Gough v Schweppes Cottees [2001] NSWCC 129 (20 June 2001)

Last Updated: 5 September 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: Gough v Schweppes Cottees [2001] NSWCC 129


PARTIES:
Jenny Gough
Schweppes Cottees Pty Limited


CASE NUMBER: 35752 of 1998 of 2001.00


CATCH WORDS: Statutes & Delegated Legislation


LEGISLATION CITED:


CORAM: Walker J

DATES OF HEARING: 14/12/00, 10/4/01, 11/4/01

DECISION DATE: 20/06/2001


LEGAL REPRESENTATIVES

FOR APPLICANT: Mr Ingram instructed by Hilton King Solicitors appeared for the applicant
FOR RESPONDENT: Mr T Small instructed by Connery & Partners appeared for the respondent


JUDGMENT:

THE CLAIM

1. Jenny Gough claims lump sum compensation in respect of injuries to her back, neck and both arms and related medical expenses. The basis of her claim is that arising out of and in the course of her employment with the respondent as a team leader on Jam production lines on 21 and 22 March 1995 and 11 September 1995 the nature and conditions of the work caused injury to her neck, back and both shoulders and consequential psychological injury.

THE ISSUES

2. The respondent puts injury in issue, disputes the quantum of the s 66 claims and asserts that the medical expenses claimed do not fall within the definition in s 59(f).

MATTERS FOR DETERMINATION
1. Did the worker arising out of and in the course of her employment with the respondent sustain injuries to her:
(a) back?
(b) neck?
(c) either arm?
(d) psyche?
2. If so, did she sustain a permanent impairment of her back and neck and a permanent loss of efficient use of both arms?
3. If so what is the appropriate lump sum compensation pursuant to s 66?
4. Does s 68A apply to reduce the applicants s 66 entitlements?
5. If the threshold is exceeded what is her s 67 entitlement?
6. Do the s 60 expenses claimed fall within the definition in s 59(f)?

THE EVIDENCE

THE APPLICANTS EVIDENCE

3. Jenny Gough gave evidence that she is 36 years of age and is divorced with two dependant sons.

4. She commenced employment with the Respondent on 24 January 1990 as a process worker. Her hours of work were 4am to 3.30pm.

5. Her task was to work on production lines processing jars of Cottees jam and cordials. In January 1991 she became a team leader which meant that in addition to process work on the line she had supervisory and administrative functions rotating workers during the shift, filling in gaps on the line and keeping production records.

6. The applicants evidence was that her injury was first sustained over two days namely 21 and 22 March 1995 when break downs in the J1 production line forced her to do some highly repetitive stacking and unstacking of jam jars. The procedure she was engaged in was called bright stacking.

7. Mrs Gough said that the J1 line had broken down on the night shift before she started work at 4am on 21 March 1995. She was advised that the jars on the line had to be bright stacked from the moving conveyor belt. This task involved during the course of the day taking 500g jars of jam off the conveyor belt and stacking them on a pallet. This was achieved by stacking them on a pallet in levels of 127 jars by using dividing sheets. Each pallet was stacked to about 7 levels high then another pallet commenced. When the machinery was fixed the jars had to be replaced onto the conveyor belt from the pallets. Mrs Gough estimated that through the day on 21 March 1995 some 3,000 jars had to be bright stacked.

8. That day she only took one 10 minute break. During the day she noticed her neck, shoulders and lower back were very sore. She spoke to her supervisor Mr Jackson on a number of occasions asking him to stop the line but he refused.

9. Mrs Gough said that on 22 March 1995 the line continued to break down and more bright stacking was required. She had to stack 10 pallets or about 1220 jars. Bright stacking involved working quickly with both hands. She also had to operate the labeller. She again spoke to Mr Jackson explaining the problems she was having and asked him to stop the line but again he refused.

10. Mrs Gough said her pain became so bad that she had to stop. Someone came to relieve her and she went to see Dr Ahmed her local GP who referred her for physiotherapy. Mrs Gough also attended Dr Chan the respondents company doctor who certified her fit for light duties. There were none available. Eventually Dr Chan certified her fit for normal duties from 13 June 1995.

11. Mrs Gough said that the pain was still bad when she returned to work although on some days it felt better. She described soreness and pain in her neck, in her shoulders extending across her breasts into her thoracic spine and in her low back.

12. The applicant said the respondent asked her to train another worker to do her job. When she had done so she was then removed to another line putting lids on jam jars. She was removed as team leader and the woman she had trained took over that position.

13. On 11 September 1995 the applicant was working on a production line filling 1.25kg buckets of jam. Her task was to fit a plastic lid to the buckets as they passed. She had difficulty because she was too short for the conveyor belt. She had to stand on her tip toes to put the lids on.

14. She found the work hard on her arms. She also had to bright stack when the machine broke down. This involved removing about 1000 buckets of jam. By the middle of the day her arms had no feeling in them. She went to see the nursing sister who gave her pain killers. They did not help. She stopped work at 12 noon and went to see her doctor. She has not worked since.

15. The applicant said she was paid workers compensation for the period of work between 22 March 1995 and 13 June 1995 and has been paid weekly benefits from 11 September 1995.

16. The applicant then told the Court of the subsequent medical treatment. She saw Dr Sheehan on 10 September 1995 and had an ultra sound. She was referred by Dr Ahmed to Dr Dave who sent her for Xrays and an MRI Scan and a bone scan. On 1 March 1996 the respondent sent her to Occupational Health Professionals for occupational rehabilitation. They carried out a work place assessment at the respondents factory.

17. The applicant said that in March 1996 she was unable to properly attend to her personal hygiene and unable to properly do her housework because of the pain in her neck, arms and back. She had a lot of problems sleeping. She said that prior to her injury she had regularly attended aerobics and trained a girls netball team. She also went water skiing and cycling. She had no previous neck or arm problems. She did have a minor injury to her back which resolved.

18. In April 1996 Dr Ahmed referred her to Dr Leslie a vascular surgeon because she was dropping things from her right hand. She could not grip cups of coffee. She favoured the right hand by using the left.

19. In May 1996 she was referred to Christina North a psychologist to assist her deal with her pain and with the emotional problems that had developed after her injury. She said her life had turned upside down. She could not believe what had happened to her. She felt she was too young to be so unhealthy.

20. On 20 May 1996 Dr Leslie operated on her right shoulder. The operation helped with her problem of dropping things. She could feel things again and the pain was reduced a bit. Her problems with lack of strength in the arm only improved marginally. The pain however returned about September 1996 and she now has 24 hour constant pain in the right arm. She cannot put clothes on the line or change the sheets on the bed or prepare food. Her 14 year old son does the cooking. She needs help to do the shopping.

21. Mrs Gough said that she had extensive physiotherapy after the operation and continues to be treated twice a week with massage. She said the physiotherapy helped by giving her some relief. Mrs Gough said that she saw Dr Oates for the insurer on 26 September 1996. She said she told him she would love to get back to work but denied she told him she was able to do so. She said her arms and her neck were pretty sore at the time.

22. On 20 November 1996 she was referred to Dr Salmon a pain specialist for treatment, He gave her pain killers. She last saw him just before she was admitted to St John of God Hospital in February 1997. Mrs Gough said she was in St John of God Hospital for about 10 days on Valium and Benzodiazepine.

23. Mrs Gough there said that one of the symptoms she has experienced was numbness in her mouth. That affects her speech. The applicant then told the Court that her marriage ended two weeks after her operation.

24. Mrs Gough said that she had a lot of physiotherapy after the operation on her shoulders, neck and lower back. In April 1999 she complained to Dr Leslie about problems she had with her left shoulder and left arm. She said the problem developed because she was favouring the right arm. On 24 May 1999 Dr Leslie operated on the left shoulder. The operation helped.

25. Mrs Gough said that since July 1999 she had to pay for assistance to clean her home and attend to the gardening. She has been receiving 6 hours a week assistance.

26. Mrs Gough then described her current condition. She said that she has constant pain and reduced strength in her right arm. Her left arm improved after the operation and is better than the right arm. Its strength is still reduced. She has difficulties doing some domestic chores such as hanging washing on the line. She has pins and needles in the fingers of both hands. She gets a sharp pain like a needle in the top of her right shoulder about twice daily. She also gets pain in the left shoulder but it is not as bad. She also endures a constant soreness in the arms. She has a tenderness in the side of her torso and her breasts.

27. Mrs Gough said she has difficulties driving a motor vehicle. Her precise words were I drive for no more than 10 minutes - after 10 minutes I have a lot of help from my kids, left and right. As soon as I get home I have pretty bad neck pains. She said she cannot wear a seat belt because it causes pain. Mrs Gough said she has intermittent pain in her low back particularly after she bends to pick something up or rises from a sitting position. She gets pain if she stands for too long.

28. Mrs Gough said she had problems turning her neck to either side or looking up or down.

29. Mrs Gough said she used a TENS machine after her operation and it relieves her pain on bad days. She said that she had received workers compensation for the cost of her operations and medical treatment including physiotherapy. She has not been paid for the home care. Mrs Gough said she stopped her psychiatric treatment about August 2000 because her children were being teased at school about it. She said she feels miserable and angry with herself about working too hard for the respondent. She said she is upset at the effect her injuries are having on her.

