Compensation Court of New South Wales CITATION : Lovett v Effem Foods [2001] NSWCC 24 revised - 5/09/2001 Neville H Lovett PARTIES : v Effems Foods Pty Limited T/as Uncle Ben's of Australia MATTER NUMBER(S) : 44429 of 1998 JUDGMENT OF: Moran J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 14/11/00, 10/04/01, 11/04/01, 12/04/01 DATE OF JUDGMENT: 04/12/2001 FOR APPLICANT: Mr Barry Cosier and Associates, Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT: Bartier Perry & Assoc. Solicitors (Effem) JUDGMENT: 1. In this case the applicant who is now aged 43 claims weekly compensation and lump sum compensation in respect of back injuries on 24 November 1994 and 31 August 1997 and the nature and conditions of his work from March 1994 to 13 July 1999. I gave leave for the respondent to be represented by its insurer, HIH Workers Compensation NSW Ltd, the insurer until 31 December 1994, and to be represented as a self-insurer after that date. The applicant claimed also that in May 1998 whilst undergoing reasonable medical treatment the applicant's back was manipulated by Mr J Roberts causing further injury to him. That as a result he suffered a back injury and or aggravation, exacerbation or acceleration of a condition known as 'stiff man's syndrome'. 2. It is clear that the work performed by the applicant at the respondent's premises involving packaging/ process work was heavy work which involved a lot of bending and lifting. It is also clear that the effort in carrying out that work was greater, particularly when he was obliged to remove broken 20 kg bags of dog food from the conveyor belt - as happened on occasions - and then he was required to stack such bags on pallets. 3. The applicant impressed me as a witness of truth. His recollection was tested in cross-examination on a number of times as to what he told his general practitioner and other doctors in respect to the progress of his symptoms. I accept that the applicant genuinely believed that he told his general practitioner, Dr Schibeci, in or about September/ October of 1997 that in addition to back pain he had what he described, firstly, as "butterflies in the stomach" and which later became quite severe spasms in his stomach muscle and also his back muscles. 4. It is clear from Dr Schibeci, who gave evidence before me, that he did not make any note of such complaints as of that date, that is 30 October 1997 - he had been seen by another doctor in the practice earlier. The doctor had not made a note of any complaints of butterflies in the stomach or any spasms in the stomach and the first time he made notes in relation to what subsequently was diagnosed as a 'stiff man's syndrome' was in May of 1998. Nevertheless, I accept that the applicant at the time of his back strain on 31 August 1997 and 1 September 1997 did suffer what he described as "butterflies in the stomach" and that those symptoms continued until May of 1998. At times the applicant described them at p 35 of the transcript: "as the months went on lighter spasms in the stomach and the leg weren't too bad". However he said that he felt sure that he had told Dr Marsh, the factory's chosen doctor - who examined him a number of times over that year - of those symptoms. 5. It was at the suggestion of Dr Marsh that he continue with his physiotherapy for his back injury in August and September of 1997 at the hands of Mr John Roberts. The applicant described in evidence how Mr Roberts manipulated his back in May of 1998. He said that he did not know what the manoeuvre was called but he had one hand on his shoulder, his right shoulder, and the other hand on his right pelvis and he performed a twisting manoeuvre where the shoulder went this way and the pelvis went the other way. When he was asked how he felt he said: I got to the stage where it wasn't far off centre and I asked him to stop because it was hurting and he did so. He kept working on that area and then after about three or four minutes a big crack. He lifted his hands off - he must have heard - and I asked "What was that?" and he put his hands back on and I'd gone about another 3 inches past the area where it hurt. 6. He was in pain. When he said "how did that feel?" he said when he held him down "it felt bad". Well, at that stage he got spasms in his abdomen which he described as "phenomenal" as he felt as if there was someone punching him in that area. Well he told Dr Marsh and Dr Schibeci about it. Nevertheless, both doctors told him to keep going back to physiotherapy. His evidence was that Mr John Roberts performed this manoeuvre a second time and third time. The applicant was at this stage attempting to carry out light duties provided by the respondent. There was no heavy lifting or bending or no bending or lifting at all. He continued from that time on to suffer what he described as spasms and contractions. Eventually this condition was diagnosed as a 'stiff man's syndrome' or 'jumping stiff man's syndrome' (uncontrollable spasms and contractions) and he still suffers from that condition. 