Brazel v James N Kirby Pty Limited & others [2001] NSWCC 16 (17 April 2001)

Last Updated: 5 September 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: Brazel v James N Kirby Pty Limited & others [2001] NSWCC 16


PARTIES:
Stephen Brazel
James N Kirby Pty Limited
T Elibeck & Sons Pty Limited
Asset Temporary Personnel Pty Limited


CASE NUMBER: 36883 of 2000 of 2001.00


CATCH WORDS: Statutes & Delegated Legislation


LEGISLATION CITED:


CORAM: Campbell CJ

DATES OF HEARING: 21 February 2001, 17 April 2001, 20 April 2001

DECISION DATE: 17/04/2001


LEGAL REPRESENTATIVES

FOR APPLICANT: Mr M Daly instructed by Brydens Law Office
FOR RESPONDENT:Mr J W Catsanos instructed by Pricewaterhouse Coopers Legal appeared for the first respondent
Mr C M Egan instructed by Nevill & Edwards appeared for the second respondent
Mr T J Willis instructed by Vandervords appeared for the third respondent



JUDGMENT:

1. The applicant in this matter claims lump sums under the Workers Compensation Acts in respect of both legs.

2. Mr Daly of Counsel appeared for the applicant. Mr Catsanos of Counsel appeared for the first respondent (Kirby). Mr Egan of Counsel appeared for the second respondent (Elibeck). Mr Willis of Counsel appeared for the third respondent (Asset).

3. Counsels’ submissions have been recorded, and it is therefore unnecessary for me to refer to each submission, merely to ensure that it is noted.

4. The applicant is a 35 year old married man with a good work history.

5. Between 2 December 1986 and 8 February 1995 he worked for Kirby as a process worker. Between 25 October 1995 and 27 March 1996 he worked for Elibeck as a labourer and spray painter. Between 11 February 1997 and 24 April 1997 he worked for Asset engaged in delivery work.

6. In 1984 the applicant was playing touch football and his left kneecap ‘popped out’. It was put back in place and he was in plaster for three weeks.

7. In 1987 the applicant again dislocated his kneecap in breaking up a fight. At that time he came under the care of Dr Giblin - who has since treated him throughout.

8. Dr Giblin noted in his report of 11 October 1991 that in 1987 the applicant had a lateral capsule release with 7 weeks off work and had been alright since that time. The applicant gave evidence that the procedure was an arthroscopic one carried out by Dr Giblin.

9. The applicant’s evidence was that he had no further ongoing problems until on 25 July 1991 he was squatting down stapling a package containing air conditioners when he twisted and heard a bit of a crack in his left knee which started to swell and ache.

10. The applicant again came under the care of Dr Giblin. An arthroscopy of his left knee showed a large chondral fracture of the lateral tibial condyle sufficient to account for his symptoms.

11. Dr Giblin certified the applicant fit to return to work on 5 September 1991 although he continued to see the doctor with complaints of pain and ache in his knee mainly on the lateral aspect.

12. An MRI in October 1991 showed soft tissue changes within the anterior horn of the lateral meniscus consistent with his symptoms.

13. In his report of 11 October 1991 Dr Giblin estimated that the applicant had a permanent 15 per cent loss of the function of his left leg at or above the knee.

14. Further complaints lead to a repeat arthroscopy on 5 November 1991. Apart from a small hypermobile medial meniscus and some softening of the articular cartilage on the tibial plateaux nothing abnormal was revealed.

15. A subsequent bone scan showed very mild uptake consistent with minimal arthritic changes. In June 1992 the left quadriceps muscle had decreased in bulk and tone when compared with the other side.

16. In a report of 12 August 1992 the doctor said

This gentleman has a chronic soft tissue injury to his knee which has result in post traumatic arthritis and will slowly get worse as he gets older.

The loss of function was again assessed at 15 per cent.

17. On 7 May 1993 Hopkins SC accepted Dr Giblin’s assessment and made an award under section 66 in respect of 15 per cent permanent loss of the efficient use of the applicant’s left leg at or above the knee.

18. In June 1993 the doctor thought that the condition had stabilised with a 15 per cent permanent loss of function. In September 1993 the doctor advised in response to a letter from the applicant’s then solicitors that there was an additional 5 per cent permanent loss of the right (corrected to left) lower limb between the knee.

19. In a report of 7 March 1994 the doctor noted that he had seen the applicant on 17 December 1993 following a twisting of his knee on 17 November 1993. The knee was still a bit sore, however, the doctor asked the applicant to return to work on 13 January 1994 and to have a CT scan. The doctor saw the applicant again on 21 February 1994 and observed that the x-rays showed asymmetry of the patello femoral joint on the left side, the radiological findings being sufficient to account for his symptoms.