30. Mrs Gough said that she suffered from electric shock sensations in her shoulders for some time after the operations. She still gets an icy sensation in the shoulders. Her right arm twitches.

31. Mrs Gough said her medication was Prothiaden, Rivitrol Digesics and Panamax.

CROSS EXAMINATION

32. Mrs Gough told Mr Small that her normal hours of work were 4am to 3.30pm. She was entitled one 15 minute break in the morning, half hour for lunch and another 15 minute break in the afternoon. However she never took the afternoon break because as team leader she relieved other on their breaks.

33. Mr Small put to the applicant that she never was a team leader. She denied the allegation. She agreed she applied for the job of team leader on 13 June 1995. Mr Small put to the applicant that she was a Line Leader not a team leader. She said she thought she was both.

34. Mr Small put to the applicant that there were 13 workers on each line. She disagreed saying she looked after 5 workers.

35. Mr Small asked the applicant what all the other people on her line were doing when the machine broke down and she had to do everything herself. She said some were away from work or on breaks. She disagreed that there were always a set number of workers on a line. Mr Small put to the applicant that she had never worked on a line by herself. She denied the allegation saying she had done so on two occasions. She said that they were 5 people short on that day.

36. Mr Small put to the applicant that she started work at 6.30am not 4am. She denied the suggestion saying she had to set up and she normally started about 4am. Sometimes she started at 3am.

37. Mr Small put to the applicant that she was not made a team leader because she was not good at her job. She vociferously denied that proposition.

38. Mr Small put to the applicant that she took cigarette breaks on the line. She agreed that was so but said she did not let it interfere with the work.

39. Mr Small put to the applicant that she was bitter with the respondent. She agreed.

40. Mr Small put to the applicant that all the production lines were the same height. She denied the proposition. Mr Small put to the applicant that when a line breaks down only the batches of jam in the system are bright stacked. She said that occurred most of the time but not all the time. Mr Small suggested that when there was a break down the conveyor belt would be stopped. Mrs Gough denied that allegation saying that she had asked her supervisor to stop the line but he refused.

41. Mr Small put to the applicant that on Friday 1 December 2000 she had driven her car for 28 minutes. She denied the proposition. He then put to her that the next day she drove her car for 27 minutes. She denied that proposition. The applicant subsequently admitted that in saying she could only drive for 10 minutes she may have been slightly exaggerating.

42. At that point in her evidence the applicant broke down and was unable to continue. Mr Small continued the cross examination on 10 April 2001.

43. Mr Small put to the applicant that her earlier evidence was that she was working by herself on 21 and 22 March 1995. She said she did work by herself. He put to her that there were 4 people working on the line on 21 March. She replied that was incorrect. Mrs Gough then made it clear that what she meant was that she was bright stacking by herself. She said there were four other people working on other parts of the line. Three of them downstairs. Normally there would have been 6 people working down stairs.

44. Mr Small put to the applicant that her superior Mr Jackson kept a record of what was done on the line in the day. She replied that it was her job to keep the record.

45. Mr Small then questioned the applicant about her tasks on 22 March. She said she had put bright stacked jars back on the line, ran the labeller and ran the packer. When the elevator broke down she asked to stop the line after a box had fallen on the ground.

46. Mr Small put to the applicant that she was bitter towards Mr Jackson. She said she was bitter because she had explained that she had problems with her hand and wanted to stop the line but he insisted she continue.

47. Mr Small asked whether the applicant remembered applying for the job of team leader. She said the job was filled by Yolanta Ploca at a time she was off work injured. She agreed she was bitter about that because she still had to train a woman who had been given her job when she was on light duties.

48. Mr Small put to the applicant that in September 1995 she was offered an office job. She said she told her superior she had a right hand injury and could not write.

RE-EXAMINATION AND FURTHER CROSS EXAMINATION

49. Mrs Gough told Mr Ingram that she was right handed dominant and continued to have low back problems. She had back pain since her injury in March 1995. She said she had first complained about the low back problem to the company doctor.

50. Mrs Gough was recalled on 11 January 2001 to give further evidence after the videos were shown. She told the Court that the liquid to soften the bucket lids on the J2 line was not in use in September 1995.

51. I propose to leave the question of Mrs Gough’s credibility until after I have dealt with the other lay witnesses.

PATRICIA ANNE LEGGE

52. Patricia Legge gave evidence that she was Mrs Gough’s next door neighbour and friend. She told the Court that they practically live in one anothers houses.

53. Mrs Legge said that until 1995 Mrs Gough was a happy person who played netball and took the kids to soccer and baseball. She was good fun. Since her injury in 1995 she couldn’t do much with her right hand. It sort of hung there. She tried to do things left handed. She was losing her strength.

54. Mrs Legge said she helped do Mrs Gough’s washing and made her beds. Since the operation in 1999 she has been very slow. Her boys and the Legge’s have to do a lot of the housework. The boys do washing, ironing and cleaning. Mrs Legge said that Mrs Gough’s arm just hangs.

55. Mrs Legge said that Mrs Gough’s son Curtis does some cooking but mostly she does the cooking for them at her place. Her husband helps do Mrs Gough’s gardening. Curtis mows the lawns.

56. Mrs Legge said she observed the applicant to be depressed and in constant pain. She takes medication but it does not seem to help. She is constantly pale. Mrs Gough asks for help to zip up her dress or button things. She cannot coordinate.

57. Mrs Legge said that Mrs Gough drives at times. The longest drive was an emergency trip to Mrs Gough’s mother. It took about half an hour. Mrs Legge said she was worried about Mrs Gough’s driving.

VICKIE MEREDITH

58. Vickie Meredith gave evidence for the respondent she said she was a production clerk with the respondent having worked there some 20 years.

59. She said she does the timesheets. Mrs Meredith told the Court that over the years Mrs Gough worked on a number of production lines. She recalled speaking to the applicant after a new team leader was appointed. Mrs Gough was very upset.

60. She said that the company had decided to introduce a new grading system with four grades the top grade being a team leader. Mrs Meredith said that line leaders would relieve other production workers when they took their breaks. The lines were shut down for lunch for half an hour. There were two 15 minute breaks as well as toilet breaks.

61. Mrs Meredith remembered observing the applicant working on the J1 line during September 1995. She recalled Jenny was having problems with her shoulder. She was forever rubbing it.

62. She recalled an occasion when Mrs Gough was sent to the C5 line in the Cordial Division which was running jam buckets. She noticed Jenny was in a lot of pain and told her to get off the line immediately so she would not aggravate her shoulder. She said that Mrs Gough told her she had asked the manager but he did not care. She said she then saw the manager and arranged for Jenny to visit the nursing sister.

CROSS EXAMINATION

63. Mrs Meredith told Mr Ingram that she was not aware of anyone working through their lunch hour because the factor is closed down then. The employees are only paid if they work in their tea breaks. Mrs Meredith later agreed that in cases of urgent orders people would work in the lunch break.

64. Mrs Meredith said that the applicant was a good worker, a very hard worker.

65. Mr Ingram asked Mrs Meredith if it was impossible to run a line without 13 people She replied No - yes yes it could be from 10 but anything under wouldn’t be allowed.

66. Mrs Meredith agreed that there were a lot of breakdowns on the lines and that involved bright stacking.

67. Mrs Meredith agreed that some ladies and often line leaders came in and set up the lines at 4am. Mrs Meredith said that when the position of team leader was introduced it replaced the position of line leader.

CAROL ANNE FAULKNER

68. Carol Anne Faulkner gave evidence on behalf of the respondent. She said she was the Occupational Health Safety and Rehabilitation Co-ordinator with the respondent. She first saw the applicant in March 1995 after receiving a note from Dr Ahmed. She produced to the Court clinical notes which had been completed by both Dr Chang and herself.

69. Mrs Faulkner told the Court that on 30 March 1995 Mrs Gough advised her she would be returning to work on 4 April 1995 with a certificate from Dr Ahmed recommending suitable duties.

70. Mrs Faulkner said that Mrs Gough was subsequently examined by Dr Wing Chan who recommend light duties involving a rehabilitation program. There was a meeting about the program in March 1996. The plan envisaged clerical duties. The idea was for Mrs Gough to write a manual on how to operate a production line. Dr Ahmed advised the applicant not to return to those duties.

CROSS EXAMINATION

71. I asked Mrs Faulkner who had prepared the notes she had relied upon. She said they were a summary prepared by the firm Objective Claims Solutions. They included notes written by Mrs Faulkner and Dr Chan.

72. Mr Ingram asked Mrs Faulkner what the applicant told her on 22 March 1995. She said the applicant complained of pain in her back, shoulders and neck as a consequence of doing bright stacking all day. She then said that on 11 September 1995 Mrs Gough told her that her right shoulder was paining and right arm had had it. She said that the pain was caused by working on the bulk jam line placing lids on buckets.

KIM RANDALL JACKSON

73. Kim Randall Jackson gave evidence on behalf of the respondent. He said that in 1995 he was the wet plant superintendent with the respondent.

