Joan Wood v Heinz-Wattie's Australasia [2002] NSWCC 54

Compensation Court of New South Wales

CITATION : Joan Wood v Heinz-Wattie's Australasia [2002] NSWCC 54 PARTIES : Joan Wood Heinz-Wattie's Australasia MATTER NUMBER(S) : 49738 of 2001 JUDGMENT OF: Geraghty J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 11/06/02 EX TEMPORE JUDGMENT DATE : 06/11/2002

FOR APPLICANT: Mr B McNanamey instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr S Flett instructed by Heidtman & Co

JUDGMENT: 1. Joan Wood claims weekly benefits from 10 July 1999 to 10 July 2001, lump-sum compensation for neck impairment and loss of use of both arms at or above the elbows, together with payment of her medical expenses. 2. The claim is based on the nature and conditions of work as a fish trimmer from 1995 to July 1999. 3. Mr Flett of counsel identified the issues as follows: firstly, the fact of injury; secondly, the causal link between any work she performed for the respondent and her present condition; thirdly, the extent of any loss, impairment and capacity; and finally, the application to the provisions of s 68A. 4. Ms Wood is the mother of a 12-year-old son and has lived with her partner for the past 20 years. She is right-handed, and 42 years of age. Before joining the respondent, she worked as a nurse's aide and a florist. When she moved to Eden in 1991, she sought employment with the respondent and began working there from November 1995. 5. Exhibit A is a photograph of the production line at the cannery where Wood worked. She said that before contracting to the respondent, her health had been good, that she had had no problems. This seemed in some way to be at odds with information she gave to Dr Penton (Exhibit C). He recorded that she presented on 26 February 2001, on legal advice, complaining of chronic neck pain for approximately the last eight years. 6. In any event, Wood worked as a trimmer until 1996. Then she was required to engage in what was known as. She had to process local fish at the rate of 116 per hour. This system was further refined in 1997 when she and other employees were required to press a counter each time they processed a fish. She was working continuously, from 7 o'clock in the morning until 1/2 past 3.00 in the afternoon, with 10-minute breaks for morning and afternoon tea; and a 30-minute lunch break. 7. The applicant said that she first noticed neck and right arm problems in about 1997, some two or three months before she contacted Dr Penton, this was despite the fact that she seems to have informed Dr McKee (or at least he recorded the fact) that she first noticed problems in 1998. She said in evidence that in about 1997, some time before December, she noticed that her neck was sore and aching, that her right hand used to swell, and her elbow would ache. 8. Despite the symptoms, she kept working after she had sought treatment from Dr Penton and without complaining formally, though she said that she made some complaint to one of her colleagues on the production line. As she worked on her symptoms became worse. In 1998, she consulted Dr David Richardson, a chiropractor, who continued treatment once every two or three weeks. She was also receiving massage. She worked until July 1999 when the cannery closed, and she began immediately to look for other work. She said that at the time the cannery closed, she had an ache in the right elbow, her right hand was swelling (though not as much), and it would appear that from some time before she ceased work in July 1999, there had been a system of rotation established in the factory which provided some relief from the work she was doing as a fish trimmer. She said that as at July 1999, she still had soreness on both sides of her shoulders and in the neck. She described this soreness variously as an ache, or a cramp, or spasms. She said that she did not think she would have been able to continue her work in the cannery. 9. On 4 October 1999 the applicant was successful in finding work. She was employed as a housemaid at the Australasia Motel until 11 March 2001. She worked part-time, 10 or 15 hours a week, cleaning and vacuuming. She said that after two or three hours' work, she would again feel some aggravation of pain in the neck and right arm. She was unable, according to her, to do more than 10 or 15 hours' work, and as she worked, the symptoms became worse. She was unable to continue with this work. 10. She found different work in March 2001, as a florist, though it would appear from the wage schedule (Exhibit B) that from the end of January 2001 to 20 March she was doing two jobs - one at the florist, part-time one day a week, the other at the Australasia Hotel. Altogether she was earning $432.22 per week, which is minimally more than she was receiving from the respondent, that amount agreed in the wage schedule at $412 per week. 11. From March 2001 to July 2001, Wood worked part-time at the florist's, three days per week, arranging flowers, doing some computer work, dusting, and travelling to and from work, 56 kilometres each way. She said that the flower arrangement work and the travelling used to aggravate her condition, though she also said that there was in fact no change in the symptoms from the time she had left the respondent until the time when she was working as a florist. 12. Then in July 2001 she was employed as an assistant to train carers at a day care centre, supervising children up to the age of six years. She worked there in a permanent full-time capacity, though initially her period of employment was renewed each three months. She is now earning much more than she was earning for the respondent. 