Anderson v Charles Sturt University [2002] NSWCC 62

Compensation Court of New South Wales

CITATION : Anderson v Charles Sturt University [2002] NSWCC 62 Patrick L Anderson PARTIES : v Charles Sturt University MATTER NUMBER(S) : 56486 of 2001 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 07/11/02 EX TEMPORE JUDGMENT DATE : 11/07/2002

FOR APPLICANT: Mr R G Hanrahan instructed by Steve Masselos & Co appeared for the applicant. FOR RESPONDENT: LEGAL REPRESENTATIVES: Mr Roberts instructed by PricewaterhouseCoopers Legal appeared for the respondent (GIO Workers Compensation (NSW) Ltd); Mr Barber instructed by Bartier Perry appeared for the respondent (NRMA Workers Compensation (NSW) Ltd); Mr Small instructed by Vardanega Roberts appeared for the respondent (Allianz).

JUDGMENT: 1. Mr Patrick Leonard Anderson of Wagga Wagga claims weekly payments of compensation from 6 July 2000 to date and continuing for either total incapacity or partial incapacity. He also claims his expenses under s 60. I understand that only a general order is sought under s 60. The applicant relies on seven events which occurred to him in the course of his employment. Those events are dated between 21 May 1992 and 1 March 2000. The applicant also relies on what is referred to as "the nature and conditions of the applicant's employment with the respondent" from 1988 to 6 July 2000. It is common ground that the applicant's voluntary resignation took effect on 6 July 2000 so theoretically the applicant's claim for weekly payments ought commence on the following day, 7 July 2000. 2. The applicant is by calling an electrician. He grew up in Wagga Wagga where he attended the Christian Brothers High School. The applicant obtained his Intermediate Certificate. The applicant had been born on 18 April 1938. He is currently 63 years of age. After leaving 3rd Form the applicant obtained an apprenticeship as an electrician with the Southern Riverina County Council. The applicant completed that apprenticeship and obtained his formal qualification as an electrician. He continued to work with the Southern Riverina County Council for whom he worked, I am told, for some 11 years. He left that employment to find a job with a better salary. He then worked as an electrician for a company described as 'Brijob', working in commercial, industrial and domestic buildings. He did that work for some seven years until the company was placed into liquidation. He then worked for K & M Duff for six years but for that firm he did more workshop work as an electrician than field work. 3. On 27 June 1977 the applicant commenced working with a predecessor of the respondent which was then called the Riverina College of Advanced Education. It appears that the institution has undergone a number of changes of names over the years and is now called the Charles Sturt University. The applicant initially commenced working as a maintenance electrician but was promoted, I infer, shortly after his commencement with the respondent to the position of a plant electrician. He was in charge of the maintenance and repair of all electrical appliances and installations throughout what is now the University. He was the only person to be so employed. There was no other electrician employed and the evidence suggests that he did not even have a permanent trades assistant but shared a trades assistant from time to time with other tradesmen. 4. The applicant's duties were varied. A number of them were relatively arduous. For example, electricity was reticulated throughout the campus of the University on poles which belonged to the University rather than to the local electricity supplier. The applicant was required to climb the poles from time to time in order to carry out electrical work. The applicant would have to prepare and sometimes replace electrical motors in many different places. Some electrical motors would be underneath buildings, some of them would be in the ceiling of buildings and some of them would be on the roof of the buildings. The applicant was required to climb ladders, to crawl under buildings, to climb over roofs and often to work in confined and awkward spaces. 5. The applicant spent a large amount of time changing light globes and fluorescent tubes throughout the campus which was the size of a small suburb. The applicant also repaired many pieces of electrical equipment, including the equipment used in the veterinary faculty, the medical faculty and the engineering faculty. Anyone with any experience in a university could understand the very varied nature of the machinery to be found in such an institution, how much of it was electrically driven and how often things would need to be repaired. The applicant told me that his work involved the lifting of heavy electrical motors. 