Crawford v Glen Severn Motors Pty Limited [2001] NSWCC 140

Compensation Court of New South Wales

CITATION : Crawford v Glen Severn Motors Pty Limited [2001] NSWCC 140 PARTIES : Garry W Crawford Glen Severn Motors Pty Limited MATTER NUMBER(S) : 48431 of 2000 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 09/03/01, 13/03/01 DATE OF JUDGMENT: 03/13/2001

FOR APPLICANT: Mr J T Kearney instructed by Liston & Loveband LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr D A Priestley instructed by Lyons Barnett Kennedy

JUDGMENT: 1. In this matter the applicant claims lump sums under the Workers Compensation Acts in respect of an injury to his back and neck which he alleges occurred on 2 June 1999 in the course of a periodic journey between his place of abode and his place of employment. Mr Kearney of counsel appeared for the applicant and Mr Priestly of counsel for the respondent. Counsel submissions have been recorded. It is therefore unnecessary for me to refer to each submission, merely to ensure that it is noted. 2. The applicant is a 31 year old car detailer who suffered an injury - amongst other things - to his back and neck when the motorcycle he was riding from his home to work was struck by a car which failed to give way to him on 2 June 1999. After the accident the applicant was taken to the Glen Innes Hospital and subsequently allowed home after some x-rays were taken. Since that time he has had substantial time off work with back pain and worked much of the time at light duties. His treatment has been in the hands of his local doctor, Dr Fromiatti, and this has consisted principally of rest and some physiotherapy. The applicant complains of pain in the back and the neck, especially on driving, and intermittent pain in the right leg with some instances of collapse of the leg. 3. At the time of the accident the applicant was working for the respondent in its spare-parts department but he has had to return, because of the exigency of the employment, to car detailing which is somewhat harder work. The applicant is very laconic and Mr Kearney found it hard to elicit from him a ready account of his history and ongoing problems. A possible reason for that is that the applicant is exaggerating his complaints for litigious purposes. This would be consistent with conflicts between his account in evidence and what he conceded he may have told Dr Limb and Dr Graham, the doctors who examined him for the respondent. 4. Having regard in particular to the material from Dr Fromiatti and the overall impression of the applicant's evidence, including his limitations of his sporting activities, I think that the applicant has been truthful about his condition. The inconsistencies I think are largely to be explained by the circumstance that the applicant is a relatively inarticulate young man with a condition which is, as Dr Fromiatti says, episodic in its effect. 5. There is a marked difference of opinion between the views of the qualified doctors. 6. Dr Hopcroft examined the applicant for his solicitors on 2 February 2000. The doctor found on examination quite marked localised tenderness over the lumbar sacral spine, specifically over the midline lumbar spinus process in the lower part of the back with restriction in range of movement at the terminal part of the range. He considered plain x-rays and a CT scan taken in July 1999 and a further CT scan which was taken on 13 January 2000 following particularly severe aggravation of the applicant's back pain when coughing and sneezing. The CT was reported as follows: Scans have covered the lowest three lumbar discs and the associated vertebral structures. There is a small central 4/5 disc protrusion producing an almost symmetrical impression on the thecal sac - but probably not significantly displacing the origins of the L5 nerve root sheathes. There is diffuse posterior bulging of the L5-S1 disc but this does not deform the thecal sac nor does there appear to be any nerve root sheath displacement. Disc features at the L3/4 level are normal. No facet pathology is evident and there is no further feature of note in the lumbar CT scan. 7. The radiologist's summary was a small central 4/5 disc protrusion and diffuse posterior bulging at the lumbar sacral disc. 8. Dr Hopcroft's view was that the applicant had suffered a significant lumbar disc lesion as a result of his motor vehicle accident on 2 June 1999 and had also suffered a whiplash type injury to his cervical spine. The doctor believed that the problem in his back was permanent and that it was 20 per cent of a most extreme case, although the doctor did not use that terminology. In relation to the neck the doctor said: I believe that the problem with his neck may well resolve, only to recur in the future if he has in fact damaged the underlying cervical facet joints. 9. The doctor did express the view that there was a permanent impairment of the neck of 10 per cent. However, I shall discuss later that view in relation to the statement I have just read. 10. Dr Lim who examined the applicant for the respondent on 28 March 2000 took quite a different view of the matter. He referred to an episode of low back pain that the applicant had suffered in 1995 after lifting a cylinder head and in relation to the complaint of pain in December of 1999 early 2000 treated that as a separate onset of back problems without any identifiable aggravating event. This ultimately led the doctor to take the view that the applicant was suffering from common back ache which could not be attributed to his motor car accident. He said: There are no compelling evidence that his current symptoms are somehow related to the soft-tissue injuries he received when he fell off the motorbike on 2 June 1999 and there was no compelling evidence that Mr Crawford had a serious injury to his back as a result of the accident on 2 June 1999. 11. He thought the finding of disc bulges to be incidental. At the time of his examination the doctor thought the applicant was improving. There was no clear evidence that he had significant physical impairment of his lumbar spine. There was no evidence of radiculopathy and he summarised his position by saying there was no compelling evidence the applicant's current symptoms were related to his occupational duties or to his motor bike accident on 2 June 1999. He also expressed the view that it would be premature to assess the applicant for permanent impairment at that time. 12. Dr Graham examined the applicant for the respondent on 5 July 2000. He took an even stronger view about the matter than Dr Lim. He was of the view that the applicant now presented with chronic right-sided low back pain which seemed to have commenced in December 1999 and had no particular relationship to work, although it might be argued that the nature and conditions of a car detailer might bring such a problem on. The doctor considered that the applicant had fully recovered from the back injury occurred in the motorcycle accident of 1969; that he had developed some back pain apparently while on a recreational journey and that that had no relation to his employment or to the motor car accident. The doctor went on then to express a view that the applicant had been poorly advised in relation to his condition and that there was much involvement with litigious process. 