13. The applicant complained that now she has constant neck pain, mainly on the right side, sometimes on the left; the movements of neck and arms are restricted. She demonstrated that in the witness box, while she had some neck movement, it seemed to be restricted. She said that she is able to lift both arms above her head, but she is not able to keep them raised for any length of time. She has right elbow pain occasionally, and right hand swelling, also occasionally, especially when she is involved in activity for any length of time or doing fine movements. She complained that she has problems ironing, vacuuming, doing folk art, sewing, and that now does not do any gardening whatsoever. The weather aggravates her pain. 14. The treatment continues to be by way of physiotherapy and exercises, though she does take some medication - Brufen, twice a day and Panadol. There has been no improvement, and no deterioration, since ceasing work in July 1999. She did continue with her normal duties at the cannery until it closed in July 1999 though, as I have noticed, towards the end she participated in some rotation system. It is also of some relevance that she also began looking for work immediately on the cessation of her employment. Both those matters are of some significance. 15. The assessments are confined to the opinion of Dr McKee (Exhibit B), who assessed a 15 per cent neck impairment, a 15 per cent right arm loss, and a 10 per cent left arm loss; and Dr Haines, engaged by the respondent, assessed a nil loss across the board. 16. Dr Penton's report is Exhibit C. He was the treating general practitioner whose place was taken, at least on 5 June 2001, by Dr Janice Nelson. The applicant first consulted him on 9 December 1997 complaining of sore neck and hands (sic) which he attributed to her work. She complained of pain across her metacarpal phalangeal joints which were more stiff in the morning. The doctor made a provisional diagnosis of inflammatory arthritis or a repetitive strain injury, and ordered some blood tests. These proved to be negative. 17. The applicant presented again on 26 February 2001, on legal advice (according to the doctor), when she was complaining of a chronic neck pain which had lasted approximately eight years. She was complaining also of sore hands. She was reviewed on 13 March 2001 after treatment by way of medication, and reported some improvement. 18. The applicant returned to the doctor on 27 March 2001, requesting the problem to be fixed. A CAT scan of the cervical spine showed minor degenerative changes. The doctor felt that Ms Wood had possibly some form of rheumatological disease and referred her to Dr Dorai Raj, a rheumatologist in Canberra, for a further opinion. He discussed this with her, on 5 April 2001. I do not have the benefit of a report of Dr Raj. 19. Wood was reviewed by Dr Janice Nelson on 5 June 2001, complaining of the same symptoms, which she attributed to work. The doctor noted an almost full rotation of her neck and that flexion extension was normal. She noted that her patient had been working as a florist since February 2001, and that in that work she was avoiding repetitive work. 20. Dr Penton concluded that it was not possible to say whether the condition was solely caused by the nature and conditions of employment, or whether, or to what degree, her employment might have contributed to her condition. So on the question of causation he is unhelpful. 21. Dr McKee's reports are Exhibit B, though they do not seem to differ one from the other. He examined Wood on 29 March 2001 and on 21 May 2002. He described his involvement to be - an examination and assessment of the worker's post-traumatic and work-related neck and bilateral arm impairment, to provide a detailed history of employment, noting that she had paid for treatment herself when she visited the chiropractors in September 1998. 22. In March 2001, the applicant complained of constant headache commencing in the occipital area. The pain ran down the right side of the neck like a vice. She admitted occasional days without significant pain. She complained also of pain in her dominant right arm, which was located in the upper arm and in the forearm muscles. She experienced pain in the right thenar eminence, in the palmar area, between the second and third knuckles, and periodic swelling of the right hand. She continued also to suffer left shoulder pain. 23. Wood told the doctor that she was unable to travel more than two hours because any longer driving would aggravate her pain, in the neck particularly. She could not sit comfortably for longer than between one and 1/2 to two hours. 24. The doctor noted the cervical CT scan of April 2001 disclosed mild spondylitic changes of the C3/4 level, with narrowing of the left exit canal, and at the C5/6 level, some slight exit canal narrowing on the right side, though no disc protrusion. 25. On examination, Wood demonstrated a full painless range of cervical spine movements, except for extension which appeared to be reduced by about 25 per cent. The anterior borders of the right and left trapezius muscles were tender; the medial border of the right scapula was also quite tender. She showed a full painless range of bilateral shoulder, elbow and wrist joint movements. 26. In his diagnosis section, Dr McKee noted that until late September 1998 Wood had had no abnormal symptoms referrable to an injury to the neck or arms. While she said that some months prior to December 1997 she had had some abnormal symptoms, she explained this anomaly by saying that it was not till September 1998 that she found the need to consume pain-controlling tablets. Dr McKee thought that the applicant had acquired the well-known occupational overuse syndrome due to static loads on the cervical thoracic region and the repetitive manual activities at work. He observed that as she continued to work full-time at the cannery until its closure in July 1999; that during those last eight months the cannery management had introduced rotating employment up until the closure; that she had only been working about two hours each day fish-trimming. This was evidence which was not led in chief. Dr McKee thought it was perfectly reasonable to attribute the current disability and impairment to a soft-tissue injury to the neck, right arm and left shoulder. He made the assessments to which I have already referred. 