married man with three dependent children, his wife not being dependent. Although he left school at an early age, substantially illiterate, he has a good work history in manual-type work. In October 1990 he commenced work for the respondent as a factory hand and worked his way up to a leading hand in the kill and evisceration area. Whilst he was responsible for the running of the system in that area and had a number of employees under his control, the job involved much moving about and climbing around machinery. 4. It is convenient to say at this point that I am quite satisfied that the applicant took substantial pride in obtaining that position and would be anxious not to endanger it. That view is formed not just from his evidence but also from a consideration of the detailed rehabilitation reports prepared by Combrook and serial reports from Mr Briggs, a psychologist, who treated the applicant on referral from Combrook and in coordination with the applicant's local doctor, Dr Loeve, for a very substantial time. I formed the view that the 'inflexibility' of the applicant's character, referred to by Mr Briggs, which no doubt hampered him in adjusting to the injuries he had suffered, was probably a very valuable asset in terms of the type of work which he was undertaking and the need which he emphasised, and was not challenged in any evidence, to keep the operation of the chicken-killing factory working, and the absence of people to replace him in the job that he was then performing. 5. On 9 September 1994 the applicant over-balanced and fell from a platform about 2 ft, initially onto his feet and then on to his buttocks. Since that time he has, I accept, suffered from post-traumatic chronic degenerative Achilles tendonitis as described by Dr Henderson in his report of 11 September 1993. The doctor says: The claimant, in my opinion, is end-stage post-traumatic chronic degenerative Achilles tendonitis. Both Achilles tendons are swollen and inflamed from the chronic contracture, post-inflammation fibrosis and scarring resulting in 20 degrees of fixed plantar flexion deformity affecting both feet with bilateral calf muscle wasting. 6. He made the point that both Achilles tendons are painful and tender. 7. The applicant in fact worked on following the incident of 11 March 1999. He saw his local doctor, Dr Emery, some weeks later and, although he says that he referred to the situation in relation to his legs as well as to an eye condition, the doctor's notes do not confirm that - and, indeed, conflict with it. He saw the doctor again, having trouble with his legs, in January. At that time the applicant was referred to Dr Davies, an orthopaedic surgeon and put off work until 1 March 1995. Mr Rowles has naturally relied upon the conflict between the applicant's evidence and the report on the notes of Dr Emery, particularly as the applicant has given evidence that he suffered excruciating pain at that time whereas Dr Emery referred in his notes only to finding slightly tender tendons. 8. I am inclined to think that the explanation for this is a mixture of two things: one, the applicant's anxiety as he himself said to stay on the job and the pressure that his employer was putting on him to do so; but, secondly, a measure of reconstruction as to the seriousness in the sense of the symptomatic nature of the problem that he was suffering at that time. 9. Following January 1995 the applicant was off until 1 March 1995. Thereafter, until July 1997, he worked under rehabilitation schemes provided by Combrook to his employer in a range of adjusted and sometimes described as light duties. He did different tasks, sometimes his ordinary task, but in a modified way, and for shorter periods of time, sometimes different tasks. The fact is that despite the efforts of the employer aided by Combrook a satisfactory job could not be found for him. Combrook advised that he should do a TAFE certificate course to endeavour to acquire some literacy skills in 1997 and that he did that, but his employer wrote a letter on 10 December 1997 which said: We have received notification through your rehabilitation provider that you have completed your TAFE certificate course which has upgraded your skill in order to participate with a work trial with a different employer. As you are aware Baiada have been unable to offer you suitable employment in this area and, as you will be job-seeking elsewhere, we terminate your weekly payments - effective 21 December 1997. Your weekly benefits will continue to be met by MMI directly. We wish you every success in your job search. 10. The reason I read the whole of that letter is I think it is consistent with the view I formed upon reading the multiple reports that the applicant had obviously done his best and was accepted to have done his best to engage in suitable employment. One of the difficulties was that the tasks which the respondent was able to offer him involved working in very cold conditions and there seems to be general agreement amongst the doctors that working in cold conditions would not be appropriate for the condition of Achilles tendonitis, even though some of the respondent's doctors, to which I shall refer, they have considerable doubts as to that diagnosis. 