Noon v Arvo Investments Pty Ltd [2001] NSWCC 137

Compensation Court of New South Wales

CITATION : Noon v Arvo Investments Pty Ltd [2001] NSWCC 137 PARTIES : Brian Noon Arvo Investments Pty Ltd MATTER NUMBER(S) : 30650 of 1999 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 5/10/00, 12/02/01, 28/02/01 DATE OF JUDGMENT: 02/28/2001

FOR APPLICANT: Mr G B Beauchamp instructed by Dennis & Co. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M J Jenkins instructed by William K Chambers

JUDGMENT: 1. The applicant claims lump sums and weekly payments under the Workers Compensation Acts in respect of an injury to his shoulder. He is right-handed and it is his right shoulder which he injured on 19 July 1996. 2. Mr Beauchamp, of counsel, appeared for the applicant, Mr Jenkins, of counsel, for the respondent. Counsel's addresses were recorded. It is therefore unnecessary for me to refer to each submission, merely to ensure that it is noted. Counsel conducted the matter with relevance to the issues for which I am grateful and allows me to deliver my judgment in considerably shorter form than otherwise might have been necessary. 3. The applicant is a 64-year-old married man who had worked as a panel beater, conducted a carrying business, operated a hotel, done building supervisor work and operated a newsagency. From 1 September 1994 he worked for the respondent which contracted his services as manager of the Astra Retirement Village at Bondi. It is unnecessary to deal with the nature of the arrangement between the respondent and the retirement village or in any detail with the applicant's remuneration arrangement, since the evidence establishes that the probable earnings at relevant times to the matters before me were $682 per week. I do not understand Mr Jenkins, in the final analysis, to have contested that issue. Mr Beauchamp did raise a question of CPI increases, however, there is no real evidence to support that and he did not again, I think properly, press that issue. In any event, I think $682.80 is the figure I should accept as the probable earnings. It is relevant to note that part of the remuneration was occupation of the manager's flat. The occupation involved what might be called administrative caretaking duties and work as a handyman. 4. On Friday 19 July 1996 the applicant was standing on a ladder carrying out certain work when he fell and caught his right arm in the ladder. The ladder did not release the arm which in effect supported his whole weight. He says, and I accept, that he then injured his shoulder. On the Monday he saw Dr Tuckfield, a general practitioner, who has a practice adjacent to the village. The applicant has said that he continued to have trouble with the shoulder ever since that time and that at the time he saw Dr Tuckfield he was told that it would take a long time to recover. The applicant said in cross-examination that Dr Tuckfield had examined him, asking him to remove his shirt and examining the right arm. 5. About two weeks before 5 December 1997 the applicant was lifting a chair when he felt pain in his left elbow and shoulder. He went to the Prince of Wales Hospital on that day. He subsequently had surgery to his right shoulder at the hands of Dr Sonnabend in January 2000. Further surgery has been considered, however rejected, following an MRI scan. 6. It is not disputed, that the applicant has suffered significant injury to his right shoulder or that he suffers a permanent impairment in relation to it. Mr Jenkins raises two issues apart from quantification. First, whilst the fall from the ladder is not disputed, the respondent contends that the applicant has not shown that the shoulder was injured at that time. Second, it is put that if the shoulder was injured as a result of that fall one half of the permanent impairment resulted from the non-work-related injury of November 1997. That is, only half of the impairment should be said to result from the employment injury. 7. The bases for the first contention are the report of Dr Tuckfield of 30 August 1998 and the notes of Prince of Wales Hospital. Mr Jenkins commented that these were contemporaneous documents. I do not think that is necessarily right since the report of Dr Tuckfield is dated 30 September 1998. No doubt it is compiled from contemporaneous documents but we do not have the doctor's original notes. It is clear that the account in the doctor's report is inconsistent with what the applicant has said. Dr Tuckfield notes: On 22.7.96 the Mr Noon presented to the surgery with a history of having fallen off a ladder twisting his right arm approximately fourteen days earlier. Since the fall he had noted the onset of paresthesia in his right hand involving the dorsal aspect of the thumb and adjacent fingers. He had no other complaints. 