Tindall v Kodak (Australia/Asia) Pty Limited [2001] NSWCC 1 (19 February 2001)

Last Updated: 5 September 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: Tindall v Kodak (Australia/Asia) Pty Limited [2001] NSWCC 1


PARTIES:
Joanne V Tindall
Kodak (Australia/Asia) Pty Limited


CASE NUMBER: 1813 of 2000 of 2000.00


CATCH WORDS: Statutes & Delegated Legislation


LEGISLATION CITED:


CORAM: Campbell CJ

DATES OF HEARING: 9/2/01, 19/2/01

EX TEMPORE DATE: 19/02/2001


LEGAL REPRESENTATIVES

FOR APPLICANT: Mr GP Edwards instructed by Stanger & Ryan
FOR RESPONDENT: Mr A Ventura instructed by Hickson Wisewoulds


JUDGMENT:

1. The applicant in this matter claims weekly payments of compensation under the Workers Compensation Act in respect of injuries principally to her neck which she suffered on 12 October 1999 when upon, she alleges, a periodic journey between her place of abode and her place of employment.

2. Mr Edwards of counsel appeared for the applicant and Mr Ventura of counsel for the respondent. Counsels’ addresses have been recorded and it is therefore unnecessary for me to refer to each submission, merely to ensure that it is noted.

3. The applicant is a 39 year-old married woman who worked for the respondent as a photographic printer, developer. She was also a director and employee of a catering business, carried on primarily by her husband, called Hillstand Pty Ltd. On 12 October 1999 the applicant was due to start work with the respondent at 12.30 pm. She gave evidence that she left her home at 10.25am to proceed to work on her usual route. In cross-examination she said that as she would be early for work she would be prepared to start work early if called upon to do so. The route involved the applicant leaving her home at Lambton Heights, being driven by her husband in the sole car of the family and dropped at Beaumont Street, Hamilton where she would purchase lunch and then walk on to where her place of employment was. Before the car reached Hamilton at the corner of Wallarah Road and Lambton Road the car in which the applicant was travelling was struck by a car which passed through a give-way sign facing it in Wallarah Road.

4. The applicant's evidence was that after her husband dropped her it was their anticipation,and her anticipation, that as usual he would proceed to his place of employment between Broadmeadow and Hamilton North. Mr Ventura put to the applicant that she intended to travel with her husband to his place of employment before going to work. The applicant denied this. Mr Ventura pointed to two matters supporting such a possibility; the first was that the applicant had not in chief referred to being prepared to start work early yet the correspondence from her solicitors gave this as part of the explanation, the other part being the need to rationalise the use of the family car for the time between the applicant leaving home and being due to start work as considerably longer than the mere journey itself would take. The applicant was not, it seemed to me, asked any questions in chief that would raise that matter. As soon as the issue was raised in cross-examination she referred to her willingness to work earlier if asked to do so. No evidence was called from the respondent to suggest that this was an unlikely situation.

5. The nature of the work on hand was, as the evidence showed, very short-term, demand driven and the possibility of the use of somebody arriving early was clearly not excluded.

6. The other matter relied upon by Mr Ventura was an accident report which recorded that one Simms, the driver of the other car, had told police that he had seen the left-turn blinker indicating on Mr Tindall's car. If this were the fact it would be consistent with the Tindalls turning off Lambton Road to proceed to the husband's place of employment.

7. The first answer to this material is that I prefer the sworn testimony of the applicant which appeared unshaken, to the hearsay account of the view of a man who had a real interest in explaining why he had gone through a give-way sign. The second answer is that the same report contained an hearsay account from Mr Tindall that he did not have a turn indicator activated. There is no basis upon which I could prefer one such account over the other, even excluding the testimony of the applicant which, in any event, supports the account given by the driver of her car. The evidence satisfies me that more probably than not the applicant was on a periodic journey from her place of abode to her place of employment when she suffered the injuries in respect of which she claims.

8. The applicant suffered a number of injuries of which the material one, being of continuing significance, was the injury to the cervical spine. She was paid compensation until 15 February, 2000 and now claims weekly payments under s 38 or in the alternative s 40 from that date. The claim under s 38 fails on two independent grounds; the first is that the applicant did not supply the material required by s 38A(2)(b). I should at this point note that the medical material tendered did not contain such material. A document subsequently handed up, which was a copy of one of the certificates, did contain material which arguably at least would satisfy that section. It was agreed between the parties that that handed-up copy should become an exhibit but only for the purpose of s 40 and not for the purpose of the claim under s 38A.

9. The second ground upon which the claim fails is that the applicant was not seeking work from other employers as required by s 38A(2)(d). Mr Edwards did make a submission that the need to be seeking other such work was obviated by the activities the applicant was engaging in with Hunter Rehabilitation. The Act does provide that certain activities with a rehabilitation provider may be sufficient to satisfy the requirements of the section but it does not seem to me, so far as the evidence before me establishes, that what the applicant did with Hunter Rehabilitation would satisfy that requirement.