6. When the applicant first commenced working, the College as it then was (which I shall merely refer to as 'the University') had been an old Agricultural College and there were a lot of old buildings. I infer that as time went on, new buildings were erected, sometimes in replacement of old buildings but probably more in addition to existing buildings. The applicant's workload obviously would have increased over the years. The applicant told me that at times independent contractors would be arranged for large installation work such as installing the security lighting system at one time. 7. I accept that the applicant's work did involve heavy lifting, repeated climbing or working in awkward and confined spaces and work which threw stress and strain on his spine. The applicant, for example, told me of the need to regularly change light fittings and light bulbs, standing on ladders with his neck held in hyper-extension in order to look with his bifocal glasses into the place at which he had to work, and of feeling a sense of stress or strain down his spine after repeatedly doing such activity. 8. At some time it is clear that the applicant ruptured the L5-S1 disc. When the applicant did that is a matter of some conjecture. The applicant was seen by Dr Tony Christie, for the Government Insurance Office of New South Wales, on 8 January 1996. On that occasion Dr Christie found objective signs of a disc prolapse. He found a slightly positive sciatic stress test on the right side. He found 1 cm of wasting of the right quadriceps and 1 cm wasting of the right calf muscle. He was unable to obtain the applicant's right ankle jerk. The applicant's plantar responses appeared to be down. As Dr Christie said in his report, those findings are consistent with nerve root compression of the L5-S1 nerve root. 9. The rupture of the L5-S1 disc happened sometime prior to 8 January 1996. The applicant told me of an event which occurred on 10 November 1995. On that occasion the applicant was alighting from his vehicle on the University campus outside the Marsden Hall. When doing so, the applicant felt a sharp pain in his right lower limb, consistent with sciatica. The applicant's evidence to me, in-chief, was that was the first time that he had suffered low back pain. Were that the only evidence one could easily conclude that the applicant had suffered a lumbar disc lesion on 10 November 1995 when getting out of his vehicle outside the Marsden Hall. However, the applicant's recollection of events is inaccurate, and I do not mean any criticism of him by that remark. It is common when workers have suffered a number of injuries over a number of years to get themselves confused. 10. The first frank incident relied upon in the application for determination is one which is alleged to have occurred on 21 May 1992. On that occasion the applicant was loading a 30 ft extension ladder onto his van. He had the assistance of a painter who was at one end of the 30 ft extension ladder. The applicant indicated having to stretch up and raise the ladder onto the top of the van and having to raise his arms above shoulder height and he told me that he hurt the muscles in his neck and shoulders. However, it is clear that the applicant saw Dr Charles Oliver, a general practitioner, on 26 May 1992 some five days later. According to Dr Oliver's report the applicant gave a history of having fallen whilst carrying a ladder and of suffering low back pain and a neck strain. The applicant saw Dr Oliver again some four days later on 13 May 1992 and told the doctor that he was improving. It is clear that the doctor had prescribed back and neck stretches and massage and heat treatment. 11. Prior to seeing Dr Oliver on 26 May 1992, the applicant had seen Dr Osmond, who was the visiting medical officer to the respondent University. Dr Osmond recalls that when he saw the applicant on 21 May 1992 he had right sciatic nerve pain. If that were the only history, one might infer that the applicant injured his L5-S1 disc on or about 21 May 1992. However, the applicant had a low back injury in 1986. The injury occurred on 13 March 1986. The applicant had been to what is referred to as the Turkey Nest Dam to inspect an allegedly faulty electrical motor. When the applicant was returning to his van, he slipped down a muddy bank of the dam and sustained an injury. 12. The applicant's claim form, which is Exhibit 1, indicates that at the time of this event the applicant did not seem to have a problem, but over the three nights preceding 19 March 1986 or perhaps for the three nights preceding 17 March 1986, the applicant had a sleeping problem. It is clear from the claim form that symptoms were in the applicant's back and the diagnosis raised by him was of a strain. The applicant appears to have attended upon the practice of Dr Osmond not at the University but in the town, and to have been treated either by Dr Osmond or a Dr Theo Verbeek. Records indicate that the applicant saw Dr Verbeek on 17 March 1986 and on 26 March 1986 and that he saw Dr Osmond on 27 May 1986 and 3 June 1986. 13. Physiotherapy was provided to him by Ms Sally Williams, a physiotherapist, on 5 June 1986, 10 June 1986, 13 June 1986 and 17 June 1986. X-rays were taken of the lower back on either 29 May 1986 or 30 May 1986. It would appear, therefore, that after injuring his back early in March 1986, the applicant was still experiencing back problems in May and June of 1986, indicating he may have had some significant problem. Of this event the applicant told Dr Christie this when he examined the applicant on 8 January 1996: He describes an incident where he injured his back about 6 to 8 years ago when he said he slipped on the banks of a dam. He suffered some low back pain and was off work about four to five days. He recovered and has had no further problem. 