McPaul v BHP Steel (Ais) Pty Ltd [2001] NSWCC 89 (21 March 2001)

Last Updated: 5 September 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: McPaul v BHP Steel (AIS) Pty Ltd [2001] NSWCC 89


PARTIES:
David McPaul
v
BHP Steel (AIS) Pty Ltd


CASE NUMBER: 42848 of 2000 of 2001.00


CATCH WORDS: Statutes & Delegated Legislation


LEGISLATION CITED:


CORAM: Walker J

DATES OF HEARING: 20/03/01

EX TEMPORE DATE: 21/03/2001


LEGAL REPRESENTATIVES

FOR APPLICANT: Mr A Monaghan instructed by Carters Law Firm appeared for the applicant
FOR RESPONDENT: Mr Stone instructed by Sparke Helmore appeared for the respondent


JUDGMENT:

The Claim

1. David McPaul claims lump sum compensation pursuant to s 66 and s 67 in respect of injuries to his left hand, left arm and neck.

2. The basis of his claim is that arising out of and in the course of his employment with the respondent as a rigger/crane driver he injured his left hand on 6 February 1997 when he fell off a machine and his left shoulder on 28 April 1998 lifting a heavy locknut. The neck injury was alleged to be secondary to the left shoulder injury.

The Issues

3. The respondent admits injury in respect of the left hand and left arm claims. Injury and permanency are in issue in respect of the neck claim. The quantum of the lump sum claims is also in issue.

Matters for Determination
1. Did the worker injure his
(a) left hand
(b) left arm
(c) neck arising out of and in the course of his employment with the respondent.
2. If so, what is the appropriate lump sum compensation pursuant to s 66?
3.. If the s 67 threshold is exceeded, what is the appropriate lump sum compensation for his pain and suffering?

The Evidence

The Applicant

4. David McPaul gave evidence that he is 27 years of age and has worked with the respondent as a rigger/crane driver for some years. On 6 February 1997 he fell off a machine and landed heavily on his left hand, fracturing the fourth metacarpal. He was off work for a few weeks then returned to light work for a few more weeks before resuming normal duties. The applicant said he was right-hand dominant but the left hand continued to cause him problems - both at work and in his domestic and recreational activities.

5. Then on 28 April 1988 whilst lifting a 55 kg locknut he dislocated his left shoulder. He saw his general practitioner who referred him to Dr Goldberg, an orthopaedic surgeon, for treatment. Dr Goldberg operated on the left shoulder to stabilise it on 10 November 1998.

6. Mr McPaul again returned to work on light duties for a period before returning to his normal job as a rigger/train driver. The worker said his problem with his left hand and left shoulder continued. He then told the Court that after the operation he found himself heavily favouring his dominant right arm. While he was undergoing physiotherapy he noticed he was developing muscular problems in his neck. He described these problems as development of "knotting" in the neck muscles followed by a pinching of a nerve in the neck. This was very painful and severely restricted his movement in the neck. Mr McPaul said he would be disabled by the pain for some three to four days. These problems have continued ever since.

7. The applicant then described his current left shoulder problems. He said that notwithstanding the operation the left shoulder dislocates from time to time if he lifts anything heavy or gets it in an awkward position. Heavy work makes the shoulder very painful as does cold weather. He treats the problem with pain killers and visits his first-aid station at work for massage. Mr McPaul said that his left hand also pains in cold weather. He has lost a great deal of grip strength in the hand and has problems lifting things with it. The applicant said that he had been a very active sportsman prior to his injuries, engaging in rugby league, swimming, gymnasium workouts and motorcross. He can no longer enjoy these sports.

8. Mr McPaul said that driving a crane is not particularly heavy work, but has some physical side to it such as fitting a sling to the load and fixing the chain to the crane.