8. The doctor refers to examination of the right hand only. He mentions in later notes that the applicant reported to him again on 5 December 1997, that is over a year later, and stated that the previous symptoms had slowly resolved and not troubled him until approximately two weeks earlier when he had picked up a chair and noted, what he termed, a recurrence. On the face of it, as I have said, this material is inconsistent with the applicant's account. However, I am of the view that I should accept what the applicant has to say about the matter. 9. The applicant was a very impressive witness. He clearly was not a man of voluble communicative skills and it may be there was some misunderstanding between him and the doctor. More likely, I think, is perhaps that there has been some misunderstanding by the doctor in producing his report for the applicant did suffer, it is accepted, from carpal tunnel syndrome during the period in issue and did in fact have successful surgery for it. It is not simply the way in which the applicant gave his evidence, because demeanour can be an unreliable tool, but rather the way the whole of his evidence hung together, which seemed to me to suggest that he was indeed telling the truth. 10. Importantly, when he went to the hospital following the incident with the chair the hospital notes note that the supranitus tendon was wasted, that there were hitches in the shoulder and there was a diagnosis of a torn long head of the biceps. This Court is entitled to know that you do not get wasting of the supraspinatus within two weeks of something having occurred. It is clear that there must have been damage to the shoulder at a much earlier point of time. Nobody has produced or put to the applicant any other occasion when it is suggested that the damage had occurred and all the doctors appear to accept that the damage shown in the shoulder at ultra-sound and other investigations is not mere degeneration but is probably to be explained by some form of trauma. 11. The second matter relied upon by Mr Jenkins, in relation to this particular aspect of his argument, is that the notes of the Prince of Wales Hospital, whilst they do note the applicant fell off a ladder one year ago and make reference to the right arm, say nothing about the right shoulder. However, they refer to muscle away from bone and there is no suggestion that other than in relation to his shoulder, has the applicant suffered any type of injury which would have such a consequence. It seems to me that this is one of those occasions in which it is difficult to fully explain how inconsistencies arise but I really am left in very little doubt that the applicant did in fact injure his shoulder in a fall from the ladder as claimed. 12. The second matter then relates to the argument as to whether a proportion - a suggested one being half of the accepted permanent impairment of the shoulder - should be said to result from the lifting of the chair incident which was a non-employment injury. It is convenient before dealing with that to go to the medical evidence. At the same time I shall refer to the assessments made by the various doctors. 13. Dr Conneely examined the applicant on 24 August 1998. He was of the view that the applicant demonstrated classic supraspinatis impingement syndrome of the right shoulder, the doctor had no doubt that he had suffered the dysfunction which he found. He considered there to be a permanent impairment of 25 per cent of what he referred to as the right shoulder including the arm at or above the elbow. That examination was before the surgery. The doctor clearly accepted that the condition was the result of the injury of July 1996 although, as Mr Jenkins pointed out, he did not have a history of the chair-lifting incident. 14. Dr Ellis examined the applicant in September 1999 also before the surgery. That doctor, referring to the ultrasonic scan of 31 May 1999, said it revealed a full thickness tear in the supraspinatus, tendonitis in the subscapularis and subacromial subdeltoid effusion. He noted that the biceps tendon also was affected by chronic inflammation and severe impingement and was seen on both internal and external rotation. In the plain x-rays early osteoarthritic change in the acromio-clavicular joint was apparent. 15. The doctor went on to say; As a result of the fall at work in July '96, Mr Noon has suffered traumatic capsulitis of his right shoulder with progressive pain and disability in the arm. There is now a 35% permanent loss of efficient of his right upper limb at and above the elbow. 16. Dr Ellis did not have a history of the chair incident. 17. Dr Ridhalge examined the applicant on 21 August 2000, that is well after the surgery. He considered that following the injury on 19 July 1996 the applicant sustained severe tendon injury to his right shoulder with a complete rupture of the sub-scapularis and a partial tear of the supraspinatus tendon. He notes that he had a successful repair of the supraspinatus tendon but continued to be disabled. The doctor thought this was a direct result of the accident that occurred at work. He was of the view that there was a 25 % loss of efficient use of the right arm as a result of the injury which occurred in July 1996. 