7. It was sometime before it was diagnosed because it is a rare condition, and eventually after seeing a neurologist at Orange, Dr Gordan, he was referred to a specialist - who gave evidence before me - Dr Morris. Dr Morris is a neurologist at Westmead Hospital and I have a number of reports from him which became Exhibit F. It so happens that Dr Morris is an expert in this field of what has been described as 'stiff man's syndrome' and he has written a paper on the subject which he presented at a seminar in the United States. The doctor reports that the nature of the disorder was such that it cannot be caused by trauma but can be triggered - or symptoms exacerbated - by trauma. He said that he recommended certain medications for the treatment, in particular, Diazepan and Baclopan. He was told by the applicant that he was unable to tolerate Diazepan as it made him aggressive and the applicant did not continue with that medication. 8. Dr. Morris gave evidence before me and he adhered to what he had written in his reports, Exhibit F. He said that the condition causes prolonged painful spasm of the muscles in his back induced by the slightest exertion. He said the symptoms began at a time when his job involved heavy lifting and this may have triggered symptoms. He agreed that it would be fair to say that heavy lifting accelerated the symptoms of his stiff man's syndrome and that such activity in the future would exacerbate those symptoms. He also agreed in evidence that the onset of pain following the three manipulations while undergoing physiotherapy would also exacerbate or accelerate the condition of stiff man's syndrome. 9. This opinion was challenged by the doctors put forward by the respondent - in particular Dr John O'Neill, neurologist from St Vincent's Hospital in Sydney, who said in his opinion the necessary criteria have not been met in this case and that he was not satisfied that he was suffering from stiff man's syndrome - and, even if he was, it was a condition that could not be caused by work. He did not believe that his strains in August/September 1997 or the treatment given by Mr Roberts had exacerbated or accelerated the condition. On the other hand the respondent tendered a report from Dr Wingfield, Exhibit 2, and he agreed with Dr Morris's diagnosis that he did suffer from stiff man's syndrome but he did not think the incident at work had any effect whatsoever on the progress of his condition. He reported that it was something that not much is known about can come on at any time. It is autoimmune disturbance it is constitutional and no relationship whatsoever with any workplace activity. 10. There are other medical opinions that have been put before me in the case but I think I have referred to the most important ones. As I said earlier, I accept the applicant as a witness of truth and after considering the whole of the evidence I am satisfied that I should accept the opinions expressed by Dr John Morris, neurologist, who was the applicant's treating specialist. He agreed that the applicant's tests did not always support the diagnosis. He also said that immunological test - in particular, the anti-GAD anti-body test - was negative, but that he was not swayed from his diagnosis because it is positive only in 60 per cent of patients who fulfil the clinical criteria for this award. He considered that the applicant did fulfil the clinical criteria and despite the cross-examination by counsel for the respondent adhered to his opinion. 11. I mentioned earlier that the applicant relied upon earlier injuries in his employment with the respondent - in particular whilst the HIH was on risk for the workers compensation insurance. The evidence before me was that he recovered from strain to his back on 21 November 1994 and he went back to his heavy duties up until a date in about March of 1997 - when the self-insurer was on risk - when he suffered a further strain to his back. He did not lose any time from that second strain and continued working until 31 August 1997 - when, I find, on the evidence, that he suffered a strain to his back which led to a further strain the day after and then both those incidents, 31 August 1997 and 1 September 1997 - as a result of those incidents, rather - it became necessary that he undergo a medical treatment and that medical treatment included physiotherapy at the hands of Mr John Roberts. 12. I am satisfied that as a result of that physiotherapy further injuries were caused to the applicant and that he developed symptoms of stiff man's syndrome and, as Dr Morris and other doctors said, it can happen at any time. It is a condition that is very rare and whilst doctors were satisfied it was not caused by trauma, Dr Morris was of the opinion that it can be and was aggravated, accelerated and exacerbated. I accept Dr. Morris' opinion. 13. The applicant continued performing types of light duties for the respondent until - I am not sure of the exact date - but he lost time from work from time to time and then he would go back on light duties again, but eventually on 22 September 1998 his weekly payments of compensation and or wages were stopped and he went on to sick leave for a while. So he brings this claim for weekly payments from 23 September 1998 to date and continuing. 