Compensation Court of New South Wales CITATION : Byrne v State Rail [2001] NSWCC 178 PARTIES : Luke Byrne State Rail Authority of New South Wales MATTER NUMBER(S) : 42490 of 1999 JUDGMENT OF: Geraghty J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 18/5/2001, 21/5/2001 EX TEMPORE JUDGMENT DATE : 05/21/2001 FOR APPLICANT: Mr D Benson instructed by Somerville & Co LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr PJ Menary instructed by Gillis Delaney Brown JUDGMENT: 1. Luke Byrne has claimed weekly benefits for a series of closed periods between December 1998 and 13 February 2000. He has also claimed a lump sum compensation for back impairment and loss of use of each leg, at or above the knee, and payment of medical expenses. 2. Byrne based his claim in respect of his back condition on a series of incidents beginning on 13 March 1995, and in respect of a psychological injury on two incidents in December 1998 and January 2000. His claim was based also on the general nature and condition of his work throughout the period of his employment, beginning in 1976 and continuing today, and hopefully, well into the future. His claim was based also on the provisions of s 15 and s 16. 3. Mr Menary of counsel informed me that the principal issues for determination were, firstly, the extent of any incapacity (and particularly whether the applicant has proved his case in respect of the period from 17 January 2000 to 13 February 2000) and secondly, the extent of any quantification of loss and impairment. Injury was also put in issue, as was the application of the provisions of s 68A. 4. Byrne's wife is in employment. They have two sons, born in 1983 and 1991. He joined the respondent in 1976 and is a passenger services supervisor, performing duties on long trips from out of Sydney. Before 13 February 1995, he said, he had had no back problems. On that day, he was stacking and re-stacking the refrigerators on the buffet of the Explorer Express. At about 9.10 am, he was bending and lifting when he felt a ripping sensation across his back. He said that at the time he was holding a crate in an awkward position and that the crate weighed between 10 and 12 kg. He continued to work, reported the incident to his employer, and consulted Dr Paul at Erina on 14 March 1995. He received a certificate to be off work for a short period and returned to his old duties, even though he had not entirely recovered. He has not recovered, he said, even today. 5. Byrne gave evidence of a strain of the lumbosacral spine in similar circumstances on 28 December 1995. He again reported this incident, received a certificate and took some time off work. There is a report from a osteopath, Dr Caulfield (Exhibit 1). He returned to his former duties, though he was not fully recovered and said that by then he was experiencing constant pain, with problems in both legs. His duties consisted of working a shift of about 78 hours every fortnight, seven days on and seven days off duty. The shifts were normally between 10 and 11 hours, on trains from Sydney to Armidale, Dubbo, Grafton, Griffith, Canberra (return), and Moree, with a rest period of between half-an-hour and 40 minutes. His duties involved serving customers, taking lunch orders, and particularly re-stacking the buffet five, six or seven times throughout each trip. 6. In April 1997 Byrne consulted Dr Dixon with constant back pain, with a tightness, pins and needles and numbness in both legs. He underwent a CAT scan on 14 April 1997, and an MRI scan on 25 June 1997. The MRI scan disclosed a broad-based bulging of the L4/5 disc, indenting the thecal sac but not distorting the nerve root. The conclusion of Dr Melville's report (Exhibit C) states: Central/left paracentral protrusion of the L4/5 disc with sequestration of disc material into the left lateral recess compressing the L5 nerve root. Minor broad-based bulge of the L5-S1 disc. 7. A further MRI scan was undertaken on 27 April 2001 and the report is part of Exhibit C. 8. Just after midnight on 18 December 1998, the applicant became a major player in a fatality on the Goulburn trip. A young girl had fallen out of the train and, while he did not witness the incident, he was part of the aftermath and investigation. The train was held at the Yass Junction for about three hours and it was he who was required to check the train doors. Byrne complained that from 21 December 1998 and for some weeks thereafter, he had anxiety attacks with feelings of claustrophobia. He said he found it difficult to sleep or eat. He felt moody, aggressive, and seriously depressed. He said that he could not get the image of the girl out of his mind. She had been part of a Christmas holiday group for Foxtel. She had come to the buffet on one occasion. He had spoken to her and remembered her well. 9. He worked again on 21 January, until 23 January 1999, and was off again on the 24 and 25 January. He worked on the 26 and 27 January, and took some time off again from 28 to 12 February 1999, and some more time off from 15 to 17 February 1999. He said that during these short periods he had not been able to work because he was losing sleep and could not concentrate. 