18. Dr Connely saw the applicant again on 28 August 2000.The doctor noted that the surgery intended to restore shoulder motion unfortunately was unsuccessful. He noted that the applicant had an acute pain in his right shoulder when passing a plate at a dinner table in July 2000. He considered that the applicant suffered a 50 per cent permanent impairment of his right shoulder and 30 per cent permanent impairment of his right arm at or above the elbow. 19. Dr Sonnabend was the surgeon who operated on the applicant and he said that he had no reason to doubt the applicant's right shoulder injury resulted from his work accident, that is the one of July 1996. He did not have an history of lifting the chair. He did not at that stage think that the applicant would require any further medical or surgical treatment. 20. Dr Sonnabend noted, in his report of 3 October 2000; There was a massive full thickness tear of the rotator cuff, including all of subscapularis and supraspinatus, and much of infraspinatus. The lesion was deconpressed by anterior acromioplasty and subdeltoid bursectomy, and the spinati were repaired to a trough in cancellous bone. The biceps tendon was noted to be ruptured. The subscapularis tendon was not salvageable. 21. The doctor reported at that stage: Mr Noon had a comfortable, strong and almost full range of forward flexion and external rotation, implying integrity of the spinati repair. In the absence of subscapularis, he experience difficulty washing the opposite armpit and tucking a shirt in behind his back. Those activities, which are dependent on an intact subscapularis, will continue to be difficult indefinitely. 22. The doctor at that stage thought that the applicant had suffered a 15 per cent loss of efficient use of the right shoulder corresponding to a permanent loss of 10 per cent of the right upper limb function. 23. The situation continued to deteriorate and in a report of 12 December 2000 Dr Sonnabend said; I reviewed Mr Noon today. Over the past few months his shoulder condition appears to have deteriorated. 24. The doctor considered that further surgery might be appropriate and referred the applicant for an MRI scan to assess the state of the joint and more importantly the state of the remaining tendons. The doctor, in writing to the radiologist, said: He underwent infraspinatus and supraspinatus repair approximately one year ago, at which time his subscapularis was irreparable. He is now developing symptoms relating to subscapularis deficiency. If the supraspinatus remains intact or almost intact there may be place for pectoralis major transfer. I would be most grateful for your MRI assessment of Mr Noon's supraspinatus status. 25. Unfortunately, we do not have a further report from the doctor which I accept was simply because it did not arrive at Court in time. However, we do have the report of the radiologist and importantly, referring to the supraspinatis, it is said, Poor quality repaired segment of the repaired supraspinatus. The proposal referred to by Dr Sonnabend would, therefore, appear to be inappropriate and indeed the applicant gave evidence that following discussion with the doctor it was decided that surgery would not be appropriate. 26. The effect of that is of course that the doctor's assessment is one that preceded a significant deterioration in the condition of the applicant's shoulder. I should perhaps say that the radiologist went on to say Although there is no clear-cut tear the residual tendon appears to be fibrillated. 27. The respondent's evidence on the assessment and relationship points are contained in the report of Dr Jackson, who examined the applicant on 19 December 1998. He was of the view that the problems reflect the initial work incident of 19 July 1996 and a severe aggravation in October/November 1997 which was non-work-related. The doctor had a history of the applicant lifting a chair on that occasion. He said: In my opinion, one cannot ignore the effects of the second injury which was in fact more profound than that of the first occasion. In my opinion, this man probably had a partial tear of the rotator cuff complex of his right shoulder at the time of his initial injury on 19 July 1996, this becoming a severe tear in the injury of October/ November 1997. It is therefore apparent that his present disability relates in part to the initial injury and in part to the second injury. 28. The doctor appears to be using a form of the language of s 22 of the Act. He then says with regard to his right shoulder: I would assess that this man has a 25 % loss of efficient use of his right arm at or above the elbow. This is a permanent impairment and I would attribute the percentage as half due to the initial incident of 19 July 1996 and half as attributable to the incident of October/November 1997 which aggravated the first injury. 