14. There was evidence that the applicant subsequent to that date was able to mow his lawn. For instance, he agreed that he had an electric lawn mower, that his lawn was about 100 ft square but it took him about 5 days to mow the lawn because he could only do 20 minutes at a time. He says that his back pain continued as did the weakness in both legs that he tried to assist his wife in a business that she set up and he became a partner. It was an engineering-type business - and what was involved was she used a machine to buff castings. He said he gave her some technical guidance about it and he at times might have moved castings around with the help of trolleys. In any event the business did not make any money. His wife's income from it would be about $600 a year. He and his wife also tried a small venture in trout-fish farming which involved the use of four trial tanks. However, that also was unsuccessful and he has not done any paid work since 1998. 15. Dr Morris considered that he was unfit for any work, that any sort of movement which threw strain on his back or too much activity brought on the contractions and spasms - and then the applicant needed rest for them to settle down. The applicant said that he gets fatigued. He is not able to pick up his 8 year old daughter. He is depressed and sad. He took Valium when he got depressed, but that nearly broke up the family because of his mood - so he has not been able to retain any long term relief for the condition. He said that as far as his sleep pattern was concerned he is more in control now because he makes sure he does not lift anything heavy - but, generally speaking, his marital life is depressed, and he is, in my view, and the view of Dr Morris, which I accept, he is unfit for work or any work that would be reasonably available to him on the open labour market. I find that for all intents and purposes the applicant has been totally unfit for work as a result of the injuries of 31 August and 1 September 1997 and the necessary medical treatment given to him - particularly, manipulations and physiotherapy in May of 1998. 16. The applicant claims that as a result of the aggravation of the stiff man's syndrome he suffers permanent impairment of his back and loss of use of both legs. The only doctor who gives an opinion of such loss of impairment or use is Dr Morris. The doctor says that the losses are due to the symptoms from the stiff man's syndrome, which have been exacerbated, and in his opinion he has a 50 per cent impairment of his back and a 50 per cent loss of use of each leg at or above the knee. 17. When asked questions relating to pre-existing conditions as described in s 68A of the Act the doctor was unable to say what percentage would be due to the underlying condition and what percentage due to the aggravation. S 68A says that in determining the compensation payable under this division for a loss there is to be a deduction for any proportion of the loss that is due to any previous injury - whether or not it is an injury to which compensation has been paid or is payable under this division or that is due to any previous condition or abnormality - and that the proportion of the loss that is required to be deducted because of sub(1) is the deductable proportion of that loss. And then the section goes on to talk about secondary loss which in this case referred to the loss of use of the applicant's legs. S68A(6) states where there is a deductable proportion of the loss but the extent of that deductable proportion will be difficult or costly to determine (because for example of the absence of medical evidence) it is to be assumed for the purpose of avoiding litigation that the deductable proportion of the loss (or the relevant part of it) is 10 per cent of that loss unless this assumption is at odds with the available evidence. 18. Overall, I am satisfied there is a pre-existing condition which contributes to the loss even though the applicant was having no symptoms prior to August/September of 1997 - except, as I have said, for those two occasions in 1994 and May of 1997 which settled down. The Court of Appeal in a recent case of Matthew Hall Pty Ltd v Smart decided on 23 October 2000 referred to earlier cases of Government Cleaning Services v Ellul (1996) 13 NSWCR p 344 and the 'D'Aleo v Ambulance Service (NSW) 14 CCR p. 139 that even though the pre-existing condition or abnormality was not causing permanent impairment, if the loss is to some extent due to the pre-existing condition there must be a deductable proportion for that loss. 19. In this case I do not think the 10 per cent suggested in par 7 of s 68A is appropriate because in my view it is at odds with the available medical evidence. I find any deductable proportion in respect of the losses for both back and legs should be in the order of 50 per cent. 20. I note that the medical evidence put forward on behalf of the respondent is of the opinion that there is no impairment of the applicant's back - nor any loss of use of his legs as a result of having a work incident. 