10. Byrne received treatment from a clinical psychologist, Siddy Olujie, who examined him on 12 January 1999. His report is dated 7 August 1999. Byrne was referred for assessment and treatment for anxiety problems. On the subjective unit of distress scale, Byrne was found to have a distress level of moderately severe. On the Beck Depression Inventory, he was found to have a mild to moderate level of depression. The psychologist diagnosed an acute stress disorder and an acute post-traumatic stress disorder which was not chronic, that is it did not involve symptoms in excess of 3 months. In April 1999, the psychologist found that he remained mildly symptomatic, though no compensation claim was made for any period beyond 17 February 1999. 11. The report of Dr Peter Morse of 1 November 1999 (Exhibit H) also addressed this incident. He diagnosed an adjustment disorder with depressed mood. He thought that Byrne should continue to receive some psychological treatment and believed that as at the date of interview in November 1999 he continued to suffer quite marked anxiety and depression, and other symptoms. 12. Byrne gave evidence that on 28 January 1999, he had ceased work because his right leg had collapsed and his back had seized up. He said that before 28 January, his back had been in constant pain and that he was off work until 12 February. As at 13 February 1999, his back was constantly sore but on the improve. He said that he needed to return to work, though he still felt some anxiety. He had no time off until January 2000. 13. When he was asked why he had taken time off from 5 to 7 January 2000, he blamed this on back problems, though it would seem, from the certificates (Exhibit A) that he was away from work, as diagnosed by Dr Paul on his certificate of 6 January, because of post-traumatic stress disorder after he had witnessed a death at work. Dr Paul certified him unfit for work from 5 to 7 January. Byrne was also asked why he was away from work from 17 January to 13 February 2000, but he could not remember. 14. On 4 January 2000, he was also involved in witnessing a body of a man, who had committed suicide by putting his head on the track. He had not witnessed the accident, though he did tell a doctor that he had felt the train going over something. He had at least seen the body (if not the head and body) from the rear of the train, and he said that this had recalled earlier fatalities. There is no satisfactory certificate certifying him unfit for duties during this period, but there is evidence of an interview on 18 January 2000 with a Ms Hodges (Exhibit J). She recorded that Byrne had broken down several times in the course of the interview, that he had been extremely labile, shaky and jumpy. He reported that he had asked for a home visit after the 1998 fatality but that nothing had happened. He was experiencing flash-backs, avoiding fellow workers. He felt depressed, anxious and was suffering sleep dysfunction. All this appears in a hand-written note, (Exhibit J). 15. On 11 February 2000 Byrne, was referred to a consultant psychiatrist, Dr David Berecry whose report is Exhibit L. He gave the doctor a brief history of the suicide incident in January 2000. The doctor also recorded other incidents, including when in 1997 his train had hit a junky who was drinking beer on the platform at Campbelltown. Dr Berecry diagnosed symptoms of acute post-traumatic stress disorder after witnessing a fatality in January 2000. He recorded also that Byrne had witnessed other fatalities and referred to the trip to Melbourne on 17 December 1998: Since this last fatality he did have symptoms of intrusive flash-backs, nightmares, disturbed sleep, flash-backs, nightmares, disturbed sleep, irritability, anxiety with depression and with increased alcohol consumption. 16. Dr Berecry expressed the opinion that, on balance, Byrnes' employment had been a substantial contributing factor to the incident, though I must say that he probably meant a substantial contributing factor to the injury, or the illness or condition. He said that the contributing factor was that he had witnessed a suicide, and had seen the decapitated body and head. My understanding is that he had not witnessed the suicide but that he later saw the body from the back of the train. 17. Dr Berecry stated: The effects were temporary and ceased as soon as Mr Byrne stopped work on that day. 18. He regarded Byrne as not totally incapacitated for work and considered that the symptoms of post-traumatic stress disorder had resolved, though it would be helpful, he thought, to continue to have several more sessions with the clinical psychologist. 19. It seems to me that there is evidence before me, even though the applicant himself did not remember it, that from 17 January to 13 February 2000, namely for the period claimed, he was still suffering serious psychological sequelae as a result of the fatal incident on 4 January. I rely particularly on the hand-written notes of Ms Hodges (Exhibit J). 20. Fortunately, the applicant received a promotion in mid-January 2001 and is now the supervisor of the passenger service, a position which (while he still does some physical work) is not nearly as onerous as his previous work. He said that between January 2000 and January 2001, he did not lose any time. He had been extremely careful with his back, knowing that it was vulnerable. He said that by the end of each trip, he had constant leg pain and a shooting pain in his back. 21. His present complaints are that he has constant pain which varies in intensity, with problems bending and some sleep disturbance. He does not take pain killers, and has not since about February 1999. He mows his lawn and cleans his car, though, he said, it takes longer these days than it used to. He complains also of pain, numbness and a tingling feeling in his back, but says that this has improved over the last four or five months. He agreed that he had no problem going up or down steps, that his leg pain does come and go. He does not run because he is frightened that his right leg (which is more severely affected than his left) could give way. He said that since 21 January 1999 the right leg has begun to give extra problems. 22. It was agreed between the parties that the probable earnings (but for the injury and for the period claimed) are $681.94 per week, which, for the purpose of this judgment, I assume to be the current weekly wage rate. 23. The varying assessments of impairment and losses claimed are as follows: In November 1999 Dr Wallace assessed a 20 per cent back impairment, left leg loss 15 per cent, right leg loss 10 per cent. In December 1999, Dr Jones assessed a 15 per cent back impairment with nil leg loss. Some two and a half years earlier, in March 1997 Dr Middleton assessed 8 per cent back impairment and nil leg loss. In January 2000, Dr Dixon (the general treating doctor) assessed a 15 per cent back impairment and 10 per cent loss of each leg, which he revised in April 2001 to 20 per cent back impairment and 10 per cent loss of each leg. Finally, in April 2000, Dr Berry assessed a 25 per cent back impairment, a 10 per cent loss of each leg. 24. In his submissions, Mr Menary said that he proposed to address his submissions as to weekly benefits to the period of 17 January to 13 February 2000, alleging that there was no satisfactory evidence of incapacity during that period. The unsatisfactory evidence was that the applicant himself did not remember why he was off, even though he had had excellent recall about events and details of other incidents. Mr Menary also submitted that the documentary evidence was unsatisfactory since some certificates were unsigned and others provided no certification of incapacity for a period. However, for the reason which I have already given, it seems to me there is sufficient justification for the incapacity from 5 to 7 January, that is, within several days after the incident of 4 January, and that the hand-written note of Ms Hodges (Exhibit J) provides substantial evidence of further incapacity. 25. Mr Menary submitted that any assessment of the back should take into account the fact that the applicant works long hours, that he works back to back shifts, lifting and moving luggage, even as a supervisor, and that he has displayed reasonable mobility to the doctors. He submitted that an appropriate assessment would be somewhere between 10 and 15 per cent back impairment, with nil leg loss. 26. Taking into consideration the submissions of Mr Menary (which were valid and which I weighed), it seems to me that an appropriate assessments, bearing in mind the findings on the MRI scan, would be 20 per cent back impairment, with a right leg loss of 10 per cent and a left leg loss of 5 per cent. I formed the impression that Byrnes was a conscientious worker, that he was willing to do his duties despite substantial problems. He seemed to be a very careful and accurate witness. It is fortunate that he received a promotion in January 2001. His work now is placing less strain on his back, even though he is required on occasions to move and carry luggage. 27. On the evidence of the applicant and the evidence of the doctors I have concluded that the incident of 13 March 1995 was the cause of Byrnes' back problems. Thereafter there were aggravations, but no incidents, and so that his disability for work, his loss and impairment all result from 13 March 1995. However, it seems to me that the two incidents of 17 December 1998 and 4 January 2000 were the incidents which rendered him incapacitated for work for the periods for which weekly benefits are claimed. Those two incidents caused a psychological injury which was of temporary duration and which resulted in the closed periods of disability which are claimed. 28. I therefore make the following findings and award: 29. 1.That on 13 March 1995, Byrnes was injured at work when he sustained an injury to his back affecting the use of both legs. 30. 2.That on 17 December 1998 and 4 January 2000 he suffered an injury by way of a psychological injury. 31. 3.That he was totally incapacitated because of the psychological injuries for the periods claimed. 32. 4.The current weekly wage rate for the relevant periods is $681.94 per week. 33. I make an award for the periods claimed in that sum as a weekly income. 34. 5.As a result of the injury of 13 February 1995, Byrnes has suffered a permanent impairment of his back which, having regard to the severity of the matter, bears to a most extreme case a proportion of 20 per cent; and as a result of that same injury, he suffered a permanent loss of efficient use of his right leg at or above the knee of 10 per cent, and of his left leg of 5 per cent. 35. I make an award of $23,250 pursuant to s 66. 36. Having regard to the degree of pain and suffering and the severity of his losses and permanent impairment, and to the maximum amount to be paid in a most extreme case (being $50,000), I award, pursuant to s 67, the sum of $17,500. 37. I order the respondent to pay the applicant's medical expenses and his costs. Mr D.R. Benson instructed by .Somerville & Co. appeared for the applicant Mr P.J. Menary instructed by .Gillis Delaney Brown 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.