29. It is my opinion that the impairment resulted from the first injury. It seemed to me, having listened to the applicant's account of it, which I accept, that what occurred when he lifted the chair was merely a demonstration of the sort of difficulty that he was having from time to time when he carried out movements involving his shoulder. Even if that were not correct and there were some further extension of the initial tear to the shoulder, that was the commencement of the damage and the extension of it in what was an ordinary activity of human life. It may be that if one was looking to questions of apportionment and conditions partially resulting from an injury that the second injury would come into play. However, that is not the question here, the question is whether or not the applicant's condition resulted from the first injury. As I have already indicated I am satisfied that he did have that injury in July 1996 to the shoulder and the probability is, in my view, that the permanent impairment of his shoulder resulted from that injury. 30. Turning then to the question of quantum, I have referred to the doctors' views. I consider that, more probably than not, the applicant has suffered a 30 per cent permanent loss of efficient use of the right arm at or above the elbow. That is the figure adopted by Dr Ridhalge and Dr Conneely and I notice in particular that Dr Conneely has increased his assessment from 25 per cent to 30 per cent. Dr Ellis was a further 5 per cent higher and although much of the applicant's description of his condition does place it in the area of 30 per cent I do not consider it to be established that it is as high as Dr Ellis puts. Mr Jenkins accepts the 25 per cent assessment of Dr Jackson but it seems to me both on the balance of the medical material and also on the applicant's description of what he can and cannot do with his arm, which I accept, a figure of 30 per cent is appropriate. There is not, on the material before me, any proper basis to conclude that there should be a deductible proportion under s 68A. 31. The award I shall make crosses the threshold under s 67. The amount provided for a most extreme case is $50,000 and the task of the Court is to arrive at a sum duly proportional to that amount. The applicant is now 64. He has endured and will continue to endure considerable pain in the shoulder and I accept it is clear that it greatly restricts his ordinary activities. He did not claim to have any particular hobbies that were affected. The applicant is a stoic man as demonstrated by the fact that he had had a laminectomy at the hands of Dr Bleasel many years before but nonetheless carried on both his work and his life without complaint in relation to that condition. The evidence paints, in my view, a picture of quite significant restriction in and about his ordinary daily living, together with the pain I have referred to. Doing the best I can I think a due proportionality is maintained by an award under s 67 in the sum of $11,000. 32. There remains the question of weekly payments. The probable earnings are $682.80 per week. There was some discussion in the evidence as to the applicant's ability to earn. Mr Beauchamp put it to me as $150 to $200, Mr Jenkins says $200. Having regard to the closeness of those figures I do not think I need go into the matter in great detail. 33. The applicant was an impressive man who I would think a shopkeeper might well be happy to have in his shop to assist him at busy times, although clearly he could not do any significant lifting. He has had experience in that sort of work. One would expect however that it would only be casual or part-time work. I think the figure put by Mr Jenkins at $200 is a reasonable one and I adopt it. That produces a difference initially of $482 per week. For the first 26 weeks that would be the figure to be awarded were it not for the discretionary matter to which I will come in a moment. For the remainder of the period the matter would be governed by the maximum statutory rate for a man with a dependent wife. There is no other discretionary ground to lessen the difference between the ability to earn and the probable earnings than the applicant's wife's Alzheimer's condition. 34. The applicant noticed some time before he ceased work that his wife was becoming very forgetful and in August 1997 she was diagnosed as suffering from Alzheimer's disease. I accept his evidence that her condition has deteriorated quite sharply since then and he has given evidence that he has no alternative presently but to look for placement in a suitable nursing home. The problem is what effect this should have upon the award to be made under s 40 because the applicant has been his wife's carer, although assisted by other members of the family, as from November 1997 and has received a pension as such a carer. The pension itself is not the significant matter but it does offer a point at which, in a broad sort of way, it is possible to say that the