27. The doctor's further report of May 2002 adds little to his first. One feature which has been added is that he did not ever feel that the neck and arm symptoms had emanated from the degenerative changes seen on the CT scan and he therefore felt there was no deduction for any pre-existing condition. He thought the applicant was unfit for pre-injury employment as a fish-trimmer and that her condition was likely to be permanent on account of the occupational overuse syndrome. Part of the condition involved a moderate right arm extensor tendonitis, but there also appeared to be a bilateral shoulder rotator cuff lesion, more pronounced on the right side. In addition, there was some chronic bilateral trapezius and paravertebral cervical muscle strain. 28. The medical case for the respondent was confined to the two reports of Dr Haines as a result of an examination on 27 July 2001, and a further examination on 13 February 2002. His reports are Exhibit 1. 29. On examination in July 2001, Wood displayed a normal rhythm of neck and arm movements during the interview. The neck and upper back were normal, according to the doctor. The applicant had a full range of neck movement in all directions and normal movement in both elbows, wrists and hands. He diagnosed degenerative changes of the cervical spine. He thought that Wood appeared to exhibit muscle aches and pains possibly related to posture or to some underlying mild rheumatological inflammatory condition. He was doubtful whether the neck and back condition was in any way related to work. He did not believe that the work duties as a fish-trimmer had aggravated any pre-existing condition. He thought the applicant was fit for pre-injury duties on a full-time basis and he made nil assessments of impairment and losses. His report of February 2002 added nothing to his earlier report. 30. Certain parts of the evidence seemed to be critical. Firstly, the applicant had had no problems and there is no evidence of any treatment or complaints before employment with the respondent. In the midst of her employment, she began to seek some minimal treatment until the latter half of 1997, and in 1998. She has had problems since then, according to her evidence, and continues to have treatment. That is significant. Also significant, in my mind, is the fact that she continued to work right up until the factory closed and, as soon as her work there ceased, she immediately began looking for employment, and found work at various places until she found the day care centre work which seems to be very convenient and appropriate for her. She is now earning more than she had earned in the factory. 31. I have concluded the applicant has been injured due to the nature and conditions of her employment from 1995 through until July 1999 and secondly, that, as a result of employment, she suffers some partial incapacity, some neck impairment and loss of use of her left and right arms, particularly her right, dominant arm. It seems to me that, on the basis of her complaints, the proper assessment of neck impairment is that assessed by Dr McKee, that is 15 per cent, from which, because of the CT scan, a deduction of 10 per cent should be made pursuant to the provisions of s 68A. The loss of use of the right dominant arm, seems to me best assessed at 10 per cent, and of the left arm, because of her shoulder problems, at 2.5 per cent. I do not propose to make a deduction pursuant to s 68A from either of these arm assessments since the condition of the neck does not disclose any nerve impingement or does not seem to relate to referred pain. The arm condition seems to come from a repetitive strain injury to the shoulders, to the right elbow and hand. 32. I make the following findings and award: 33. (1.) The applicant sustained an injury to her neck, to her right dominant arm and left arm, due to the nature and conditions of employment from 1995 to July 1999, such that the cumulative effect on her capacity, her impairment and losses is such that the last injury made some causative contribution to the resultant total incapacity, total impairment and losses. 34. (2.) The applicant is partially incapacitated for work, and was partially incapacitated from 9 July 1999 until 10 July 2001, except for the period 29 January 2001 to 20 March 2001 when she was earning more than she would have earned at the employ of the respondent. 35. (3.) The probable weekly earnings but for the injury, had she continued to be employed in the same or in some comparable employment, was agreed at $412 per week. 36. (4.) I assess the sum of $375 per week as the average weekly amount she was able to earn in some suitable employment, that is in the general labour market reasonably accessible to her. 37. (5.) Having regard to all the circumstances, I find that $37 per week is a proper amount for weekly payment of compensation. 38. I make an award pursuant to s 40, from 9 July 1999 to 28 January 2001, and from 21 March 2001 to 10 July 2001, in the sum of $37 per week. 39. (6.) As a result of the injuries sustained, the applicant has suffered a permanent neck impairment which, having regard to the severity of the matter, bears to a most extreme case a proportion of 15 per cent. 40. (7.) Also as a result of the injury, she has suffered a permanent loss of efficient use of the right dominant arm, at or above the elbow, of 10 per cent, and of the left non-dominant arm, of 2.5 per cent. 41. For reasons already given, I propose to apply the provisions of s 68A to the neck impairment only. 42. I enter an award, pursuant to s 66, in the sum of $15,275. 43. Having regard to the degree of pain and suffering and severity of the losses and permanent impairment, and the maximum amount to be paid in a most extreme case, I award, pursuant to s 67, the sum of $10,000. 44. I order the respondent pay the applicant's medical expenses and her costs. Mr B McNanamey instructed by Turner Freeman appeared for the applicant Mr S Flett instructed by Heidtman & Co. appeared for the respondent

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