74. He informed the Court that bright stacking involves taking jam jars off the conveyor system to lay them on pallets. The word bright is used because there is no label on the jar at that stage. The term refers more to cans than jars. Bright stacking occurs when there is equipment failure. Jam cannot be held on the conveyor for too long because it goes hard. Bright stacking occurs when the machines break down.

75. Mr Jackson said he recalled 21 March 1995. He recalled a download occurring on that day. Mr Jackson then referred to notes photocopied from two sources - the production book and line sheets. Mr Jackson said that bright stacking was done by the crew of 13 people. The 13 people include a cleaner, cooks and people on the packing line. To have the line running you need a crew of 12. A minimum of 10. To account for sickness and absenteeism people from other plants, other departments and casuals are brought in. When bright stacking occurs the line leader organises a crew of five. A minimum crew would be four people. He said it was impossible for one person to do the labelling and the bright stacking. He agreed one person could bright stack but said it was not fair. It was physically impossible if the line was running.

76. The purpose of the bright stacking of jars was to make room for product up the line that was not in jars and might become solid.

77. Mr Jackson said that it was physically impossible for one person to bright stack because the work was too physically hard. It was also too slow and inefficient. It is just not done. Mr Jackson said that the record on 21 March 1998 showed that the bright stacking did not start until 6am. There were break downs at 6.15am, 6.38am and 8.10am. There was a problem with the blender at 12.10pm. Mr Jackson said his records did not reveal who was working on the line but such records were available. Mr Jackson said that for one person to bright stack 1200 jars it could take 2 to 3 hours.

78. Mr Jackson agreed that on 21 March 1995 he was asked by the applicant to stop the line on a number of occasions. He said he consulted the manager Gary Lynch who refused the request. He felt that was a reasonable decision.

79. Mr Jackson said the records show that Danny Reiser and Danny Brunner were the only employees away from the line on 21 March 1995.

80. Mr Jackson resumed his evidence on 11 April 2001. Mr Jackson arrived in Court with two videos to present as evidence. The first was a video of the J1 line showing bright stacking in process. It was taken the previous evening at 5 pm at the factory.

81. Mr Ingram on the voir dire put to Mr Jackson that the line was different to what Mrs Gough worked on in that the workers were using a scissor lift. He did not recall when this device was introduced. The video was then played. Mr Jackson then told Mr Small that he had measured the height of the conveyor on the J1 line and found it to be 1.02 metres. That height included the guard at its edge. He was unsure as to whether it was the same height as in 1995.

82. Mr Small then asked Mr Jackson to explain the difference between a line leader and a team leader. He said the team leader had more responsibility. The things a team leader did that a line leader did not was to organise the line with future shifts in mind, to talk to people on other lines, get material in, put production figures in the computer, write the line sheets, write the time sheets.

83. Mr Small then asked Mr Jackson what records revealed whether a machine had broken down. He said there were down time sheets. He then produced a down time sheet for 21 March 1995 with the applicants name on it. He said the line involved was J1. He noted 155 minutes on the sheet of down time from 6.35am to 9.10am. There was a further 30 minutes from 9.20pm to 9.50am and 130 minutes from 9.50am to 12 noon. There was a further 20 minutes from 12.15pm to 12.35pm and another period from 1.50pm to 1.52pm and so on.

84. Mr Small then asked Mr Jackson to identify the down time that involved bright stacking on that day.

85. He said the break down of the braider between 9.20am and 12 noon and at 2.45pm would require bright stacking to occur. Mr Small then asked Mr Jackson to give details of break downs on 22 that would have necessitated bright stacking. Mr Jackson said 22 March 1995 was a good production day and there were only a couple of entries that indicated stacking by hand involving only 10 minutes.

CROSS EXAMINATION

86. Mr Ingram showed Mr Jackson Exhibit 5. Mr Jackson confirmed his previous evidence that bright stacking was only necessary when the braider broke down on 21 March. Mr Ingram put to him that it would also be necessary if the labeller broke down. He said that was not always the case but it can.

87. Mr Ingram put to him that if the elevator broke down bright stacking was required. He agreed but said usually the men did it. He then agreed Mrs Gough could do it. Mr Jackson then explained to Mr Ingram the difference between lines J1 and J2. He said J2 was basically used for juices.

88. Mr Ingram put to Mr Jackson that J2 line was down on 21 March. He disagreed saying only on the afternoon shift. After further questioning he retracted that assertion agreeing the J2 line was down 113 minutes in the morning and 207 minutes in the afternoon.

89. Mr Ingram then put to Mr Jackson that if Mrs Gough said there were people missing from her line on 21 March that could be because of bright stacking on the J2 line. He said that could happen.

90. Mr Ingram put to Mr Jackson that contrary to his previous evidence the J1 line was actually down for 117 minutes not 10 minutes on 22 March 1995. He agreed that was the total. He also agreed that the J2 line was down 120 minutes on the of 22 March 1995. He said personnel could have been moved from J2 to J1 when J2 was down to do the bright staking.

91. Mr Ingram put to Mr Jackson that it was possible that at various times production workers could have been seconded to other parts of the factory and so limited the number of people bright stacking on J1. He said it was possible but that it would not be done.

92. Mr Ingram then asked Mr Jackson to explain why Dr Chan’s measurement of the height of the J1 line in 1995 showed 1.20m which was 20 cm more than his measurement yesterday. He could not explain the difference. Mr Ingram asked Mr Jackson whether there was a 100mm stand that could be used by workers on the J2 line. He said that was so. He did not know whether the stand was available in September 1995.

93. Mr Ingram put to Mr Jackson that the technique used by current workers on the C5 line of softening the plastic lids in warm water to make them easy to put on was not used in September 1995. He didn’t recall.

94. Mr Ingram asked Mr Jackson how many jam jars would be in a pallet stacked 7 levels high. He said about 600.

JOLANTA PLOCKI

95. Jolanta Plocki gave evidence for the respondent. She said she worked for the respondent for 13 years.

96. She denied that the levels of the J2 or J1 lines had be altered since 1995. She said the platform had been there for a long time.

Cross Examination

97. Ms Plocki told Mr Ingram she started work for the respondent in 1988. She agreed that the platform on the bulk jam line had been introduced later. She asserted it was before 1995. She recalled it being there 12 years.

98. She said she did not like the platform because it was too high for her and she had it moved. Mr Plocki said she was 162 centimetres tall.

THE DOCUMENTARY EVIDENCE

THE RESPONDENTS PRODUCTION RECORDS
1. Jam Plan Labour Summary 21.3.95

99. A document entitled Jam line 1 labour summary 21.3.95 was tendered. It showed Jenny Gough working for 10 hours from 5 am to 3.30pm. It stated that she worked 7 hours on the line.

100. It also showed 11 other workers worked on the J1 line day shift. One worker Mr Williams was away but another Mr Rahmat only worked 6 hours. The J2 line for the same day only had 7 workers present on the day shift.

101. The summary on 22 March 1995 showed the applicant working 6 hours from 5am to 11am then going off on workers compensation. Two workers were absent from the line namely Mr Brunia and Mr Pesa.

102. The J2 line again had 7 workers on the day shift.

THE LINE LEADERS PRODUCTION SHEETS

103. The applicant Production sheets for the J1 line on 21.3.95 shows the work starting at 6am and finishing at 3.30. Thirty four pallets of jam were produced on the day. The applicants production sheet for the J1 line on 22.6.95 showed 65 pallets being completed on the shift (ie almost double the previous day).

THE STOPPAGE SHEETS

104. The stoppage sheets for 21.7.95 reveal the following information:

Time of Stoppage	Duration	Reason Given
6.05	10 minutes	Fitter adjusting jammed conveyor belt
6.35	155 minutes	Changing Braider Monbulk to Cottees (Bright Stacking
9.20	30 minutes	Braider problem
9.50	130 minutes	Filter working on machine. Boxes not sealing. Bright Stacking
12.15	20 minutes	Run out of production
1.50	3 minutes	Caps jammed in hopper
2.00	4 minutes	Caps jammed in the hopper
2.05	10 minutes	Emptying out hopper
2.25	20 minutes	Cleaning up broken jars
2.45	10 minutes	Adjusting glue 105. In total the line was down for 392 minutes or six and a half hours in a ten hour shift.

106. I note Mr Jackson’s evidence that this was the applicants sheet but the entries are not all in the same handwriting. It would appear to me that four different workers filled in the sheet.

107. The stoppage sheet for the 22nd reveals 117 minutes of down time. Again there appears to be several workers making the notations.

THE DIARY

108. A diary sheet for 21.3.95 was also put into evidence. It was in two hands. The diary related to both J1 and J2 lines.

109. The times of day mentioned in the diary seem to have little or no connection with the notations beside them. Interestingly the down times in the diary do not correlate with the stoppage sheet. The J1 line is recorded as being down for 191 minutes not 392 minutes. The J2 line is recorded as being down for 227 minutes not 117 minutes.

110. The Diary sheet on 22.3.95 shows the J1 line being down for 155 minutes as opposed to the Stoppage sheet which show 198 minutes. The J2 line is shown as being down for 156 minutes when the Stoppage sheet shows only 117 minutes.

THE COMPANY’S MEDICAL RECORDS FILE

111. The company’s medical record file was put into evidence. I do not propose to consider the medical certificates in the file in this context except in so far as they may be relevant to issues of credit raised in the case.