20. At that time Dr Giblin considered there to be a 15 per cent permanent loss of the efficient use of the right (actually left) lower limb at or above the knee and 10 per cent permanent loss of the efficient use of the right (actually left) lower limb below the knee.

21. On 7 April 1994 Maguire J by consent made an award under section 66 in respect of 9 per cent permanent loss of the efficient use of the applicant’s left leg below the knee and also an award under section 67. The award in respect of the leg below the knee resulting from the same injury was no doubt made in accordance with the decision of the Court of Appeal in KBH Constructions Pty Ltd v Correia, unreported, 23 March 1993.

22. In February 1995 the applicant ceased to work for Kirby because of a kidney problem. After treatment for that condition he commenced working with Elibeck. I accept that the work he did there, especially the spray painting of cranes, threw considerable strain on his left leg and knee and that the condition of his knee worsened whilst he was working for that company.

23. The applicant left Elibeck to go to a better job with a concrete cutting company, however, that company ran out of work and the applicant commenced employment with Asset a labour hire company.

24. In that employment he principally worked at Thorn delivering television sets and white goods. This included, amongst other things, carrying items up stairways. I accept that the work involved strain upon his left knee and that the condition of the knee worsened during that employment.

25. The applicant ceased that work because on 25 April 1997 when descending some stairs at home his left leg, as he put it, “went to jelly”. The leg swelled up “really big” and the applicant in due course returned to Dr Giblin.

26. At arthroscopy on 13 May 1997 the main finding was partial avulsion of the anterior cruciate ligament. The knee was full of blood. Dr Giblin observed that the knee was stable and that major surgical intervention should not be required. The cartilage and the articular surfaces were undergoing further deterioration.

27. Dr Giblin considered that the current injury and operation were related to his original incident because the giving way of his knee was due to the reflex inhibition caused by the pain from the original injury.

28. Although there are other views Dr Giblin was obviously in the best position to express a view on the point and I accept his opinion.

29. My understanding from the Application for Determination and what fell from Counsel is that Kirby paid for the medical treatment and other compensation entitlements in respect of the incident of 25 April 1997, however, a general order under section 60 is sought and I should indicate, lest my understanding be wrong, that I consider Kirby responsible for these expenses.

30. From August 1997 the applicant commenced work again for another concrete cutting company doing stencilling work and thereafter he worked for, as he still does, a traffic control company. The evidence does not support any undue strains upon his knee in work subsequent to April 1997.

31. Following an examination on 16 December 1998 Dr Giblin reported that there was quite visible muscle wasting above and below the knee on the left side but that movement was good, there was no effusion and the ligaments are intact. He commented:

This gentleman has arthritis in his left knee which will be progressive and permanent.

...

Short term prognosis is all right for a light duties position, the longer term prognosis is guarded.

32. In a second report of the same day Dr Giblin dealt with a number of items raised by the applicant’s solicitors in a letter of 8 December 1998.

He was asked:

Can you please convert the percentage assessment already awarded ie, 9 per cent loss of left leg below the knee and 15 per cent loss of left leg above the knee to a single percentage, referring to the left leg at or above the knee.

The doctor replied:

It would be my opinion, that the awarded percentage assessment of 9 percent below the knee and 15 per cent above the knee would combine to produce 17 ½ percent permanent loss of efficient use of his left leg.

33. It will be observed that the doctor is answering the question asked and not expressing his opinion as to loss of use of the applicant’s leg as a whole at the time of the awards as Mr Daly put in his submission.

34. Dr Millons considered that the answer to that question was around 22 per cent. Dr Hagan expressly joined issue with Dr Giblin on the percentage and said that 15 per cent above and 9 per cent below (using the combined value tables) totals to 22 per cent loss of the efficient use of the left lower limb at or above the knee.

35. This is not a question in which Dr Giblin, as the treating doctor, occupies a special position and I accept the majority view.

36. The next question asked was:

The present percentage permanent loss of the left leg at or above the knee, having regard to all left leg symptoms.

The reply was:

Having regard to this history, it is my opinion that this gentleman now has 27½ percent impairment of his left leg at or above the knee taking into account all symptoms in the left leg as a whole.

37. Dr Patrick assessed the loss in July 2000 as 25 per cent. Dr Millons in January 2000 did not think that there had been an increase beyond 22 per cent. Dr Hagan accepted Dr Giblin’s assessment of 27½ per cent. Dr Wilding did not offer an overall assessment.