9. Mr McPaul then described his distress as a young and active man at being reduced to his current physical state.

Cross Examination

10. Mr McPaul agreed he played rugby league between his left hand and left arm injuries. He said he had no problems catching or holding a football in the hand. His problem was lifting heavy things and maintaining grip strength. Mr McPaul agreed that he further injured his left arm swimming. He said he was swimming on doctors' advice. Mr McPaul agreed that he does not receive any medical treatment for his injuries these days other than physiotherapy and swimming. He takes pain killers when he needs them. Mr McPaul said that he first noticed his neck problem doing physiotherapy after his left shoulder operation. The applicant said that his shoulder and neck pain was bad "every other day" while he was performing heavy physical work but when he was on clerical duties it only troubled him about once a fortnight. I found the applicant to be an impressive and truthful witness.

THE MEDICAL EVIDENCE

THE APPLICANT'S MEDICAL CASE

Dr Neil A Berry

11. The applicant saw Dr Berry, who is a specialist surgeon, for assessment on 23 October 2000. His opinion was that the applicant sustained a displaced back fracture of his fourth metacarpal. He felt the residual symptoms were in keeping with the injury. He also sustained a traumatic dislocation of his left shoulder resulting in damage to the anterior capsule and rotator cuff. The stabilisation procedure trades movement for stability. He felt the applicant's continued feeling of instability and discomfort were also consistent with the injury. He assessed a 10 per cent permanent neck impairment of 25 per cent permanent loss of the efficient use of the left arm at or above the elbow and a 10 per cent permanent loss of the efficient use of the left hand.

Dr G G Mahony

12. The applicant says he saw Dr Mahony, an orthopaedic specialist, for assessment on 9 December 1999. His opinion was the applicant had fractured his left fourth metacarpal at work requiring open reduction. He also sustained a dislocation of his left shoulder which had become recurrent. He then went on to say that the applicant "has added symptoms referable to a cervical neck strain. It is consistent that the nature of his work has influenced the development of such symptoms". Dr Mahony assessed a 35 per cent permanent loss of the efficient use of the left arm above the elbow, a 17.5 per cent permanent loss of the left arm below the elbow and a 10 per cent permanent impairment of the neck.

Dr J Goldberg

13. The applicant was treated by Dr Goldberg for his left shoulder injury. He diagnosed an unstable left shoulder. He operated on 10 November 1998. He said the applicant had a Grade III anterior instability with fraying of the anterior inferior labrum and a widened rotator interval. He carried out a shoulder stabilisation. On 16 December 1998 he was hopeful that the applicant could by June of 1999 resume full and unrestricted activities without any long term problems. On 23 June 1999 he reviewed the applicant describing him as a "virtually asymptomatic". Nonetheless, he still noted that two weeks earlier he had shoulder pain swimming. He recommended further physiotherapy to strengthen the deltoid rotator cuff and scapular stabilisers. He then expected the applicant to return to full duties in three months.

14. On 4 May of 2000 Dr Goldberg reviewed the applicant yet again. This was some 18 months after the operation. He still diagnosed an unstable left shoulder but was optimistic because "surgery carries a 97 per cent success rate". He nevertheless found a 10 per cent permanent loss of efficient use of the left arm above the elbow.

Dr Mark Haber

15. The applicant was treated by Dr Haber, an orthopaedic surgeon, for his left hand injury. He operated on 19 February 1997 with an open reduction and internal fixation of K wires - the wires removed on 4 April 1997 and the hand given physiotherapy. He felt the applicant had essentially recovered from the injury. He made no assessment of permanent loss of efficient use of the left hand.

THE RESPONDENT'S MEDICAL CASE

Dr Neil W McGill

16. The applicant saw Dr McGill, a rheumatologist, for assessment on behalf of the respondent on 2 June 2000. His opinion was that the applicant suffered a subluxation to his left shoulder in April 1998 and a fracture of the left fourth metacarpal. He diagnosed instability in the left shoulder and said work was the primary cause. He assessed a permanent loss of the efficient use of the left arm above the elbow of 10 per cent and below the elbow of 5 per cent. He found no neck impairment or loss of efficient use of the left arm due to the fourth metacarpal fracture.