112. The following documents are tendered to assist resolve credit issues.
1. Workplace Assessment Report of Jean Garstang dated 11.3.96

113. Jean Garstang works for Occupational Health Professionals Pty Ltd the respondents rehabilitation consultants. She notes the following at page 3 of her report.

Bright Stacking

Bright Stacking is done when there is a breakdown on the line and requires the operator to take jars off the conveyor and place them on a pallet. Ms Gough reports injuring her shoulder due to stacking 22 pallets over an 8 hour day and placing jars weighing 500g onto a pallet at floor level.

The situation has been rectified with the provision of a scissor stacker which allows the operator to adjust the height of a pallet trying to avoid continuous bending down below waist level.

Progress Notes

114. Carol Faulkner and Dr Chan jointly kept progress notes of the workers treatment.

Carol Faulkner

21.3.95

115. Carol Faulkner writes at 1.30pm:

Phone call from Charlie Morgan re girls on J1 line carrying out bright stacking. Apparently the Breda had broken down. All jars of jam were being taken off the line manually and stacked onto pallets and then placed back onto the line when Breda was repaired.

Approx 6-7 pallets were bright stacked by 4 operators throughout the shift.

2.3.95

116. Carol Faulkner records at 10am:

Jenny came to me - reported that her lower back, shoulders, arms were sore from yesterday. A spring loaded scissor lift pallet holder was borrowed from Dry Mix for the area.

I advised Jenny to go home to see her local GP. Her movements were very restricted and I felt that she should not be on the line. W/Comp claim for given and rehab process form. Asked Jenny to ring me when she had been S/B. DR. Received a phone call from Kim Jackson shortly after asking if Jenny could stay on line as a team leader. I advised she should go home and be reviewed by GP.

117. At 3pm Carol Faulkner recorded

Phone call from Jenny. She has w/cover certificate as unfit for work 23/3/95.

Dr Chan

118. The applicant had expressed neck, shoulder and back problems earlier in 1995.

13.6.95

119. Dr Chan records

Since 21/3/957 has pain both shoulders and lower back. Both areas are now better but not 100%. He went to note that his clinical examination revealed crepitus during shoulder movement and a pull in the back of the neck on extension. He also noted a problem in the upper thoracic area.

5.9.95

120. Dr Chan notes the applicant was seconded to Cordial Line and complained the caps were a bit stiff when she pushed them on.

16.5.95

121. Dr Chan notes on this day that the applicant said the conveyor belt too high for her arm (elevation) 120 cm. He then conducted a series of measurements on the line. He measured 104 cms from the floor to the applicants elbow level. He measured the height of the conveyor belt at 120cm.

122. He also thought the labeller was on the high side at 113cm.

11.4.95

123. Dr Chan made the following notes of a conversation with the applicant on this day.

Started that on 22.3.95 both shoulder, arm and upper thoracic area very sore after having done bright stacking the previous shift. She said that she could be stacking up to 10 pallets with 2 other employees (as well).

THE MEDICAL EVIDENCE

THE APPLICANTS MEDICAL CASE

Dr M R Ahmed

124. Dr Ahmed was the applicants treating GP providing some 7 reports between 17 July 1995 and 9 February 2000. He reported that the applicant first consulted him on 22 March 1995. He also noted an injury slipping and falling while bright stacking on 21 March 1995. He diagnosed soft tissue injury to the neck, right shoulder and upper lumbar area at that time. With the benefit of advice from Dr Dave he added thoracic outlet symptom to his diagnosis on 14 December 1996.

125. On 22 December 1996 Dr Ahmed assessed the right arm loss at 30 per cent and the neck impairment at 10 per cent. Dr Ahmed practices as a GP in Australia but holds specialists qualifications in orthopaedics from two Scottish Universities.

126. On 14 January 1997 Dr Ahmed recorded the application as suffering from depression related to her injuries and pain.

127. On 9 February 2000 Dr Ahmed records that because the worker was using her left arm more than her right after the surgery on the right shoulder on 20/6/96 she developed left shoulder problems.

Dr Neal L Thomson

128. The applicant saw Dr Thompson an orthopaedic surgeon for a second opinion on 18 March 1996. He diagnosed a probable thoracic outlet syndrome.

129. On 23 December 1996 he additionally diagnosed an ongoing neuralgic syndrome affecting the right arm, right shoulder and right side of the face.

Dr Robert Reid

130. The applicant saw Dr Reid a medico legal consultant on behalf of the respondent. The applicant tendered his report in her case.

131. Dr Reid believed that the applicants syndromes could be explained as follows:
1. She has a painful tear of the right supraspinatus tendon with impingement altered mechanics caused inflammation of the acronio-clavicular joint and the right glemo-numeral joint.
2. She developed a marked lean by dropping her right shoulder.
3. Altered anatomical relationship caused cervical brachial plexus instability.

132. He said the activity on 21.3.95 was consistent with the claim that activity was causative factor.

Dr Gregory Leslie

133. The applicant was referred by Dr Ahmed to Dr Leslie a vascular surgeon for treatment on 9 April 1996. He said it was difficult to diagnose whether she had thoracic outlet syndrome and ordered somatosensory evoked potential’s and nerve conduction studies. The pathology found from those studies suggested to Dr Leslie on 16.4.96 that she had thoracic outlet syndrome. He recommended surgery.

134. On 22 May 1996 Dr Leslie after reviewing the literature on thoracic outlet syndrome decided that was her problem and operated.

135. He carried out a complete neurolysis and scalenectomy of the scalene muscle with a resection of the first rib. He found a tight medial edge to the scaleneus anterior pressing on the lower brachial plexus. At the end of the procedure the brachial plexus was lying free.

136. In September 1996 Dr Leslie noted the applicants pain had become worse again. He felt that was due to the nerve regeneration after the operation.

137. In his report of 18 November 1997 Dr Leslie said that since the operation Mrs Gough had gradually improved and was then about 50 per cent improved on her initial condition. She still had a 50 per cent loss of the use of the right arm.

138. On 13 April 1999 he felt Mrs Gough was now developing thoracic outlet syndrome on her left side. He felt that was related to her work for the respondent.

139. In June 1999 Dr Leslie operated on the left side again finding pressure on the brachial plexus from the scalene muscles which he relieved by excising more scalenus muscle and mobilisation C5, C6, C7, C8 and T1 of the brachial plexus.

140. In his report of 7 March 2001 he stated:

At operation on the right side there was a fairly tight medical edge to the scalenus anterior muscle pressing on the lower brachial plexus. Whether this was present since birth or whether trauma had set up an inflammatory reaction with resultant fibrosis leading to this sharp edge. I could not say.

141. He went on to add I accept that Mrs Gough was perfectly healthy and physically active before her accident and thus I feel the accident played a very large part in her syndrome developing.

Dr Phillip J L King

142. Dr King a neurologist conducted somatosensory studies on 15 April 1996 which revealed pathology affecting the right ulnar nerve consistent with thoracic outlet syndrome.

Christina North

143. The applicant has been attending Christina North a consultant psychologist since May 1996. In her report of 16 January 197 Dr North said the resultant stress associated with constant severe and continuing physical restrictions has resulted in Mrs Gough developing a severe depression. In a report to MMI Insurance on 5 August 1999 found Mrs Gough to be still suffering acute severe anxiety, fear and depressed mood.

Dr Chris Oates

144. The applicant saw Dr Oates an occupational physician for assessment on 26 September 1996. He diagnosed a thoracic outlet syndrome affecting the right arm with sensory loss and weakness.

Dr Daryl M Salmon

145. The applicant was referred to Dr Salmon a pain specialist for treatment on 20 November 1996. His opinion was that Mrs Gough had a myofacial pain syndrome resulting from occupational over-use and contributed to by facet arthalgea and thoracic outlet encroachment.

Dr Peter Arnaudon

146. The applicant saw Dr Peter Arnaudon a medico-legal consultant for assessment on 16 December 1996. He diagnosed cervical disc herniation, a thoracic outlet syndrome and a repetitive strain injury to the cervical area, right shoulder and right arm. He attributed all this to her employment with the respondent.

Dr Scott Jenkins

147. Dr Jenkins a psychiatrist reported on 5 February 1997 after Christina North had referred her to him when her mental state deteriorated significantly. He diagnosed secondary melancholic depression.

Dr B Timney

148. Dr Timney prepared a discharged summary from St John of God Hospital dated 6 February 1997. He said Mrs Gough was suffering withdrawal from Rivotril which she had been abusing. She was placed on Diazepain. He said during her hospital stay, it became obvious that there were other factors which were causing her distress particularly her marital relationship which appears to be close to the point of breakdown.

149. Dr Timney provided a separate report dated 21 December 1998. He diagnosed a work related chronic pain disorder.

Dr J Brian Stephenson

150. The applicant saw Dr Stephenson an orthopaedic surgeon for assessment on behalf of the respondent on 3 March 1997. The applicant tendered his report. Dr Stephenson’s opinion is that it appears a thoracic outlet syndrome occurred related to the nature of Mrs Gough’s work.