38. The reports of Dr Edwards, Dr Smith and Dr O’Sullivan are far removed from the views of the treating doctor and other qualified doctors and do not assist.

39. On the whole of the available material including the evidence of the applicant, I consider that I should accept Dr Giblin’s assessment

40. The solicitor’s letter set out the following history:

Subsequent to the injury, Mr Brazel continued in his employment with James N Kirby up to February 1995. You may recall the nature and conditions of his employment required him to engage in heavy and repetitive bending, lifting and twisting.

For the period October 1995 to March 1996 Mr Brazel was employed with Elbec Cranes as a labourer. He was required to spray pain cranes. Sometimes, we are instructed, this involved prolonged crouching and Mr Brazel had one or two days off work because of knee symptoms.

For the period March 1996 for approximately 5 weeks, he was employed with Smartcut. He was required to operate a concrete cutting and drilling machine. We are instructed that this was not heavy employment and Mr Brazel did not experience any unusual symptoms in his left knee.

Thereafter, Mr Brazel was employed with Asset Personnel, an employment agency, at various locations. We are instructed that for a period of six weeks he was employed at Radio Rentals (Thorn) as a driver and offsider, delivering fridges, TV sets, washing machines, dryers etc. This was a relatively heavy job. During his period of employment at Radio Rentals, his knee gave way whilst negotiating stairs, causing Mr Brazel to stumble, however not fall.

On 21 August 1997 Mr Brazel secured employment with Goodway Concreting Services, constructing stencil driveways. We are instructed the cement is already laid, Mr Brazel is simply required to lay out the stencil and spray on cement. We are advised this is not taxing on Mr Brazel’s leg.

41. The doctor was then asked:

The significance of Mr Brazel’s employment since James N Kirby, if any, to his present knee disability. If you are of the view that his subsequent employment is significant, can you please seek to apportion the increase in disability between the original injury and the balance of his employment with James N Kirby since the date of last settlement (7 April 1994 to February 1995) and his subsequent employment. In relation to subsequent employment, can you please be as specific as possible in relation to which employment you are of the view is responsible.

42. The reply was:

Having regard to his history, it would be my opinion, that the work period from March 1996 for approximately 5 weeks, and the work period of the 21 August 1997 when he was working with Goodway Concreting Services, would not contribute any significant component by way of material aggravation, to his current left or right knee condition.

I would assess the period from October 1995 to March 1996 and then the period of about April 1996 for six weeks, as being equally apportioned in terms of contributory material aggravation to his left knee producing increasing disability and loss of function.

That is to say, that 10 per cent difference between his current impairment and that, at the time of settlement, would be equally shared between those two companies on a 5 per cent, basis each.

43. The letter is somewhat confused as to date. It is, however, clear that the two employers to whom the doctor refers are Elibeck and Asset.

44. Reducing the difference to 5 ½ per cent it may be inferred that the doctor considers that the increased level of loss of efficient use has resulted from the nature and conditions of the applicant’s employment with the second and third respondent and that responsibility should be apportioned equally between them.

45. The doctor does not include as relevant matters the period with Kirby after the settlement nor the injury of 25 April 1997. Both those matters have troubled me especially as Dr Wilding, whose reports were tendered by Mr Willis, considered that there had been a 5 per cent, presumably permanent, loss of use of the left leg at or above the knee as a consequence of the incident of 25 April 1997.

46. On the other hand it is unlikely that Dr Giblin with his demonstrated ongoing knowledge of the applicant’s condition would have inadvertently overlooked those matters.

47. Further, Dr Hagan accepted the apportionment made by Dr Giblin and made no reference either to the further period with Kirby or to the injury of 25 April 1997 although he had a history of both those matters.

48. It does not affect this report that Dr Hagan was mislead by the error in Dr Giblin’s report and thought that the second periods of employment to which he was referring was that with Goodway Constructing Services after 21 August 1997.

49. It may well be that Dr Giblin’s view in respect of the injury of 25 April 1997 is that he considered, as Dr Edwards said in his report of 11 August 2000, that any aggravation caused by that injury would be of a temporary nature.

50. I should note that both Dr Hagan and Dr Wilding considered that the period of employment with Asset did not result in any permanent loss of efficient use of the applicant’s left leg.