Dr W J Lyons

17. The applicant saw Dr Lyons, an orthopaedic surgeon for assessment on behalf of the respondent on 31 January 2001. He found an 18 per cent permanent loss of efficient use of the left arm above the elbow and a 5 per cent permanent loss of efficient use of the left hand. He found no neck impairment.

ANALYSIS OF THE MEDICAL EVIDENCE

18. Matters requiring my determination with the assistance of medical evidence are:
· Neck injury and its causation and permanency.
· S 66 assessments.
· S 67 assessment.

The Neck Injury
(a) Causation and Permanency

19. There is a conflict of the expert medical evidence in regard to the alleged permanent neck impairment. The applicant's evidence is that after the shoulder operation by Dr Goldberg in November of 1998 he found himself favouring his dominant right arm. His perception was this caused his neck muscles to strain and knot . Dr McGill - who specialises in rheumatology, not orthopaedics - found the neck movement to be unrestricted and found no impairment of the neck. Dr Lyons, an orthopaedic specialist, took a much more comprehensive account of the neck problems. He described the applicant's symptoms as "extremely vague" and could not relate them in any way to the restricted shoulder activity. He diagnosed a postural neck strain which he said was idiopathic but should be relieved by exercise.

20. In the applicant's camp Dr Berry found mild tenderness when he examined the cervical spine and restrictions of movement, the periodic spasms complained of by the applicant were not present on his examination. Dr Berry said there was a 10 per cent permanent neck impairment but neglected to enlighten us as to what he thought was causing it. Dr Graham Mahony, the applicant's orthopaedic specialist, also found a neck impairment and said it was work-related. Unfortunately, he did not explain how other than by saying "it is consistent with the way the nature of his work has influenced the development of such symptoms".

21. The Court of Appeal counsels that this Court should resolve such medical conflicts by applying common sense to the chain of causation and asking the question whether the impairment resulted from the injury impugned. The chain of causation as I read the evidence is:
1. Prior to the applicant's left shoulder dislocation in April 1998 he had no shoulder or neck problems.
2. The applicant's left shoulder then required surgery because of its instability.
3. The surgery made the shoulder more stable but the trade-off was that its movement was more restricted. The applicant's evidence, which I accept as truthful, is that he was still left with some instability in the left shoulder and a feeling of "looseness".
4. The applicant's further evidence is because of his continuing left shoulder looseness and restricted movement he began to heavily favour his dominant right arm.
5. The applicant said he first noticed a problem in the neck when after physiotherapy his neck muscles began to spasm and knot and the nerves pinched, causing severe pain and immobility in the neck.
6. The applicant's evidence is that his spasming and nerve pinching occurred intermittently but nevertheless regularly after heavy lifting or when he got his body in awkward situations. The pain would lay him low for three to four days before resolving. The problem continues.

22. Common sense suggests to me that given there was no pathology revealed by the special investigations the applicant's neck symptoms must relate to a soft tissue injury or muscular strain. Common sense suggests that a dominant right arm man with a severely restricted left shoulder is most likely to be strongly favouring his right arm performing heavy work. Common sense suggests that such an unbalanced activity is likely to cause a strain in the neck muscles between the shoulders as suggested by Dr Mahony.

23. Taking all the evidence into consideration on the balance of probabilities I determine that:

24. As a result of the left shoulder injury the applicant has sustained a secondary injury to his neck in the form of a chronic muscle strain. Common sense suggests to me that since this problem has continued intermittently - but, nevertheless, regularly - since late 1998, that it is chronic and will probably continue into the indefinite future. Accordingly, on the balance of probabilities I determine that the neck strain is permanent.
(b) S 66 Assessments

25. Injury and permanency is admitted in respect of the upper left arm and left hand losses. I found a work-related permanent impairment of the neck. The applicant is therefore entitled to lump sum compensation pursuant to s 66.