13. I consider that Dr Hopcroft's view is more consistent with the applicant's account - which account which I have accepted as I discussed above - and importantly, I think it to be supported by the view of Dr Fromiatti, the treating doctor, the one who had seen the applicant other than merely on one occasion for a qualifying examination. In her report to the applicant's solicitors of 31 January 2000 the doctor said, amongst other things: Mr Crawford has suffered a L4/5 and L5-S1 disc prolapse. Both disabilities are directly related to the motorbike accident on 2 June 1999. His problem has persisted albeit episodically for the last seven month and I am unable to state how long the disability will last. 14. I think, as I have indicated before, that the fact that the symptoms came on episodically accounts for some of the difficulties that Dr Lim and Dr Graham had in accepting them. But, clearly, Dr Fromiatti, who had the treatment over a considerable period of time of the applicant, had an opportunity to follow them. She said that she thought the applicant was not fit for his pre-injury occupation - which she had as a 'mechanic' - and he was fit for light sedentary duties which required no bending, lifting, pushing, pulling or shoving. The doctor had noted that in the accident the applicant had felt pain in his neck. She did not however report any continuing problem with the neck. 15. In a later report of 6 March 2001 the doctor noted the applicant had a recurrence of pain made worse with sneezing in December of 2000. She notes some continuing treatment which is quite consistent with the episodic nature of the condition. At the time she wrote the report she said the pain had eased and he had now been free for a few weeks and able to do all duties at work and all his usual household duties: The examination today reveals flexion - 80 degrees, and extension -10 degrees, with tightness in the lower back but not pain. However, that condition is not inconsistent with the episodic nature of the problem. 16. Although there are other possibilities, in my view, the probability is that the applicant has suffered permanent impairment of his back as a result of the motor cycle accident. 17. Dr Hopcroft assessed that 20 per cent. As I understood Mr Priestly's submissions, if I accepted that the disc lesion had been caused in the motor car accident, as I do, that would not be an inappropriate finding. Whether I understand him correctly, or not, it seems to me that I should accept Dr Hopcroft's view. The respondent's material does not offer another view based upon a conclusion that there was indeed permanent impairment. 18. The applicant had had an episode of back strain when lifting the cylinder head but his evidence, which I accept, is that he did not lose any time from work, he had trouble for a very short period of time, and I see no proper basis for concluding that the effect of that or, indeed, of any other pre-existing condition or event - contributed to the impairment I have referred to. In my view, it has not been established that there should be a deduction under s 68A. 19. The applicant has given evidence of continuing problems with his right leg. The evidence of radiculopathy is slight at best. Dr Hopcroft's view is there is a 10 per cent permanent loss of the efficient use of the leg. The views of Dr Lim and Dr Graham are quite to the contrary. The applicant did say that he had knocked his knee in the injury and Dr Lim says that any problem he has with his knee can perhaps be explained in that way - although he did not seem to think there was any continuing problem. The applicant bears the onus and it seems to me that the conclusion I should come to is that it has been established that the applicant has suffered a 5 per cent permanent loss of the efficient use of the right leg at or above the knee. 20. The applicant has continued to complain of pain in the neck, particularly on driving. Dr Graham takes the view that that pain probably relates to a particular occasion when he referred to driving for some considerable distance. But it seems to me that on the views of Dr Hopcroft - together with the evidence of the material I should accept that the applicant has continued to suffer from the whiplash problem in his neck. However, that is not sufficient of itself to establish that there has been permanent impairment. Dr Hopcroft said in the passage I have read above, "I believe the problem in his neck may well resolve - only to recur in the future if he has in fact damaged the underlying cervical facet joints" in other words, the doctor does not express the view that he has damaged them and he says "it may well resolve". 21. In those circumstances, I do not think it has been established that the applicant has suffered permanent impairment with his neck. That is, I am not making a finding that he has not - and it may be that at some future time the position will have either developed to or clarified to the point where a finding that he has suffered permanent impairment could properly be made, but I do not think on this evidence it should be made at this time. 22. The award I shall make crosses the threshold under s 67(2) and the applicant is entitled to an award under s 67. Whilst the applicant does not complain of a great deal of continuing pain, it is clear that he has pain much of the time. Filling out the picture with the fairly extended periods of time he has had off work, it is clear that he suffers a very considerable limitation of what he as a fit young man was previously able to do. His sporting activities have been restricted. His ability to derive satisfaction from work has been restricted and the result of that anxiety and concern from the inability to engage in ordinary working activities which go with that are, I think, significant, and it would seem to continue for the rest of his working life. 23. Having regard to his relatively young age I think an appropriate proportionality to the amount of $50,000 provided for a most extreme case is maintained if I make an award in the sum of $10,000 under s 67. 24. For those shortly stated reasons I find: (a)That the applicant suffered injury to his back on 2 June 1999 whilst on a periodic journey between his place of abode and his place of employment. (b)As a result of the said injury the applicant has suffered permanent impairment of the back being 20 per cent of a most extreme case. (c)As a result of the said injury the applicant has suffered 5 per cent permanent loss of the efficient use of the right leg at or above the knee. 25. I make an award for the applicant under s 66: (a)In the sum of $12,000 in respect of permanent impairment of the back. (b)The sum of $3,750 in respect of 5 per cent permanent loss of the efficient use of the right leg at or above the knee. (c)Under s 67 in the sum of $10,000. (d)The respondent is to pay the applicant's costs. I certify a second conference, $200. MR J T KEARNEY instructed by Liston & Lovebandappeared for the applicant MR D A PRIESTLY instructed by Lyons Barnett Kennedy appeared for the respondent