11. The applicant's payments were continued until 22 September 1999. On 4 September 1996 a consent award was made in respect of 15 per cent permanent loss of the use of the right leg below the knee and a 7.5 per cent in respect of a similar loss in respect of the left leg, and there was a s 67 payment as well. Since that time the only work the applicant had done have been two attempted trials at spare parts outlets under the direction of Combrook. The second ended when he had a motorcycle accident in March of 1998 and suffered fractured ribs and an aggravation of the condition of his back to which I shall refer later. 12. It is convenient first to deal with the claim under s 66. There is sought an increase from 15 per cent to 20 per cent in respect of the right leg and that is a claim that, as Mr Jenkins put it, either the condition had deteriorated as part of its natural course resulting from the original injury or, alternatively, that the nature and conditions of the applicant's work after the injury had caused his disability to reach 20 per cent. A similar argument was presented in respect of the left leg - the submission being that the increase should also be to 20 per cent from 7.5 per cent. I think Mr Rowles was right in his submission that this claims fails at the outset on the applicant's own evidence. 13. The applicant gave evidence in relation to this aspect on two separate occasions in cross-examination: Question - From about the time that you first saw Dr Emery in October 1994 - the first time you saw him after the injury - from that time up to the present it seems to almost have been a period of six years. Answer - Yes. Question - In fact just over six years. Answer - Yes, just over. Question - Over that period of time, how would you describe the condition of your feet. Have they got better, got worse - or stayed the same. Answer - They've stayed the same. The more I work on them, the worse they get - they flare right up. The less I'm on them they mellow down. I can't exactly put a pinball on that one, sorry, it depends on what I'm doing. 14. Then after quite some further cross-examination another series of questions: Question - You say that your condition has been pretty much the same since you first saw Dr Emery after the accident. I think I put that to you - that that was about October of 1994. Answer - As in the amount of pain? Question - Yes. Answer - It's a bit mellower, yes. Question - I'm sorry. Answer - It's a bit mellower. Question - When you start to notice this improvement in the condition of your feet - when did you start to notice this improvement in the condition of your feet. Answer - It's like I said, it depends on what I do. If I don't do much and that, and I'm not on my feet, they're fair; but if I get up and start doing things they stir up. I haven't been doing much. Question - That may well be something that you notice about the condition of your feet from time to time. What I am asking you, over a period of time have you noticed in general whether the condition of your feet has got better, got worse, or stayed the same since over the last six years. Answer - It's been about the same . 15. Mr Jenkins submitted to me that having regard to what might be fairly said to be a lack of intellectual capacity in the applicant, I should have reservations about those answers. It would, I consider, be right to do so if one found in the medical evidence, or in other material, a clear indication there had been an increase in the extent of the loss. For example, if the same doctor had seen the applicant in 1996 and offered a figure and then a higher figure at a later point of time, one might have had a basis for an increase despite the evidence of the applicant. However, the medical picture is by no means as clear as that. There is no doctor who made an assessment both at the time or before the time of the consent award and later. 16. Dr Hopcroft on 24 March was of the view that the applicant had lost 20 per cent of the efficient use of each leg below the knee. The doctor, however, at that point of time suggested some treatment. He later saw the applicant again. On 9 August 2000 he adjusted that assessment to 15 per cent of each leg. In respect of the right leg, of course, that is the amount for which the award was made. It is not as if the figure of 20 per cent had first appeared considerably after the original award, because Dr Bosler prior to it in April 1996 had made an assessment of 20 per cent in respect of the right leg and 10 per cent in respect of the left. 17. The respondent's doctors take quite a different view. Dr Potter in 1996 considered there was a 5 per cent loss of efficient use and Dr Graham in June 1999, 5 to 10 per cent. Those two doctors raised questions as to whether it was caused in the way that it was alleged, but, having regard in particular to the consent award, the payment of compensation, and the views of the treating doctors, I need not go into that issue. As the matter stands I do not think it established as more probable than not that there has been an increase in the degree of loss either caused by deterioration or by the nature and conditions of the applicant's employment with the respondent. I should make one observation in relation to the evidence of the applicant in this regard: Mr Rowles did submit that I should take the view that the applicant was exaggerating his claim and, indeed, put that to the applicant. 