14. Dr Christie's history then turns to the event of 10 November 1995. He was unaware, for example, of the applicant's complaints of low back pain and right-sided sciatica in May 1992 and the extent of the applicant's earlier problems. The problem in 1986 appears to have been understated to him. The applicant has seen Dr WGD Patrick on a number of occasions at the request of his own solicitors. The first occasion was 19 April 1996 Dr Patrick obtained this history of the event of 1986: On questioning, Mr Anderson states that he has a long history of some low back symptoms. He initially injured his low back on 13 March 1986 when he slipped on the muddy bank of the "Turkey Nest" Dam. He had significant low back pain which he locates to the low lumbar region, and was treated by Dr Osmond at this time. X-rays were performed on 30 May 1986, a little over two months after this incident, and these plain x-rays demonstrated some osteophyte formation, indicative of lumbar spondylosis. 15. The question of course is whether the applicant ruptured the L5-S1 disc in the event of 13 March 1986 or whether that rupture should be attributed to, for example, the incident alleged to have occurred on 21 May 1992. A report is in evidence from Dr Osmond written on the stationery of the respondent's health service. I infer that Dr Osmond at the time that he wrote the report did not have available to him the records of his usual practice in town. The doctor's report contains this piece of history: He was first seen on 21/5/92 and I noted that he had right sciatic nerve pain and that he had aggravated a previous right knee-hip injury which seems to have occurred on 13/3/86. 16. In other words the history that the applicant gave to Dr Osmond on 21 May 1992 was that in the event that happened about that time he aggravated a problem he had previously had in his right lower limb resulting from the incident of 13 March 1986. It is clear that the event of 13 March 1986 was a back injury. If the applicant had some right leg symptoms at the time, those symptoms would have been of sciatica. This very strongly points, in my view, in the direction that the applicant's low lumbar disc lesion occurred in the incident of 13 March 1986. 17. It is to be borne in mind that in following upon that event the applicant had treatment in March, May and June of that year and one can see that the problem was not a small, transitory one. Shortly after the event alleged on 21 May 1992 the applicant had right sciatica which he thought was the aggravation of the problem that started on 13 March 1986. I am not persuaded on the balance of probabilities that the rupture of the applicant's L5-S1 disc results from any of the injuries alleged in the application for determination before me. Why the event of 13 March 1986 was not pleaded, why the insurer at risk at that time has not been joined, I do not know. 18. A rupture of the L5-S1 disc is not the only problem which the applicant has. The applicant has widespread degenerative changes in his spine and in his knees. It is clear that as time has gone by the applicant has noted increasing problems with his low back, some related to the frank rupture of the L5-S1 disc, some related to a progression of degenerative disease of the low back. For example, when the applicant saw Dr Patrick on 11 June 1997 the applicant described himself to Dr Patrick as coping with 90 per cent of his work duties. When seen by Dr Patrick on 28 October 1998 the applicant described himself as coping with probably just about 70 per cent of the tasks required of him as an electrician at the University. The applicant told me in cross-examination that his ability after October 1998 to do the normal duties of his position was reduced further than 70 per cent. He agreed that as far as he was concerned by the middle of the year 2000 he was unable to do the work to any great extent at all. The applicant's evidence is of a gradual deterioration in his ability to perform his duties. 19. This case, like so many that come before the Court, raises the question of whether the applicant's reduced ability to do his job results from the natural progression of a degenerative condition or whether the applicant's work duties themselves have somehow contributed to the progression of the degenerative condition leading to a compensible incapacity for work. Whilst many approach such questions in a very simplistic fashion, such issues are quite complex. Here, I have a number of different medical opinions. I have one body of thought presented to me through the reports of Dr Christie, Dr Bornstein, Dr Burke and Dr Van der Rijt that the applicant's sole problem is caused by the natural progression of the underlying degenerative condition. 20. The next view is that of Dr Nicholls, a specialist orthopaedic surgeon in Wagga Wagga, to whom the applicant was referred by his general practitioner for advice as to treatment. He was of the opinion that the applicant's work was only a minor contributing factor to the development of the underlying degenerative condition. The third opinion comes from Dr Patrick, a general surgeon qualified by the applicant's solicitors. Dr Patrick accepts that the underlying condition has not been caused by the applicant's work but that the applicant's work has "significantly" aggravated the condition. 