26. The following table summarises the assessment of the medical experts.

Doctor Neck Left Arm Above Left Hand

Dr Haber N A N A N A

Dr McGill Nil 10 per cent Nil

Dr Lyons Nil 18 per cent 5 per cent

Dr Goldberg N A 10 per cent N A

Dr Berry 10 per cent 25 per cent 10 per cent

Dr Mahony 10 per cent 35 per cent 17.5 per cent (left lower limb)

27. I should make some preliminary comments here.

28. Firstly, Dr Mahony's assessment of 17.5 per cent is for the lower arm - not the hand. There is no suggestion in the evidence that the fracture of the 4th metacarpal extends any further than the hand. Dr Mahony's assessment is that the best indicative only - and I do not propose to rely upon it.

29. Dr Haber, who operated on the hand, did not provide an assessment. There is no suggestion that he was asked to do so. Given the tenor of his report, one might understand why he was not pressed to do so.

30. Dr Goldberg, like Dr Haber, was an operating surgeon. This Court, as an expert tribunal, notices that surgeons tend to be very proud of their handy work - particularly hand surgeons and more often than not extremely optimistic in prognosis and extremely conservative in the assessment of any permanent disability that flows from their surgical efforts.

31. In any event, I am not obliged to accept any particular medical assessment and can rely on all the evidence including that of the applicant in making my determination.

The Neck

32. The applicant's evidence is that his neck problems are intermittent, occurring after strenuous activity which he does his best to avoid. However, when they appear they are severe - laying him low for three to four days. Taking all the evidence into consideration and comparing the applicant's permanent neck impairment to a most extreme case, I determine that it represents 10 per cent of such a case.

The Left Hand

33. Taking all the evidence into consideration I determine that the applicant's permanent loss of efficient use of his left hand represents a proportion equal to 5 per cent of the amount payable for the total loss thereof.

The Left Arm

34. Taking all the evidence into consideration I determine that the applicant's permanent loss of the efficient use of his left arm at or above the elbow represents a proportion equal to 30 per cent of the amount payable for the total loss thereof.
(c) s 66 Assessments

35. I find a significant left arm loss (that is above the elbow) and moderate neck impairment. The applicant has exceeded the s 67 threshold entitling him to lump sum compensation for his pain and suffering.

36. The applicant's pain is only severe on an intermittent basis and he is working regularly. As a crane driver he complains of such pain every other day. He also gets regular pain in cold weather. The neck pain and spasms can be very severe. This is not so regular but leaves him with strong pain for up to four days. The applicant was an active sportsman prior to his injuries and at a young age has been denied the pleasure of such physical activities as rugby league, the gymnasium, swimming and motor cross. Naturally this causes him considerable distress.

37. The strongest element of the applicant's s 67 case is his age. In the normal course of events he can be expected to endure well over 50 years of future pain and suffering.

38. Taking all the evidence into consideration and comparing the applicant's pain and suffering to a most extreme case, I determine that it represents 40 per cent of such a case.

FINDINGS

39. I summarise my findings as follows:
1. Arising out of in the course of his employment with the respondent the applicant sustained the following injuries:
(a) A fracture of his left 4th metacarpal.
(b) A dislocation of his left shoulder.
(c) An injury in the form of a chronic soft-tissue injury to his neck secondary to the left shoulder injury.
2. The applicant has consequently sustained:
(a) A 10 per cent permanent impairment of his neck.
(b) A 5 per cent permanent loss of efficient use of his left hand, and
(c) A 30 per cent permanent loss of efficient use of his left arm at or above the elbow.
3. The applicant is entitled to lump sum compensation for his pain and suffering representing 40 per cent of a most extreme case.

AWARDS

40. I make the following awards:
1. The respondent pay to the applicant pursuant to s 66
(a) For his neck impairment - $4,000.
(b) For his left hand loss - $3,250.
(c) For his left arm loss - $22,500.
2. The respondent pay to the applicant pursuant to s 67 - $20,000.
3. The respondent pay the applicant's medical expenses pursuant to s 60.
4. The respondent pay the applicant's costs.
5. I certify counsel's fee for taking judgment.

Mr Monaghan instructed by Carters Law Firm appeared for the applicant
Mr Stone instructed by Sparke Helmore appeared for the respondent