care of his wife has totally consumed the applicant's, what would otherwise be, working time. 35. The applicant gave evidence-in-chief that he ceased work to look after his wife and indeed there is a history given to doctors which supports that. However, when one looks at the whole of the applicant's evidence that is not the picture that emerges and, very properly, Mr Jenkins has said that he has not argued that it is. The applicant gave evidence that he had explained to the relevant officer of the village why he was leaving; that is, shortening the time of his contract. I have no doubt, from Mr Jenkins' approach to this question, that the instructions he had would be consistent with the position that the applicant had, as he says he had, ceased work in March 1997 because he could no longer manage the tasks which were required of him in his work in and about the village. 36. A significant point was that at the point he gave up the flat and a new manager moved into it, the applicant himself sought other accommodation within the village. It is, I think, proper that there be some discretionary reduction; the problem is from when and how much. As Mr Beauchamp properly pointed out, had the applicant not been injured his working conditions were such that he would no doubt have been able to work, look after his wife, for some time while still going on about his activities round and about the village. Further, had he been receiving his income from his work he would at least have had the option, and it seems to me one that might well have been accepted, of obtaining some paid assistance for periods of the day. 37. Doing the best I can I think that had the applicant not been injured he probably would have continued in his employment until a date in November 1997 which it is convenient to fix upon as the date when he started to receive the carer's pension so that for that period of time he has the full amount of the difference. From that point onwards it seems to me that it would be appropriate to discount the award by 1/2. One could argue that it may be that the applicant would have earned nothing and that a very small award would be appropriate. On the other hand, uninjured, one can see that he might well have chosen to have someone look after his wife at least part of the time or that he would have arranged to go and do some work at various times if only to be afforded the opportunity of doing some activity other than the household duties. 38. The remainder therefore of the period up to date I discount by 1/2 and that includes the periods which fall to be determined under the maximum statutory rate. As I have mentioned, the applicant is obliged to arrange nursing home accommodation for his wife and Mr Beauchamp submitted that perhaps I should make some prospective finding as to what then would be the position. I do not have the jurisdiction to make a prospective order, however, it is not inappropriate for me to say that the only ground upon which I have reduced the award I have made below the difference between the probable earnings and the ability to earn is the need for the applicant to care for his wife. Once that need is removed or substantially removed that particular discretionary factor would, one would think, cease to operate. 39. For those short stated reasons I find: (a) That the applicant suffered injury to his right shoulder on 19 July 1996 arising out of or in the course of his employment with the respondent. (b) As a result of the said injury the applicant was totally and partially incapacitated for work for various periods to 30 June 1997 and paid wages. (c) From 1 July 1997 to date the applicant has been partially incapacitated for work thereby. (d) As a result of the said injury the applicant has suffered 30 per cent permanent loss of efficient use of the right arm at or above the elbow. (e) The applicant at all material times had a dependent spouse. (f) The probable earnings at all material times were $682.80 per week. (g) The ability to earn at all material times was $200 per week. 40. I make an award for the applicant: (a) Under s 40 at the rate of $482.80 per week from 1 July 1997 to 12 November 1997; (b) At the rate of $241.40 per week from 13 July 1997 to 31 December 1997 (c) At the rate of $165.10 per week indexed at 1/2 rate for an applicant with dependent spouse from 1 January 1998 to date and continuing. (d) Under s 66 in the sum of $24,000 in respect of 30 per cent permanent loss of efficient use of the right arm at or above the elbow (e) Under s 67 in the sum of $11,000 (f) Medical and hospital expenses, s 60. (g) I expect the parties to agree upon the claim for interest but grant liberty to apply should they be unable to do so. (h) The respondent is to pay the applicant's costs.

Mr G B Beauchamp instructed by Dennis & Company appeared for the applicant Mr M J Jenkins instructed by William K Chambers appeared for the respondent

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