21. The remaining opinion has been expressed by Dr Warrick Huntsdale, an orthopaedic surgeon who practises in Wagga Wagga. Dr Huntsdale expressed this view: With regards to his back I suspect he has lumbar degenerative change and I believe that on the balance of probability this could be attributed to the type of work that he had done and the injuries he has sustained at work over the years. 22. In other words Dr Huntsdale would attribute all of the applicant's problems to the type of work that he had done and the any number of "incidents" that have occurred to the applicant in the course of his employment. The opinion of Dr Huntsdale is different to that of every other practitioner in this case and I am unable to accept it. Indeed the parties, in particular the applicant, did not accept it because in earlier proceedings between the current parties one of the terms of settlement reached was this: The incidents pleaded aggravated the applicant's pre-existing degenerative condition of the spine which condition is not work-related. 23. Much of the argument in cases such as this often depends on semantics. Medical practitioners, legal practitioners and witnesses such as the applicant all use the word "aggravated" without turning their minds to what the word means. Often it is used as merely referring to setting off the symptoms of an underlying condition. Such is properly referred to as an exacerbation. One often hears medical practitioners express the view that the aggravation has ceased, meaning that the symptoms triggered off by the injury have gone away. To aggravate a condition means to make it much more grave or harsh, to increase the condition itself rather than to merely trigger off symptoms. Triggering of symptoms means an exacerbation. I must look in the evidence for something which suggests that the condition itself has been made worse by the type of work that the applicant has done and must not look merely to say whether the work activities that the applicant has engaged in have triggered off symptoms. It is common ground that after any particular incident symptoms would moderate to a large extent. It is a question of whether the condition is made worse itself by the work rather than the condition being drawn to the attention of the worker when he does something which his condition no longer allows him to do as he used to do it. As Sir Victor Windeyer said in the High Court of Australia, I am concerned with genesis rather than revelation. 24. It has been urged upon me that I am in a position to assess this issue for myself unburdened by the opinions of the medical experts. That is not the Court's role, as laid down by Lord President Cooper in Davies v the Edinburgh Magistrates. The Court is not a medical oracle. The Court must hear evidence or receive evidence from scientific experts who must give their reasons for their views so that the Court can test the validity of their reasoning by reference to the evidence in the case. I do know, for example, that here the applicant had plain x-ray of the low back on 13 May 1986 which demonstrated osteophyte formation indicative of the lumbar spondylosis. Lumbar spondylosis is another way of expressing degenerative disease of the low back. For such appearances to be shown up by plain x-ray on 13 May 1986, the condition must have been going on for at least six months if not a number of years. In other words at the time the applicant sustained the injury of 13 March 1986 his lumbar spine would then have been degenerative. 25. Dr Christie arranged for the applicant to undergo radiological examination by Dr John Korber on 8 January 1996. According to Dr Christie's report, that shows spondylosis at all levels in the lumbar spine with sclerosis of the antero-superior corners of the L2 and L3 vertebrae. The disc space heights were maintained and the L5-S1 disc space level was also maintained. 26. According to Dr Patrick, the same x-rays also demonstrate generalised spondylosis, maximal at T11/12 and also at L2/3. According to Dr Patrick, those x-rays show some narrowing of the lumbosacral disc space, although it is clear that Dr Korber thought that it was maintained. Dr Christie saw the applicant for a second time on 12 March 1997. From Dr Christie's point of view, the applicant had improved since the examination on 8 January 1996. Dr Christie expressed this view: This man's objective physical signs have recovered well since I last examined him in January 1996. The right ankle jerk has returned. The wasting of the quadriceps in the right calf have [sic] recovered. Mr Anderson however feels that he has deteriorated and described twice in the one interview of standing on a ladder trying to reach both ends of a 5 ft long fluorescent light "aggravated" his back. He describes pain in his back when he gets home at night. In my opinion this man has spondylosis in his lumbar spine. On the history given this was aggravated on 10 November 1995 by getting out of a van. Aggravation by that incident appears to have settled and this man now suffers the on-going effect of spondylosis. There are no objective signs of disc damage today although he still continues to complain of pain radiating down the right leg and does have a slight limitation of straight leg-raising on the right-hand side. Dr Christie then goes on to make some comments about s 66 and then says this: