Thomas v Transport Workers Union of Australia [2001] NSWCC 155

Reported Decision : (2001) 22 NSWCCR 564

Compensation Court of New South Wales

CITATION : Thomas v Transport Workers Union of Australia [2001] NSWCC 155 revised - 13/02/2002 PARTIES : Trevor Leonard Thomas Transport Workers Union of Australia MATTER NUMBER(S) : 54577 of 2000 JUDGMENT OF: Wright C at 1 CATCHWORDS: Miscellaneous Matters :- Accredited representative of a trade union - limited application LEGISLATION CITED: S 12 Workers Compensation Act 1987 CASES CITED: Hughes v Civil and Civic Pty Ltd (1995) 11 NSWCCR 27-Distinguished DATES OF HEARING: 09/11/01 EX TEMPORE JUDGMENT DATE : 11/09/2001

FOR APPLICANT: Mr M Bleasel of counsel instructed by Messrs Bell and Partners appeared on behalf of the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M Snell of counsel instructed by Messrs Grahame Goldberg Partners appeared on behalf of the respondent.

JUDGMENT:

Application and Issues 1. The threshold issue in this case is whether, if the worker suffered a back injury on 27 May 1994, it was an injury that was compensable under the Workers Compensation Act 1987. The applicant alleged two injuries, the second being a work injury to the low back on 4 July 1994. The threshold issue is also important because there is conflicting evidence about whether the subsequent injury contributed to the worker's overall condition. 2. The worker claims lump sum payments for permanent back impairment, namely for 25% permanent back impairment, for 10% left leg loss and a payment for pain and suffering. The s 66 claims were based on assessments by Dr Richard Deveridge in February 2000, but he discounted these amounts to allow for some pre-existing disability. Factual matters 3. In May 1994 the worker (date of birth 19 April 1955) was a trade union official for the Transport Workers Union. He asserted that the Secretary of the Union told him, when he was first appointed, that he could be expected to be on call around the clock. The flexible nature of the duties, which required Mr Thomas to service the membership of the union, attend industrial meetings and assist with the settling of industrial disputes, was demonstrated with his general evidence that he could be called out at all hours and that specifically, on 27 May 1994, he was called out at 2 am from home to attend a 3 am meeting. After this meeting, he had continued work until 5 pm the following afternoon, attending other work and meetings at various industrial sites around Sydney during the ensuing 14 hours. Apparently he did not attend the union office that day. After he had ended his extended day's work, he had driven to his home. It had been his intention to commence work the next day at 6 am. 4. Inside the curtilage of his private property at Claremont Meadows, he alighted from his vehicle and was in the act of twisting to close the car door when there was a dramatic episode in that he suffered severe back pain and left leg pain and dropped to the ground. He had attended his local doctor several days later for treatment. It is his assertion that he was covered for injury as he was still on a "journey" under s 12 of the Workers Compensation Act 1987. He did not tell his doctor that the 1st incident had occurred in early June 1994. 5. On the second occasion, on 4 July 1994, he had also experienced back pain after alighting from his vehicle at Parramatta in the course of attending the Parramatta office of the TWU. 6. The medical evidence supports a view that, in the 1st incident, the worker probably suffered a back injury in the act of twisting his torso. 7. The worker agreed that his starting times for work varied with the demands of the job. He denied the suggestion that the 2 am call out was not a normal occurrence. He had been called out in the early hours of the morning about 4 times monthly. His most frequent start began with his leaving home at 6 am. He could sometimes finish work at 10 pm or 11 pm. A typical day without such special demands might see him leave for work at 6 am and finish at any time between 3 pm and 7 pm. He he had not worked 24 hours in any one day. He regarded himself as being on call 7 days a week. 8. Mr Thomas had made workers compensation claims in respect of both incidents, and had received his pay for time off work after both incidents. In the 2nd claim form, the box that had been ticked for "no previous claim" had been completed in error. He had "always" had back and leg pain after the 1st incident. He denied that his back and leg were normal immediately before the 2nd incident. Claim for Permanent Loss Compensation 9. Mr Thomas, prior to May 1994, was a fairly active 39 year old. Apart from his long hours at work, he played soccer every weekend and enjoyed snow skiing annually. He carried out house maintenance and some gardening and enjoyed repairing and maintaining a veteran car. 10. Prior to 27 May 1994, he had no problems with his back or legs. On that day he suffered sudden back pain, laid on the ground for a few minutes, then rose and entered his house. He had pain all night and laid on the floor. He took about 10 days off work and received medical treatment, including physiotherapy and medication. On his return to work, he was restricted to office work. The back and leg pain fluctuated in intensity for the next 5 weeks. 11. On 4 August 1999 the worker visited the Parramatta branch of the TWU and, in the act of attempting to close his car door, he again had a sudden severe pain in the back. He went off work until 19 August 1994 and returned to lighter duties which he continued until 24 November 1994 when he resigned. His reason for resigning was the reluctance of his employer to release him from office tasks to his full duties. 12. Since his resignation from the respondent's employ, the worker has been employed with First Fleet Transport, firstly as a driver of a prime mover until April 1995 and, since that time, as a transport manager. In the driving job he was able to work for 8 to 10 hours daily, doing local deliveries without any loading requirements. Waiting time was a feature of this job, with about 70% of his work time involving actual driving work. The transport manager's job requires no driving or manual work. 13. Between 1994 and the present time he has had continuing back problems and pain and numbness in the left leg. He thinks that the pain levels are now a little bit worse. He has sought medical advice and has decided not to have surgery for his condition. He now has problems with putting on his socks, bending, and prolonged sitting, and has a little bit of difficulty with lifting things. He is able to drive a 4 wheel drive motor vehicle without difficulty, although he attributes this ability to not needing to bend to get into a smaller vehicle. 14. Mr Thomas agreed that he suffered an onset of severe back and leg pain in the May 1994 incident and had never recovered 100% from that incident. He had not returned to the active playing of soccer, although he commenced playing in a charity match in August 1997 only to have his leg broken by a falling player in the first few minutes. He had been involved in the training of premier league soccer teams until 2 or 3 years ago. The involvement had been "within (his) limitations". He acknowledged that he had been compensated for an 11.5% loss of use of the injured right leg as a result of the unrelated accident and that this disability also had an effect on his general mobility and his ability to ski. He disputed the assertion that he had symptoms of arthritis in both knees. He had never had any problems with the left knee. 15. A specialist, Dr Compton, had been seen after the 2nd incident, on about 4 or 5 occasions up until late September 1994. Medication had assisted him and he had returned to work. He may have told CRS that he was pain-free with use of anti-inflammatory medication. He probably told that organisation that he had no difficulties with standing, walking, sitting or driving the 45 minutes to work. He agreed that he had been managing without pain, under the supervision of CRS, but he was not doing his full duties. 16. The medical evidence for the worker includes opinon reports from Drs Ryan, Deveridge, Wallace, Fearnside, Barich, McLeod and Marsden. Several of these reports were commissioned by the respondent. 17. A CT scan from Castlereagh Radiology on 6 July 1994 showed that the worker had a moderate-sized left postero-lateral disc protrusion at the L5/S1 level causing displacement of the left S1 nerve root, a fairly unequivocal finding. Dr Ryan prescribed medication and Mr Peter Kent provided physiotherapy services. A lumbar myelogram and CT scan was done by Dr Ho on 19 September 1994. The GP notes of treatment and complaint are not clear about whether there was leg pain after the 1st incident, but there is a clear note of left sciatica down to the knee after the 2nd incident. 18. Dr Jeffrey Compton, neurological surgeon, saw the worker shortly after the 2nd incident. He described the worker as having suffered from a small left-sided disc prolapse with some spondyltitic change "in relation to that". His history also does not clearly record sciatic pain after the 1st incident. In September 1994 Dr Compton described the protrusion as small and as being associated with some spondylitic change. He held out hope that surgery could resolve the symptoms. The worker chose the conservative path. There is no report or assessment before me from Dr Compton after 1994. 19. Dr Richard Deveridge in February 2000 made his assessment of permanent impairment and loss. He recorded complaints of fairly constant pain in the back and buttock region since 1994, with spasmodic shooting pain down the left leg which prevented the worker from sitting or standing for long periods or from walking for more than 20 minutes. He thought that the worker had a reduced lumbar lordosis and a reduced straight leg raising test on the left. He opined that the worker had ruptured a degenerative L/S disc as a result of the 2 injuries, with a one-tenth contribution from pre-existing disability. He thought that 75% of the disability related to the 1st injury and 25% to the 2nd injury. He did not fully explain how the worker with his restrictions and disability could have worked as a driver for 2 years. 20. Dr Ray Wallace in June 2001 appears to have overlooked the driving job after 1994. Dr Wallace agreed that there had been a disc lesion, and accepted that the worker had some restrictions on back movement and some paraesthesia and numbness in the left leg. He placed restrictions on the worker's physical capabilities in the future. He assessed 18% back impairment and 15% left leg loss and made no provision for pre-existing disability as the worker had "described no pre-existing injuries". He related the impairments indivisibly to both injuries. 21. Professor Michael Fearnside in June 2001 described the earlier radiology as showing a moderately large prolapsed disc with a persisting but smaller profile in 1999. He thought that the 2 incidents had caused the pathology and resulted in radiculopathy. He accepted the worker's complaints and anticipated that the worker would experience back and left leg pain into the future and he might face surgery if the condition worsened. He assessed 20% back impairment and 10% loss of use of the left leg. He did not consider that any deductible proportion applied. 22. Professor J G McLeod in April 2001 accepted that the worker had low back pain and left sciatica, although his assessments of 10% back impairment and 5% leg loss are difficult to appreciate, given the extent of the physical limitations and the lack of any deductability under s 68A. 23. Professor F Marsden in April 2001 thought that the 1st incident was the focal cause of his condition and accepted that there were continuing back and left leg symptoms. He estimated 15% back impairment and 5% leg loss of use. 24. In February 1999 a CT scan showed a bulge of the L5/S1 disc displacing the S1 nerve root, which Dr Johnson suggested was similar in appearance to the 1994 scan. 25. The use of most of the respondent's medical reports by the worker left the respondent without much medical evidence to tender. Dr Simon Coffey reported in 2000 upon an improvement in the worker's right knee problem, which was diagnosed as a mono-articular inflammatory arthritis of uncertain aetiology. There was also a clearance from Dr Compton on 26 September 1994 that the worker was "fit to return to work". Physiotherapy notes from the King Street practice showed that the worker had had treatments for his back complaints in 1994 and 1997, with Mr Compton concluding in August 1994 that the worker had greatly improved and should return to light duties for two weeks and then full duties after a further two weeks. However Mr Compton reported the next month that the worker was "no better" after physiotherapy.