Dr John E C Bentivoglio

151. The applicant saw Dr Bentivoglio an orthopaedic surgeon for assessment on 6 June 1997. His opinion was that the applicant developed her symptoms as a result of thoracic outlet syndrome secondary to her work activity. He said her current complaints are purely and directly attributable to the injury that she had to her person at work in March 1995. He assessed the right arm loss at 40 to 50 per cent at or above the elbow and the neck impairment at 10 per cent.

Dr Richmond Deveridge

152. The applicant saw Dr Deveridge an orthopaedic surgeon for assessment on 2 November 2000. He diagnosed an occupational overuse disorder, a thoracic outlet syndrome and strains of the neck and low back. He attributes those conditions to her work for the respondent. He made the following s 66 assessment:

Neck	10 per cent
Back	5 per cent
Right Arm	25 per cent
Left Arm	20 per cent

153. On 14 November 2000 he supplemented his report explaining that the settings of symptoms noted in June 1995 and recurrence in September 1995 were part of the progression of the condition where lack of use improves the pain then activity worsens it.

154. On 10 March 2001 Dr Deveridge dealt with the possible application of s 68A. He found no evidence of a pre-existing condition or abnormality.

THE RESPONDENTS MEDICAL CASE

Dr Robert Cameron

155. The applicant saw Dr Cameron a surgeon for assessment on behalf of the respondent on 6 April 1999.

156. His opinion was that Mrs Gough suffered some musculo ligamentous strain at work. He disagrees with Dr Leslies diagnosis of thoracic outlet syndrome. He asserts that the special investigations show no abnormality.

157. His view is that Mrs Gough has long recovered from any work related injury. He found no permanent impairment in the neck or other orthopaedic losses. On 27 July 1999 he reviewed the applicant. His diagnosis was widespread sensory symptoms typical of a non-organic complaint. He found no losses or impairments.

Dr K H Dyball

158. The applicants medical state was assessed by Dr Dyball a psychiatrist on behalf of the respondent on 16 August 1999. His opinion was that the applicant had an adjustment disorder with some anxiety.

Dr P Endrey-Walder

159. The applicant saw Dr Endry-Walder for assessment on 5 March 1998. He opined that her work for the respondent had caused her to become significantly sympathetic in the right arm.

160. He noted the diagnosis of thoracic outlet syndrome and said I do not think that there is much doubt that people who develop this syndrome would in general be predisposed to the syndrome by a congenital anomaly.... Given such predisposition, it is not difficult to see how excessive physical activity can precipitate this syndrome, which until that time had remained silent, asymptomatic and problem free for the patient.

161. He assessed a 10 per cent neck impairment, a 15 per cent right arm loss. He apportioned on third to the underlying anatomical condition. He also found very significant functional elements in Mrs Gough’s clinical presentation. He felt her treating doctors had unnecessarily frightened her.

Dr J Stephen Quain

162. Dr Quain a shoulder surgeon provided a report dated 10 December 1999 after assessing the applicant on behalf of the respondent. His opinion was that the applicant had no pathological abnormality in her shoulders.

163. Dr Quain also gave oral evidence on 10 April 2001. He added to his report that in his opinion there was no rotator cuff tear.

164. Dr Quain said that a thoracic outlet syndrome is usually due to either an abnormal rib or to a fibrous band which comes from the cervical spine and attaches to the muscles of the first rib. It can compress the brachial plexus and the nerves that run into the arm or the subclavian artery. Its symptoms include decrease in pulse, pallor and pins and needles in the fingers. Dr Quain agreed with Mr Ingram that he had only seen Mrs Gough for 15 to 20 minutes but said he believed her. He deferred to vascular surgeons on the subject of the success rate of thoracic outlet syndrome surgery. He deferred to Dr Leslie’s expertise.

165. He agreed that his finding of no shoulder pathology was limited to the state of the shoulder joint.

APPLICANTS CREDIT

166. The respondent in cross examination raised a great many questions that went to Mrs Gough’s credit. Most were based on misunderstandings that were eventually clarified in the evidence. In the end Mr Small did not accuse the applicant of lying. However he did submit that the Court should find her to be guilty of gross exaggeration and misrepresentation in four instances.

167. Before I address the individual questions raised I should in all fairness point to the psychiatric evidence in this case.

168. Christina North’s evidence is that the applicant suffers from depression, with an anxiety state and was very susceptible to stress. She has abused benzodiazepin and is on the powerful antidepressant Prothiaden which this court as an expert tribunal is aware affects memory and concentration.

169. Dr Dyball for the respondent saw her as a very emotional woman. He opined she has an adjustment disorder with anxiety.

170. The applicant presented in Court in an extremely agitated and distressed state. She had a marked pallor and huge dark circles under her eyes. She regularly broke into tears, exhibited tremors and on at least one occasion broke down under gentle questioning from her own counsel. She demonstrated great difficulty in concentrating on the questions asked of her often appearing to misunderstand their gist and give unresponsive answers. Even mild aggression in counsels questions triggered an angry response often more related to her personal and emotional problems rather than the questions put to her.

171. Mrs Gough’s evidence was that she had been receiving psychiatric treatment but had been forced to give it up because her children were being harassed at school by other children who had become aware of that treatment.

172. I make no criticism of Mr Small of counsel who had commendably curbed his naturally aggressive cross examination style. Adversarial litigation is ill suited to cases involving folk with mental illness and unfortunately can sometimes exacerbate their illness. The Court was left with the burden of doing its best to understand and assess the credit of the evidence of a deeply disturbed, confused, angry and very emotional worker.
1. Ability to Drive

173. Mr Small sought to make much of the applicant allegedly misleading the Court over the length of time she could drive. He suggests she has misled the court in her evidence denying she was able to drive for an hour with her disabilities.

174. Her evidence upon which this allegation is based on her evidence in chief at T31.1 which reads:

Q. What about driving in motor vehicle? Can you do that?

A. I drive no more than 10 minutes. After 10 minutes I have a lot of help from my kids - left and right as soon as I get home I have got pretty bad neck pains.

Q. When you say you get a lot of help from the children do they help you drive?

A. yes - well Turn to the left

175. This evidence seemed perfectly clear to me. What Mrs Gough was saying was that after 10 minutes driving she got neck pain and needed help from her children after that in the form of directions when turning left and right. It was not clear to either Mr Ingram or Mr Small however who assumed she had said she was limited to 10 minutes driving.

176. Mr Small had a video of the worker driving her children from home to school and later driving to and from the Catholic Club. His cross examination at T38.7 suggested she had driven for 28 minutes in taking her children to school at Camden South. By this time Mrs Gough was in a state. She was emotional, angry and generally unresponsive to the questions seizing on minor aspects of them to debate with Mr Small. Mr Small was reading from an investigators report and Mrs Gough was responding to him by taking issue with the break down of the times the investigator alleged she had taken to drive from point to point. I gained the strong impression that Mrs Gough really had no accurate concept of the driving times but felt that the aggregated times put to her by Mr Small were excessive.

177. What I did draw from both Mrs Gough’s evidence and that of her friend and neighbour Mrs Legge was that she took large amounts of the powerful drug Rivitrol prior to driving and despite the fact that she had on at least two occasions demonstrated the physical ability to drive for as long as half an hour she probably represents a hazard on the road after 10 to 15 minutes. I am not prepared to draw from that evidence the conclusion that she has either misled the Court or exaggerated her condition.
2. Starting Work at 4am on 21 and 22 March 1995

178. It was the applicants evidence at T 16 on 14.12.2001 that she started work at 4am on both 21 and 22 March 1995.

179. At T 33.9 the following exchange took place in cross examination:

Q You started at 6 o’clock unless it was overtime.

A No my normal hours were 4 o’clock in the morning every day. Sometimes I would come in a 3 o’clock in the labour summary of Jam Line J1 on 21.3.95 and 22.3.95 which indicated that she started work at 5am on both days.

180. The evidence from Mrs Gough and the production Clerk Vickie Meredith was that workers bundied on each day. Despite the fact that this question was in issue from 14 December 2000 neither the bundy cards or time sheets were produced by the respondent to contradict Mrs Gough’s evidence. The labour summary that the respondent chose to put in evidence is merely a record of the time worked on the production line each day. The uncontradicted evidence is that Mrs Gough as a line leader was responsible for organising the line prior to its starting. Mrs Meredith agreed that line leaders could start at 4am.

181. As I have previously recounted I found the records presented to the Court to be contradictory. In my opinion they should not be relied upon to prove a credit issue.

182. For all these reasons on the balance of probabilities I propose to accept the applicants evidence that she actually started work at 4am.
3. Applicant worked by herself bright stacking on 21 and 22 May 1995

183. The evidence about the number of people that were on the Jam Lines when bright stacking occurred was wildly contradictory particularly when it came to the respondents witnesses and records.

184. Mrs Meredith the respondents production clerk at T 23.2 on 10 April 2001 commenced her evidence by insisting you need 13 people to run a Jam Line. She resiled from that statement at T 24.8 where she said The line cannot run with one person, it has to be a team of 10 or more for that line to operate.

185. Mr Jackson the plant superintendent said at T 44.7 that to have a line running you needed a crew of 12. He then agreed that it could run on a minimum of 10. Then at T44.8 he said that to carry out bright stacking you only needed a crew of 5. He later qualified that to a minimum crew of 4.