18. Such a view seems to me to be quite inconsistent with the applicant himself pointing out that there had not been an increase over that period of time and, although, as I have indicated, the applicant might be thought not to be, not to put it unkindly, very bright, he certainly would have known that one of the things being sought was a claim that there had been an increase. His evidence on that point together with other aspects encourages me to believe that he was substantially a truthful witness. When I say other aspects, there have been many reports tendered by his treating general practitioner, Dr Loeye. There are extensive reports from Combrook and long serial reports from Mr Briggs. All of them when read collectively leave me with a firm impression that the applicant was a truthful man who was proud of the job he had, greatly regretted losing it, and has suffered considerable psychological impact from doing so. 19. I turn then to the question of what award should be made in respect of incapacity for work since compensation ceased. The earnings were $527.06. No distinction was made between probable earnings and average weekly earnings and I think I should accept the $527.06 for both purposes. The question is whether the applicant was totally or partially incapacitated for work. It is not suggested that he did not have some incapacity - though Dr Graham would put it at a low level. In my view, I should accept the opinion of Dr Henderson. Dr Henderson examined the applicant not for the respondent or for the applicant's own solicitors but for AMP Financial Services in connection with a superannuation payment. The doctor examined the applicant on 11 March 1999 and his report is a very thorough and detailed one. I have already read the conclusion he came to in respect of the tendonitis. 20. Mr Rowles pointed to the fact that the report was written for superannuation purposes and that when Dr Henderson said: In my opinion, Mr McNamara is totally and permanently disabled. Because as a result of the injury to his Achilles tendon and his chronic low back strain disability he is unlikely ever to be able to engage in any regular remunerative work for which he is reasonably fitted by education or training or experience. 21. Those latter words, Mr Rowles put, obviously came from an insurance policy and we were here concerned with a matter under the Workers Compensation Acts. That is, of course, true. Having said that, however, s 43A in speaking of what is to be taken into account in considering what is suitable employment, in sub(b) speaks of the worker's age, education, skills and work experience. One would think it is not very different. 22. The second matter Mr Rowles raised is that Dr Henderson was dealing with the applicant, not only having regard to the Achilles tendon problem but also in regard to his back. The applicant had injured his back while doing building work when he was 18 years of age. He said he had had a bad back ever since which gave him trouble from time to time. He agreed that a motorcycle accident which he had had in March 1998 had made his back considerably worse. He also had alleged that in December 1996 whilst working for the respondent he had been engaged in particularly heavy work and he attended Dr Loeve with pain in his back. I think he probably did have an aggravation to his ongoing condition then - but the evidence does not establish that that continued. Dr Hopcroft was of the view that the applicant's gait as a result of the Achilles tendon problem would have aggravated his already injured back. 23. In so far as the question which I am presently dealing with, however, the circumstance is that Dr Henderson dealt with the applicant from the point of view of the Achilles tendon and then added reference to the back. He said: This man injured his Achilles tendon in October 1994. His employer was able to keep him on doing alternative duties up until the end of 1997 - but by that time his situation at work had become completely untenable. He had become in effect totally incapacitated even for alternative duties at that time. Since then he had another motorbike accident in March last year which has further aggravated his long-standing chronic low back strain disability with which he had been able to cope all the time he was able to keep working until his feet gave out. 24. So that Dr Henderson has expressed the firm conclusion that the applicant was totally incapacitated for work by reason of his feet without coming to the subsequent injury to his back. Dr Hopcroft's opinion seems to me to be not inconsistent with that - although that doctor does not express a precise view on ability to work. Dr Loeve in his report of 12 October 1999 says: My prognosis is poor for Bernard's eventual return to work. He continued to suffer from chronic pain which has not abated and appears to be continuing, varying in intensity from moderately to severe. His incapacity is a result of his injuries at work. There is an extreme restriction on his capacity to work and I deem him unfit to work either full or part-time at this junction. 