21. I find that in proportion to a most extreme case he has 50 per cent impairment of his back and 50 per cent loss of use of each leg at or above the knee as a result of the injuries received on 31 August 1997, 1 September 1997 and the necessary medical treatment. 22. I am not satisfied that the injury which the applicant suffered to his back on 21 November 1994 or that he suffered any injury as a result of the nature and conditions of his employment up until 31 December 1994 whilst HIH was on risk which resulted in any incapacity for work after 22 September 1998 or any impairment or loss as claimed in the application for determination or the necessity for any medical and hospital expenses under s 60. 23. I find that as a result of the injuries to his back on 31 August 1997 and 1 September 1997 and in May of 1998 whilst undergoing reasonable medical treatment for those injuries the applicant was totally or partially incapacitated for work from 2 September 1997 until 22 September 1998 and paid either weekly compensation or wages until that date. 24. I find that as a result of the said injuries, the applicant has been totally incapacitated for work from 23 September 1998 to date and continuing. 25. I find that he had a wife and three children totally or mainly dependent upon him for support until 13 April 1999 and a wife and two children totally or mainly dependent upon him for support from 14 April 1999 to date and continuing. 26. For those reasons, I make an award in favour of the applicant under s 37 of the Act as follows: $516.40 per week from 23 September 1998 to 30 September 1998. $525.50 per week from 1 October 1998 to 31 March 1999 $534.70 per week from 1 April 1999 to 13 April 1999. $459.30 per week from 14 April 1999 to 30 September 1999. $466.90 per week from 1 October 1999 to 31 March 2000. $474.40 per week from 1 April 2000 to 30 September 2000. $479.50 per week from 1 October 2000 to 31 March 2001. $490.50 per week as adjusted from 1 April 2001 to date and continuing. 27. I order the respondent to pay the applicant's medical and hospital expenses, s 60. 28. I make an award in favour of the applicant under s 66: In the sum of $15,000 in respect of 50 per cent impairment of the back, less 50 per cent deductable proportion pursuant to s 68A which equals compensation for 25 per cent impairment of the back. In the sum of $18,750 in respect of 50 per cent permanent loss of efficient use of the applicant's right leg at or above the knee, less 50 per cent pursuant to the provisions of s 68A of the deductable proportion which is the equivalent of compensation for 25 per cent for loss of use of the applicant's right leg at or above the knee. In the sum of $18,350 for 50 per cent permanent loss of use of his left leg at or above the knee, less 50 per cent pursuant to s 68A for deductable proportion which is the eqivalent of 25 per cent permanent loss of efficient use of his left leg at or above the knee. 29. Those amounts that I have awarded entitle the applicant to compensation for pain and suffering pursuant to the provisions of s 67 of the Act. The maximum amount payable is $50,000 and that amount is payable only in the most extreme case and the amount payable in the other case shall be reasonably proportionate to that maximum sum having regard to the degree and duration of the pain and suffering and the severity of the loss or losses and pain and suffering as defined in sub(7) as meaning actual pain or distress or anxiety suffered or likely to be suffered by the injured worker whether resulting from the loss concerned or from any necessary treatment. 30. I have already mentioned those aspects in respect of a pain and suffering and distress and anxiety in the main body of my reasons. He is aged 43. He is totally incapacitated for work. I find that in proportion to a most extreme case I should award compensation on the basis of 50 per cent to a most extreme case. 31. I therefore make an award in his favour under s 67: For $25,000. 32. I order the respondent to pay the applicant's costs. 33. I certify an additional conference for counsel in the sum of $250. 34. Counsel for the applicant asked for a special order in relation to counsel's fees that in view of the complexity of the matter I should award counsel's fees calculated on a brief fee on a daily basis. Bearing in mind that the respondent saw the need to brief senior counsel and the fact that it was an unusual medical condition. I agree with applicant's counsel's submissions and I make the order as requested, mainly that counsel's fees be assessed on the basis that each day of the hearing there be a full brief fee - rather than on a refresher basis. 35. I give leave to the respondent as a self-insurer to list the matter for mention before me during the week commencing 23 April 2001 concerning stay of proceedings in relation to the lump sum awarded herein. 36. This award is payable by self-insurer of the respondent. MR COSIIER solicitor appeared for the applicant MS DOVER solicitor appeared for HIH MR WALKER solicitor appeared for EFFEM 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.