186. The labour summary sheet showed a crew of 12 were at work on 21.3.95 and a crew of 11 were at work on 22.3.95.

187. However on 21.3.95 four crew worked less hours than the full shift and on 22.3.95 6 crew worked less than the full shift.

188. Mrs Jackson’s evidence was that only 5 of the potential 13 crew actually worked on the packing line. The others either worked as cooks, preparing food or in specialist jobs such as cleaner or mechanic.

189. Mr Jackson’s further evidence is that the workers would take staggered breaks totalling one hour during the day as well as breaks to have a smoke. In other words they would not all be working on the line at the same time. The evidence was that on the days in question the lines were broken down for many hours and bright stacking was then required. Workers from one line, could be called across to bright stack on another.

190. It can be seen therefore that a production line constituted by 5 persons could easily be very short handed if a combination of the following events occurred:
· workers were away sick
· workers did not work the full shift
· some workers were taking breaks
· some workers were assisting on other lines

191. Two matters should be borne in mind in assessing this credit issue.
1. The Court is not concerned about the theory of how the line should have worked but about what actually occurred on the days in question.
2. The applicants medical case as to injury involves her allegation that virtually single handed she bright stacked jam jars for long periods on 21 and 22 March 1995.

192. The evidence that goes to those allegations is:
· The absence of one production worker from work on 21 March 1995 and two workers on 21 March 1995. Moreover the absences were exacerbated by 4 to 6 workers not working the full shift. Given the problems on the J2 line some workers could have been called there. Others would be taking their staggered breaks.
· The documentary evidence which shows that the J1 line was down for 392 minutes on 21 March 1995 and possibly 227 minutes on 22 March 1995. Given the evidence concerning the nature of the stoppages it is likely that a great deal of bright stacking occurred on 21 March 1995 and a fair amount on 22 March 1995.
· The applicants evidence which Mr Jackson corroborates is that on a number of occasions she asked him to close the line down because it was too much for her. Her request was denied by Mr Jackson and senior management.
· Carol Faulkners written record records the Braider machine braking down on the J1 line and bright stacking occurring by 4 operators throughout the shift.
· Dr Chan’s written record records that on 22 March 1995 the applicant has a sore shoulder arm and thoracic area after having done bright stacking on 21 March 1995. He goes on to records she said that she could be stacking up to 10 pallets with 2 other employees (as well).

193. There is no telling from the evidence just how many production workers were on the line at any given time on the days in question. On the evidence before me it is likely that Mrs Gough could have been alone at times when bright stacking was required. On the balance of probabilities I find that on both days there were at times less workers than the minimum 4 operators Mr Jackson insisted were required to run the line and Mrs Gough could well have been alone for periods.

194. To my mind the evidence strongly supports the applicants case as to the manner in which her injuries arose.
4. The Height of the Jam Lines

195. It is Mr Small’s contention that the applicant misled the Court when she gave evidence that both the J1 and bulk Jam lines were too high for her stature.

196. The applicants evidence is that the height of both lines caused her problems in the following manner.
· The conveyor belt of the J1 line was at or just above shoulder height. Accordingly when she lifted jam jars off the belt she repetitiously lifted them over shoulder height before taking them down to the pallet.
· The Bulk Jam line was also too high for her task of repetitively snapping with both hands the plastic lids onto the buckets of jam forcing her to work on her toes.

197. The facts concerning the height of the lines and the applicant were:
· Mrs Gough gave uncontradicted evidence that she is 1.52m tall.
· Dr Chan on 16 may 1995 took measurements of both Mrs Gough and the Bulk Jam line. He measured the conveyor belt to be 1.2m (he did not measure the guard height). He recorded Mrs Gough’s elbow height to be 1.04m (ie the belt was 16cm above her elbow). The level of the guard rail was even higher.
· Mr Jackson measured the J1 Jam line on 10 April 2001. He found it to be 1.02m. He also measured the Bulk Jam Line to be 93cm ie 27cm shorter than Dr Chan measured it to be in 1995. He suggested this was because there was a 10cm metal stand on the floor. That measurement would still be 17cm less than Dr Chan’s.
· Jolanta Plocki gave evidence that so far as she recalled the metal stand had been on bulk jam in March 1995. Ms Plocki said she was 1.62m tall (ie 10cm taller than the applicant).

198. Ms Plocki had secured the team leaders job over the applicant when she was injured. There was obviously no love lost between the two. Mr Jackson’s measurements of lines some 6 years after the event are not persuasive evidence particularly when his measurements are contradicted by contemporaneous measurements by the respondents doctor. Moreover there was apparently no metal stand on the Bulk Jam line for Dr Chan to measure which tends to support the applicants evidence and not Mrs Plocki’s.

199. Taking all the evidence into consideration on the balance of probabilities I accept the applicants evidence as to the relative height of the conveyor belts and also her evidence that she was working at or just above shoulder height on both lines.

200. I found the applicant to be a very emotional but nevertheless truthful witness. I found no gross exaggeration or misrepresentation in her presentation.

ANALYSIS OF THE MEDICAL EVIDENCE

201. The following matters require my determination with the assistance of the medical evidence:
· injury and causation
· permanency of back, neck, arms and psychological injuries
· s 66 assessment
· applicability s 68A
· s 67 assessment
· capacity to work
1. Injury, Causation and Permanency

202. It is Mr Small’s submission that I should find that the applicant has no work related injuries. This is despite the fact that his client has paid Mrs Gough weekly benefits for all time off work since the 22 March 1995.

203. The respondent relies firstly on the contention that the events of which Mrs Gough complained of at work either did not occur or did not occur in a way that could have caused the chronic symptomatology of which she complains. I have accepted the applicants evidence as to the manner in which her injuries occurred at work.

204. Secondly he relies on the evidence of Dr Cameron who finding no suggestion of pathological abnormality in the special investigations diagnoses passing strains and a continuing constitutional thoracic outlet syndrome.

205. I propose to deal with each part of the body claimed to be injured separately.

The Back Impairment

Discussion

206. The applicants case for a work related permanent back impairment rests on the report of Dr Deveridge who last saw the applicant in March 2001. He diagnoses a thoracic outlet syndrome together with occupation overuse disorder and a chronic musculo ligamentous strain of the back. He attributes those conditions to work with the respondent.

207. The applicant has seen a great many specialists since 1995 but most of their reports are some years out of date with the exception of Dr Leslie the vascular surgeon who originally diagnosed a thoracic outlet syndrome.

208. Dr Bentevoglio, Dr Thompson, Dr Reid, Dr Oates, Dr Endry-Walder, Dr Salmon, Dr Arnaudon, Dr Stephenson, Dr Quain all agree there is a thoracic outlet syndrome. There is some disagreement as to what caused it and whether it persists. Dr Cameron suggests the problems are all psycho-somatic and Dr Salmon argues along with Dr Deveridge that there is an occupational overuse syndrome which he describes as a myofacial pain syndrome.

209. There is not a lot of explanation before the Court as to how thoracic outlet syndromes affect the neck and the back. The reader of the reports is left to assume that is the case from the assessments being made. Dr Leslie’s operation involved the mobilisation of the nerve roots at C5, C6, C7, C8 and T1 which certainly involves both the cervical and thoracic spines. It does not explain Mrs Gough’s complaints about intermittent low back pain.

210. Accordingly I have identified the following questions requiring my determination to resolve the dispute as to a work related permanent back impairment.
A. Was the applicants thoracic outlet syndrome work related and resulting from either:
(i) work actually causing the syndrome? Or
(ii) work aggravating a pre-existing condition to produce the syndrome?
B. If the work was merely an aggravating factor has it resulted in a permanent back impairment?
C. Did the applicant also sustain chronic musculo-ligamentous strain or strains to her back? If so is there a permanent impairment?
D. Has the repetitive work performed by the applicant caused an overuse syndrome? If so has it caused a permanent impairment of her back?

The Thoracic Outlet Syndrome

211. Mr Small relies on Dr Cameron’s clinical findings that there is now nothing wrong with the applicant and Dr Quain’s and Dr Endry-Walder’s evidence about the nature and cause of thoracic outlet syndromes to argue that what has occurred is the temporary aggravation of constitutional condition that should have resolved within a few months but which in any event should have been cured by surgery.

212. He explains away the applicants continuing symptoms on the basis of Dr Dyball’s report that she has an adjustment disorder caused by her marriage breakdown and alleges her pain is psychosomatic.

213. Dr Endry-Walder explains the causation of thoracic outlet syndrome as I do not think there is much doubt that people who develop this syndrome would in general be predisposed to the syndrome by a congenital anomaly. Given such predisposition it is not difficult to see how excessive physical activity can precipitate this syndrome, which until that time had remained silent, asymptomatic and problem free.

214. Dr Quain describes the abnormality as a rib or fibrous band from the cervical spine to the muscles of the first rib.

215. The Court of Appeal has had occasion to remind this Court recently in Mathew Hall Pty Ltd v Smart (2000) 21 NSWCCR 34 that a genetic predisposition to a condition is by no means the same as a pre-existing condition. Workers Compensation law requires that any congenital predisposition must progress to the point where it becomes a contributing factor to the post injury loss before it can be taken into account by the Court in making its assessment.