10. In relation to the s 40 claim it was agreed that the probable earnings at all material times were $385 per week. The applicant normally worked for 28 hours per week. Apart from a two-day trial in December 1999 with the respondent and a work trial with Rabbit Photo in July 2000 the applicant has not worked since the injury in the photo developing field. She says that she has hopes that ultimately the respondent will re-employ her. The work trial was initially for two weeks, being two hours three days a week. This was increased to three hours three days a week and the applicant ceased after about a month as she considered that that was too much for her to do. I thought her evidence as to why she stopped working at Rabbit Photo was somewhat vague and not particularly convincing.

11. When I say that the applicant had not worked, I should note that she was an employee and director of Hillstone, that she did the books for that organisation. She was able to do those after the accident because she could do them at her own pace. The evidence is that she was paid $70 clear per week for that work both before and after the accident. There was a medical issue and a clear division of opinion between the doctors for the applicant and the respondent. However, on the whole of the material I accept that the applicant has remained partially incapacitated for work since 16 February 2000. Mr Ventura relied on the opinion of Dr Connelly who examined the applicant on 18 July 2000 and referred to the MRI performed on 12 July which he said suggested some minimal disability of the C5/6 level and said there is no doubt the lesion at the C5/6 level demonstrated in the MRI study could have been produced by the motor vehicle accident on 12 October 1999.

12. He did not think it required any active surgical measures and then went on to say it is difficult to find any clear reason why Mrs Tindall should not be able to return to the workforce if she wished to do so. Mr Ventura also relied upon the view of Dr Chapman who examined the applicant for the respondent on 19 July 2000. Dr Chapman's view was that there had been a muscular injury to the applicant's neck. He appears to have considered that she was still suffering from symptoms at the time he examined her and he expressed the view that they would resolve completely, given sufficient time. He thought that her problems were caused by the accident but it was his view that she was capable of working at that time. He does not indicate whether he considers that was full-time or part-time work, I assume he means returning to her full-time duties. Mr Ventura also took comfort from the view expressed by Dr Isaacs to whom the applicant had been referred by Dr George, her treating doctor.

13. Dr Isaacs, having seen the applicant in March 2000, said that, as a result of the accident, she had sustained a severe soft-tissue injury to the cervical spine and aggravation of the degeneration of the cervical spine without any cervical nerve-root irritation. The matter upon which Mr Ventura specifically relied was that in a report of 6 April 2000 Dr Isaacs expressed the view, "I am sure that, given another six weeks, most of her symptoms should subside". He did, however, qualify that to the extent that he said if they fail to do so she should be referred to an osteopath to see how she goes. However, a material point about that expressed opinion was that he had not seen, at that stage of course, the MRI of 12 July 2000. That MRI was carried out by Dr Thorn and it showed a mild posterior disc bulge at C5/6/7 although there was no canal stenosis or neural compromise.

14. Dr Hopcroft from whom two reports were tendered said in his report of 29 June 2000, that is before the MRI:

I believe the patient has regained some significant recovery from the neck injury and she has stated she would like to return to work at least on a part-time basis and I believe the opportunity should not be lost in getting the patient back into the workforce.

15. The doctor had expressed the view that the applicant should have an MRI and was of the view that she had obviously been suffering from some pre-existing cervical spondylitic changes which were asymptomatic prior to involvement in the motor-car accident and that the investigations, which had been an x-ray and a CT scan, suggest that she had aggravated these changes and may have developed a C5/6 intervertebral disc lesion where minor posterior disc bulging had been seen on the CT scan. In his later report of 14 December 2000 the doctor referred to the scan and said:

I believe this patient's continued signs with her cervical spine arising from a motor vehicle accident and specifically due to the pathological changes seen on MRI scanning at the C5/6 level. I believe her nerve irritation symptoms are arising from that site.

16. He makes no specific reference to the applicant's ability to work but does refer to the fact she is suffering from aggravated levels of pain when undertaking the heavy tasks around her home and suggests she would be assisted by three hours' per week help in the home for a further 12 months. He believed that in time further resolution of her symptoms was likely to occur.

17. The applicant was seen on quite a number of occasions by Dr Woolard, of Hunter Rehabilitation and by various specialists associated with that organisation. In a report, following a review on 10 October 2000, the doctor said her symptoms and clinical findings and also investigatory results localised to the C5-C6 level. There is no clinical evidence of radiculopathy. She has been unsuccessful in the graded return to work programme and she stated that increased load of physical activity aggravated her neck pain. The doctor considered that vocationally she remains unfit for her previous work as a sales assistant. That description seems to have been something of an error but I do not think for present purposes it matters very much. It is clear that the work of feeding the photographic developing machines was repetitious and involved a fixed posture in a way which would be at least as hard, I would think, as that of most sales assistants.