25. The doctor had referred to the fluctuating pain in the applicant's back but he also made it clear that he was dealing substantially with the problem relating to his legs. 26. In a report of 23 August 2000 Dr Loeve said: On 10 August 2000 he had recently seen Dr Briggs who was concerned about his mental state and suggested I consider seeing him as soon as possible to review his treatment. Currently his situation is one of ongoing anxiety and depression which is not necessarily controlled with medication as it was often situational. It is not simply related to a chemical imbalance but to a whole series of circumstances including his financial difficulties and ongoing stresses from litigation. He complained about his ankles being sore although the area around his ankles that previously felt 'woolly' was much soft. There was a poor range of movement. Still wearing his heel raised and we discussed re-starting his Effexor SR 75mg that he had stopped previously without consultation. At length he discussed about working around with the pain and coming to terms with disability. I believe Bernard continues to suffer from anxiety and depression as well as his bilateral ankle pain and low back pain. He is certainly restricted to this stage in terms of capacity for work and he is totally unfit for any work presently. 27. The applicant had attended the work trials to which I have referred and it had during address seemed to me that one should take the view that he at least could do that work. However, when one looks at the Combrook reports one finds that in truth the applicant was not doing the work to any significant extent. A report of 1 October 1998: Results of this assessment indicate that Mr McNamara is not fit for full-time work. Mr McNamara recently participated in a work trial at Fossey in which he initially performed spare parts stores duty where he was lifting and carrying these., standing, walking and taking short frequent sitting breaks. Given the difficulty in experiencing these duties for 4 hour days, 4 hours a day, he was moved to a more sedentary position which was mainly sitting with frequent short standing breaks. He had difficulties managing 4 hours a day. Given this and the functional assessments resulted, it is doubtful Mr McNamara would currently be able to manage working 4 hours a day. 28. Then the conclusion: Given rehabilitation to date and Mr McNamara's current functional limitation, his current return to work goal is no longer achievable. Given this situation there does not appear to be a current role for occupation or rehabilitation . Rehabilitation can re-commence once Mr McNamara's functional tolerances have increased such that he is fit for at least part-time work. 29. Bearing in mind that there is no suggestion through the reports of Combrook that the applicant was doing other than his best and, indeed, Mr Briggs suggested at one time that he might have been driving himself too hard, it seems to me the probability is that that remains the situation. There is a possibility that , if one could dissect out the effect of the motor cycle accident on his back, there is left a function which could produce an ability to do some work, but I do not think that that is the probability on the whole of the evidence. It is my view that since September 1999 the applicant has been totally incapacitated for work. 30. Mr Rowles did urge upon me a number of occupations which he submitted that the applicant would be able to engage in one being a carpark attendant, another a club doorman. It is relevant I think to note that Combrook had put a great deal of work into trying to find employment for the applicant and to qualify him for work, but it was not suggested by that organisation that certainly, in the situation which the applicant was in Tamworth, that any such work would be provided for him. This seems to me to be a case in which it is appropriate - in fact, I am bound - to apply the principles which are set out in Moran Health Care & Services v Wood 1997 14 NSWCCR 499 at p 505 where there is quoted from the judgment in Lawarra Nominees Pty Ltd v Wilson, Court of Appeal 29 November 1996, unreported, Mahoney JA with Handley and Powell JJA agreed, passages in which this appears: In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity "for work". The legislation is not concerned merely in the abstract with work or work capacities as such. It is concerned with the capacity to do work of a particular kind or kinds in the context which will produce income. I do not wish by what I say to narrow the scope of the enquiry to be undertaken in the assessment of capacity or of compensation. But in assessing whether a worker is highly or partially incapacitated and to what extent, the Court will not ordinarily be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, cease when the pain he suffers became unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not as it were spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is in my opinion, a more practical exercise. It involves the assessment of a capacity "for work", having regard to the realities of the labour market in which he is to be engaged. The Compensation Court, within the scope accorded to it in this regard, must assess whether, in a case such as the present, the pain and disabilities from which the worker suffers by reason of his compensible injuries are such that he is able to do those things which would permit him to do work in the relevant labour market. 