216. Dr Leslie the vascular surgeon who is in a far better position than any of the other specialists to speak with authority on this question having actually seen the state of the first rib during his resection suggests that this is not a classical case of work aggravating a pre-existing additional rib. He points out in his report of 13 April 1999 that

People most likely to develop this (ie the syndrome) are those with pre-existing abnormalities around the thoracic outlet.

217. However he goes on to add that

this can range from a fully developed cervical rib or ligaments associated with a cervical rib or the medial border of the first rib....symptoms may be non existent until some strain or injury is superimposed upon this causing damage to scalenus interior or associated muscles.

218. In his report of 11 April 2001 Dr Leslie asserts

although she had a pre-disposition to the thoracic outlet because of her anatomy this was fully precipitated by the work injury and thus she should be compensable for this.

219. He further explains this statement in his report of 7 March 2001 where he says

At operation on the right side there was a fairly tight medial edge to the scalaneus anterior muscle pressing on the lower brachial plexus. Whether this was present since birth or whether trauma had set up an inflammatory reaction with the resultant fibrosis leading to this sharp edge I could not say.

220. Taking all the evidence into consideration on the balance of probabilities I find that the applicants work for the respondent on 21 and 22 March 1995 set up an inflammatory reaction in the tight medial edge of the applicants scalenus anterior muscle causing a fibrosis which in turn exerted pressure on her brachial plexus causing her to develop thoracic outlet syndrome.

221. I further find on the balance of probabilities that the surgery was not successful and the applicant now has a permanent impairment of her back as a result of the syndrome.

Musculo Ligamentous Strain of Back

222. The applicants case that her work also caused a chronic low back strain is based on the report of Dr Deveridge who in his medical history notes her complaint of low back pain as well as thoracic and cervical pain. He describes the condition as a mild lumbar strain injury.

223. For the respondent Dr Cameron noted the applicants complaints of low back pain but found no local tenderness. He found no impairment although he concedes in his report that she may have suffered some musculo ligamentous fatigue at the time.

224. I have accepted the applicant as a truthful witness and she complains of continuing low back pain since her injury.

225. Taking all the evidence into consideration I determine on the balance of probabilities that arising out of and in the course of her work for the respondent on 21 and 22 March 1995 the worker sustained a permanent impairment of her back in the form of a chronic lumbar musculo-ligamentous strain.

Overuse Syndrome

226. There is strong medical evidence presented by the applicant that suggests she also has an overuse or pain syndrome that has developed secondary to her other injuries.

227. Dr Salmon a pain management specialist who regularly gives evidence to this Court about pain syndromes gives a complex description of Mrs Gough’s condition viz:

a myofacial pain syndrome resulting from occupational overuse and contributed to by facet arthralgia and thoracic outlet encroachment as a result of the contracting musculature.

228. Dr Arnaudon opines that the applicants symptoms are consistent with a repetitive type work injury. Dr Timney diagnoses a work related chronic pain disorder. Dr Thompson diagnoses an ongoing neuralgic syndrome.

229. Pain syndromes are recognised these days as somatised pain caused by the brain trying to cope with chronic pain in parts of the body. The respondents Dr Cameron alludes to the possibility of such a problem noting widespread sensory symptoms typical of a non-organic complaint.

230. Taking all the evidence into consideration on the balance of probabilities I determine that secondary to the work related injuries I have previously found the applicant also suffers from a chronic pain syndrome which is contributing to her permanent impairment.
2. The Neck Impairment

231. For the same reasons based on the medical evidence I have accepted I determine on the balance of probabilities that arising out of and in the course of her employment with the respondent the applicant has sustained the following work related injuries that also have made a relevant contribution to her neck impairment:
· a thoracic outlet syndrome
· a musculo ligamentous strain of the cervical spine
· a pain syndrome
3. The Right Arm

232. Again for the reasons previously expressed I find on the balance of probabilities that arising out of and in the course of her employment with the respondent the applicant has sustained three work related injuries that are contributing to the permanent loss of efficient use of her right arm at or above the elbow:
· a thoracic outlet syndrome
· a pain syndrome
· a chronic musculo ligamentous strain of the right shoulder
4. The Left Arm

233. Dr Leslie’s opinion is that the applicants left arm problems also arose out of her work with the respondent. In his report of 13 April 1999 he states on her last visit she noted symptoms developing in the left upper limb and I feel she is developing thoracic outlet syndrome on that side. This is probably related to her original work which involved with both of her arms.

234. The respondents medical records certainly indicate bilateral shoulder problems at the time of her injury. Mrs Gough’s view is that the more severe problems developed in the left arm in 1999 because she was favouring the right. Dr Deveridge’s view is that the applicant has occupational overuse disorder affecting both shoulders as well as thoracic outlet syndrome.

235. The respondent relies on Dr Cameron and Dr Quain who find no shoulder pathology to submit she has no work related loss in the left shoulder. I have not accepted that view in respect of the right shoulder and have preferred the diagnosis of the vascular surgeon Dr Leslie in respect of the thoracic outlet syndrome and Dr Deveridge and Dr Salmon in respect of her overuse and pain syndromes.

236. Taking all the evidence into consideration I determine that arising out of and in the course of her employment with the respondent the applicant has sustained three injuries contributing to a permanent loss of the efficient use of her left arm at or above the elbow viz:
· a chronic musculo-ligamentous strain of her left shoulder
· a pain syndrome
· a thoracic outlet syndrome

The S 66 Assessments

237. I have found work related permanent impairments of the applicants back and neck and permanent losses of the efficient use of both arms. The applicant is therefore entitled to lump sum compensation pursuant to s 66. The range of assessments are as follows:

Doctor	Back	Neck	Right Arm	Left Arm
Dr Cameron	Nil	Nil	Nil	Nil
Dr Endry-Walder	N/A	10 per cent	15 per cent	N/A
Dr Quain	N/A	N/A	NIL	NIL
Dr Ahmed	N/A	10 per cent	30 per cent	N/A
Dr Arnaudon	20 per cent	N/A	60 per cent	N/A
Dr Leslie	N/A	N/A	50 per cent	50 per cent
Dr Deveridge	5 per cent	10 per cent	25 per cent	20 per cent 238. I am not obliged to accept any particular medical assessment and can rely upon all the evidence in making my determination including the evidence of the applicant.

The Back

239. Only two practitioners assess the back namely Dr Deveridge and Dr Arnaudon who give widely divergent assessments. The respondents experts opinions (which I have not accepted) assert that there is no work related back impairment.

240. What Dr Deveridge assesses is a mild lumbar strain injury. However s 66 requires that I assess the applicants back impairment and that includes any impairment to her thoracic as well as her lumbar spine. I have found that Mrs Gough suffers Thoracic Outlet Syndrome and Dr Leslie’s operation involved the mobilisation of her nerve root at T1. Mrs Gough also has a pain syndrome and complains of very widespread pain in her torso including the thoracic area of her back.

241. Taking all the evidence into consideration and comparing Mrs Gough’s permanent back impairment to a most extreme case I determine that it represents 15 per cent of such a case.

The Neck Impairment

242. There is agreement from the medical experts I have accepted as to the appropriate assessment here.

243. Taking all the evidence into consideration and comparing Mrs Gough’s permanent neck impairment to a most extreme case I determine that it represents 10 per cent of such a case.

The Right Arm Loss

244. All the medical experts whose opinions I have accepted agree that the applicant has a substantial right arm loss. Yet the range is wide indeed from Dr Endry-Walder at 15 per cent to Dr Arnaudon at 60 per cent.

245. The applicants evidence is that her right arm is in constant pain and has little strength and she cannot use it to do even simple domestic chores. Mrs Legges confirms that it hangs loosely most of the time.

246. Most surgeon’s are proud of their skills and optimistic when it comes to assessing the outcome of surgery. Dr Leslie who is no doubt in the best position to judge says the applicant has despite his surgery been left with a 50 per cent permanent loss of efficiency in the right arm.

247. Taking all the evidence into consideration I determine that I agree with Dr Leslie and find that the applicants permanent loss of efficient use of her right arm at or above the elbow represents a proportion equal to 50 per cent of the amount payable for the total loss thereof.

The Left Arm

248. The applicants left arm was in the early stages of her injury much better than her right but I have found that the thoracic outlet syndrome has also developed on the left side secondary to a favouring of the right arm. Dr Leslie whose assessment I have accepted on the right shoulder also assesses the left at 50 per cent.

249. Taking all the evidence into consideration I determine that the applicants permanent loss of efficient use of her left arm at or above the elbow represents a proportion equal to 50 per cent of the amount payable for the total loss thereof.
3. APPLICABILITY OF S 68A

250. Dr Quain, Dr Cameron and Dr Endry-Walder have assisted the Court with learning about the general nature of thoracic outlet syndromes.

251. However it is clear from Dr Leslie’s findings on surgery that the pathology causing Mrs Gough’s thoracic outlet syndrome was somewhat different than most. Instead of the classic additional rib or even fibrous ligaments described by the respondents doctors the cause of Mrs Gough’s pathology according to Dr Leslie was a fairly tight medial edge to the scalenus anterior muscle pressing on the brachial plexus. Dr Leslie was unsure as to whether that might have been a pre-existing condition or merely an inflammatory reaction caused by the work. What he was not ambivalent about is that it was the work for the respondent that was responsible for the problem developing.