51. Dr Millons, whose report was tendered by Mr Egan, did not consider that the applicant’s work with Elibeck had caused any aggravation of the underlying problem

52. Not without doubt I have concluded that I should accept the view of Dr Giblin as to causation and apportionment.

53. Mr Daly did not argue that, if I found there were further injuries, it would be inappropriate to determine a deductable proportion under s 68(A). He did submit that if found such a proportion it should be the statutory one tenth. However, I consider that to so find would be at odds with the evidence in this case. As pointed out by Mr Catsanos Dr Patrick arrived at a deductable proportion of one fifth and I propose to adopt that view.

54. Mr Catsanos did raise an argument that the matter should be dealt with under the disease provisions of the Act. However, quite apart from pleading problems, I consider this to be a case of frank traumatic injury with subsequent aggravations by periods of employment involving multiple micro-traumata.

55. There is a claim for loss of efficient use of the right leg. The applicant gave evidence that he had aching and pain in that leg at times, he said:

It’s mainly when the left leg plays up and I put all my weight on to the right leg.

56. In one of his reports of 16 December 1998 Dr Giblin said:

With the passage of time, the right knee, exercising under an increasing work load, will also develop similar symptoms.

57. The doctor appears to be speaking of the future.

58. In the solicitor’s letter of 8 December 1998 the doctor was asked:

As a result of left knee symptoms, Mr Brazel has had to rely heavily on the right leg. If you are of the view that this has resulted in a permanent disability, can you please comment upon this and please give an assessment of the percentage permanent loss of the right leg at or above the knee.

59. He replied in the other letter of 16 December 1998:

In terms of his symptoms in the right knee, he has a permanent disability in the order of 5 per cent as a result of favouring the left leg and this 5 per cent loss of the right leg is at or above the knee.

60. This letter seems to speak of the present, that is, at the date of the letter.

61. Dr Patrick in July 2000 made no reference to the right knee. There is no reference to it in his list of symptoms.

62. Dr Edwards on 11 August 2000 had a history of about two years ago the right leg started to get a little painful and that the symptoms were intermittent. The doctor observed that the applicant had not suffered any permanent disability of his right leg whilst employed by James Kirby.

63. Dr O’Sullivan in August 2000 considered there to be no measurable permanent disability of the right leg. Dr Smith in November 1999 was of a similar view. Dr Millons, who examined the applicant on 22 December 1999, had a history of some aching in his right knee for some months. Dr Millons said that he could not find much untoward in that region. He did not proffer as assessment of permanent loss. It may be inferred from his report as a whole that he did not consider that there was such a loss.

64. Dr Hagan noted in February 2000 that the applicant did not complain of right leg symptoms and that the right knee was normal to examination. It may be inferred from his report that he did not consider that there was a permanent loss of the efficient use of the right leg.

65. Dr Wilding in March 2000 had a complaint of minor symptoms in the right knee. He commented that he did not consider that there is a work related loss of efficient use of the right leg.

66. In the light of this evidence I am not satisfied that it is more probable than not that the applicant currently suffers from a permanent loss of the efficient use of the right leg. That is not to say that he may not develop such a loss in the future as clearly Dr Giblin expects that he will.

67. My findings may be summarised as follows:

The applicant suffered injury to his left knee on 25 July 1991 arising out of and in the course of his employment with the first respondent.

As a result of that injury the applicant incurred expense for reasonably necessary hospital and medical treatment including such treatment following a fall on 25 April 1997.

The applicant suffered injury to his left knee between 25 October 1995 and 27 March 1996 arising out of and in the course of his employment with the second respondent.

The applicant suffered injuries to his left knee between 11 February 1997 and 24 April 1997 arising out of and in the course of his employment with the third respondent.

As a result of the injuries referred to in findings (c) and (d) the applicant has suffered 5.5 per cent permanent loss of the efficient use of the left leg at or above the knee with a deductable proportion of one fifth.

The said loss resulted partly from the injuries referred to in finding (c) and partly from the injuries referred to in finding (d).

68. I make an award for the applicant:

Against the first respondent under s60 for hospital and medical expenses including those related to the fall of 25 April 1997.

Against the third respondent under s66 in the sum of $3,300 in respect of 5.5% permanent loss of the efficient use of the left leg at or above the knee after allowing for the deductable proportion.

Hospital and medical expenses - s60.

I apportion the award against the third respondent as to one half to the second respondent and one half to the third respondent.

I expect the parties to agree upon any claim for interest but grant them liberty to apply should they be unable to do so.

I shall hear the parties as to costs.
Mr M Daly instructed by Brydens Law Office appeared for the applicant
Mr J W Catsanos instructed by Pricewaterhouse Coopers Legal appeared for the first respondent
Mr C M Egan instructed by Nevill & Edwards appeared for the second respondent
Mr T J Willis instructed by Vandervords appeared for the third respondent