18. In a later report of December 2000 Dr Woolard indicated that he considered that the applicant was fit to begin a return to work programme. He considered that there appeared to be a discal component to her symptomatology. The applicant had been assisted by Combrook and it was that organisation that had arranged the initial two-day further trial with Kodak. It is clear that Kodak had taken the position that it would not accept her back unless she was 100 per cent fit. It is also clear that the applicant's symptoms have been improving over time. Mr Edwards submitted that at some stage, and he did not indicate when, it would be reasonable to come to the conclusion that the applicant improved to the point where she would be able to work 14 hours a week as opposed to the 28 that she normally had previously worked.

19. There was in the approach of Combrook, no doubt because it was in a sense working for Kodak or Kodak's employer and to some extent also in Hunter Rehabilitation the view that the proper approach was to look at dramatically shortened hours with the respondent or in similar work. The applicant had, as I have indicated carried out bookkeeping work, accounting-type work, for Hillstone both before and after the injury. It seems to me that in attempting to work out what is her ability to earn it is appropriate to take into account the fact that she would be able to do at least some additional amount of work of that sort, work which is generally reasonably available. Dr George, the applicant's local doctor, did not certify her fit for work until 11 June 2000 and at that time his certificate of 12 July spoke of two hours per day two days per week. It is not quite clear whether Dr George knew that the applicant was also doing bookwork. Clearly, she was fit to do that. She was receiving $70 a week clear for it and the approach of both counsel to treat those figures, having received both before and after the injury, as cancelling themselves out and not entering into the matter. I think that is a reasonable approach. Two hours a day two days a week would produce $55 a week.

20. As I have indicated, I think some modest amount of additional book-type work would have been well within the applicant's capacity and on that view I reach the view that her ability to earn was $100 a week. In his certificate of 11 August Dr George increased the number of hours to three hours by three days, which is nine hours. With $45 allowed for some additional bookwork earnings, that brings you to $170 per week. Subsequently, the certificates of the doctor reduced it to two hours by three days and there were a number of certificates issued on that basis. I am simply not persuaded that the applicant's capacity was at this time declining. Whether the doctor had forgotten what he had said before or whether the reports of the Rabbit Photo trial, when reported to him, led him to reduce the number of hours it is impossible to say. Doing the best I can I think that the finding should continue to be, over that period, as I have indicated; that is, $170 per week.

21. On 15 December 2000 Dr George issued a certificate which had the capacity-to-work form filled in but showed no number of hours. I doubt that the doctor was in fact meaning to indicate that the applicant return to full work at that time which would be quite inconsistent with his other generally expressed views. I think it is appropriate to treat that as being the time at which, doing the best one can, the applicant would have reached the capacity of doing 14 hours a week. Again, I add a component which I think should be $50 for the capacity to do some bookwork which produces a figure of $242 per week.

22. Thus I arrive at an ability to earn from 16 February 2000 to 10 August of $100 per week; 11 August 2000 to 14 December 2000 $170 per week, 15 December 2000 to date $242.50 per week. I see no reason to reduce the amount to be awarded below the difference between the ability to earn and the probable earnings on discretionary grounds. There remains a portion of the 26 weeks and for that the award would be made at the full difference. There then remains a short period in which the operative factor is the maximum applicable rate and thereafter the award is made on the basis of the full difference.

23. My findings may be summarised as follows:

(a) The applicant suffered injury to her neck on 12 October 1999 whilst on a periodic journey between her place of abode and her place of employment.

(b) She was thereby incapacitated for work for various periods to 15 February 2000 and paid compensation or wages.

(c) From 16 February 2000 to date the applicant has been partially incapacitated for work

(d) The probable earnings at all material times were $385 per week.

(e) The applicant's ability to earn from 16 February 2000 to 10 August 2000 was $100 per week; from 11 August 2000 to 14 December 2000 was $170 per week; from 15 December 2000 to date $242.50 per week.

24. The awards and orders are as follows:

I make an award under s 40 at the rate of $285 per week from 16 February 2000 to 11 April 2000; at the rate of $281.60 per week from 12 April 2000 to 10 August 2000; at the rate of $215 per week from 11 August 2000 to 14 December 2000; at the rate of $142.50 per week from 15 December 2000 to date and continuing.

Medical expenses s 60

I expect the parties to agree upon the claim for interest.

The respondent is to pay the applicant's costs. I certify one qualifying fee and advice on evidence.
Mr G P Edwards instructed by Stanger &Ryan appeared for the applicant
Mr A Ventura instructed by Hickson Wisewoulds appeared for the respondent