252. The law is unequivocal that before a deduction can be made under s 68A it must be established that the pre-existing condition was a contributing factor causing permanent impairment. Findings about predisposing factors do not constitute sufficient proof. On the balance of probabilities I accept Dr Leslies theory that the Thoracic Outlet syndrome was solely caused by the applicants work for the respondent.

253. Accordingly I do not propose to make a deduction under s 68A.
4. The Psychological Injury

254. The applicant in support of her claims pursuant to both s 66 and s 67 alleges a psychological injury.

255. There is no doubt that the applicant suffers from a serious psychiatric condition although the medical experts have differences about the application of the American Diagnostic Manual to describe it and the respondent would argue based on Dr Timney’s report that some of the causes of that condition may not be work related.

256. From the applicants camp Christina North the treating psychologist diagnoses a major depression caused by the stress of enduring constant severe pain and anxiety associated with her surgery and the mismanagement by the workers compensation insurer of her case.

257. The respondent relies on the report of Dr Timney a psychiatrist with St John of God Hospital who treated Mrs Gough for Rivitrol abuse in February 1997. He commented in his report During her hospital stay it became obvious that there were other factors which were causing her distress, particularly her marital relationship which appears to be close to the point of break-down.

258. Dr Dyball in August 1999 diagnosed the DSMIV illness Adjustment Disorder with Anxiety. His interview was limited by the presence of Mrs Gough’s 12 year old son. He did not offer an opinion on any nexus between the applicants work and her psychiatric disorder. He did note that the applicants marriage had ended in 1996 after she discovered her husband was having an affair but noted the applicant said she was over that now.

259. The applicant also saw Dr Scott Jenkins psychiatrist on the occasion she was admitted to St John of God Hospital. He diagnosed a melancholic depression secondary to her chronic pain which he asserted was a direct result of her injury. He also noted evidence of marital conflict.

260. Mrs Gough appeared to be in denial and did not want to talk about her psychiatric condition. She said she had given up treatment after her children were harassed at school over it.

261. Mrs Legge the next door neighbour gave evidence that her observation was that the applicant continues to be depressed. Mrs Gough certainly presented in Court as dysfunctional appearing sad very anxious and given to angry outbursts during her evidence.

262. Dr Salmon and several other of the medical experts including Dr Cameron have expressed the opinion that her psychological condition is having the physiological effect of causing widespread pain throughout her body unexplained by her orthopaedic pathology.

263. Taking all the evidence into consideration I determine on the balance of probabilities that arising out of and in the course of her employment with the respondent the applicant has sustained a psychological injury namely melancholic depression.
5. S 67 Assessment

264. I have found moderate impairments of the applicants back and neck and substantial losses of efficient use of both arms which exceed the threshold entitling the applicant to lump sum compensation for her pain and suffering. I have also found a serious psychological injury that is having substantial impact upon her suffering. All in all Mrs Gough presents as an extremely dysfunctional person.

265. For the past 6 years the applicant has endured pain from a gradually worsening set of strains and syndromes that have had a widespread impact on her spine upper limbs and torso and even her mouth. She has also had to endure the pain of two lots of surgery for her Thoracic Outlet Syndrome.

266. The applicant takes and at one stage abused very strong medication for her constant pain. She is the antithesis of the happy person who was good fun, who played and coached netball, went water skiing and cycling, enjoyed her job and enjoyed playing with her children.

267. The applicants marriage broke down about a year after her injuries when her husband left her for another woman. This is one of those chicken and egg situations where without better evidence from the psychiatrists and Mrs Gough it is impossible to say to what extent the injury contributed to the break down. However if Mrs Gough presented to her husband the way she presented to the Court then it is not at all difficult to imagine that her marriage would have been under stress.

268. Mrs Gough’s evidence which is supported by Dr Leslie and Dr Deveridge is that her condition is worsening and I propose to take that factor into consideration in assessing her future pain and suffering. I also propose to give appropriate weight to her age of only 36 years because in the normal course of events she may well have to endure almost 50 years more pain and suffering.

269. Taking all the evidence into consideration and comparing Mrs Gough’s pain and suffering to a most extreme case I determine that it represents 80 per cent of such a case.
6. The S 60 Claims

270. The applicants claims for house keeping and gardening expenses pursuant to s 59(f) and s 60 of the 1987 Act were dealt a severe blow by the recent decision of the Court of Appeal in Western Suburbs Leagues Club v Everill (unreported 30 March 2001 CA 41022/99) which concerned the proper construction of s 59(f) of the 1987 Act.

271. At paragraph 24 of that judgment Justice Handley held that it was not the intention of the Parliament when it enacted s 59(f) to confer the right upon workers to recover the cost of domestic assistance. He asserted that all s 59(f) permitted was the recovery by workers of the costs of their personal care in situations where the worker who is unable to look after himself or herself either at all, or without suffering unacceptable pain, is entitled to the cost of personal care.

272. Justice Handley went on to explain what he meant by this distinction between domestic assistance and personal care by referring to the decision of Chief Judge McGrath in Hugo v Coles Myer Limited (unreported 25 July 1989) where the Chief Judge said in broad terms, it seems to be that the care provided here is really a replacement of the applicant as a wife and mother, in relation to her family, rather than treatment accorded to her.

273. I take it therefore that the domestic assistance will only be seen to qualify under s 59(f) if its true nature is personal care.

274. For this judge the decision in Everills case raises more questions than it resolves as to what domestic assistance if any could be said to be personal care.

275. Mrs Gough has difficulties cooking, attending to her personal hygiene, cleaning her house, dressing and attending to her garden. Her injuries prevent her from performing those tasks either at all or without suffering unacceptable pain,

276. The reality of life is that if those domestic chores are not attended to Mrs Gough’s personal hygiene, health and appearance could rapidly deteriorate. I find it hard to contemplate that the legislature would have intended that seriously injured workers must live in filth and squalor. It would appear that if Chief Judge McGrath’s interpretation is correct that the legislature had no concern for the neglect of a seriously injured workers children.

277. Mrs Gough has a serious psychiatric condition and has already been admitted to a psychiatric hospital on one occasion. The humiliation and degradation of living in unkempt grounds and an uncleaned home unable to properly care for herself or her children might have a serious impact upon a woman with a depressive condition and measures to avoid such a situation may possibly be seen to be personal care.

278. The applicants legal advisers and consequently medical practitioners in this case were unaware of the decision in Everills case when they expressed their opinions as to the nature of domestic assistance she required. Counsel in the case were caught by surprise and their submissions were extemporaneous rather than considered.

279. For these reasons I have decided not to determine the s 60 issue until the parties and their medical advisers have had a further opportunity to consider the merits of her claim in the light of the principles enunciated in Everills case. I propose to adjourn my final determination pending further submissions.

FINDINGS

280. I summarise my findings as follows:
1. Arising out of and in the course of her employment with the respondent the applicant sustained the following injuries:
(a) a permanent impairment of her back resulting from:
(i) a thoracic outlet syndrome and
(ii) a chronic musculo ligamentous strain and
(iii) a chronic pain syndrome
(b) a permanent impairment of her neck resulting from:
(i) a thoracic outlet syndrome and
(ii) a chronic musculo ligamentous strain and
(iii) a chronic pain syndrome
(c) a permanent loss of the efficient use of her right arm at or above the elbow resulting from:
(i) a thoracic outlet syndrome and
(ii) a chronic musculo ligamentous strain and
(iii) a chronic pain syndrome
(d) a permanent loss of loss of the efficient use of her left arm at or above the elbow resulting from:
(i) a thoracic outlet syndrome and
(ii) a chronic musculo ligamentous strain and
(iii) a chronic pain syndrome
(e) a psychological injury namely melancholic depression.
2. The applicant is entitled to the following lump sum compensation pursuant to s 66:
(a) For her permanent back impairment an amount equal to 15 per cent of a most extreme case.
(b) For her neck impairment an amount equal to 10 per cent of a most extreme case.
(c) For her right arm loss a proportion equal to 50 per cent of the amount payable for the total loss thereof.
(d) For her left arm loss an amount equal to 50 per cent of the amount payable for the total loss thereof.
3. S 68A does not apply to reduce the applicants s 66 entitlements.
4. The applicant is entitled to lump sum compensation pursuant to s 67 representing an amount equal to 80 per cent of a most extreme case.

AWARDS

281. I make the following awards:
1. The respondent pay to the applicant pursuant to s 66:
(a) For her back impairment $9,000
(b) For her neck impairment $4,000
(c) For her right arm loss $37,500
(d) For her left arm loss $37,500
2. The respondent pay the applicant pursuant to s 67 $40,000
3. I defer my determination of the workers claims pursuant to s 60 to a date to be fixed for the purpose of hearing further submissions on the implications of Everills case.
4. The respondent pay the applicants costs.
Mr Ingram instructed by Hilton King Solicitors appeared for the applicant
Mr T Small instructed by Connery & Partners appeared for the respondent