31. In my view, the applicant's pain and disabilities resulting from his compensible injuries are not such that he is able to perform work in any labour market reasonably available to him. 32. There is one further matter that I think I should deal with, which is that Dr Graham referred to the applicant riding his motor-bike in the bush. Indeed, it was on such an occasion that the applicant whilst upon a road or track came into collision with a wallaby and suffered further injury to his back. Dr Graham thought that it could be taken from this circumstance that it was impossible to conclude that the applicant was incapacitated as he presented. He said it is very hard to reconcile such reports with his active motor-cycle riding in the bush. It is impossible to ride in rough terrain on a bush motor-cycle without standing on the footpeg which involves quite a significant stress over the Achilles tendons. 33. Dr Hopcroft in a report written after he had read Dr Graham's report said: I believe that a very sound argument could be made for the intermittent strain subjected to both feet in riding a motorcycle through bush to be a cause of bilateral tendon strain. 34. It think it likely that Dr Graham, at least, had inferred that the applicant had been motor cross-riding through the bush, whereas the account which the applicant gave was that he merely proceeded at a slow and, in effect, meandering pace, without putting any undue stress on himself. I do notice that that has some corroboration at least from the views of Mr Briggs who encouraged the applicant to continue to engage in such activities because of the relief it afforded to his psychological state. I do not think one can draw the conclusion in this case that the problem the applicant had was caused by his motor-cycle riding or claimed that in the way in which it was undertaken was inconsistent with the level of incapacity which he had claimed. The applicant himself did say: Question - Do you think there are some sort of jobs you could do? Have you thought about that. Answer - I've thought about that. It's just like Motor Co. and J D Fossey's - I'll give anything a go. What happens is my legs play up - my legs, my back. I can tinker around - but that is far as it goes. 35. As I have said, I accept that to be the position. There is, of course, not to be overlooked the psychological condition of the applicant to which I have briefly referred, but Mr Briggs placed it as high as to say that: The psychological impacts on Mr McNamara are considerable. I diagnose him as having an adjustment disorder with depressed mood. This is a classifiable mental disorder in accordance with DSM4 which is the standard classification system of mental disorders. Adjustment disorder refers to a person having significant impairment as a result of a stressor which in this case is the injury and resultant chronic pain. I use the sub-classification of 'adjustment disorder' with depressed mood because he has significant depressive features. All those factors bear upon his ability to engage in other or in suitable employment. 36. Counsel did not direct their minds in addresses as to the amount of an award which should be made under s 37, which is 90 per cent of the average weekly earnings up to the maximum. According to my calculations the 90 per cent falls below the maximum once one gets to 1 April 2000. I propose to announce the award which I think is the appropriate one and the parties can check and see whether they agree that that is correct and if not make submissions to me in relation to the matter. 37. I find that: (a)The applicant suffered injury to his ankles on 9 September 1994 arising out of and in the course of his employment with the respondent. (b)As a result thereof the applicant was totally or partially incapacitated for work for various periods to 22 September 1999 and paid compensation for wages. (c)Since 23 September 1999 the applicant has been totally incapacitated for work thereby. (d)The average weekly earnings at all material times were $527.06. (e)The applicant had at all material times three dependent children. 38. I make an award for the applicant under s 37: (a)At the rate of $462.90 from 23 September 1999 to 30 September 1999. (b)At the rate of $470.50 from 1 October 1999 to 31 March 2000, and (c)At the rate of $474.80 from 1 April 2000 to date and continuing. (d)Medical expenses, s 60. (e)I expect the parties to agree upon the claim for interest but grant liberty to apply should they be unable to do so. (f)The respondent is to pay the applicant's costs. MR D JENKINS instructed by . Everingham Solomans appeared for the applicant MR T M ROWLES instructed by Hickson Wisewoulds 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.